STATE OF NEW YORK
DIVISION OF HOUSING AND COMMUNITY RENEWAL
OFFICE OF RENT ADMINISTRATION
92-31 UNION HALL STREET
JAMAICA, NEW YORK 11433
IN THE MATTER OF THE ADMINISTRATIVE ADMINISTRATIVE REVIEW
APPEAL OF DOCKET NO.: HI110225RO
RICHARD ALBERT RENT
ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW
On September 27, 1993 the above named petitioner-owner timely
refiled a Petition for Administrative Review against an order of
the Rent Administrator issued July 13, 1993. The order concerned
housing accommodations known as Apt. 3R located at 93-47 222nd
Street, Queens Village, N.Y. The Administrator denied the owner's
rent restoration application.
The Commissioner has reviewed the record and carefully
considered that portion relevant to the issues raised by this
The owner commenced this proceeding on October 21, 1992 by
filing a rent restoration application wherein he alleged, in sum,
that he had restored services for which a rent reduction order
bearing Docket No. GB110556S had been issued. The Commissioner
notes that the rent was ordered reduced based on findings of
leaking kitchen faucet and inadequate refrigerator and freezer
The tenant was served with a copy of the application and
afforded an opportunity to respond. The tenant filed a response on
February 17, 1993 and stated that the owner had not restored
services and that the application should be denied.
The Administrator ordered a physical inspection of the subject
apartment. The inspection was conducted on June 17, 1993 and
revealed that the kitchen faucets and freezer were repaired but
that the refrigerator temperature was 43 degrees while the setting
was at No. 3.
The Administrator issued the order here under review on July
13, 1993 and denied the application based on the inadequate
On appeal the owner states that the owner replaced the
refrigerator, that the tenant adjusted the refrigerator to meet her
needs rather than comply with the DHCR standard, that an owner
representative had the right to be present during the inspection,
that inadequate refrigerator 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 temperature and that
prior DHCR rent reduction proceedings have been filed by the tenant
and found to be without merit. The petition was served on the
tenant on November 30, 1993.
After careful review of the evidence in the record, the
Commissioner is of the opinion that the petition should be denied.
The Commissioner finds that the grounds set forth in the
petition are restatements of those submitted by the owner in his
petition for administrative review filed against the rent reduction
order (Docket No. GJ110197RO). The Commissioner rejected the
owner's appeal and affirmed the rent reduction order. A party may
not collaterally attack a rent reduction order by filing an
administrative appeal against a rent restoration order nor may a
party attempt to relitigate issues which were raised and rejected
in the rent reduction proceeding.
The Commissioner finds that the report of the DHCR inspector
is dispositive of the issue. If the owner replaced the
refrigerator, he was under a duty to replace it with a functioning
unit. There is no evidence in the record to substantiate the
owner's claims that the tenant caused the conditions complained of.
The order here under review is affirmed. The owner may refile for
rent restoration when the refrigerator has been fully repaired.
THEREFORE, pursuant to the Rent Stabilization Law and Code it
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.
JOSEPH A. D'AGOSTA