FA520182RO, et al.
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
APPEALS OF DOCKET NOS.: FA5210182RO
EL520232RT; EL520233RT;
TRUSTEES OF COLUMBIA EL520234RT
UNIVERSITY,
Petitioner-owner RENT ADMINISTRATOR'S
& DOCKET NOS.: DJ520731S;
EB520688S; EC520533S
GISELLE GUERRE,
Petitioner-tenant
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ORDER AND OPINION GRANTING OWNER'S PETITION FOR ADMINISTRATIVE
REVIEW, IN PART, AND DENYING TENANT'S PETITIONS FOR
ADMINISTRATIVE REVIEW
On January 17, 1991, the above-named petitioner-owner filed a
petition for administrative review (PAR) of an order issued on
December 21, 1990, by the Rent Administrator, concerning the
housing accommodation known as 110 Morningside Drive, Apartment 53,
New York, New York, wherein the Administrator determined the
tenant's complaints of reductions of services, filed on October 31,
1989.
The tenant's appeal per Docket Numbers EL520233RT and
EL520234RT seek reversal of orders dated November 21, 1990, per
Docket Numbers EB520688S and EC520553S, that consolidated the
tenant's complaints thereunder with the proceedings per Docket
Number DJ520731S herein under review on the merits. The tenant's
appeal per Docket Number EL520232RT objected prematurely to the
Administrator's consolidated determination per Docket Number
DJ520731S.
Based on the results of inspections conducted on May 23, 1990
per Docket Number EC520553S and June 26, 1990 per Docket Numbers
DJ520731S and EB520688S, the challenged consolidated order per
Docket Number DJ520731S found that certain services were not
provided, and reduced the monthly rent by $33.00, prospectively as
follows:
1. Bedroom wall and lower area of ceiling
is cracked and peeling of paint, northside. $10.00
FA520182RO, et al.
2. Sitting room wall molding loose from wall. 3.00
3. Small bedroom (north) wall cracked of paint
and plaster. 5.00
4. Rear bedroom window is loose - parting strips
installed unworkmanlike manner - outside wood
frame cracked. 2.00
5. Bedroom window outside wood frame cracked. 2.00
6. Small room outside wood frame is cracked -
balance needs to be adjusted. 2.00
7. Livingroom (2) windows/fire escape window
inside molding cracked - west side window
putty missing. 2.00
8. Old electric box located in hall - defective
cover and exposed wires. 5.00
$33.00
The Administrator dismissed the tenant's remaining complaints
as follows:
1. No evidence of defective wiring throughout apartment.
2. No evidence of defective floors throughout apartment -
repaired.
3. Dumbwaiter door has been concealed within wall.
4. No evidence of leaks in bedroom.
5. No evidence of leaks in bathroom.
6. New circuit breaker box installed - no evidence of
defects.
The Administrator also indicated that the parties appeared to
have reached an agreement regarding the repair of the window
screens.
The owner's appeal requests that the Administrator's rent
reduction order be vacated on the grounds that on June 29, 1990 the
tenant was awarded a rent abatement of $540.00 in a trial before
Judge Jacob Dubinsky in Manhattan Civil Court, Trustees of Columbia
FA520182RO, et al.
University v. Guerre, L & T Index Number 56397/90, calculated upon
a reduction of $15.00 per month for the 36 months immediately prior
to the conclusion of the trial, based on a breach of the warranty
of habitability.
The owner asserts that the violations involved the same
services complained of below. The owner further avers that the
tenant only partially complied with the Court's directives
to provide the owner access to the subject premises to repair the
defective items and replace defective equipment, and that she
failed to permit the owner access to replace the windows.
As to the windows, the owner reiterates the assertions below
that the tenant failed to comply with a Stipulation of Settlement,
dated November 2, 1990, so ordered by Judge Dubinsky, that provided
that "the work [was] to be completed by November 30, 1990" and that
"if the [owners] required extension of time because windows were
not available, time of access and installation was to be extended
by motion or DHCR."
