AR Docket No. FH 110107-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.: FH 110107-RO
HARRY D. SILVERSTEIN ASSOCIATES, DISTRICT RENT ADMINISTRATOR'S
DOCKET NO.: DI 1130053-B
SUBJECT PREMISES:
87-40 165th Street, Apt. No. 6M
PETITIONER Jamaica, NY 11432
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ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW
The above-named owner filed a timely Petition for Administrative
Review of an order issued on June 25, 1991, concerning the housing
accommodations relating to the above-described docket number.
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.
The tenant commenced this proceeding on September 14, 1989 by
filing a complaint asserting that "(t)here are leaks in roof";
that "(s)trong rains cause damage to apartments on top floor";
that "(a)nyone can gain access to roof"; and that "(t)here is no
lock on door leading to roof."
In its answer filed on November 14, 1989, the owner asserted that
the roof was repaired on October 25, 1989 and that the roof door
does not require a lock because it is a fire egress.
Thereafter on June 26, 1990, the subject building was inspected by
DHCR which confirmed that the "6th floor hallway (L to U side)
outside Apartment 6U (on the) right side wall and ceiling (show)
evidence of water damage"; that the "6th floor hallway (A to K
side) corner wall left side of stairwell 'W' door has evidence of
water damage approximately 6 feet down from ceiling"; and that in
the L to U side stairwell E, the roof door was "defective," "(t)he
lock was open and said door was open."
On August 2, 1990, the tenant informed DHCR that defective
conditions still remain.
The owner was informed by mail on September 4, 1990 of the said
inspection report. The owner answered on September 21, 1990 that
waterproofing of the roof was completed on September 14, 1990.
AR Docket No. FH 110107-RO
The subject building was inspected again on March 13, 1991,
revealing that the "roof door lock is inoperative" and that "the
roof door stairwell E was open at the time of inspection."
Based on the June 26, 1990 and the March 13, 1991 inspections, the
Administrator found that "the roof door (L to U side stairwell E)
is inoperative" and that "(p)ursuant to the Housing Maintenance
Code, the roof door must be locked with either a hook and eye or
sliding bolt lock." The Administrator directed on June 25, 1991
restoration of these services and further ordered a reduction of
the stabilized rent.
In this petition, the owner contends in substance that a work
order dated July 12, 1991 was made to repair the defective roof
door; that the owner was denied due process for not allowing the
owner an opportunity to repair after the inspection; and that
there should be no rent reduction when vandalism caused the
defective roof door.
After careful consideration, the Commissioner is of the opinion
that this petition should be denied.
The owner admits in this petition by its own documentation that a
work order on the defective roof door was made after the issuance
of the Administrator's order. Accordingly, the Administrator's
order based on the inspections finding decreased services was
correct when issued.
As to the owner's allegation of denial of due process, the owner
had ample opportunity to correct the defective roof door. The
owner knew of the tenant's complaint about the defective roof door
for about two years. The owner was also informed of the
inspection conducted on June 26, 1990. However, the owner admits
in this petition by its own submitted repair receipts that repair
on the defective roof door was performed only subsequent to
issuance of the Administrator's order.
As to the owner's allegation of vandalism causing the defective
roof door, the owner offered no proof in the proceeding below or
in this petition. Because the owner failed to raise this defense
below and now raises this unsubstantiated, self-serving assertion
for the first time on appeal, this allegation is also beyond the
scope of review which is limited to the evidence and issues before
the Administrator.
This Order and Opinion is issued without prejudice to the owner
filing an application for rent restoration based on the
restoration of services if the facts so warrant.
THEREFORE, in accordance with the Rent Stabilization Law and Code,
it is
AR Docket No. FH 110107-RO
ORDERED, that this petition be, and the same hereby is, denied,
and that the Administrator's order be, and the same hereby is,
affirmed.
ISSUED:
ELLIOT SANDER
Deputy Commissioner
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