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.:
STARK MANAGEMENT CO., INC.,
ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW
AND RESTORING RENT
The above-named petitioner-owner filed a timely petition for admin-
istrative review (PAR) of an order issued concerning the housing
accommodation known as 57 Vermilyea Avenue, Apartment 5-E,
New York, New York.
The Commissioner has reviewed all of the evidence in the record and
has carefully considered that portion of the record relevant to the
issues raised by the petition.
The tenant commenced the proceeding below by filing a complaint on
November 30, 1987, asserting that the owner had failed to maintain
certain services in the subject apartment.
In an answer dated March 4, 1988, the owner asserted that all
required repairs had been ordered and will be completed at once.
Thereafter, an inspection on August 29, 1988, of the subject apart-
ment was conducted by a Division of Housing and Community Renewal
(DHCR) inspector who confirmed the existence of the following
1. Bathtub not secured to the bathroom floor or
wall. Water from the connecting piping drains
on the tenant below from bathroom; water leaks
from shower and tub continuously.
2. Apartment entrance door has a broken lock.
The Rent Administrator directed restoration of these services and
further ordered a reduction of the stabilization rent.
In its petition for administrative review, the owner states, in
substance, that the rent should be restored because all repairs
have been done and that the repairs would have been completed at an
earlier date except that the tenant would not provide access. The
owner included with the petition receipts for repair work done to
the bathtub and door.
The DHCR served a copy of the petition on the tenant on November
22, 1988. In answer to the petition, the tenant conceded that all
necessary repairs have been completed but asserted that the rent
reduction should remain in effect because the owner took almost a
year to make the repairs.
After careful consideration, the Commissioner is of the opinion
that the petition should be denied, but the rent should be re-
Pursuant to Section 2523.4 of the Rent Stabilization Code, DHCR is
required to order the rent reduction, upon application by the
tenant, where it is found that the owner has failed to maintain
required services. The owner's petition does not establish any
basis for modifying or revoking the Administrator's order which
determined that the owner was not maintaining required services
based on a physical inspection on August 29, 1988, confirming the
existence of defective conditions in the subject apartment for
which a rent reduction is warranted.
The scope of review in administrative appeals is limited to a
review of facts or evidence that were before the Administrator.
nyThe failure of the owner to raise the issue of access precludes
consideration of the issue for the first time in this appeal
proceeding. Similarly, this evidence regarding repairs was not
submitted to the Administrator and is beyond the scope of review of
However, based on the tenant's statement that all repairs were
completed, the rent is restored effective December 1, 1988, which
is the first of the month following service of the petition on the
tenant. The tenant may pay any rent arrears due as a result of
this order in twelve monthly installments.
The automatic stay of the retroactive rent abatement that resulted
by the filing of this petition is vacated upon issuance of this
order and opinion.
THEREFORE, in accordance with the Rent Stabilization Law and Code
and the Emergency Tenant Protection Act of 1974, it is
ORDERED, that this petition be, and the same hereby is, denied, and
that the Rent Administrator's order be, and the same hereby, is
JOSEPH A. D'AGOSTA