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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.: GC 410123 RO
PABLO GERALNIK DISTRICT RENT
ADMINISTRATOR'S DOCKET
NO.: FL 410272 S
PETITIONER
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ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW
On March 11, 1992 the above named petitioner-owner timely
refiled a Petition for Administrative Review against an order of
the Rent Administrator issued February 7, 1992. The order
concerned housing accommodations known as Apt 40 located at 8 West
108th Street, New York, N.Y. The Administrator 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 by filing a Statement of
Complaint of Decrease in Services on December 17, 1991 wherein she
alleged the following services deficiencies:
1. Kitchen--Lower window sash has broken glass pane;
holes in ceiling,
2. Bathroom window has no lock,
3. Second bedroom window has rotted sash next to pane,
4. Master bedroom window sashes missing,
5. Living room window has no lock,
6. First bedroom has hole in wall, cracked ceiling and
leak,
7. Second bedroom has hole in ceiling and peeling
paint and plaster,
8. Mice and roaches entering apartment through holes
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described above.
The owner was served with a copy of the complaint and afforded
an opportunity to respond. The owner filed a response on December
23, 1991 and stated that he was willing to make repairs, but the
tenant was not home between 9 A.M. and 5 P.M. and the owner could
not get access. The owner requested that DHCR arrange access to
the apartment. The tenant filed a reply on January 30, 1992 and
stated that she was not refusing access to the apartment.
The Administrator ordered a physical inspection of the subject
apartment. The inspection was conducted on January 24, 1992 and
revealed the following:
1. Kitchen ceiling cracked and hazardous bulging,
2. No living room window lock,
3. Kitchen walls show peeling and rough plastering
including west closet,
4. Kitchen floor unlevel within stove area,
5. First bedroom ceiling has cracked ceiling,
6. Second bedroom walls cracked, bulging and peeling;
south wall in danger of falling,
7. Second bedroom ceiling cracked and contains holes,
8. Bathroom window lock missing,
9. First bedroom window could not be opened,
10. Third bedroom ceiling cracked and peeling paint and
plaster,
11. Third bedroom window could not be opened,
12. Evidence of vermin droppings in apartment.
The following services were found to have been maintained:
1. No defects found in kitchen window pane
The Administrator issued the order here under review on
February 7, 1992 and ordered a rent reduction equal to the most
recent guideline adjustment based on the report of the inspector.
On appeal the owner restates his desire that DHCR aid in
arranging access to the subject apartment. The owner also states
that all window sashes, frames and locks have been repaired.
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Attached to the petition is a bill, dated January 24, 1992, wherein
the owner listed the window repairs made to the apartment. The
tenant refused to sign the bill.
The tenant filed a response on April 14, 1992 wherein she
again stated that she was not denying the owner access to the
apartment and that she had attempted to cooperate with the owner in
scheduling appointments for the repairmen.
After careful review of the evidence in the record, the
Commissioner is of the opinion that the petition should be denied.
The Commissioner initially notes that the owner has not
complied with the provisions set forth in Policy Statement 90-5,
regarding the arranging of repairs and the holding of a "no access"
inspection. Pursuant to the Policy Statement it was incumbent on
the owner to submit to the Administrator copies of two letters,
sent to the tenant to request access. Each letter was to have been
mailed at least eight days before the proposed access date and the
second letter had to have been sent by certified mail, return
receipt requested. The return receipt had to have been submitted
with the request for the inspection. Since the owner did not
follow this procedure, the Administrator was correct in ordering an
ordinary inspection.
The Commissioner further notes that numerous prior orders have
held that the report of a DHCR inspector is entitled to more
probative weight than the unsupported allegations of a party to the
proceeding. The inspector clearly reported window defects, despite
the owners allegation that he had made repairs. With regard to the
claim of failure to afford access, the owner has never documented
specific dates and times that he attempted to gain access, only to
be denied by the tenant.
Pursuant to 9 NYCRR 2523.4 (a) a tenant may apply to the DHCR
for a rent reduction and the Administrator shall reduce the rent
based on a finding of failure to maintain required services.
Section 2520.6 (r) of the Rent Stabilization Code defines required
services to include repairs and maintenance. The Commissioner
finds that the Administrator properly determined this proceeding
based on the entire record including the results of the on-site
physical inspection held on January 24, 1992. The owner has failed
to document any claim raised either before the Administrator or in
this administrative appeal. The order here under review is,
therefore, affirmed.
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.
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ISSUED:
JOSEPH A. D'AGOSTA
Acting Deputy Commissioner
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