FF 410292-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.: FF 410292 RO
J. R. EQUITIES INC. DISTRICT RENT
ADMINISTRATOR'S DOCKET
NO.: EG 410039 S
PETITIONER
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ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW
On June 17, 1991 the above named petitioner-owner timely
refiled a Petition for Administrative Review against an order of
the Rent Administrator issued November 20, 1990. The order
concerned housing accommodations known as Apt. 1D located at 206
E. 17th Street, New York, N.Y. wherein the Administrator ordered
a rent reduction based on a finding of failure to maintain
required or essential services,
The Commissioner has reviewed the record and carefully
considered that portion relevant to the issues raised by this
appeal.
The tenant commenced this proceeding on July 1, 1990 by
filing a Statement of Complaint of Decrease in Services wherein
she alleged the following:
1. The bathtub failed to drain properly
2. The bathroom basin failed to drain properly
3. The toilet failed to drain and flush properly;
sewage was seeping onto the bathroom floor
4. There was oozing and seepage from the toilet
The complaint was served on the owner and an opportunity to
respond was afforded.
The owner filed a response on July 27, 1990. The owner
stated that, a repairman had been sent to the apartment to
investigate the tenant's complaints. The toilet and tub drains
were cleaned and a washer replaced in the sink. The toilet seat
was also replaced. The owner also stated that there was an
accumulation of garbage in the apartment that made repairs
difficult. Subsequent to these repairs, the tenant again
complained of oozing at the base of the toilet. The owner again
investigated this and found no evidence of oozing or seepage and
also found the toilet to be functioning properly.
The Administrator ordered a physical inspection of the
premises. The inspection was carried out on August 7 and August
10, 1990 and revealed the following:
1. Clogged bathtub and basin drain in bathroom
2. Water leak from toilet pipe below water tank
3. Toilet does not flush properly
On November 20, 1990 the Administrator issued the order here
under review wherein a rent reduction was granted, effective
August 1, 1990, based on the inspector's report.
On appeal the owner makes two arguments in seeking reversal
of the order here under review. First, the owner repeats its
claim that the toilet worked properly, with no leak, seepage or
oozing. Second, the owner attempts to document the tenant's
failure to provide access to the apartment, so that repairs can
be made. The tenant did not respond to the petition.
After careful review of the evidence in the record, the
Commissioner is of the opinion that the petition should be
denied.
With regard to the owner's claim that the toilet functions
properly, such statements are at variance with the inspector's
report. It is settled that the report of a DHCR inspector is
entitled to more probative weight than the unsupported
allegations of a party to the proceeding.
With regard to the alleged failure of the tenant to provide
access, it is equally settled that the scope of review in an
administrative appeal is limited to facts and evidence which were
before the Administrator. Petitioner did not put forth this
claim in the proceeding below and is now barred from doing so
before the Commissioner. Had the owner established that the
tenant was refusing access, the Administrator could have arranged
a "no access" inspection at which the owner and tenant would be
directed to be present at an appointed date so that the repairs
could be done. Having not done so, the order here under review
is affirmed and the owner is advised to file a rent restoration
application when the repairs are completed or the owner can
establish that the tenant is refusing access.
THEREFORE, pursuant to the Rent Stabilization Law and Code
it is
ORDERED, that this petition be, and the same hereby is,
denied, and that the Rent Administrator's order be, and the same
hereby is, affirmed.
ISSUED:
JOSEPH A. D'AGOSTA
Acting Deputy Commissioner
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