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.:
LOUIS DE VITO,
ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW
On January 7, 1988, the above-named petitioner-owner filed a
petition for administrative review (PAR) of an order issued on
December 4, 1987, by the Rent Administrator, concerning the housing
accommodation known as 285 Mott Street, New York, New York, apart-
ment A-4, wherein the Administrator determined that there was a
diminution of services and reduced the tenant's rent by $3.00 per
month. The determination was based on the results of an inspection
of the subject premises held on October 22, 1987, which showed that
the hallway floor was uneven. The Rent Administrator also directed
restoration of services.
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.
On appeal, the petitioner-owner asserted that despite several
attempts to correct the service deficiency, access could not be
gained to the tenant's apartment. In support of his contention on
appeal, he submitted separate certified mail receipts respectively
dated August 27, 1987 and September 19, 1987, (Return Receipt
Requested) which were signed by the tenant. These receipts were
evidence of separate access requests which were mailed to the
The petition was served on the tenant on February 22, 1988.
The tenant answered the petition alleging that the owner was mis-
representing the facts in that the only reason the workers were
denied access was because of illness; that subsequent thereto
access was always offered to the owner but that the owner's
employee failed to appear for the second access appointment and has
not returned since that time.
After a careful consideration of the entire evidence of record the
Commissioner is of the opinion that the administrative appeal
should be denied.
For rent controlled tenants Section 2202.16 of the Rent and
Eviction Regulations provides that a finding that an owner has
failed to maintain services may result in an order of decrease in
maximum rent, in an amount determined by the discretion of the Rent
A review of the record before the Administrator clearly shows that
the owner did not submit any evidence that the deficiency noted on
the inspector's report was completed in a workmanlike manner at the
time of the Division of Housing and Community Renewal's (DHCR)
inspection or at any time prior to the issuance of the Administra-
Furthermore, the record before the Rent Administrator discloses
that although the owner raised the access issue below; he did not
submit any evidence in support of his allegations.
Since the scope of administrative review is limited to the facts or
evidence which were raised before the Rent Administrator and the
access issue was not supported by any evidence below it may not now
be considered for the first time on administrative appeal.
Accordingly, the Commissioner finds that the Administrator properly
based his determination on the entire record, including the results
of the on-site inspection conducted in the subject apartment.
This Order and Opinion is issued without prejudice to the owner's
right to file the appropriate application with the Division for
restoration of rent based upon a restoration of services, if the
facts so warrant.
THEREFORE, in accordance with the provisions of the Rent & Eviction
Regulations, it is,
ORDERED, that this petition be, and the same hereby is, denied, and
the Rent Administrator's order be, and the same hereby is,
JOSEPH A. D'AGOSTA