FK 410309-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.:
FK 410309-RO;
RENT ADMINISTRATOR'S
MICHAEL STAHL, DOCKET NO.:
EK 410403-S
PREMISES:
50 Manhattan Ave.,
PETITIONER Apt. 6-F, New York, N.Y.
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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 October 3, 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 November 11, 1990 by filing
a complaint asserting, among other things, that there is mice
infestation in the apartment. Attached to the complaint was a
Notice of Violation by the Department of Health referring to an
inspection on June 13, 1989 finding "old and fresh mice droppings"
in Apt. 6-F.
On December 26, 1990, the owner filed an answer requesting a
twenty-day extension to address the tenant's complaint.
In an answer filed on January 16, 1991, the owner alleged that
monthly exterminating services are provided pursuant to a schedule
posted in the lobby and special visits are ordered in response to
tenant requests for problem apartments. The answer refers to an
enclosure of a schedule of the exterminator's visits over the past
two years which purportedly shows that special visits were made to
the subject apartment on May 31, August 12 and October 14, 1989.
No such document was submitted.
FK 410309-RO
On September 20, 1991, a physical inspection of the subject apart-
ment was conducted. The inspector found evidence of vermin
infestation in the kitchen.
Based on the inspection report, the Administrator issued an order,
directing restoration of services and a reduction of the stabilized
rent.
In this petition, the owner asserts that the order is defective
because it does not state the basis for the determination. The
owner again refers to the evidence of regular and special extermi-
nator service he claims he submitted to the Administrator with the
answer.
After careful consideration, the Commissioner is of the opinion
that the petition should be denied, and the Administrator's order
should be affirmed.
Section 2523.4 of the Rent Stabilization Code requires DHCR to re-
duce the legal regulated rent, upon application by the tenant, for
the period for which it is found that the owner has failed to
maintain required services. Required services are defined by
Section 2520.6(r) to include exterminating services and adequate
ventilation.
Pursuant to Section 2529.6 of the Rent Stabilization Code, the
scope of review in administrative appeals is limited to a review of
facts or evidence that were before the Administrator unless it is
established that certain facts or evidence could not reasonably
have been offered or included in the proceeding prior to the issu-
ance of the order being appealed.
The Commissioner notes that the tenant originally complained not
only of poor exterminating services but also of inadequate
ventilation; that the issue of inadequate ventilation has never
been addressed by the owner's answer in the proceeding below, the
September 20, 1991 physical inspection, and this petition; and that
the Administrator's order has not resolved the tenant's problem of
incinerator smoke seeping into the apartment. However, the tenant
failed to raise this issue by filing a petition concerning the
omission of smoke seepage and this issue shall not be discussed in
the instant administrative appeal.
The Commissioner finds the Administrator's order on vermin infesta-
tion affirmed. Although the owner contends that he has proof of
exterminating schedules, the tenant signing off and the tenant's
"poor housekeeping", the Commissioner notes that the owner sub-
mitted no evidence to substantiate these contentions either while
FK 410309-RO
the proceeding was pending before the Administrator or by attach-
ment to his petition. The September 20, 1991 physical inspection
revealed the existence of vermin infestation before the issuance of
the order appealed from. Accordingly, the owner has offered no
reason to disturb the Administrator's order.
The Commissioner further notes that the owner's contention of the
tenant having no standing is without merit. The owner offered no
proof that the tenant is merely a house-guest. In fact, this
tenant has filed numerous dockets of applications with the
Division. As long as this tenant is not lawfully evicted by the
owner, the tenant is covered by the rent stabilization laws.
Accordingly, the Commissioner finds that as to vermin infestation,
the Administrator properly based his determination on the entire
record, including the September 20, 1991 physical inspection; and
that pursuant to Section 2523.4(a) of the Code, a rent reduction is
warranted based on the finding that the owner has failed to main-
tain required services.
This Order and Opinion is issued without prejudice to the owner's
rights as they may pertain to a de novo application to the Division
for a restoration of rent based upon the restoration of services.
THEREFORE, in accordance with the Rent Stabilization Law and Code,
it is,
ORDERED, that this petition, and the same hereby is, denied, and
the Administrator's order be, and the same hereby is, affirmed.
ISSUED:
JOSEPH A. D'AGOSTA
Acting Deputy Commissioner
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