GJ210022RP
                                  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     S.J.R. No.: 6016
          IN THE MATTER OF THE ADMINISTRATIVE     ADMINISTRATIVE REVIEW
          APPEALS OF                              DOCKET NOS.: GJ210022RP
                                                  (Reconsideration of
                                                  CB220299RO); GJ210023RP
                 DEARBORN ASSOCIATES,             (Reconsideration of
                                                  FD220041RO)

                                                  RENT ADMINISTRATOR'S
                                                  DOCKET NOS.:
                                   PETITIONER     BB220107OR;  EH220081OR
          ----------------------------------x     



            ORDER AND OPINION DENYING PETITIONS FOR ADMINISTRATIVE REVIEW
              UPON RECONSIDERATION PURSUANT TO COURT REMAND TO CONSIDER
          EVIDENCE SUBMITTED FOR THE FIRST TIME IN ADMINISTRATIVE APPEALS


          This determination is issued pursuant to a judgment under Article 
          78 of the Civil Practice Law and Rules, Dearborn Associates vs. 
          DHCR, Index No. 40605/91 (Sup. Ct. 1992), wherein the Court (Shaw, 
          J.), considering the owner's Article 78 petition, reversed a 
          Commissioner's order under Docket No. CB220299RO dated January 17, 
          1992 and a Commissioner's order under Docket No. FD220041RO dated 
          August 22, 1991, and remitted the proceedings to the Division for 
          further consideration.

          The proceedings concern the premises known as 345 Montgomery 
          Street, Apartment 2-K, Brooklyn, New York.

          The Court's judgment directed the Agency to specifically consider 
          the terms of a Stipulation of Settlement and order of the Housing 
          Court dated December 8, 1986, whereby the tenant received a rent 
          abatement and agreed to be solely responsible for the painting of 
          his own apartment, and to consider a work order signed by the 
          tenant in December 14, 1987, whereby the tenant indicated that  
          repairs were completed to his satisfaction.

          The tenant commenced the initial proceedings in June 1986 by filing 
          a services complaint, processed under Docket No. AF220079S, citing 
          ceiling leaks, paint and plaster defects throughout the apartment 
          and a defective kitchen floor.  An inspection conducted in 
          September 1986, confirmed the allegations in the complaint.  On 












          GJ210022RP




          January 30, 1987, the Rent Administrator issued an order reducing 
          the tenant's rent by $37.66 based on findings of peeling paint and 
          plaster throughout the apartment and an uneven and rotted kitchen 
          floor.  The owner did not seek administrative review.

          In February 1987, the owner filed the rent restoration application 
          under Docket No. BB220107OR claiming to have restored the services.  
          The owner certified that all services were being provided and 
          affirmed that those services set forth in the January 30, 1987 
          order were being maintained.  However, the application sought 
          restoration of only $34.66 of the total reduced rent, i.e., for the 
          wall and ceiling conditions.  Moreover, the owner's application 
          failed to set forth any description of the restored services, and 
          failed to include any receipted bills or other evidence of 
          expenditures.  The tenant did not complete or sign the Tenant's 
          Statement of Consent.  

          An inspection conducted on November 19, 1987, revealed that the 
          conditions cited in the underlying rent reduction order remained.  
          On January 27, 1988, the Rent  Administrator denied the owner's 
          application based on findings of peeling paint and plaster 
          throughout the apartment and an uneven kitchen floor.

          In February 1988, the owner filed a petition for administrative 
          review (PAR) which was assigned Docket No. CB220299RO.  The owner 
          claimed, for the first time on appeal, that the tenant had been 
          given a rent credit to allow him to paint the apartment at his 
          request.  In support, the owner enclosed, also for the first time 
          on appeal, a Housing Court Stipulation of Settlement dated December 
          8, 1986, Dearborn Assoc. vs. Johnson, Index No. 78095/86, 
          (Andreacchi, J.), reflecting the parties agreement, which set forth 
          the following:

               Final Judgement L[andlord] $1,852.00.  This is balance of 
               rent due through December 1986 after an abatement of 
               $502.44 was given to tenant.

               T[enant] to allow L[andlord] to repair holes in bathroom 
               and child's bedroom on December 9, 1986 at 9:00 a.m.  
               T[enant] to paint apartment himself.  T[enant] to pay 
               balance of rent due landlord ($1,852.00) by January 15, 
               1987 . . . .

          The owner contended that the tenant was given a rent abatement in 
          the sum of $502.44 as a credit for the purpose of painting the 
          apartment.  









          GJ210022RP


          In a continuation of these proceedings, on March 5, 1987, the 
          tenant, represented by counsel, further stipulated that:

               "Tenant acknowledges that he has not yet painted his 
               apartment pursuant to a December 1986 stipulation and 
               agrees to do same by May 31, 1987.  In the event tenant 
               fails to do so, landlord may move to recover the $500.00 
               credit previously given the tenant."