Subsequently, on December 13, 1990, the owner brought an order
to show cause before Judge Dubinsky seeking access. Copies of the
owner's motion and the tenant's pro se opposing papers were
submitted by the owner to the Administrator, under a cover letter
dated December 21, 1990, stamped received by the DHCR on December
24, 1990. The disposition, if any, of the Court proceedings is not
in the record.
Briefly, the owner's order to show cause averred that on
December 5, 1990, the tenant told the painting contractor that she
would not allow the painting to occur until the windows in the
apartment were done, and to the window contractor that she would
not allow the windows to be done until the kitchen floor and
apartment painting were completed.
The tenant's opposing papers to the order to show cause
confirmed that both contractors came on the morning of December 5,
1990. The tenant explained that her dispute with the painting
contractor concerned the kitchen floor tile repairs rather than the
windows replacement, and that the tenant wanted the kitchen floor
tiles repaired prior to painting the apartment. The tenant also
set forth therein that she "did not have any objection to have the
window frames installed immediately after clearance of the paint
contractor." (Emphasis added). The tenant further alleged
difficulty in obtaining the cooperation of the owner's Area
Building Supervisor to conduct various repairs.
On appeal, the owner also submits a sworn affidavit dated
January 4, 1991, by the employee of the owner's window contractor,
FA520182RO, et al.
setting forth the following:
1. I am employed by Izzo Contractors as a contractor
and do work for The Trustees of Columbia University
in the City of New York pursuant to a contract. I
am fully familiar with the facts and circumstances
of this case, having been to the subject premises
several times.
2. On November 16, 1990, I contacted Ms. Guerre to
arrange the installation of windows and was told
that the only day she was available for access was
Thanksgiving.
3. Access was finally scheduled for December 5, 1990, and
I appeared at the subject premises at 8:45 AM with the
windows and window frames ready to install them.
4. At that time, Ms. Guerre refused me access to the
the premises stating that she would only allow the
installation of windows after painting of the
apartment was completed and the kitchen floor re-
tiled.
5. Ms. Guerre then stated she would call me when she was
ready for window installation and closed the door.
Sworn to before me this
4th day of January, 1991
S/
A copy of the owner's petition was served on the tenant on
January 31, 1991. The tenant addressed the owner's contentions on
appeal under her own appeal per Docket Number EL520232RT, cited
above as premature. The tenant does not disavow her statements in
the court papers.
The Commissioner notes that the rent abatement awarded by the
Civil Court to the tenant herein was for a discrete period of time
prior to the trial and prior to the issuance of the Administrator's
order. Such an abatement does not preclude the Division from
ordering a rent reduction on a prospective basis for the same
conditions pursuant to Section 2202.16 of the Rent and Eviction
Regulations to reflect the reduction in rental value of the subject
apartment because of the decreased services.
However, there is ample evidence, including the tenant's own
statements in her December 19, 1990 opposition papers to the
owner's motion for an order to show cause, that the painting
contractor and the window contractor were not permitted by the
FA520182RO, et al.
tenant to commence their assignments unless an unrelated dispute
concerning repairs to several broken kitchen tiles was also
resolved prior to commencement of painting and windows replacement.
