DL520103RT

                                  STATE OF NEW YORK
                      DIVISION OF HOUSING AND COMMUNITY RENEWAL
                            OFFICE OF RENT ADMINISTRATION
                                     GERTZ PLAZA
                               92-31 UNION HALL STREET
                                  JAMAICA, NY 11433





          ------------------------------------x
          IN THE MATTER OF THE ADMINISTRATIVE          ADMINISTRATIVE REVIEW
          APPEAL OF                                    DOCKET NO.: DL520103RT

                    Howard Davidson,
                                                       RENT ADMINISTRATOR'S
                                                       DOCKET NO.: DE520132OR

                                   PETITIONER
          ------------------------------------x

            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 
          BE520575S.

          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 
          of painting.  

          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 
          owner's responsibility.
















          DL520103RT

          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 
          furniture.

          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 
          the inspector.

          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 






          DL520103RT

          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.
           


          ISSUED:



                                                                     
                                             JOSEPH A. D'AGOSTA
                                             Deputy Commissioner  






    

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