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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.: GE220128RO
JODY BARBATO RENT
ADMINISTRATOR'S DOCKET
NO.: FE220596S
PETITIONER
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ORDER AND OPINION GRANTING PETITION FOR ADMINISTRATIVE REVIEW
AND REVOKING RENT ADMINISTRATOR'S ORDER
On May 14, 1992 the above named petitioner-owner filed a
Petition for Administrative Review against an order of the Rent
Administrator issued April 14, 1992. The order concerned housing
accommodations known as Apt B19 located at 376 East 94th Street,
Brooklyn, N.Y. The Administrator directed restoration of services
and ordered a reduction of the maximum legal rent.
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 May 20, 1991 by filing
a Statement of Complaint of Decrease in Services wherein she
alleged, in substance, that the owner was not maintaining certain
essential services.
The owner was served with a copy of the complaint and afforded
an opportunity to respond. The owner filed a response on June 18,
1991 and stated that this proceeding should be combined with Docket
No. FE230150B which listed the same services complaints, including
the refrigerator and intercom systems. In a later submission, dated
August 14, 1991, the owner advised that all repairs had been
completed and enclosed a statement signed by the tenant on July 9,
1991 that all problems including the refrigerator and intercom had
been corrected. The Division's records reveal that the
Administrator denied the building-wide services complaint in Docket
No. FE120150B in an order issued April 23, 1992.
The Administrator ordered a physical inspection of the subject
apartment. The inspection was conducted on March 17, 1992 and
revealed inadequate refrigerator freezer temperature and a
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defective intercom. The inspector reported no defects in the fresh
food compartment of the refrigerator.
The Administrator issued the order here under review on April
14, 1992 and ordered a $13.00 per month rent reduction based on the
report of the DHCR inspector.
On appeal the owner states that the intercom was repaired,
that the refrigerator was also repaired and that the complaint
never stated any problem with the freezer unit. The owner provides
copies of invoices and cancelled checks which are offered to show
that the repairs were made. It also offers a copy of the signed
work ticket described above. The petition was served on the tenant
on June 3, 1992.
The tenant filed a response on June 22, 1992 wherein she
stated that the intercom was not installed until July, 1991 but the
owner was collecting an increase for it since 1987 and the
refrigerator was broken on January, 1991 and replaced with a used
one in July, 1991.
After careful review of the evidence in the record, the
Commissioner is of the opinion that the petition should be granted
and the order here under review should be revoked.
Based on the tenant's acknowledgement in a signed work order
that all repairs were completed, the owner could reasonably assume
that no further action was required and that the proceeding before
the Division would be terminated without a rent reduction. Due
process requires that before a physical inspection takes place and
a rent reduction ordered, the signed statement, if submitted by the
owner, be served on the tenant and, if challenged, that the owner
be advised that the complaint was not being withdrawn.
In this case the statement was not served on the tenant, but
the tenant, in answer to the owner's petition, again confirmed that
all necessary repairs were completed. The defects found by the
Division's inspector cannot form the basis of a rent reduction in
the absence of notice to the owner of the need to make these
repairs. However, since the Administrator's order puts the owner
on notice that the freezer and intercom are not being maintained
properly, the owner is directed to repair these items within 30
days of the issuance of this order and if the owner fails to do
so, the tenant is advised to commence a proceeding with the DHCR
Compliance Unit.
THEREFORE, pursuant to the Rent and Eviction Regulations for
New York City it is
ORDERED, that this petition be, and the same hereby is,
granted and that the Rent Administrator's order be, and the same
hereby is, revoked. The tenant may pay off any arrears due and
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owing by reason of this order in installments of $13.00 per month.
ISSUED:
JOSEPH A. D'AGOSTA
Deputy Commissioner
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