Docket No: FE 420165-RO
STATE OF NEW YORK
DIVISION OF HOUSING AND COMMUNITY RENEWAL
OFFICE OF RENT ADMINISTRATION
GERTZ PLAZA
92-31 UNION HALL STREET
JAMAICA, NEW YORK 11433
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IN THE MATTER OF THE ADMINISTRATIVE : ADMINISTRATIVE REVIEW
APPEAL OF : DOCKET NO.: FE 420165-RO
:
URBAN ASSOCIATES/ : DISTRICT RENT ADMINISTRATOR'S
THOMAS ROSENTHAL, : DOCKET NO.: DK 420104-S
:
PETITIONER :
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ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW
On May 15, 1991, the above-named owner filed a timely petition for
administrative review of an order issued on April 9, 1991 concerning
the housing accommodations relating to the above-described docket
number.
This administrative appeal is being determined pursuant to the
provisions of 9 NYCRR 2520.6(r) and 9 NYCRR 2523.4.
The Commissioner has reviewed all the evidence in the record and has
carefully considered that portion of the record relevant to the
issues raised by the petition.
On November 8, 1989, the tenant commenced this proceeding by filing
a complaint asserting that the owner had failed to maintain certain
services in the subject apartment, in particular, the presence of
leak.
In its answer filed on December 6, 1989, the owner asserted inter
alia that all required repairs had been completed.
In reply to the owner's answer filed on December 19, 1990 and
January 9, 1991, the tenant denied that repairs were made.
Thereafter on April 1, 1991, an inspection of the subject apartment
was conducted by a D.H.C.R. inspector who confirmed the existence of
defective conditions.
The Administrator directed on April 9, 1991 the restoration of these
services and further ordered a reduction of the stabilization rent.
In this petition, the owner contends in substance that the tenant
"consistently denied access" and that it "should not be held
responsible for repairs not completed when access was refused
below."
Docket No: FE 420165-RO
In reply, the tenant denied that it refused access and otherwise
asserted that the repair people came to its apartment at various
times, but they never stopped the leak.
After careful consideration, the Commissioner is of the opinion that
the petition should be denied.
The Commissioner finds the owner's allegation that the tenant
refused access is belied by the record wherein the owner requested
the tenant to contact repair people. In addition, though the owner
contends in this petition and only on appeal that certified mailings
to the tenant were made to allow access, the owner never raised this
defense in the proceeding below and failed to request, pursuant to
Policy Statement 90-5, No/Access inspection for repairs.
Furthermore, the tenant indicated that at various times during the
period of December 1990 through May 1991, it attempted to have the
owner's repair people seal the leak. However, the leak was never
repaired by the owner.
Accordingly, the Commissioner finds that the Administrator properly
based its determination on the entire record, including the April 1,
1991 inspection which disclosed defective conditions. Moreover, the
owner had seventeen months from the date of service of the tenant's
complaint until the issuance of the Administrator's order to
investigate the tenant's complaint and to do the necessary repairs,
but the owner failed to do so.
This Order and Opinion is issued without prejudice to the owner's
right to file the appropriate application for restoration of rent
based upon the restoration of services, if the facts so warrant.
THEREFORE, in accordance with the Rent and Eviction Regulations, it
is
ORDERED, that this petition be, and the same hereby is, denied and
that the District Rent Administrator's order be, and the same hereby
is, affirmed.
ISSUED:
ELLIOT SANDER
Deputy Commissioner
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