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.: GA110112R0
Tenth Frogmouth Corp. c/o
Horing and Welikson, RENT ADMINISTRATOR'S
DOCKET NO.: FH110543S
PETITIONER PREMISES: Apt. 6L
90-10 149th St.
Jamaica, NY
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ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW
The above-named owner filed a timely petition for administrative
review of an order issued on December 13, 1991 concerning the
housing accommodations relating to the above-described docket
number.
The Commissioner has reviewed all the evidence in the record and has
carefully considered that portion of the record relevant to the
issues raised by this administrative appeal.
This proceeding was commenced on August 23, 1991 by a tenant filing
a complaint asserting that the owner had failed to maintain services
in the subject apartment.
The complaint was served on the owner on August 29, 1991 with notice
to the effect that it had 21 days to interpose an answer.
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By letter received September 17, 1991, the owner requested an exten-
sion to file an answer until October 11, 1991. In its letter, the
owner states "If we do not hear from you prior to this date, we will
assume that our request has been granted and we will file our
response on or before that date."
The owner did not file an answer on or before October 11, 1991.
On November 26, 1991, more than 6 weeks after the owner's self-
imposed deadline, a physical inspection of the apartment was
conducted by a DHCR staff member who confirmed that the bathroom
window could not be opened and there were signs of roach infesta-
tion.
On December 5, 1991, the owner hand-delivered a letter to DHCR,
requesting an extension until December 27, 1991, with a statement
that "If we do not hear from you prior to this date, we will assume
that our request has been granted and we will file our response on
or before that date." There is nothing in the owner's letter
explaining its failure to file an answer on or before its prior
self-imposed deadline of October 11, 1991, or the reason for such a
request.
By order dated December 13, 1991, the Administrator directed the
restoration of services based on the inspection results and further
ordered a reduction of the stabilized rent.
In the petition for administrative review, the owner contends that
its due process rights were violated because DHCR failed to inform
the petitioner in writing that the request for an extension of time
to answer was denied and because DHCR failed to notify the owner of
the inspection results prior to issuance of the Administrator's
order; that monthly extermination is being provided to the tenants;
and that the defective window sash is a de minimis item not
warranting a rent reduction.
After careful consideration, the Commissioner is of the opinion that
the petition should be denied.
The Commissioner finds that the Administrator's determination was
based on a timely on-site inspection finding that defective
conditions existed in the apartment: the bathroom window cannot be
opened and there are signs of roach infestation. The defective
bathroom window sash/frame is not a de minimis item but a decrease
in service, warranting a rent reduction. The contention that an
exterminating company services the building monthly fails to rebut
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the existence of inadequate vermin control in the subject apartment
at the time of the inspection, which similarly warranted a rent
abatement. Accordingly, the order appealed from was in all respects
proper and is hereby sustained.
With respect to petitioner's contention regarding a deprivation of
due process in that it was not notified of the denial of its request
for an extension of time prior to the issuance of the Administra-
tor's order, said assertion is rejected. The petitioner had
initially requested an extension of time to interpose an answer and
committed itself to an October 11, 1991 deadline. The owner did not
file an answer on or before said deadline. Accordingly, the
Commissioner finds that the physical inspection was properly and
timely conducted on November 26, 1991, more than 6 weeks after the
owner's self-imposed deadline.
The uncontroverted evidence of record shows that on December 5,
1991, the owner hand-delivered a letter to DHCR, requesting an
extension until December 27, 1991, with a statement that "If we do
not hear from you prior to this date, we will assume that our
request has been granted and we will file our response on or before
that date." There is nothing in the owner's letter explaining its
failure to file an answer on or before its prior self-imposed
deadline of October 11, 1991, or the reason for such a request. The
Commisioner finds this second request for an extension untimely.
For the petitioner to complain of a violation of its due process
rights on the basis that a second request some 6 weeks after the
initial deadline had passed is without foundation in law or fact.
The Division is not required to respond in writing to an extension
request and in the absence of a written response, a party may not
assume that such a request is granted. The Division is not required
to respond in writing to a request for an extension of time;
moreoever, a party may not assume that such a request is granted in
the absence of a written denial.
The defense that the owner is entitled to an inspection report in
the proceeding below is without merit. The Commissioner notes that
the tenant's complaint is sufficient notice to the owner; that the
owner chose not to diligently contest the tenant's allegations; that
the inspection report merely confirmed some allegations in the
complaint; and that accordingly, the owner was not denied due
process. FH410081RO; Empress Manor Apartments v. DHCR, 538 N.Y.S.2d
49, 147 A.D.2d 642.
The automatic stay of the retroactive rent abatement that resulted
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by the filing of this petition is vacated upon issuance of this
Order and Opinion.
THEREFORE, in accordance with the Rent Stabilization Law and Code,
it is
ORDERED, that this petition be, and the same hereby is, denied, and
that the Administrator's order be, and the same hereby, is affirmed.
ISSUED:
JOSEPH A. D'AGOSTA
Deputy Commissioner
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