FL 210060-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
----------------------------------x S.J.R. NO.: 6442
IN THE MATTER OF THE ADMINISTRATIVE ADMINISTRATIVE REVIEW
APPEAL OF DOCKET NO.:
FL 210060-RO
SLOCUM REALTY CORP., ADMINISTRATOR'S
DOCKET NO.:
PETITIONER FE 210301-OR
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ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW
On December 17, 1991, the above-named owner filed a timely petition
for administrative review of an Administrator's order issued on
November 13, 1991 concerning the housing accommodation known as
Apt. B-6, 10 Ocean Parkway, Brooklyn, New York. Subsequent
thereto, the owner filed a petition pursuant to Article 78 of the
Civil Practice Law and Rules seeking an expeditious determination
of its petition for administrative review. On July 30, 1992, the
Supreme Court, Kings County ordered the Division to issue a deter-
mination on or before October 30, 1992.
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 owner commenced this proceeding on May 8, 1991, by filing an
application to restore rent. The owner stated in the application
that the tenant's complaints were taken care of in November and
December 1985. The application further states that the rent
reduction order (KS 003704-S) was never received by the owner and
the restoration application is being filed only because on the
March 20, 1989, the owner received a copy of a letter sent to the
tenant by the Division of Housing and Community Renewal (DHCR)
advising him that the Compliance case was closed because the tenant
had advised that all repairs had been made.
In an answer filed on July 18, 1991, the tenant alleged in
substance that the owner's "repairs were temporary and reflect poor
workmanship"; that the master bedroom leaks again; that the
"bathroom walls and ceiling contain much mildew and mold, even
mushrooms are growing out of the ceiling"; that he personally gave
to the owner the rent reduction order (Docket No. KS 003704-S); and
that rent should not be restored until repairs are of a permanent
nature.
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Thereafter, an in situ physical inspection of the subject apartment
was conducted on October 11, 1991, by a DHCR staff member who
reported that the bathroom walls and ceiling are blistered, dis-
colored and peeling paint and plaster due to leaks from above.
Based on the October 11, 1991 inspection, the Administrator denied
the owner's application for rent restoration.
In this petition, the owner contends in substance that on February
21, 1986, the owner received from the Division a copy of a tenant's
complaint under Docket No. KS 003704-S; that it promptly did
repairs and informed the Division accordingly; that it had believed
the matter closed until it received a letter from the Compliance
Bureau dated March 16, 1989 stating that the owner had complied
with the directives in the Administrator's order under Docket No KS
003704-S and advising the owner to file a rent restoration
application; that on March 20, 1989, the owner filed an application
to restore rent in accordance with the Division's advice; that the
Administrator did not assign a docket number to that application
and failed to process the March 1989 rent restoration application
for more than two years; that on May 6, 1991, the owner filed a
second restoration application which was assigned the above-
described docket number (FE 210301-OR); that in July 1991, a leak
occurred in the bathroom of Apt. C-6, which is directly above the
subject apartment; that the leak in Apt. C-6 resulted in a water
leak in the subject apartment and caused some paint and plaster to
peel in the subject apartment; that in July 1991, the owner's
plumber corrected the leak in Apt. C-6; that immediately there-
after, the owner's painting contractor contacted the tenant to
arrange for painting and plastering of the apartment; that upon the
tenant's request, the work was delayed until the tenant was
satisfied that the walls were dry; and that as a result of this
delay the work was completed on November 21, 1991, subsequent to
the November 13, 1991 issuance of the Administrator's order.
Attached to the owner's petition were the following relevant sub-
missions:
1. The March 16, 1989 letter from the Compliance Bureau
stating that the owner had complied with the directives
of the 1986 rent reduction order under Docket No. KS
003704-S and advising the owner to apply for rent
restoration;
2. A rent restoration application dated March 20, 1989 which
the owner claims it filed but did not receive a docket
number;
FL 210060-RO
3. A copy of an invoice dated July 22, 1991 from the owner's
plumbing contractor who allegedly repaired the leak in
Apt. C-6, the apartment directly above the subject apart-
ment, which was causing the peeling paint and plaster in
the subject apartment;
4. A copy of a statement from the owner's painting con-
tractor stating that he contacted the tenant of the
subject apartment for painting and plastering, but was
able to complete the work only subsequent to the issuance
of the order because the tenant asked that the work be
delayed until the walls were dry.
The owner also alleges non-receipt of the Administrator's original
rent reduction order and states that in July 1986, it "moved its
offices from 16 Court Street, Brooklyn, New York to 10 Ocean
Parkway, Brooklyn, New York."
In answer to the petition, the tenant again asserts that he
personally notified the owner of the rent reduction order, that the
leaks were corrected 20 or 30 times but not permanently and that
the owner has not established that an earlier rent restoration
application was filed.
After careful consideration, the Commissioner is of the opinion
that the petition should be denied.
A review of the record reveals that the Rent Administrator's rent
reduction order was sent on October 14, 1986 to the address
registered by the owner on the 1986 Registration Statement. Since
mail is generally forwarded by the Post Office for one year, the
owner's assertion that it moved its office in July 1986 would not
result in non-receipt of the order. There is also no indication
that the owner notified the administrator of the change of address.
The Division's records further reveal that the owner did not file
a petition for administrative review of that order, even after
becoming aware of its existence.
With regard to the merits of the denial of the rent restoration,
the Commissioner finds that the owner has not established that the
conditions for which the rent was reduced were repaired. The owner
asserted in the rent restoration application that repairs to
correct the chronic leak condition complained of by the tenant were
made in November and December 1985 but a subsequent DHCR inspection
in June 1986 revealed leak damaged walls and ceilings in the
FL 210060-RO
bathroom and it was this condition that was cited as the basis for
the rent reduction that was ordered on October 14, 1986. The
FL 210060-RO
tenant advised on November 8, 1986 that no repairs had been made.
On November 10, 1987, the tenant submitted a statement asserting
that while some work had been done, water leaks continued to damage
the master bedroom and bathroom ceilings. Since the tenant
concedes that some repairs were done, the owner was clearly on
notice of the conditions in the tenant's apartment.
Although the tenant advised DHCR on March 15, 1989 that the owner
had complied with the directive to repair, the Division's letter
clearly stated that the owner would have to file a rent restoration
application and that the rent would not be restored until so
ordered by DHCR. The tenant's statement that repairs had been
completed, which was later repudiated when the repairs proved to be
ineffective, does not establish that restoration of the rent is
warranted. Even if the owner did file a rent restoration
application in March 1989 there is no evidence to indicate that
that application would have been granted. The tenant's oral
statement to the Compliance Unit would not have formed a sufficient
basis to warrant restoration.
The owner has not submitted any evidence to show that repairs were
done before the order appealed herein was issued. In fact, the
statement by the owner's painting contractor confirms that the
necessary painting was not completed until November 1991. The
owner's contention that the leak damage observed in the October 11,
1991 inspection was a new condition caused by a recent plumbing
problem is not credible given the tenant's contention of repeated
leak damage since he first took occupancy in 1977, and the absence
of any evidence submitted by the owner to show repairs after the
condition was confirmed in the June 4, 1986 inspection.
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 Administrator's order be, and the same hereby is,
affirmed.
ISSUED:
JOSEPH A. D'AGOSTA
Acting Deputy Commissioner
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