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.: DJ410095RO
ALBERT & ROSE FIORDALISI RENT
ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW
On October 8, 1989 the above named petitioner-owner filed a
Petition for Administrative Review against an order of the Rent
Administrator issued September 11, 1989. The order concerned
housing accommodations known as Apt. 4R located at 257 W. 70th
Street, New York, N.Y. The Administrator directed restoration of
services and ordered a rent reduction for failure to maintain
The Commissioner has reviewed the record and carefully
considered that portion relevant to the issues raised by this
The tenant commenced this proceeding on February 2, 1988 by
filing a Statement of Complaint of Decrease in Services and alleged
that the owner was not maintaining certain required apartment
The owner was served with a copy of the complaint and afforded
an opportunity to respond. The owner filed a response on August 4,
1988 and stated that they were maintaining all required services or
that the necessary repairs had been made and further stated that
the tenant had caused flooding in the subject apartment.
The Administrator ordered a physical inspection of the subject
apartment. The inspection was conducted on July 18, 1988. The
apartment was reinspected on July 26, 1989. The inspections
revealed the following:
1. Evidence of mice infestation throughout apartment,
2. Leaking ceiling and peeling paint and plaster
3. Back door in need of weather stripping; small gap
when door closes.
All other services were found to have been maintained.
The Administrator issued a rent reduction order on August 3,
1989 and ordered a rent reduction of an amount equal to the
percentage of the most recent guideline adjustment for the tenant's
lease commencing before August 1, 1988. On September 11, 1989 the
Administrator issued an amended order wherein the rent reduction
was changed from a guideline increase to $9.00 per month plus 10%
of the Maximum Legal Rent based on the fact that the subject tenant
is rent controlled. The remainder of the order was affirmed.
On appeal the owner states that the order hereunder review was
not correctly issued and should be revoked based on the tenant's
failure to allow access to the subject apartment. The owner
attached copies of certified mail, all dated subsequent to the
issuance of the September 11, 1989 order, sent to the tenant
wherein access to the subject apartment was requested. The owner
contends that the tenant failed to respond to these requests. The
petition was served on the tenant on February 5, 1990.
After careful review of the evidence in the record, the
Commissioner is of the opinion that the petition should be denied.
Numerous prior decisions issued by the Commissioner have held
that the scope of review in an administrative appeal is limited to
facts or evidence presented before the Administrator unless the
petitioner can show why such facts or evidence could not have been
presented. The owner did not raise the defense of failure to allow
access before the Administrator except to say that the tenant
refused to give the owner a key to the apartment so that access
could be obtained in an emergency. The owner did not show that any
attempts were made to gain access to repair the conditions cited in
the complaint. Therefore, the Commissioner will not consider the
defense on appeal. The order hereunder review is affirmed.
The Commissioner notes that the owner's application for rent
restoration has been granted (Docket No. EH410100OR).
THEREFORE, pursuant to the Rent and Eviction Regulations for
New York City 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, affirmed.
JOSEPH A. D'AGOSTA