STATE OF NEW YORK
DIVISION OF HOUSING AND COMMUNITY RENEWAL
OFFICE OF RENT ADMINISTRATION
92-31 UNION HALL
JAMAICA, NY 11433
IN THE MATTER OF THE ADMINISTRATIVE ADMINISTRATIVE REVIEW
APPEAL OF DOCKET NO.: CE410073RO
M. J. Raynes Inc.,
DOCKET NO.: AF410111OR
ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW
On May 27, 1988, the above-named petitioner-owner filed a petition
for administrative review (PAR) of an order issued on April 22,
1988, by the Rent Administrator, concerning the housing
accommodation known as 44 West 62nd Street, Apt. 26-E, New York,
N.Y., wherein the Administrator determined that the owner's
application for rent restoration should be denied based upon the
owner's failure to keep an appointment with the DHCR inspector.
The Commissioner has reviewed all of the evidence in the record and
has carefully considered that portion of the record relevant to the
order issued by the administrative appeal.
The issue herein is whether the Rent Administrator properly denied
the owner's application for rent restoration.
On April 2, 1987, the owner refiled a completed application for
rent restoration alleging that it has been unable to restore the
services which were the subject of the rent reduction order, dated
January 21, 1986, under Docket Nos. L000419 and LS003044S because
the tenants have been uncooperative.
In answer to the application, the tenants denied that they have
been uncooperative but stated that they wanted the apartment
painted in the same manner as on two previous occasions and that
they wanted the wooden floors replaced before the apartment is
A physical inspection was conducted on November 13, 1987. The
inspector reported that not all repairs had been completed. Among
other things, the inspector noted that there were loose wooden
floor tiles in the dining room and that, according to the tenants,
the apartment had not been painted since 1981.
Because of the owner's allegations regarding no access, a Notice of
Inspection (for access) was sent to the owner's attorney and tenant
for an inspection scheduled for January 27, 1988. The inspector
reported that the tenants were present but the owner or his
representative were not. The tenants showed the inspector a letter
they had received from the owner stating that repairs would begin
on February 2, 1988.
On March 22, 1988, the tenants were asked by the Administrator if
the apartment had been painted. They responded that the apartment
has not been painted since 1981.
The Rent Administrator issued the order appealed herein denying the
owner's application because the owner failed to keep the
appointment with the DHCR inspector.
On appeal, the petitioner-owner asserted, in pertinent part, that
the tenant has consistently refused to provide reasonable access to
the subject apartment and that proper inspection notice was not
extended to the owner or its representatives.
The petition was served on the tenants on July 7, 1988, and on July
26, 1988, the tenants filed an answer to the petition stating that
they were not denying reasonable access to the owner, but that
there was a difference of opinion between the parties as to exactly
what service deficiencies were to be corrected by the owner.
After a careful consideration of the entire evidence of record, the
Commissioner is of the opinion that the administrative appeal
should be denied.
The record shows that the DHCR mailed a properly addressed, (no
access) Notice of Inspection, dated January 19, 1988, to the tenant
and the owner's attorney advising the parties to be present at an
inspection of the subject apartment on January 27, 1988. The
Notice of Inspection contained the following statement:
Failure of the owner and/or his repair person(s) to be
present and ready to attend to repairs and/or restore
services, or failure of the tenant to keep this
appointment will result in a determination based solely
on the evidence presently in the record.
At the time of the inspection, the tenants were present but neither
the owner nor its representative appeared.
The Commissioner has considered the petitioner's claim that the
DHCR inspection notice was inadequate and finds this argument to be
without basis. It is fundamental that letters or notices properly
addressed and mailed post-paid are presumed to have reached their
destination and to have been delivered in due course.
The Commissioner notes that the petitioner argued on appeal
(paragraph 7) that no legal requirement existed for the owner or
its representatives to be present at the inspection, but this
reasoning is fallacious given the fact that the scheduled
inspection was a no-access inspection and that the owner has
consistently raised the no-access issue as a basis for its failure
to make all repairs.
Accordingly, the Commissioner finds that the Administrator properly
based his determination on the entire record, and that the
Administrator properly denied the owner's rent restoration
application upon determining that the owner failed to keep the
appointment with the DHCR inspector.
THEREFORE, in accordance with the provisions of the Rent
Stabilization Law and Code, it is
ORDERED, that this petition be, and the same hereby is, denied, and
that the Administrator's order be, and same hereby is, affirmed.
JOSEPH A. D'AGOSTA