FH110095RO
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
----------------------------------x SJR 6667 DEEMED DENIAL
IN THE MATTER OF THE ADMINISTRATIVE ADMINISTRATIVE REVIEW
APPEAL OF DOCKET NO.: FH110095RO
COPENHAGEN LEASING CO. RENT
ADMINISTRATOR'S DOCKET
NO.: EJ110008RK
PETITIONER
----------------------------------x
ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW
On July 31, 1991 the above named petitioner-owner filed a
Petition for Administrative Review against an order of the Rent
Administrator issued June 26, 1991. The order concerned housing
accommodations known as Apt 16B located at 96-08 57th Avenue,
Corona, N.Y. The Administrator issued an order wherein a prior
order, denying the owner's application for rent restoration, was
affirmed.
Subsequently, the owner instituted a proceeding pursuant to
Article 78 of the Civil Practice Law and Rules in New York State
Supreme Court deeming its petition for administrative review
denied. A settlement was then entered into wherein the DHCR agreed
to issue a decision on the owner's petition no later than March 8,
1993.
The Commissioner has reviewed the record and carefully
considered that portion relevant to the issues raised by this
appeal.
The owner originally commenced this proceeding on January 22,
1990 by filing an Application for Rent Restoration wherein it
alleged that it had restored all remaining services in the subject
apartment for which a rent reduction order had been issued in
Docket No. CB110105S. A prior rent restoration application
(CH110095OR) had been denied on August 25, 1989 based on a finding
that there was peeling paint on the bathroom wall next to the
showerhead and the bathroom ceiling and wall had not been painted;
several window sashes were defective and one kitchen cabinet door
required repair. The kitchen light fixture and bathroom sink drain
problem were found to have been repaired. The rent restoration
application was assigned Docket No. EA110160OR. The owner stated in
FH110095RO
the application that the tenant is uncooperative and refuses to
allow access for the purpose of making repairs. A court order of
access was obtained and all repairs were made the week of December
26, 1989. The owner attached to the application copies of
photographs, work orders, and letters and court proceedings
regarding attempts to arrange access.
After proper service of the application on the tenant, the
Administrator ordered a "no access" inspection to investigate
whether services had been restored. The physical inspection on
June 4, 1990 revealed, among other things, that there was peeling
paint and plaster on the bathroom ceiling above the bathtub. The
inspector reported that there was an agreement between the tenant
and managing agent for the peeling paint and plaster condition to
be repaired by the painter at 12:30 PM that same day. The tenant
telephoned the inspector later that day and reported that no one
showed up to do the repairs. On June 7, 1990, the owner was
advised of the inspection and afforded an opportunity to submit
evidence of repairs within 20 days. The Administrator denied the
owner's application based on the owner's failure to submit a
response to this notice.
The owner sent a letter to the Administrator on August 16,
1990 wherein the owner documented that it had, in fact, responded
to the Administrator's notice on June 19, 1990 wherein it stated
that the painting contractor completed the necessary repairs on
June 4, 1990 but the tenant refused to sign a work ticket. The
owner attached an affidavit by the painting contractor. The owner
requested that the Administrator revoke the order described above
and issue a new order granting the rent restoration application.
The Administrator sent a notice to the parties on October 23, 1990
stating that the proceeding was being reopened. The parties were
afforded the opportunity to submit responses and additional
evidence on the question of whether the owner's application for
rent restoration should be granted. The Administrator further
stated that an additional inspection would be conducted if
necessary.
The owner filed a response to the notice on November 1, 1990
and stated the following:
1. The inspection report in the original rent
restoration proceeding made reference to conditions
found to have been maintained by the Administrator
in the rent reduction order,
2. Repairs to the bathroom ceiling were completed on
June 4, 1990, the same day of the DHCR inspection
in the original rent restoration proceeding. The
owner supplied an affidavit from a painting
contractor as evidence that the repairs had been
completed,
FH110095RO
3. The tenant has repeatedly refused to grant access
to the apartment and also refuses to acknowledge
that any work has been done. The owner further
stated that numerous letters have been submitted to
the DHCR to document the failure of the tenant to
afford access and that the agency was also notified
of two court proceedings begun by the owner to
compel the tenant to give access for repairs.
