GD 120006-RT; CE 120309-RO
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
APPEALS OF DOCKET NOS.:
GD 120006-RT
ELIZABETH BLANDA, Petitioner Tenant CE 120309-RO
RICHARD ALBERT, Petitioner Owner
RENT ADMINISTRATOR'S
DOCKET NOS.:
EK 120020-RP
BI 120089-OR
----------------------------------x
ORDER AND OPINION GRANTING TENANT'S PETITION FOR
ADMINISTRATIVE REVIEW IN PART AND DENYING OWNER'S
PETITION FOR ADMINISTRATIVE REVIEW
On April 7, 1992, the above-named petitioner tenant filed a
Petition for Administrative Review (PAR) against an order issued on
March 12, 1992, by the Rent Administrator at Gertz Plaza, Jamaica,
New York, concerning the subject housing accommodations known as
93-41 222nd Street, Apartment 1-D, Queens, New York, wherein under
an order of remand by the Deputy Commissioner (BH 120247-RO) dated
October 31, 1990, the Administrator determined that a rent reduc-
tion previously granted the tenant (AH 120584-S), but subsequently
revoked by the Commissioner, should not be reinstated on reconsid-
eration, for reasons more fully set forth below.
The underlying Administrator's determination (Order No. AH 120584-
S, dated July 31, 1987) that gave rise to the instant proceedings
granted the tenant a $9.00 per month rent reduction based on
findings that inspections conducted on November 9, 1986 and January
16, 1987 confirmed that the exterior window frames and sashes
required repairs.
The owner challenged that determination asserting that he had been
denied due process, asserting that he had never been served with a
copy of the complaint. The Deputy Commissioner granted the owner's
administrative appeal. The Deputy Commissioner noted that the
tenant had filed two separate complaints; one alleged that the
apartment was roach infested; the other, that the exterior window
frames and sashes required repairs and painting. The Deputy
Commissioner, after a thorough review, determined that the case
docket failed to establish that both complaints were served upon
the owner.
GD 120006-RT; CE 120309-RO
Based on these findings, the Deputy Commissioner revoked the rent
reduction order, and remanded the proceedings to the Administrator
to afford the owner his due process rights as to both complaints.
It was also pointed out that the Administrator had not determined
the tenant's roach infestation complaint.
On remand, the Administrator served the owner with both complaints
in accordance with the Deputy Commissioner's directives. There is
no record that the owner responded. Nevertheless, inspections were
held on January 8 and February 21, 1992, that confirmed that the
exterior window sashes and frames required repairs and painting and
that here was evidence of roach infestation.
Notwithstanding the conditions revealed on inspection, the
Administrator concurred that the Deputy Commissioner's order
revoking the rent reduction was appropriate. The Administrator's
order also stated that the issue of exterior window sashes and
frames was not properly raised, and advised the tenant of her right
to refile a building-wide complaint raising the issue. The
Administrator did not grant a rent reduction for roach infestation
on the grounds that exterminating services were already provided.
The owner was directed to provide more frequent attention and
treatment to the apartment in light of the fact that the source of
the problem was the apartment's proximity to the incinerator room.
The Administrator also noted that a rent reduction of $6.00 per
month for roach infestation had been issued on March 26, 1991 (DE
120938-S), and duplicated in an order issued on March 27, 1991 (EE
110872-S).
In her appeal, the tenant contends that the March 12, 1992 order
(EK 120020-RO) was deficient on its face, arguing, in essence, that
the June 14, 1991 notice of proceeding to reconsider the tenant's
complaint (under AH 120584-S) limited the Administrator to affirm
or modify the rent reduction order previously entered, but
precluded the Administrator from revoking the rent reduction. The
tenant also disputes the Administrator's finding that defective
window issues could only be raised only in a building-wide
complaint. The tenant's appeal does not allege any errors with
regard to findings of roach infestation.
Division records also reveal an administrative appeal filed by the
owner (CE 120309-RO) challenging an order (BI 120089-OR) issued on
May 5, 1988 that restored the rent previously reduced by the July
31, 1987 order (AH 120584-S). The Administrator restored the rent
based on a "no-access" inspection conducted on February 25, 1988.
Present at the inspection were the inspector, the tenant, and the
superintendent. The inspector reported, among other things, that
the tenant did not want the work done on windows at that time
GD 120006-RT; CE 120309-RO
notwithstanding the fact that the owner's staff was prepared and
available. The order provided that the owner remain obligated to
make repairs as soon as he was given access. In fact, the tenant
concedes that repairs were done on March 24 and 25, 1988. The
owner requests that the rent restoration order be made effective
back to the date of the original order reducing the rent, August 1,
1987, rather than prospectively.
The applicable law is Section 2202.16 of the Rent and Eviction
Regulations.
For purposes of clarification, the Commissioner notes the notice to
"affirm or modify" also contemplates revocation of an order, if the
facts so warrant. Herein, the notice of the proceedings on remand,
to affirm or modify, merely carried out the Commissioner's direc-
tives to reconsider the tenant's complaints, and to afford the
owner his due process rights.
The Commissioner finds, however, that the Administrator erred in
holding that the issue of exterior window frames and sashes could
be raised only by filing a building-wide complaint form. The
complaint of a decrease in individual apartment services was appro-
priate to raise the issue of defective windows in the apartment.
Based on the record, the initial rent reduction is reinstated
effective as of the August 1987 rent payment date after the
Administrator's order issued (July 31, 1987) giving the owner
notice of the conditions, and is terminated after the February 1988
rent payment date as the tenant refused the owner's staff permis-
sion to effect repairs in the presence of the Division's inspector.
The tenant has conceded that repairs to the windows were completed
on March 24, and 25, 1988.
The inspection conducted on January 8, 1992 confirmed that window
sashes and frames required scraping, painting and caulking once
again. The owner is directed to correct these current conditions
within 30 days if not done so already.
The owner's administrative appeal (CE 120309-RO) to have the rent
restored to the date of the original rent reduction is denied. The
findings herein address the reasons why a rent reduction was
warranted, albeit for a limited period.
THEREFORE, in accordance with the Rent and Eviction Regulations for
New York City, it is,
ORDERED, that the tenant's petition be, and the same hereby is,
GD 120006-RT; CE 120309-RO
granted in part, and that the owner's petition be, and the same
hereby is denied.
ISSUED:
JOSEPH A. D'AGOSTA
Acting Deputy Commissioner
|