Relying on statements in the tenant's pro se papers, to the
effect that the tenant would not permit the owner to undertake
repairs, refusing to permit work to commence or to continue unless
unrelated disputes were also resolved, the Commissioner finds that
certain rent abatements were not warranted. Therefore, rent
reductions for defective windows and peeling paint and cracked
plaster should not have been granted prospectively. Consequently,
rent reductions totalling $25.00 per month should be revoked for
the following conditions:
1. Bedroom wall and lower area of ceiling
is cracked and peeling of paint, northside. $10.00
2. Small bedroom (north) wall cracked of paint
and plaster. 5.00
3. Rear bedroom window is loose - parting strips
installed unworkmanlike manner - outside wood
frame cracked. 2.00
4. Bedroom window outside wood frame cracked. 2.00
5. Small room outside wood frame is cracked -
balance needs to be adjusted. 2.00
6. Livingroom (2) windows/fire escape window
inside molding cracked - 2.00
west side window putty missing. 2.00
$25.00
No evidence was presented to the Administrator in the
proceedings below that the remaining conditions were addressed or
that the tenant refused access to address the conditions. The
owner's statements below averred only that these conditions were
minor, that all complaints were investigated promptly, and that
electrical work completed on December 1989 complied with all legal
requirements. Accordingly, rent reductions in the amount of $8.00
per month, are affirmed:
1. Sitting room wall molding loose from wall. $ 3.00
2. Old electric box located in hall - defective
cover and exposed wires. 5.00
$ 8.00
FA520182RO, et al.
In the tenant's appeals per Administrative Review Docket
Numbers EL520232RT, EL520233RT and EL520234RT, the tenant alleges
that DRO Docket Numbers DJ520731S, FB520688S and EC520553S were
improperly consolidated, so as to deprive the tenant of her due
process rights.
The proceedings involved overlapping allegations concerning
the same owner, tenant and apartment unit. The consolidation of
several case dockets, procedural in nature, permitted the
Administrator to review all the facts and circumstances before
rendering a decision. The DHCR staff investigated all the tenant's
allegations, and reported those services that were maintained,
those that the owner was not required to provide, and those
conditions that constituted service reductions.
The tenant appears to assert that consolidation violated the
tenant's due process rights, on the ground that the ownber did not
file answers in response to all the complaints or because not all
of the owner's answer's were served on the tenant. The tenant's
belief that the owner did not file the answers is erroneous, as the
owner filed individual answers in each proceeding, taking the
opportunity to respond to allegations.
The tenant's claim that consolidation violated the tenant's
due process because she was not served answers to one or more of
the complaints is also without merit. Processing was limited to
issues raised in the tenant's complaints. The owner's answers
joined issue with the matters raised in the tenant's complaints,
and permitted appropriate processing of the complaints, including
investigation. The disposition of the tenant's complaints was
predicated on the results of three inspectins, as well as the
parties' allegations in their submissions.
The fact that one or more of the answers below was not
forwarded to the tenant did not prejudice the tenant's rights.
This is borne out of the fact that the tenant was granted several
rent reductions. The rent reductions have been revoked, in part,
herein, based on the tenant's own statements in pro se court papers
to the effect that she would not allow workmen to commence painting
and window repairs unless the owner first addressed unrelated
kitchen tile matters, as detailed hereinabove. On appeal, the
tenant also fails to establish any specific errors in the
Administrator's determination arising from the fact that one or
more of the owner's answers was not sent to her.
The Administrator also properly granted the owner's, as well
as the tenant's, requests for additional time to submit material,
without permission and prior notice to the adversary party. Such
FA520182RO, et al.
procedural decisions are wholly and solely for the Administrator's
sound discretion.
The tenant's bare allegations as to fraud, extortion, coercion
and corrupt acts by various parties are unsupported, and are
dismissed in their entirety as being without merit.
THEREFORE, in accordance with the provisions of the Rent and
Eviction Regulations and the City Rent Control Law, it is,
ORDERED, that the owner's petition be, and the same hereby is,
granted, in part, and that the Administrator's order be modified to
revoke rent reductions in the amount of $25.00 per month as
provided above. Rent arrears may be due the owner from the tenant
as a result of this order. The arrears shall be payable in
installments that do not exceed the monthly amount ($25.00) revoked
by the instant determination. It is further
ORDERED, that the tenant's petitions be, and same hereby are,
denied.
ISSUED:
___________________
Joseph A. D'Agosta
Deputy Commissioner
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