STATE OF NEW YORK
DIVISION OF HOUSING AND COMMUNITY RENEWAL
OFFICE OF RENT ADMINISTRATION
92-31 UNION HALL STREET
JAMAICA, NEW YORK 11433
----------------------------------x S.J.R. NO.: 6887
IN THE MATTER OF THE ADMINISTRATIVE ADMINISTRATIVE REVIEW
APPEAL OF DOCKET NO.:
REFLUX REALTY INC.,
ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW
On July 24, 1992, the above-named petitioner-owner filed a petition
for administrative review of an order issued on May 22, 1992, by
the Rent Administrator, concerning the housing accommodations known
as 72 Carmine Street, New York, NY, various apartments, wherein the
Administrator denied the owner's application for rent restoration,
based upon inspections of the premises on October 31, 1991 and
November 1, 1991, which disclosed that although many services were
restored; several were not. The last inspection revealed that the
garden wall was defective; that the brick-work throughout the
building and in the rear of the carriage-house was in need of
repairs and that there was no superintendent in the building.
Subsequent thereto, this petitioner filed a petition in the Supreme
Court pursuant to Article 78 of the Civil Practice law and Rules to
deem its petition for administrative review denied. The proceeding
was remitted to the Division for a determination within sixty (60)
days of May 13, 1993.
The Commissioner has reviewed all of the evidence in the record and
has carefully considered that portion of the record relevant to the
issue raised by the administrative appeal.
The issue herein is whether the Rent Administrator properly denied
the owner's application for rent restoration based upon a finding
that the owner failed to correct those conditions shown by the
inspection of November 1, 1991. The order also stated that the
owner had failed to submit substantial proof in response to a
notice dated January 10, 1992, affording a second opportunity to
correct the conditions reported by the inspector.
On appeal, the petitioner-owner asserted, in substance, that it did
respond to the January 10, 1992 notice and enclosed a copy of that
response which included an "affidavit" dated December 2, 1991 by a
contractor retained by the owner to make repairs to the roof of the
subject premises. The owner also submitted a letter dated June 22,
1992, by a contractor who made repairs to the brickwork and garden
walls, a statement dated June 19, 1992 by a person who says he is
the superintendent of the building and lives across the street, a
letter from a tenant dated June 1, 1992, saying that all necessary
repairs have been done, and a copy of a restoration order Docket
No. FD410242OR, dated January 13, 1992, which the owner claims
establishes the completion of repairs.
The petition was served on the tenants on July 6, 1992. The
tenants' did not answer the petition.
After a careful consideration of the entire evidence of record the
Commissioner is of the opinion that the administrative appeal
should be denied.
The record reveals that the owner submitted a statement and
affirmation in support of its application for a rent restoration,
on April 25, 1991, essentially alleging that all repairs which were
the subject of the Rent Administrator's rent reduction order had
been corrected. To buttress its argument, the owner submitted
various paid invoices from a number of contractors evidencing work
done in the subject building.
Amongst the evidence submitted below in support of the owner's
application was a paid invoice from the Vinmetal Inc., dated
February 4, 1991, which indicated that brick work pointing and
cementing on the carriage-house and garden walls and other
requisite repairs were completed and paid for by the owner on
February 28, 1991.
The last inspection of November 1, 1991, however, showed that there
was a defective garden wall, that the brickwork throughout the
entire building and rear of carriage house is in need of repairs,
and that there was no superintendent in the building.
On appeal, the owner submitted a copy of what purports to be its
answer, dated January 17, 1992, to the above DHCR notice, but the
record below is devoid of any such answer.
Moreover, the Commissioner notes that the statement executed by
Jacob Singer Sons, Inc. on December 2, 1991, (included with the
answer) did not address the service deficiencies specified in the
inspection report and was not a sworn affidavit as claimed by the
owner on appeal. Therefore, the Commissioner finds that this
statement even if it were before the Administrator would be
accorded little probative value.
The Commissioner has also considered the owner's claim that the
rent was previously restored by the Rent Administrator for the same
service deficiencies shown in the inspector's report of November 4,
1991 and rejects this argument. The restoration order issued on
January 13, 1992, under Docket No. FD410242OR, concerned repairs to
the roof which was not the subject of the instant proceeding.
The other evidence submitted with the petition regarding repairs to
the brickwork and garden wall and the employment of a superin-
tendent was not submitted to the Administrator and is beyond the
scope of review of this administrative appeal.
Accordingly, the Commissioner finds that the Administrator properly
based his determination on the entire record, including the results
of the on-site inspections conducted on October 31, 1991 and
November 1, 1991 and that the Rent Administrator properly denied
the owner's application to restore the rent upon determining that
the owner had failed to restore all services.
THEREFORE, in accordance with the provisions of the Rent Stabili-
zation Law and Code, it is,
ORDERED, that this petition be, and the same hereby is, denied, and
the Administrator's order be, and the same hereby is, affirmed.
Upon a restoration of services the owner may separately reapply for
a rent restoration.
JOSEPH A. D'AGOSTA