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





          -----------------------------------X

          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
          -----------------------------------X                           





             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.

          GA110112RO














          GA110112RO




          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 








          GA110112RO


          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  













          GA110112RO

          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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