          Also submitted for the first time on appeal, was evidence of 
          separate subsequent Housing Court proceedings conducted on December 
          4, 1987, Dearborn vs. Johnson, Index No. 103874/87, (Gasworth, J.), 
          wherein the tenant agreed to provide the owner access for repairs 
          on December 8, 1987, reiterating that the tenant had the responsi- 
          bility for painting the apartment, which the tenant agreed to 
          complete by May 1988. The owner stated that the plaster repairs 
          were completed by the owner in December 1987, but contended that 
          the plaster repairs were also the tenant's responsibility.
             
          In the answer, to the petition, the tenant disputed the owner's 
          contention that the owner had properly repaired the conditions 
          resulting in the rent reduction.  The tenant contended that the 
          $500.00 credited to the tenant in the December 8, 1986 stipulation 
          constituted an abatement for the prior conditions in the apartment, 
          rather than consideration provided to the tenant for painting the 
          apartment.  The answer also noted that the tenant had agreed to 
          paint the apartment unrepresented by counsel, albeit the promise to 
          do so was affirmed in the later Court agreements represented by 
          counsel.  It was further noted that the tenant never agreed to 
          plaster the apartment, a precondition to proper painting.  The 
          tenant argued that as the agreement in which the tenant agreed to 
          paint the apartment was prepared by the owner's attorney and as the 
          tenant is unable to read, the language must be construed against 
          the owner, whose attorney drafted it.

          The tenant acknowledged that the plaster work was done in December 
          1987, but contended that the owner's continuing failure to stop 
          recurring leaks caused additional damage and made it impossible for 
          tenant to paint the apartment, even though tenant was responsible 
          for painting.  In support, the tenant pointed to the continuation 
          of the December 1987 Housing Court proceeding.  The tenant noted 
          that on June 2, 1988, the Housing Court Judge had the apartment 
          inspected, and that as the inspection revealed that many repairs 
          were needed, granted the tenant an additional $508.00 abatement for 
          the conditions found.  The tenant noted that within a week of the 





          repairs made by the owner pursuant to the June 2, 1988 Housing 












          GJ210022RP

          Court order, a recurring leak in the bathroom ceiling again damaged 
          plaster and paint in the bathroom and the adjoining room.  Per the 
          PAR processing progress sheet, a copy of the tenant's answer to the 
          appeal was mailed to the owner on November 23, 1988.

          Based on the evidence below, the Commissioner concurred that the 
          repairs did not appear to have been completed properly, excused the 
          tenant for failure to paint the apartment and affirmed the Rent 
          Administrator's finding that the owner had failed to restore 
          services.

          While the first administrative appeal was pending, a second rent 
          restoration application was filed by the owner in August 1990, 
          which was assigned Docket No. EH220081OR.  Therein, the owner again 
          claimed to have restored all services.  The owner again enclosed 
          the undated, unsigned, typed statement asserting it had "the paint 
          bill demonstrating that the work has been completed in the 
          apartment".  There was no description or evidence submitted of the 
          floor repair work being completed. 

          On January 28, 1991, another DHCR inspection was conducted.  The 
          inspector reported that peeling paint and plaster was found 
          throughout the apartment.  In addition, the inspector reported that 
          the kitchen floor showed cracks and soft bumpy spots underneath.  

          On February 27, 1991, the Rent Administrator denied the rent 
          restoration application under Docket No. EH220081OR finding that 
          the conditions had not been corrected. 

          The owner's second petition for administrative review, filed on 
          March 28, 1991, included for the first time, a copy of the work 
          order dated December 14, 1987, for plastering, signed by the 
          tenant, indicating that work was completed to the tenant's satis- 
          faction, as well as a cancelled check for same, and a copy of an 
          order dated June 8, 1988 for painting and plastering as well as a 
          work order of the same date, signed by the tenant, for the painting 
          and plastering completed pursuant to the June 2, 1988 Housing Court 
          order.  As noted above, in the answer to the first petition the 
          tenant had stated that although the owner had plastered and painted 
          the apartment in June 1988, pursuant to the Housing Court order, 
          within a week the recurring leak in the bathroom damaged the 
          plaster and paint in the bathroom and the adjoining room, and that 
          the paint was ruined in those rooms.  On August 21, 1991, the 






          Commissioner denied the owner's second petition under Docket No. 
          FD220041RO, finding that the inspection below revealed that 
          services had not been restored.






          GJ210022RP


          The owner commenced the Article 78 proceeding challenging both 
          Commissioner's orders.  The Court found for the owner, holding the 
          painting and plastering had been done with the tenant's approval 
          and that the last inspection was performed some sixteen months 
          after the work was completed in June 1988.  As a result, said Court 
          found that the landlord was not on notice of any new complaints.

          The Court directed the Division of Housing and Community Renewal 
          (DHCR) to redetermine the rent restoration applications, and to  
          specifically consider the terms of the December 1986 Housing Court 
          stipulation. The Court further directed that the Commissioner also
          consider the work order signed by the tenant on December 14, 1987, 
          the bill from the contractor and the cancelled check submitted by 
          the owner to indicate that repairs had been made to the tenant's 
          satisfaction.

          Upon remand from the Court and after careful consideration, the 
          Commissioner is of the opinion the owner's petition under Docket 
          No. CB220299RO against the Rent Administrator's determination under 
          Docket No. BB220107OR, and the owner's petition under Docket No. 
          FD220041RO against the Rent Administrator's determination under 
          Docket No. EH220081OR should again be denied, as more fully set 
          forth below.

