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
|