Docket Number: FH 410190-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 410190-RO
MELOHN PROPERTIES, DISTRICT RENT ADMINISTRATOR'S
DOCKET NOS.: EL 410158-0R/
PETITIONER DI 410090-S
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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 July 9, 1991, concerning the housing
accommodations relating to the above-described docket number.
This administrative appeal is being determined pursuant to the
provisions of 2520.6(r) and 2523.4 of the Rent Stabilization Code.
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 administrative appeal.
On December 14, 1990, the owner commenced this proceeding by
filing an application to restore rent based on the restoration of
services. The owner stated that "(r)egarding the alleged air
seepage - the windows are in proper working order and were so
designed when the building was built. See engineer's report
attached dated July 23, 1990. The broken pane of glass in second
bedroom was replaced. The other items have all been corrected."
Thereafter on March 29, 1991, an inspection of the subject
apartment was conducted by a D.H.C.R. inspector who confirmed that
the "windows throughout the apartment are hard to open and close,
allows air seepage"; that "paint has bubbles throughout (the
apartment) ...; that the "wall behind the stove has been plastered
but not sanded"; and that "... cracks ... exist on wall behind
(the) stove."
Based on said inspection, the Administrator denied on July 9, 1991
the owner's application.
In this petition, the owner contends in substance that it was not
aware of the air seepage from the proceeding below; that by its
engineer's report, the windows of t e premises (though not air-
tight) "adequately perform their intended purposes"; and that as to
painting and plaster work, it was the tenant who performed this
Docket Number: FH 410190-RO
work in an unworkmanlike manner subsequent to the owner's repairs.
After careful consideration, the Commissioner is of the opinion
that the petition should be denied.
It is noted the owner was aware of the air seepage in the rent
reduction proceeding and as indicated by its own allegations in the
rent restoration application. In addition, the owner has waived
the air seepage issue by not asserting its claim in the rent
reduction proceeding.
The alleged engineer's report indicating that the windows of the
premises (though not air-tight) "adequately perform their intended
purpose" was not only submitted by the owner in this petition but
also considered by the Administrator in the proceeding below and
before the issuance of the Administrator's order.
Said report does not rebut the on-site inspection, which found that
the "windows throughout the apartment are hard to open and close,
allows air seepage ...."
The owner's allegation that the tenant caused the disrepair of the
painting and plaster work was not raised in the proceeding below
and before the issuance of the Administrator's order and is only
raised as a self-serving, unsubstantiated defense for the first
time on appeal.
Accordingly, the owner has offered insufficient reason to disturb
the Administrator's order based on an inspection finding the
continued existence of defective conditions.
THEREFORE, in accordance with the Rent Stabilization Law and Code,
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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