STATE OF NEW YORK
DIVISION OF HOUSING AND COMMUNITY RENEWAL
OFFICE OF RENT ADMINISTRATION
92-31 UNION HALL STREET
JAMAICA, NY 11433
IN THE MATTER OF THE ADMINISTRATIVE ADMINISTRATIVE REVIEW
APPEAL OF DOCKET NO.: FJ110141RO
E.T.N. Assoc./Fred Cohen,
DOCKET NO.: FD110789S
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
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
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
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.
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
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
LULA M. ANDERSON