FD120218RO; HB120028RO
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.:
FD120218RO;
HB120028RO
KREISEL COMPANY, INC.,
RENT ADMINISTRATOR'S
DOCKET NOS.:
PETITIONER EH120069HW;
----------------------------------x EI120742S
ORDER AND OPINION DENYING PETITIONS FOR ADMINISTRATIVE REVIEW
The above-named owner filed timely petitions for administrative
review (PAR) of orders issued on May 21, 1991 and January 5, 1993,
concerning the housing accommodations known as 215-30 47th Avenue,
Apartment 1-E, Queens, New York, wherein the Rent Administrator
determined the tenants' complaint.
The Commissioner has reviewed all the evidence in the records and
has carefully considered those portions of the records relevant to
the issues raised by the petitions.
The tenants of the subject apartment commenced these proceedings by
filing a complaint asserting that there were fluctuation problems
with the hot and cold water. The Rent Administrator established
Docket No. EH120069HW to process the case as a hot water complaint
and Docket No. EI120742S to process the water fluctuation complaint
separately. The Rent Administrator served a copy of the complaint
on the owner in both case dockets.
The owner responded to the complaint per Docket No. EH120069HW
asserting that it was served with the notice of the proceeding but
did not receive a copy of the complaint. The owner denied that hot
water services were not provided, and submitted a copy of a memo-
randum signed by one of the tenant-occupants who denied filing a
complaint of a lack of hot water. There is no record that the
owner responded to the complaint under Docket No. EI120742S.
FD120218RO; HB120028RO
The DHCR conducted an inspection of the subject apartment per
Docket No. EH120069HW on January 22, 1991. The inspector responded
that the hot water temperature was 120@ F. in the bathroom and
110@ F in the kitchen. In an order dated March 21, 1991, the Rent
Administrator noted the results of the inspection, directed the
owner to restore the services and further, ordered a reduction of
the stabilization rent, effective December 1, 1990.
The DHCR conducted an inspection per Docket No. EI120742S on
November 20, 1992. The inspector reported that the shower water
temperature reached 112@ F., but that when he also turned on the
hot water in the kitchen, he observed some loss of the hot water
pressure in the shower, and a temperature fluctuation of 4@ F. The
Rent Administrator issued an order dated January 5, 1993 finding
evidence of water fluctuation, directing the owner to restore
services and ordering a rent reduction effective November 1, 1990.
The order stated that the status of the subject unit was not known,
and advised the tenants to abide by the applicable rent stabiliza-
tion or rent control provisions.
In the petition for administrative review of the order per Docket
No. EH120069HW, the owner requests that the order be reversed on
the grounds that the tenant had already received a rent reduction
for the condition in question in a prior order, per Docket No.
DE110398S, that services had been restored prior to issuance of the
order herein under review, that one of the tenants had signed a
statement denying that he ever complained about lack of hot water,
and that the owner was not served a copy of the complaint.
In its petition for administrative review of the order per Docket
No. EI120742S, the owner asserts that the order also was duplica-
tive of the previous rent reduction order per Docket No. DE110398S,
that the conditions were corrected before the Rent Administrator
issued the order also herein under review, and that there is
presently no evidence of water fluctuation.
After careful consideration, the Commissioner is of the opinion
that the petitions should be denied.
Pursuant to Section 2523.4 of the Rent Stabilization Code, DHCR is
required to order a rent reduction, upon application by a tenant,
where it is found that an owner has failed to maintain required
services.
The owner's claim on appeal that it never received a copy of the
FD120218RO; HB120028RO
complaint under Docket No. EH120069HW does not warrant reconsidera-
tion of the Rent Administrator's order below in light of the fact
that the owner filed an answer below addressing the specific
conditions cited in the complaint. Turning to the substantive
issue, findings of inadequate hot water are not inconsistent with
a complaint of water temperature fluctuations that the tenant set
forth. Consequently, the Rent Administrator's order per Docket No.
EH120069HW, insofar as it granted a rent reduction based on inade-
quate hot water, should be affirmed.
Nor does the owner's petition per Docket No. HB120028RO establish
a basis for modifying or revoking the Rent Administrator's order
per Docket No. EI120742S, which determined that the owner was not
maintaining required services based on a physical inspection
confirming the existence of defective conditions in the subject
apartment for which a rent reduction is warranted. The inspection
confirmed the tenant's complaint of shower water temperature
fluctuation, as well as a related condition of inadequate hot water
temperature.
The records also reveal that the orders per Docket No. EH120069HW,
wherein the Rent Administrator found inadequate hot water in the
kitchen, and Docket No. EI120742S wherein the Rent Administrator
found that there was evidence of shower water temperature fluctua-
tion, were not duplicative of a prior rent reduction order, per
Docket No. DE110398S, wherein the Rent Administrator found
inadequate hot water in the bathroom, albeit these conditions may
be related. The Rent Administrator issued an order on October 15,
1993, per Docket No. GC110112OR, restoring the rent previously
reduced per Docket No. DE110398S. The owner is correct, however,
that the tenants may not benefit from multiple stabilization rent
reductions where two or more rent reduction orders overlap. The
rent is reduced retroactively by the percentage of the guideline
adjustment to the tenant's lease which commenced before the
earliest effective date of the rent reduction orders in effect.
The owner's assertion in each appeal that repairs were made prior
to the date of the orders is beyond the scope of review, which is
strictly limited to issues and evidence presented to the Rent
Administrator for consideration.
The Rent Administrator's order per Docket No. EI120742S is amended,
however, to reflect that the apartment unit is subject to rent
stabilization, and to revoke any reference to a rent reduction
FD120218RO; HB120028RO
pursuant to rent control provisions. The rent reduction granted
pursuant to rent stabilization provisions was correct.
The owner may file rent restoration applications if the facts so
warrant.
The automatic stay of the retroactive rent abatement that resulted
by the filing of the petitions is vacated upon issuance of this
order and opinion.
THEREFORE, in accordance with the Rent Stabilization Law and Code,
it is
ORDERED, that the owner's petition per Docket No. FD120218RO be,
and the same hereby is, denied, and that the Rent Administrator's
order per Docket No. EH120069HW be, and the same hereby is,
affirmed. It is further
ORDERED, that the owner's petition per Docket No. HB120028RO be,
and the same hereby is, denied. The Rent Administrator's order per
Docket No. EI120342S is amended to delete that part of the order
providing for a rent reduction pursuant to rent control provisions.
That part of the order granting a rent reduction under rent
stabilization provisions is affirmed.
ISSUED:
JOSEPH A. D'AGOSTA
Deputy Commissioner
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