GJ110197RO
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.: GJ110197RO
RICHARD ALBERT RENT
ADMINISTRATOR'S DOCKET
NO.: GB110556S
PETITIONER
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ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW
On October 26, 1992 the above named petitioner-owner filed a
Petition for Administrative Review against an order of the Rent
Administrator issued October 7, 1992. The order concerned housing
accommodations known as Apt 3R located at 93-47 222nd Street,
Queens Village, N.Y. The Administrator directed restoration of
services and ordered a rent reduction for failure to maintain
required services.
The Commissioner has reviewed the record and carefully
considered that portion relevant to the issues raised by this
appeal.
The tenant commenced this proceeding on February 28, 1992 by
filing a Statement of Complaint of Decrease in Services wherein she
alleged, in sum, that the owner was not maintaining certain
required services including leaking kitchen faucets, broken freezer
door and defective refrigerator thermostat.
The owner was served with a copy of the complaint and afforded
an opportunity to respond. The owner filed a response on March 24,
1992 and stated, in relevant part, that the faucets had been
repaired and that the tenant was responsible for any problems with
the refrigerator and freezer because the tenant failed to properly
defrost the freezer and had overloaded the refrigerator.
The Administrator ordered a physical inspection of the subject
apartment. The inspection was conducted on September 11, 1992 and
revealed that the kitchen faucets were leaking and that the
refrigerator and freezer temperatures were inadequate (8 degrees
and 25 degrees respectively).
The Administrator issued the order here under review on
GJ110197RO
October 7, 1992. The Administrator noted that the tenant also
complained about a broken freezer door and a defective
hallway/foyer floor but that these conditions were cited in a rent
reduction order bearing Docket No. BL110745S. The Administrator
also directed the owner to repair the foyer floor immediately, as
this condition constituted a hazard. A rent reduction of an amount
equal to the most recent guideline adjustment was ordered based on
the inspector's report regarding the leaking faucets and inadequate
refrigerator/freezer temperature.
On appeal the owner states that the tenant has caused any
problems with the refrigerator, that the tenant has been
uncooperative in allowing access to the apartment, that the owner
has promptly responded to the tenant's complaints, that an owner
representative had the right to be present during the inspection,
that inadequate refrigerator/freezer temperature cannot be a
predicate for a rent reduction since the tenant has control over
the temperature, that the DHCR inspector lacked the technical
expertise to determine issues regarding the adequacy of
refrigerator or freezer temperature and that a DHCR rent reduction
proceeding in 1991 found no evidence of leaking faucet or defective
refrigerator. The petition was served on the tenant on December
17, 1992.
The tenant filed a response on January 5, 1993 and stated, in
sum, that the petition for administrative review is without merit
and that the order here under review should be affirmed.
After careful review of the evidence in the record, the
Commissioner is of the opinion that the petition should be denied.
Pursuant to Section 2523.4 of the Rent Stabilization Code a
tenant may apply to the DHCR for a rent reduction and the
Administrator shall reduce the rent based on a finding that the
owner has failed to maintain required services. Repairs and
maintenance are included within the definition of required
services. The Commissioner finds that the Administrator based this
determination on the entire record including the results of the on-
site physical inspection described above.
The owner's arguments are without merit. The tenant clearly
complained of a defective refrigerator thermostat, which would
account for the fact that the temperature in both the refrigerator
and freezer were found to be inadequate according to established
industry standards. There is no evidence in the record to
substantiate the owner's claims that the tenant caused the
conditions complained of. The owner's complaint that the tenant
was uncooperative in allowing access is negated by the fact that
the owner was permitted access to the apartment for the purpose of
completing some repairs. The Commissioner has consistently held
that an owner does not have the right to be present during a DHCR
inspection because the complaint adequately notifies the owner of
GJ110197RO
the conditions requiring repair (see Empress Manor Apts. v. DHCR
538 N.Y.S.2d 49 [2nd Dept. 1989]). Finally, the fact that a prior
proceeding found that the owner was maintaining services does not
preclude the tenant from filing a new application if the facts so
warrant. The order here under review is affirmed.
The automatic stay of the retroactive rent abatement which
resulted from the filing of this petition for administrative review
is vacated upon issuance of this order and opinion. The
Commissioner notes that the owner's rent restoration application
(Docket No. HG110150OR) is pending before the DHCR.
THEREFORE, pursuant to the Rent Stabilization Law and Code it
is
ORDERED, that this petition be, and the same hereby is,
denied, and that the Rent Administrator's order be, and the same
hereby is, affirmed.
ISSUED:
JOSEPH A. D'AGOSTA
Deputy Commissioner
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