          The Rent Administrator's determinations under Docket Nos. 
          BB220107OR and EH220081OR, denying the owner's rent restoration 
          applications were proper and correct based on the record presented.  
          Evidence submitted by the owner for the first time on appeal, 
          consisting of the Stipulation and Order of the Housing Court dated 
          December 8, 1986, whereby the tenant received an abatement and the 
          tenant agreed to be solely responsible for painting of his own 
          apartment, and the work order signed by the tenant on December 14, 
          1987, whereby he indicated that all work was completed to his 
          satisfaction, could not be considered in the first instance as it 
          was beyond the scope of review which is strictly limited to 
          consideration of the evidence and issues presented to the Rent 
          Administrator for consideration.  Nevertheless, in light of the 
          Court order remanding the proceeding, the Commissioner is compelled 
          to consider this evidence, as well as the tenant's responses.







          In Housing Court proceedings, rent abatements are awarded retro- 
          actively.  The more numerous the problems in the apartment, and the 
          severity of the conditions, the more the value of the apartment is 
          diminished.  The more it is diminished the less tenant is obligated 
          to pay in rent.  It is noted that the December 8, 1986 stipulation 












          GJ210022RP

          sets forth in the first paragraph that the tenant was entitled to 
          an abatement of $502.44 from the past rent due.  In the second 
          paragraph, the tenant agreed to allow the landlord to repair the 
          bathroom and the child's bedroom on December 9, 1986, and to paint 
          the apartment himself.  Nowhere, in this Stipulation, is there an 
          indication that the rent abatement was consideration or payment for 
          painting the apartment in lieu of rent. In this regard, considering 
          the tenant's answer to the petition, that since the tenant was not 
          represented by Counsel in that Housing Court proceeding, and that 
          the tenant states that he is unable to read, the Commissioner 
          concurs that any ambiguity in the "agreement" in which the tenant 
          agreed to paint the apartment, must be construed against the owner, 
          who did not dispute that its attorney drafted the agreement.
           
          It is further noted that plaster repairs were not under taken until 
          after December 4, 1987, pursuant to a further agreement in a sep-
          arate Housing Court action under Index No. 103874/87.  The owner 
          did not notify the Rent Administrator of the Housing Court proceed- 
          ings or of the repairs done.  Moreover, notwithstanding the 
          tenant's signature on the pre-printed statement in the work order 
          dated December 14, 1987, that "the above work has been completed to 
          my satisfaction",  in the continuation of these proceedings the 
          Court ordered an inspection of the apartment and, based on the 
          Court ordered inspection, issued an order on June 2, 1987, finding 
          that: repairs were still needed, that the December 1987 work 
          performed was inadequate, and that the tenant was entitled to an 
          additional $528.00 rent abatement for the conditions.

          Thus, it cannot be said that the Commissioner's failure to consider 
          the evidence submitted for the first time on appeal prejudiced the 
          owner.  Having considered herein the evidence submitted on appeal, 
          the Commissioner notes that the Housing Court determinations that 
          found that repairs had not been completed properly support the 
          DHCR's previous ruling excusing the tenant for failing to paint the 
          apartment.

          In addition, the tenant's answer to the owner's first administra- 
          tive appeal, under Docket No. CB220299RO, noted that within a week 
          of repairs conducted pursuant to the June 2, 1988 order, the 
          recurring leak in the bathroom ceiling and leak in the bathroom  





          again damaged the plaster and paint repairs in the bathroom and the 
          adjoining room.  The answer, served on the owner in November 1988, 
          gave the owner further notice that this latest repair had not been 
          completed properly, almost two years before the owner filed another 
          rent restoration application.  The inspection conducted on January 
          28, 1991, revealed that the owner had failed to properly address 
          the conditions for more than two years after defects were pointed 






          GJ210022RP

          out to him.

          Concerning the floor defects, the Commissioner again finds that the 
          owner failed to submit the evidence of the floor repairs on 
          December 3, 1989 to the Rent Administrator for consideration under 
          Docket No. EH220081OR, but submitted the evidence for the first 
          time in the administrative appeal under Docket No. FD220041RO.  It 
          is noted that the work order was not signed by the tenant.  In 
          addition, the owner does not address the fact that the inspection 
          conducted on January 28, 1991 again found floor defects.

          For the reasons set forth above, on remand from the Court for 
          further consideration of the entire record, including the owner's 
          evidence submitted for the first time on appeal, the Commissioner 
          finds that the Rent Administrator properly denied the owner's rent 
          restoration applications and properly continued the rent reduction 
          in effect.


          THEREFORE, in accordance with the provisions of the Rent and Evic- 
          tion Regulations, it is 

          ORDERED, that upon remand from the Court, the owner's petitions for 
          administrative review be, and the same hereby are, denied and that 
          the Administrator's orders be, and the same hereby are, affirmed.  


          ISSUED:





                                                                                                                         
                                                       JOSEPH A. D'AGOSTA
                                                       Deputy Commissioner









    

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