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.:
TRYON HEIGHTS ASSOCIATES,
PETITIONER BA 510714-S
ORDER AND OPINION GRANTING PETITION FOR ADMINISTRATIVE REVIEW
On November 18, 1987, the above-named petitioner-owner filed a
petition for administrative review of an order issued on October
20, 1987, by the Rent Administrator, concerning the housing
accommodation known as 200 Pinehurst Avenue, New York, New York,
Apt. D, wherein the Administrator determined that the rent for the
subject apartment should be reduced to the level in effect prior to
the last rent guideline increase which commenced before the effec-
tive date of the order based upon a diminution of various services.
The Rent Administrator's order was based upon the findings of an
inspection held on July 29, 1987.
The Commissioner has reviewed all of the evidence in the record and
has carefully considered that portion of the record relevant to the
issue raised by the administrative appeal.
The issue herein is whether the Rent Administrator properly reduced
the rent of the subject apartment based upon a diminution in
On appeal, the petitioner-owner asserted, in essence, that the
tenant did not grant the owner access to the subject apartment to
make the necessary repairs; that the DHCR denied it due process of
law by failing to notify it of the inspection date and by failing
to give it an opportunity to comment on the inspection results and
that it had not decreased services in any way.
After a careful consideration of the entire evidence of record the
Commissioner is of the opinion that the administrative appeal
should be granted.
The Housing and Maintenance Code provides:
S D26-10.07 Owner's right of access---No
tenant shall refuse to permit the owner or his
agent or employee, to enter his dwelling unit
or other space under his control to make re-
pairs or improvements required by this code or
other law or to inspect such apartment or
other space to determine compliance with this
code or any other provision of law, if the
right of entry is exercised at a reasonable
time and in a reasonable manner. The depart-
ment may by regulation restrict the time and
manner of such inspections.
In a Civil Court non-payment action, before Hon. Peter Tom, Tryon
Heights Associates v. Ferdi Levi, under Docket No. L & T 27295/86,
the court rejected the respondent-tenant's counterclaim which
alleged that his apartment was in need of repairs, on the ground
that the tenant had consistently failed to provide access to the
owner to make necessary repairs. (A full text of the court's
holding is contained on page 62 of the certified transcript of the
court proceedings, which is appended to the petition and marked as
Exhibit C.) In this action, the owner was granted a final judgment
of $4,450.60 representing back rent owed.
In the owner's answer of March 24, 1987 filed before the Rent
Administrator, the owner asseverated that the tenant was consis-
tently flouting Judge Tom's orders, which directed the tenant to
provide repair access to his apartment.
The Commissioner notes that the access issue is one that permeates
the entire proceeding before the Administrator and that the evi-
dence in the file corroborates the owner's assertions below and on
appeal. The Administrator should have ordered a "No Access"
inspection at which the tenant, the owner, and the owner's repair
persons would be directed to appear at the apartment at a specified
date and time to make the necessary repairs. However, since the
Division's records reveal that the tenant no longer occupies the
apartment, a remand for such an inspection is not warranted.
Although it is unnecessary at this point to consider in depth the
petitioner's claims about the DHCR's failure to notify it of the
inspection held, the Commissioner notes that due process does not
require that the owner be informed that inspections are to take
place or that it be sent copies of the reports with an opportunity
to rectify the conditions or to respond. The owner had adequate
notice from the tenant's complaints of conditions requiring its
attention. This is, however, a moot point in view of the abundance
of evidence in the record to support the petitioner's claim that
the tenant refused access to his apartment for the purpose of
carrying out repairs.
In view of the preponderance of evidence which supports the owner's
position in this proceeding, the Commissioner finds that it was
error for the Rent Administrator to reduce the rent.
Accordingly, the Commissioner is of the opinion that the rent
reduction order should be revoked.
THEREFORE, in accordance with the provisions of the Rent Stabiliza-
tion Law and Code, it is,
ORDERED, that this petition be, and the same hereby is, granted,
and the Rent Administrator's order be, and the same hereby is,
JOSEPH A. D'AGOSTA