The tenant filed a response to the Administrator's notice on
November 1, 1990 and stated that the owner's painter had painted
over the peeling paint and protruding plaster without scraping it
first and after it dried, it began cracking and peeling again. The
tenant acknowledged refusing to sign any work orders because the
job had not been completed.
On November 13, 1990 the owner wrote a letter to the
Administrator and stated that it had sent a mailgram to the tenant
wherein it had requested that the tenant give access for repairs on
November 9, 1990. The owner's representatives allegedly appeared
at the apartment at two different times on the day in question, but
could not gain access to the apartment.
On January 8, 1991 the tenant wrote a letter to the owner with
a copy to DHCR wherein she stated that the owner had agreed to make
repairs on December 5, 1990, that she was present on that date and
gave access to the owner's representatives, that repairs were made
but not completed, and that the owner is harassing her in its
attempts to make repairs.
The Administrator determined that an additional physical
inspection was necessary and ordered one to be conducted. The
inspection was conducted on May 8, 1991 and revealed that the
bathroom ceiling was not repaired in a workmanlike manner in that
the ceiling had not been scraped prior to painting and had then
been sloppily painted.
The Administrator issued the order here under review on June
26, 1991 and affirmed the prior order denying the owner's rent
restoration application.
On appeal the owner, through counsel, states that the
Administrator failed to forward to it the response of the tenant
wherein it was alleged that there were problems with the repair of
the ceiling. The owner states that it was denied due process of
law by this failure. The owner also states that the due process
violation was compounded by the failure of the tenant to afford
access so that the owner could inspect the repairs. Finally, the
owner states that it has made a good faith effort to make repairs,
that the sole remaining condition is in the nature of a minor
violation and that it is inequitable to not restore the rent. The
FH110095RO
owner points out that the tenant has filed numerous complaints with
the DHCR in what it characterizes as an attempt to keep from paying
her rent. Attached to the petition are numerous exhibits detailing
the history of complaints the tenant has filed with the DHCR as
well as the specific history of this proceeding and the owner's
attempts to correct the conditions described in the rent reduction
order.
The tenant filed a response on September 3, 1991 wherein she
stated that she had informed the owner on numerous occasions that
there was a leak in the bathroom and that merely painting over the
ceiling would not correct the problem. The tenant also reaffirmed
that the bathroom ceiling still had not been repaired.
After careful review of the evidence in the record, the
Commissioner is of the opinion that the petition should be denied.
It is clear from the record, including the correspondence
between the parties, that the owner was on notice that any repairs
made on June 4, 1990 were not done in a workmanlike manner. In a
letter sent by the tenant to the owner and dated January 8, 1991
the tenant specifically informed the owner that the repair work in
her apartment had not been completed. The tenant also refused to
sign work orders to the effect that the repairs had been made in a
workmanlike manner. It is clear from the long history of this
proceeding that the owner has been put on adequate and continued
notice that the condition in the bathroom remains uncorrected.
The Commissioner also finds that the owner has not set forth
sufficient facts to document that the tenant has refused to provide
access to the apartment. It is undisputed from the record that the
owner has been allowed some access to the apartment and has made
repairs. It is also clear that these repairs were not done in the
workmanlike manner which is required in order for a rent reduction
application to be granted. The owner's rent restoration
application was properly denied based on a record showing that
access had been obtained but the repairs were not done properly.
With regard to the owner's argument that the remaining
condition is minor and that it is inequitable to continue to impose
this rent reduction, the Commissioner notes that a rent restoration
is not warranted until each condition cited in the rent reduction
order has been corrected. Peeling paint and plaster particularly
when caused by an underlying, uncorrected leak is not a minor
condition. The owner is required to investigate the problem,
determine the cause of the leak and make workmanlike repairs. It
is clear from the inspection ordered after this proceeding was
reopened, that the owner failed to make workmanlike and effective
repairs to the bathroom ceiling. The Administrator was therefore
correct in denying the application for rent restoration. The order
here under review is affirmed.
FH110095RO
The owner may refile for rent restoration when repairs to the
bathroom ceiling have been completed in a workmanlike manner.
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
Deputy Commissioner
|
