FJ110141RO
                                  STATE OF NEW YORK
                      DIVISION OF HOUSING AND COMMUNITY RENEWAL
                            OFFICE OF RENT ADMINISTRATION
                                     GERTZ PLAZA
                               92-31 UNION HALL STREET
                                  JAMAICA, NY 11433





          ------------------------------------x
          IN THE MATTER OF THE ADMINISTRATIVE          ADMINISTRATIVE REVIEW
          APPEAL OF                                    DOCKET NO.: FJ110141RO

               E.T.N. Assoc./Fred Cohen,
                                                       RENT ADMINISTRATOR'S
                                                       DOCKET NO.: FD110789S

                                   PETITIONER
          ------------------------------------x


            ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW

          The above-named owner filed a timely petition for administrative 
          review (PAR) against an order issued on September 4, 1991, 
          concerning the housing accommodation known as 119-17 111st Avenue, 
          Apartment 16, Queens, New York, wherein the Rent Administrator 
          determined the tenant's complaint of decreased services.

          The Commissioner has reviewed all of the evidence in the record and 
          has carefully considered that portion of the record relevant to the 
          issues raised by the petition.

          The tenant filed a complaint on April 26, 1991 alleging, in 
          pertinent part, that the apartment was infested with rats and 
          roaches.

          The complaint was served on the owner on May 2, 1991.

          In an answer dated May 31, 1991, the owner stated that the 
          exterminator comes every third Wednesday of every month, and 
          additional times, if needed, provided the tenant allows access.  
          The owner submitted a copy of a letter dated May 9, 1991, advising 
          the tenant that the exterminator would be at the apartment on May 
          15, 1991.  The owner advised that the tenant allowed the 
          exterminator in on that date.




          The Division's inspector visited that apartment on July 19, 1991 
          and reported evidence of rats and roaches in the kitchen.  All 












          FJ110141RO

          other conditions listed in the tenant's complaint were found to 
          have been corrected.

          The Rent Administrator issued an order reducing the tenant's rent 
          based on the infestation conditions.

          In the petition for administrative review, the owner asserts that 
          the tenant is not entitled to a rent reduction for rat and roach 
          infestation because an earlier order had not granted a no rent 
          reduction for this condition.  The owner also argues that the 
          problem is tenant induced because she has a dog, neglects to clean- 
          up after, and allows dog food and garbage to accumulate.  The owner 
          also claims that the tenant refused access on March 20, July 17, 
          August 21 and September 18, 1991 and submitted with the petition 
          copies of exterminator services slips for January, February, March, 
          April, May, June, July and August 1991.

          In answer to the petition, the tenant argues that the earlier order 
          did not order a rent reduction but did order the owner to restore 
          services, which establishes, according to the tenant, that she has 
          been deprived of services since 1986.

          The tenant disputes that her dog contributed to the problem, 
          stating that her dog is properly cared for and that tenants who do 
          not have dogs experience the same infestation problems.  She claims 
          that the owner or the superintendent keeps guard dogs in the 
          basement, that garbage is stored in the basement, that the 
          exterminator never goes to the basement, and that this is the 
          source of the infestation problems throughout the building.

          As for the exterminator's service reports, the tenant claims that 
          when the exterminator noted "Don't Want" he would leave extra "Bait 
          Block Rodent Killer" which he would advise the tenants to use in 
          subsequent months.

          The tenant also adds that the owner corrected all the other items 
          mentioned in her complaint a week before the inspection took place, 
          but that some repairs were not done properly.

          After careful consideration, the Commissioner is of the opinion 
          that the petition 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 petition does not establish any basis for 
          modifying or revoking the Rent Administrator's order, 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.







          FJ110141RO

          Insofar as the owner presents new evidence on appeal that the 
          tenant declined monthly exterminator services on two occasions 
          prior to the July 1991 inspection, and also after the inspection, 
          but prior to the order, the Commissioner notes that scope of review 
          in an administrative appeal is limited to a review of the facts and 
          evidence before the Rent Administrator, and not to consider new 
          evidence.

          The record below does not show that tenant refused the periodic 
          extermination services the owner provided, and that in fact, the 
          tenant accepted individual exterminator services on at least one 
          occasion.  Insofar as the record below indicates that the 
          exterminator services provided were not refused, the Rent 
          Administrator's determination was correct, since the measures taken 
          appear to have been insufficient to correct the roach and rodent 
          infestation, as confirmed by the inspector's observations.

          In the July 6, 1987 determination under AL110355S, the Rent 
          Administrator also found a decrease in services in that there was 
          evidence of roach and rodent infestation but held that a rent 
          reduction is not warranted.  However, the Court of Appeals has 
          since held that when a DHCR inspector confirms a services decrease, 
          a rent reduction is warranted without looking into the extent of 
          the services decrease.  Hyde Park Gardens v. DHCR, 140 A.D.2d 351, 
          527 N.Y.S.2d 841 (2nd Dept. 1988), affd., 73 N.Y.2d 998, 541 
          N.Y.S.2d 345 (1989).

          An examination of DHCR records also reveals that the Rent 
          Administrator issued an order on July 29, 1993 denying the owner's 
          rent restoration application under FJ110260OR.

          The automatic stay of the retroactive rent abatement that resulted 
          by the filing of this petition is vacated upon issuance of this 
          Order and Opinion.

          THEREFORE, in accordance with the provisions of the Rent 
          Stabilization Law and Code, it is

          ORDERED, that the owner's petition be, and the same hereby is, 
          denied and that the Administrator's order be, and the same hereby 
          is, affirmed.

          ISSUED:
                                                                     
                                             LULA M. ANDERSON
                                             Deputy Commissioner  






    

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