DOCKET NO.: DE 710269-RO
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 :
APPEAL OF ADMINISTRATIVE REVIEW
: DOCKET NO. DE 710269-RO
HARDING and THORNTON, INC., DRO DOCKET NOS. DB 710036-RP
PETITIONER : DA 7-1-0002-OR
--------------------------------------X TENANT: CARLOS MACKEY
ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW
On May 23, 1989, the above named petitioner-owner filed a Petition for
Administrative Review against an order issued on April 18, 1989, by the
Rent Administrator, 50 Clinton Street, Hempstead, New York concerning
housing accommodations known as Apartment A-14, 565 Fulton Avenue,
Hempstead, New York, wherein the Rent Administrator determined, based on
an inspection, that the dishwasher was not working properly and therefore
denied the owner's application to have the rent restored.
The issue in this appeal is whether the Administrator's denial of the rent
restoration was proper.
The applicable section of the Tenant Protection Regulations is Section
2503.4 (formerly Section 44).
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 administrative appeal.
The owner commenced this proceeding on December 8, 1988 by filing an
application to restore the rent which had been frozen in order number
HEMPTC-83-313, issued September 30, 1983, in part based on the owner's
failure to repair the dishwasher.
In answer to the application, the tenant stated, in part, that the
dishwasher still did not work properly. This was confirmed on April 11,
1989 by a Division inspector.
In this petition, the owner contends that the Rent Administrator's Order
is incorrect and should be modified because all services had been restored
on the date the application was filed and the landlord had not been given
notice of the tenant's response to the application; nor had the owner been
given prior notice of the inspection on which the Administrator's order
was based. The petitioner contends that "[t]his error is arbitrary and
capricious since the Landlord had no opportunity to respond to and/or
correct the situation."
In addition the petitioner contends that the underlying rent reduction
DOCKET NO.: DE 710269-RO
order (HEMPTC 83-313) did not state it had been based in an inspection.
If such an inspection occurred, neither it nor any tenant responses in the
proceeding had been served on the owner. Accordingly, the underlying
proceeding should now be remanded to the Administrator for
Furthermore, the owner argues that the Administrator erred n HEMPTC 83-
313 by not specifying what repairs to the dishwasher were required.
In addition the owner argues, in substance, that "the original issue
presented regarding, the dishwasher was refusal to do repairs" (as opposed
to any specified defect in the dishwasher). Therefore, an attempt by the
owner to repair the dishwasher should suffice to restore the rent, even if
a defect remains. Such remaining defect could only be addressed in a
subsequent service complaint.
In support of the petition the owner submits a copy of Harding and
Thornton, Inc. v. DHCR, Supreme Court, Nassau County, Index No. 7102/88,
J. Goldstein, issued November 1, 1988, involving the present petitioner
but regarding a different building. In that proceeding, the DHCR had
reduced the rent for 37 of 117 apartments based on an inspection report.
The Court remanded, holding that "the fact that [the DHCR] did not permit
petitioner to review or comment on the inspection report prior to the
decision does constitute a deprivation of due process."
In answer to this petition, the tenant contends that the order should be
upheld because the inspection demonstrated that the services had not been
restored prior to the owner's filing of its application for restoration of
The Commissioner is of the opinion that this petition should be denied.
At the outset the Commissioner notes the petitioner's contentions
regarding Administrator's order number HEMPTC 83-313, wherein the rent
reduction was initially ordered, are beyond the scope of this appeal.
Such contentions could only have been raised in a timely petition for
administrative review against that order itself. Nevertheless, the
Commissioner notes that order was based in part on an inspection of the
subject apartment by the Building Inspector for the Village of Hempstead,
the findings of which were communicated to the owner by a letter dated May
24, 1983 from the senior building inspector.
Regarding the rent restoration order itself, the owner's argument that all
that was required of the owner was to cease refusing to repair the
dishwasher, so that a faulty or an unworkmanlike repair would suffice to
restore the rent, is not only without merit but raises serious question as
to the good faith of the owner.
Finally, DHCR policy with respect to inspections is that they be held
without notice except to the extent necessary to gain access. Thus an
item in a public area will normally be inspected without notice to either
owner or tenants, whereas for an item to which access can be gained from
one party, only that party will receive notice. See Policy Stateme t 90-
4. This policy has been upheld by the courts. See Howard-Carol Tenants'
Assoc. v. CAB, N.Y.L.J., July 17, 1978, p. 6, App. Div., affirmed by the
Court of Appeals, in N.Y.L.J., Nov. 15, 1979, p. 6. The case cited by the
owner is easily distinguishable since the area to be inspected therein was
in a public area, so that no notice was necessary to either party.
Nevertheless, the tenants, but not the owner had been given access,
DOCKET NO.: DE 710269-RO
creating an appearance of impropriety.
Nor does an owner have a right to comment on the inspection report prior
to the Administrator's decision. See Chinitz v. DHCR, Sup. Ct., N.Y.Co.,
Index No. 01917/88, July 6, 1988, J. Kirschenbaum.
The Commissioner notes with interest that a rent restoration for this item
was sought by petitioner and refused in at least three prior occasions,
each based on a separate inspection. See H-B-B-7-1-0004-OR, June 24, 1987
(inspection June 8, 1987); HBI-7-1-0004-OR, February 8, 1988 (Inspection
January 20, 1988); and HBL-7-1-0005-OR, July 29, 1988 (inspection July 5,
This order is without prejudice to the owner's right to apply for a rent
restoration, if the facts so warrant.
THEREFORE, in accordance with the Emergency Tenant Protection Act and
Regulations, it is
ORDERED, that this petition be, and the same hereby is, denied and the
Rent Administrator's order be, and the same hereby is, affirmed.
JOSEPH A. D'AGOSTA
Acting Deputy Commissioner