CD520125RO

                                  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
          IN THE MATTER OF THE ADMINISTRATIVE     ADMINISTRATIVE REVIEW
          APPEAL OF                               DOCKET NO.: CD520125RO
                                                  
          SOLOFF MANAGEMENT CORP.                 RENT
                                                  ADMINISTRATOR'S DOCKET 
                                                  NO.: BE420132OR
                                  PETITIONER            
          ----------------------------------x


            ORDER AND OPINION GRANTING PETITION FOR ADMINISTRATIVE REVIEW
                              AND REMANDING PROCEEDING

               On April 27, 1988 the above named petitioner-owner filed a 
          Petition for Administrative Review against an order of the Rent 
          Administrator issued April 19, 1988. The order concerned housing 
          accommodations known as Apt 40 located at 845 Riverside Drive, New 
          York, 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 
          appeal.

               The owner commenced this proceeding on May 28, 1987 by filing 
          an application to restore rent that had been reduced in Docket No. 
          AK620011RP for smoke damaged walls and ceilings, and an apartment 
          hallway door that had been destroyed by fire and not replaced.  The 
          owner stated in the application that the tenant had refused to 
          permit it to restore services.  The owner explained that it had 
          made a painting appointment with the tenant by certified mail and 
          attached a copy of the letter, that the tenant failed to make the 
          apartment available on the required date and that the owner is 
          ready, willing and able to paint the apartment.
           
               The tenant was served with a copy of the application and 
          afforded an opportunity to respond. A response was filed on August 
          24, 1987 wherein the tenant stated that someone was present on the 
          date set forth by the owner for painting but that no one ever 
          appeared to paint the apartment.  The tenant also stated that 
          painting alone would not restore services but, rather, that repairs 
          were required to restore services damaged in a fire.
           
               The Administrator ordered a physical inspection of the subject 












          CD520125RO

          apartment.  The inspection was conducted on October 28, 1987 and 
          revealed the following:

                    1.   The apartment is smoke damaged due to a fire.  The 
                         walls have been replaced with plywood partitions.  
                         The ceilings have peeling paint and cracked 
                         plaster,

                    2.   Apartment door frame has been repaired with plain 
                         unpainted lumber.  Doors to living room and kitchen 
                         were never replaced after the fire.

               The Administrator issued the order here under review on April 
          19, 1988 and denied the application.

               On appeal the owner states that the application was not based 
          on the adequacy of work done in the apartment but, rather, on 
          failure of the tenant to allow it access, that the record contains 
          a copy of a letter sent to the owner by the tenant in which the 
          tenant refused to allow access to the apartment, and that the 
          Administrator never investigated the access issue.  The petition 
          was served on the tenant on May 31, 1988.

               The tenant, represented by counsel, filed a response on June 
          17, 1988 and stated that the owner has not been denied access, that 
          someone was in the apartment on the day the owner had stated that 
          the apartment would be painted, that no one ever appeared on that 
          date, that the only time the tenant failed to give access to the 
          owner was when the owner requested access without any prior notice, 
          that the tenant refused to give access on that occasion because of 
          her poor physical condition, and that repairs other than painting 
          are necessary to restore services in the apartment.
           
               After careful review of the evidence in the record, the 
          Commissioner is of the opinion that the petition should be granted, 
          and the proceeding should be remanded to the Administrator for the 
          ordering of a "no access" inspection.

               It is apparent from the record that the owner is correct in 
          stating that the instant application was based on the alleged 
          failure of the tenant to allow access to the apartment.  The 
          Administrator failed to investigate this issue and, instead, based 
          the denial of the application on a physical inspection of the 
          apartment.  The failure to investigate the access issue was an 
          error.  

               The Commissioner is of the opinion that the order here under 
          review should be revoked.  Pursuant to DHCR Policy Statement 90-5 
          a "no access" inspection may be conducted in response to an owner's 
          claim that a tenant who has filed a service complaint has not 
          provided access to the apartment so that the owner may correct a 
          service or equipment deficiency.  The proceeding is remanded so 






          CD520125RO

          that the owner may be given an opportunity to submit proof of the 
          tenant's failure to provide access as required by Policy Statement 
          90-5 and ordering of a "no access" inspection if the facts so 
          warrant.

               THEREFORE, pursuant to the Rent and Eviction Regulations for 
          New York City it is 

               ORDERED, that this petition be, and the same hereby is, 
          granted, and that this proceeding be, and the same hereby is, 
          remanded for further processing consistent with this order and 
          opinion.  The rent reduction remains in effect until a new order is 
          issued by the Administrator pursuant to the remand.

          ISSUED:



                                                                             
                                             JOSEPH A. D'AGOSTA
                                             Deputy Commissioner
                                   






    

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