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.: DK410056R0
Rachel Tarasoff c/o
Kucker, Kraus and Bruh, RENT ADMINISTRATOR'S
DOCKET NO.: DH410154S
PETITIONER PREMISES: Apt. D
8 West 87th. St.
New York, NY
ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW
The above-named owner filed a timely petition for administrative
review of an order issued on October 16, 1989 concerning the housing
accommodations relating to the above-described docket number.
The Commissioner has reviewed all the evidence in the record and has
carefully considered that portion of the record relevant to the
issues raised by this administrative appeal.
This proceeding was commenced on August 7, 1989 by a tenant filing
a complaint asserting that the owner had failed to maintain various
services in the subject apartment. The Commissioner notes the
specificity of the tenant's complaint:
1. There are leaks in the bathroom ceiling and walls; the
owner's attempts to repair were unsatisfactory.
2. The toilet flushometer is defective; the toilet is off-
3. The leak from the pipe of the bathtub was repaired in an
4. The bathtub faucets leak and are defective.
5. The piping for the shower curtain is defective.
6. The door from the bathroom to the kitchen is defective.
7. The kitchen floor was replaced unsatisfactorily. It brickles
and does not cover floor completely, causing cabinets and
stove to be off-balanced.
8. The door between the kitchen and the living room cannot be
slid open as in the past.
9. The light in the kitchen was replaced in a shabby manner,
creating a gap around the light fixture through the wall.
10. The apartment door is defective. It is loose, including the
11. Two electrical outlets and two switches in the living room
do not work.
12. The fireplace is unusable.
13. The apartment was painted in an unsatisfactory manner. The
floor is splattered with paint.
14. The sprinkler system is defective.
The tenant submitted a copy of a July 25, 1989 letter to the owner,
which is typewritten in single space, detailing the conditions in
the bathroom, the kitchen, the main entrance and the living/sleeping
quarters. In relevant part, the tenant stated:
"All communication should be in writing
and not over the phone. All work on my
apartment should be done Mon.-Fri. during
normal working hours, and no entry should be
permitted without my prior notification and
If all the stated matters are not attended to
in a reasonable period of time, I shall have no
alternative but to direct my complaints to NYS
Division of Housing and Community Renewal."
In an answer filed on August 23, 1989, the owner asserted in
relevant part that the tenant refused to be specific about his
complaints, that the tenant never contacted the owner to schedule
repair times, that there is no leaking faucet in the bathtub per the
owner's inspection, that the fireplace is not usable as in other
apartments, that apartment was painted and the kitchen renovated
last year, that the sprinkler system is in perfect working order,
and that the owner is willing to repair but the tenant refuses
access. Attached to the answer were copies of various letters
inquiring from the tenant specifics on what need to be repaired, and
a copy of a response to the tenant's July 25, 1989 letter, denying
some of the allegations in the complaint and otherwise asserting
that services are being maintained and provided.
The Commissioner notes that the owner's answer failed to prove that
she complied with the regular mailing, certified mailing with return
receipt and other requirements of Policy Statement 90-5 (No Access
Inspections; Arranging Repairs).
On September 29, 1989, a physical inspection of the apartment was
conducted by a DHCR staff member who confirmed the existence of
By order dated October 16, 1989, the Administrator directed the
restoration of services and further ordered a reduction of the
stabilized rent based on these inspection results:
1. The bathroom ceiling paint did not cover the peeling paint
2. The toilet pipe located behind the toilet bowl is leaking.
3. The toilet bowl is not level.
4. The tub faucet unit is leaking.
5. The shower rod hanger is missing.
6. The sliding door located between the living room and the
kitchen does not open or close.
7. The tiles located behind the refrigerator have not been
8. The wall area where the fixture has been installed has not
9. The entrance door knobs are loose and has large opening in
10. The switch in the living room is defective. The light
fixtures have exposed wires.
11. The living room has a defective 2-way outlet.
12. The fireplace is defective.
13. The front bedroom walls was painted unsatisfactorily. The
bathroom base molding was not painted.
In the petition for administrative review, the owner contends that
the tenant refused access by a "conscious pattern by the tenant of
failing to inform the petitioner of what items in his apartment
require repairs" prior to the filing of the complaint. The owner
submitted copies of correspondence before the initiation of this
proceeding advising the tenant when an electrician or the proper
repair person is available; however, the tenant failed to notify the
agent when to allow access. In addition, the owner alleged that the
tenant sent communications to the owner instead of the agent and
building superintendent who, by established procedure which the
tenant was aware of, were the proper persons to do repairs.
In answer, the tenant denied the allegations in the petition and
otherwise asserted that he allowed access to the owner's amateur and
unprofessional workmen who performed inferior, slipshod and
detrimental repairs to the apartment.
After careful consideration, the Commissioner is of the opinion that
the petition should be denied.
The record clearly shows that the Administrator's determination was
properly based on a timely inspection which confirmed many of the
specific, detailed allegations in the tenant's complaint. These
findings in the subject apartment are defective conditions,
warranting a rent reduction. The determination was in all respects
proper and is hereby sustained.
The contention that the the tenant failed to specify to the agent
and the building superintendent the necessary repairs to be done
prior to the filing of the complaint is without merit. The copies of
correspondence allegedly advising the tenant when an electrician or
the proper repair person is available, and the tenant failing to
notify the agent when to allow access, pertain to a period of time
prior to the filing of the complaint and are irrelevant. The copies
of certificates of mailings were not submitted in the proceeding
below prior to the issuance of the Administrator's order and are now
submitted for the first time on appeal; accordingly, these
submissions are beyond the scope of administrative review, which is
limited to the issues and evidence before the Administrator.
The Commissioner notes that the tenant's complaint, with the
attached July 25, 1989 detailed letter in this case, was sufficient
notice to the owner. The owner in fact answered the complaint in a
There is no proof in the record that the tenant refused access. The
owner submitted no indication of regular mailing and certified
mailing with return receipt, to show a request for or to set a
scheduled appointment for repairs which the tenant clearly refused
access to. Rather, the record shows otherwise: that access was made,
but the repairs were incomplete and ineffective. Accordingly, the
Commissioner finds the defense of denied access without merit.
The following rent restoration applications by the owner have been
denied: EI410210OR and FF410176OR on January 28, 1992, and
FF410177OR on October 16, 1992.
The owner's rent restoration application (GC410125OR) was granted in
part on May 24, 1993. Here, the fireplace was found to be a restored
service, and that there is still defective paint and plaster in the
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,
ORDERED, that this petition be, and the same hereby is, denied, and
that the Administrator's order be, and the same hereby, is affirmed.
JOSEPH A. D'AGOSTA