ADM. REVIEW DOCKET NO.: GE 110282 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
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IN THE MATTER OF THE ADMINISTRATIVE : ADMINISTRATIVE REVIEW
APPEAL OF DOCKET NO.:
GE 110282 RO
:
RENT ADMINISTRATOR'S
DOCKET NO.:
STEPHEN GOLLER C/O FJ - 110111 OR
HAMILTON HALL REALTY CORP
PETITIONER :
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ORDER AND OPINION DENYING OWNER'S PETITION FOR ADMINISTRATIVE
REVIEW
On May 8, 1992, the above-named petitioner-owner filed a
petition for administrative review of an order issued on April 29,
1992, by the Rent Administrator, concerning the housing
accommodation known as 37-05 88th Street, Apartment A2, Queens, New
York, wherein the Administrator determined the owner's application
to restore rent previously reduced by an order issued on June 6,
1991 per Docket No. BF 110136 S.
The Rent Administrator denied the owner's application to
restore rent based on the inspection conducted on April 1, 1992
that disclosed that the owner had not corrected all of the
conditions that gave rise to the rent reduction in that there was
evidence of vermin infestation in the apartment.
In requesting the Deputy Commissioner to reverse the Rent
Administrator's order, the owner relies on a letter from the
Division's Compliance Bureau dated May 22, 1992 confirming a
telephone conversation between the tenant and Division staff member
wherein the tenant advised that she did not wish to pursue
compliance proceedings against the owner.
ADM. REVIEW DOCKET NO.: GE 110282 RO
The owner's characterization of the letter as confirming the
tenant's "request to withdraw her complaint" is misleading. In
fact, she simply advised that she did not wish to pursue
administrative prosecution of the owner for non-compliance, which
could subject the owner to the imposition of fines after a formal
hearing.
It is noted, moreover, that the May 22, 1992 letter made clear
that the tenant's decision not to pursue administrative prosecution
did not affect her right to a rent reduction until services were
restored fully. The letter specified that:
1. Any rent reduction mandated by the Order
shall remain in effect as a penalty until
the above condition is corrected.
2. When the condition is corrected, the owner
may file an application for restoration of
the rent, but the rent may not be restored
until this Agency issues an order granting
the owner's application.
3. Any rent freeze mandated by the Order shall
remain in effect until the Agency issues an
Order granting the owner's application for
for rent restoration.
The owner's argument that it is not a guarantor of a roach
free apartment and that it satisfies its obligation by providing
adequate services ignores the City Housing Maintenance Code
requirement that the owner take adequate and, if necessary,
continuous eradication measures.
The owner's allegation on appeal that the condition is tenant
induced in that the tenant stores paper and plastic bags under the
sink and on top of a cabinet is unsubstantiated and inconsistent
with the owner's claim below that the infestation had in fact been
eradicated.
The record does reflect that the owner has made good faith
effort to exterminate over a period of time, that the exterminator
has come to the building on a regular basis and that the tenant has
provided access on most occasions. However, in answer to the
owner's application, the tenant observed that the services were
ineffective. This was confirmed by the inspection, which revealed
that there remained evidence of infestation.
If eradication measures to date have been inadequate, the
owner is advised to either increase the instance of or shorten the
ADM. REVIEW DOCKET NO.: GE 110282 RO
intervals between periodic extermination service or to explore
alternative treatment. In this respect, the tenant also has an
obligation to comply with the owner's or his agent's reasonable
requests, including requests to eliminate substances which may
afford harborage and keep sealed, where feasible, substances which
provide food for vermin.
The owner's suggestion that the restoration order and the
order below were too vague are similarly rejected. By definition,
infestation implies vermin in such numbers so as to be unpleasant
and unsafe. The owner also failed to seek judicial review of an
order of the Deputy Commissioner, dated July 8, 1992, per Docket
No. FI-110186 RO that denied the owner's administrative appeal to
reverse the Administrator's rent reduction order. The owner's
attempt to allege errors therein constitutes an impermissible
collateral attack of a final determination.
It is noted that Division records reveal an open and pending
application to restore rent per Docket No. GI-110140 OR.
THEREFORE, in accordance with the provisions of the Rent
Stabilization Law and Code, it is
ORDERED, that the owner's 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
Acting Deputy Commissioner
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