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
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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.
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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
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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.
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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
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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
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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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