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.: GA110113R0
Tenth Frogmouth Corp. c/o
Horing and Welikson, DISTRICT RENT ADMINISTRATOR'S
DOCKET NO.: FH110545S
PETITIONER PREMISES: Apt. 5N
90-10 149th St.
Jamaica, New York
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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 12, 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.
On August 29, 1991, DHCR transmitted a copy of the tenant's
complaint to the owner with notice to the effect that it had 21 days
to interpose an answer.
Although duly notified to do so, the owner failed to answer the
tenant's complaint.
GA110113RO
Thereafter, on November 26, 1991, a physical inspection of the
subject apartment was conducted by a DHCR inspector who confirmed
the existence of roach infestation.
On December 5, 1991, i.e. more than three months after service of
the tenant's complaint, 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 timely file an answer to the tenant's
complaint, or the basis for requesting a further extension of time.
By order dated December 12, 1991, the Administrator directed the
restoration of services, and further ordered a reduction of the
stabilized rent.
In the petition for administrative review, the owner contends that
DHCR violated its due process rights by the Division's failure to
respond in writing to the owner's request for an extension of time
to the answer until December 27, 1991; that it is inappropriate to
find an owner in default when the owner has a defense; that the
owner should have been informed of the inspection results prior to
the issuance of the order; and that extermination is being provided
to the building on a monthly basis.
After careful consideration, the Commissioner is of the opinion that
the petition should be denied.
The Commissioner finds that the Administrator's determination was
properly based on a timely on-site inspection which found roach
infestation in the apartment. The contention that exterminating
services are provided on a monthly fails to rebut the existence of
inadequate vermin control at the time of the inspection.
Accordingly, the order appealed from was in all respects proper and
is hereby sustained.
With respect to the 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
Administrator's order, said assertion is rejected. The record
clearly shows that on August 29, 1991, DHCR transmitted a copy of
the tenant's complaint to the owner with notice to the effect that
it had 21 days to interpose an answer; and that though duly notified
to do so, the owner failed to answer the tenant's complaint. The
Commissioner thus finds that the November 26, 1991 physical
inspection of the subject apartment confirming the existence of
roach infestation was proper and timely.
GA110113RO
CH110220RO
The record further shows that on December 5, 1991, i.e. more than
three months after service of the tenant's complaint, 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 timely file
an answer to the tenant's complaint, or the basis for requesting a
further extension of time. The Commissioner finds this request for
extension not timely. For the petitioner to complain of a violation
of its due process rights on the basis that it did not receive a
written denial of its request for an extension of time to answer ,
which request was made more than three months after the service of
the tenant's complaint, 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 owner may not assume that
if it does not receive a written denial, said request is granted. In
this regard, it is noted that neither the request below nor the
instant petition contain an explanation for having been in default
for some eleven weeks or the basis for requesting three additional
weeks.
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 by
filing an answer three months after the service of the complaint;
that the inspection report merely confirmed an 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
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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