FL210381RO
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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SJR 6502 DEEMED DENIAL
IN THE MATTER OF THE ADMINISTRATIVE ADMINISTRATIVE REVIEW
APPEAL OF DOCKET NO.: FL210381RO
VIRGINIA GARDENS INC. RENT
ADMINISTRATOR'S DOCKET
NO.: DB210019S
PETITIONER
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ORDER AND OPINION GRANTING PETITION FOR ADMINISTRATIVE REVIEW
IN PART AND REMANDING PROCEEDING TO RENT ADMINISTRATOR
On December 26, 1991 the above named petitioner-owner filed a
Petition for Administrative Review against an order of the Rent
Administrator issued May 4, 1990. The petition is being accepted as
timely because a review of the record supports the owner's
contention that the order was not mailed to the registered owner.
The order concerned housing accommodations known as Apt F-3 located
at 1272 E. 36th Street, Brooklyn, N.Y. The Administrator directed
restoration of services and ordered reduction of the stabilized
rent.
The owner then filed a proceeding in the Supreme Court wherein
it deemed its administrative appeal denied. The court remitted the
proceeding to the agency for an expeditious determination.
The Commissioner has reviewed the record and carefully
considered that portion relevant to the issues raised by this
appeal.
The tenant commenced this proceeding on February 1, 1989 by
filing a Statement of Complaint of Decrease in Services wherein she
alleged among other things that the stove is defective, the living
room windows do not stay up, the closet in the dining area has a
leak, and the bathroom walls require repair.
The owner was served with a copy of the complaint and afforded
an opportunity to respond. The owner filed a response on March 8,
1989 and stated:
1. The tenant refused to allow the owner to replace
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the kitchen stove,
2. Repairs had been made to the living room and
bedroom windows and the bathtub,
3. The water leaks would be repaired in the spring.
The owner attached a copy of a work ticket, dated February 14, 1989
allegedly signed by the tenant, which was offered to show that the
repairs stated above were made. The Commissioner notes, however,
that the ticket was not signed by the tenant in the areas indicated
to show successful completion of repairs. Instead, three items
were signed by the building agent.
On July 31, 1989 the owner notified the Administrator that all
repairs were completed as of June 29, 1989 but that the tenant
refused to sign a work ticket attesting to this fact.
On January 3, 1990, the owner notified the Administrator that
it had been forced to go to court to gain access to the apartment
in order to complete repairs. Attached to the owner's letter is,
among other things, a copy of a signed work ticket dated December
21, 1989, for window repair throughout the apartment.
The Administrator ordered a physical inspection of the subject
apartment. The inspection was conducted on March 19, 1990 and
revealed that the living room window lower sashes do not stay up or
slide. All other conditions cited in the complaint were found to
have been repaired.
The Administrator issued the order here under review on May 4,
1990 and ordered a rent reduction of an amount equal to the most
recent guideline adjustment based on the finding of defective
living room windows.
On appeal the owner, through counsel, makes the following
arguments in seeking reversal of the Administrator's order:
1. The condition cited by the Administrator is
insufficient to warrant a rent reduction as it is a
minor condition requiring routine maintenance,
2. The owner had signed work tickets which stated that
the windows had been repaired. The tenant did not
contest the owner's answers, which stated that the
windows had been repaired. The Administrator
should have dismissed the allegation of defective
windows, instead of ordering an inspection,
3. The owner was denied due process by being denied
notice of the inspection and an opportunity to make
repairs,
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4. The effective date of the order here under review
should be changed based on the owner's alleged
failure to be served with the order at the proper
address. The owner argues that its right to rent
restoration will be prejudiced by the fact that it
had no knowledge of the order for a period of time
and could not file for rent restoration.
The petition was served on the tenant on April 3, 1992.
After careful review of the evidence in the record, the
Commissioner is of the opinion that the petition should be granted
in part and the proceeding should be remanded to the Administrator.
The tenant is entitled to properly functioning windows
throughout the apartment. The tenant specifically cited living
room windows that do not stay up in the complaint. Since the owner
was on notice of the condition it was under an obligation to make
workmanlike repairs to the windows in question. It is not a
defense to the complaint to state that the condition in question is
"minor" and requires routine maintenance.
However, the owner did submit a work order signed by the
tenant indicating that the windows throughout the apartment had
been repaired. Based on this acknowledgement by the tenant of
window repairs, the owner could reasonably assume that no further
action was required to correct this condition and that the
proceeding before the Division would be terminated without a rent
reduction. Due process requires that such a signed statement, if
submitted by an owner, be served on the tenant and, if challenged,
that the owner be advised before an inspection takes place that the
complaint was not being withdrawn.
The failure to do this, coupled with the failure to serve a
properly addressed order on the owner, requires revocation of the
rent reduction and a remand of the proceeding to the Administrator
for verification by the tenant of the signature on the work ticket.
Based on the results of this investigation, the order should be
reissued, properly addressed, either terminating the proceeding or
again ordering a rent reduction for the period of time from March
1, 1989 until the effective date of the rent restoration ordered in
Docket No. FL210193OR. Any rent arrears due as a result of this
order may be paid in twelve equal monthly installments.
THEREFORE, pursuant to the Rent Stabilization Law and Code it
is
ORDERED, that this petition be, and the same hereby is,
granted in part, and that the Rent Administrator's order be, and
the same hereby is, revoked and that the proceeding be, and the
same hereby is, remanded to the Rent Administrator for further
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processing in accordance with the order and opinion.
ISSUED:
JOSEPH A. D'AGOSTA
Deputy Commissioner
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