STATE OF NEW YORK
DIVISION OF HOUSING AND COMMUNITY RENEWAL
OFFICE OF RENT ADMINISTRATION
92-31 UNION HALL STREET
JAMAICA, NY 11433
IN THE MATTER OF THE ADMINISTRATIVE ADMINISTRATIVE REVIEW
APPEAL OF DOCKET NO.: DL520103RT
DOCKET NO.: DE520132OR
ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW
The above-named tenant filed a timely petition for administrative
review of an order issued on November 9, 1989 concerning the
housing accommodations known as 215 Audubon Avenue, Apartment 20,
New York, New York, wherein the Rent Administrator determined the
owner's application to restore rent previously reduced under
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 the petition.
The owner commenced this proceeding by filing a rent restoration
application on the grounds that the owner had restored most of the
services for which a rent reduction was granted, and on the further
ground that the tenant had refused to grant the owner further
access to plaster and paint unless the owner agreed to move the
tenant's furniture away from the walls prior to the scheduled date
The owner answered that the task was the tenant's responsibility.
The owner's submissions include a letter from the owner's Director
of Management to the tenant's representative stating that the
tenant's request for help in moving furniture had been discussed
with the owner but that it had been decided that it was not the
In an answer, the tenant acknowledged the accuracy of the owner's
representative, but further asserted that the tenant was
incapacitated, ailing, not capable of doing the moving, and could
not afford the expense of movers. The tenant also asserted that
the owner's Director of Management had promised to help move the
Based on the record, including evidence that timely notices were
sent to the tenant requesting access, the Rent Administrator
decided that a "no-access" inspection was warranted. Both the
tenant and the owner were notified. The parties were directed to
be present at the apartment on the scheduled date, so as to provide
access for the owner for the purpose of attending to repairs and
restoration of services. The parties were advised that failure of
the owner and/or his repair persons to be present and ready to
attend to repairs and/or restore services, or the failure of the
tenant to keep the appointment would result in a determination
based solely on the evidence on the record.
The no-access inspection was attempted, as scheduled, on October
20, 1989. The inspector reported that the managing agent and
superintendent were present at the time of inspection, but that
there was "N/A at the time of inspection from this T".
The Rent Administrator issued an order restoring the rent for all
the conditions that gave rise to the rent reduction, noting that
the tenant failed to keep the no-access scheduled appointment with
In this petition for administrative review, the tenant again
acknowledges that most other conditions were remedied. However, as
to the plastering and painting, the tenant, in substance, argues
that the Rent Administrator failed to consider whether the owner
had an obligation or had made a binding oral commitment to move
furniture in view of the physical incapacity asserted by the
tenant. The tenant urges that it is his incapacity, rather than
any unreasonable refusal to provide access to workmen, which
precludes co-operation with the owner's demand that the furniture
be moved from the walls. The tenant reasons that if the owner is
not required to move the furniture, then it will be impossible to
have the apartment painted.
The tenant also argues that there was no reason to admit the
inspector since there was no dispute as to the work and services
that remained to be corrected.
The owner responded that any oral promises to help move the
tenant's furniture prior to plastering and painting were not
authorized, that the owner had acted in good faith, and that the
owner remained ready and willing to plaster and paint, should the
tenant decide to make arrangements to have the furniture moved and
to permit the painter access to the apartment.
After careful consideration, the Commissioner is of the opinion
that the petition should be denied.
Pursuant to Policy Statement (90-5): Arranging Repairs No Access
Inspection, the Rent Administrator, may conduct a "no-access"
inspection in response to an owner's claim that a tenant who has
filed a service complaint or an objection to a rent restoration
application has not provided access to the apartment to correct a
service or equipment deficiency. The "no-access" inspection is
scheduled to ensure that the owner obtains the access to make
repairs on the scheduled date, and to protect the tenant's right to
prompt repairs completed in a workmanlike manner at that time; and
not merely to inspect repairs after they are completed.
Since the tenant is rent controlled, the painting services which
the owner is obligated to provide is based on prior practice.
There was no evidence presented below that assisting the tenant to
move furniture was previously provided. Therefore, there was no
requirement for the owner to do so. For the purpose of rent
regulation, the fact that the owner's agent or employee may have
promised to help the tenant move the furniture prior to the work
did not establish that the owner was required to do so as part of
painting services. The tenant's request that the DHCR direct the
owner move the furniture as part of the painting services is beyond
the scope of DHCR's authority.
THEREFORE, in accordance with the provisions of the New York City
Rent and Eviction Regulations, it is
ORDERED, that the tenant's petition for administrative review 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