Docket Number: EA-110011-RO
STATE OF NEW YORK
DIVISION OF HOUSING AND COMMUNITY RENEWAL
OFFICE OF RENT ADMINISTRATION
92-31 UNION HALL STREET
JAMAICA, NEW YORK 11433
------------------------------------X S.J.R. No. 5538
IN THE MATTER OF THE ADMINISTRATIVE : ADMINISTRATIVE REVIEW
APPEAL OF DOCKET NO. EA 110011-RO
JAIME ASSOCIATES, : DISTRICT RENT ADMINISTRATOR'S
DOCKET NO. DH 110511-S
ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW
On January 5, 1990, the above-named owner filed a petition for
administrative review of an order issued on December 18, 1989 by a
District Rent Administrator concerning the housing accommodations
known as Apartment 1E, 102-30 Queens Boulevard, Forest Hills, New
York, wherein rent was reduced due to diminution of service.
Subsequently, and after more than ninety days had elapsed from the
time it filed its petition for administrative review, the owner
deemed its petition as having been denied, and sought judicial
review in the Supreme Court of the State of New York pursuant to
Article 78 of the Civil Practice Law and Rules.
After considering the Article-78 petition, the Court issued an order
remitting the proceeding to the New York State Division of Housing
and Community Renewal for further consideration.
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 for review.
On August 19, 1989, the subject tenant filed an application for a
rent reduction based on the owner's failure to maintain certain
services, to wit: the oven had rusty racks, the refrigerator needed
a new gasket, cracked walls in living room and kitchen, no air
conditioner service was provided, mailbox needed a new lock, roach
infestation, bathtub and sink needed new porcelain, new windows slid
on top, peeling and a leak in the bedroom ceiling and window, and a
defective electrical outlet in the living room.
On September 18, 1989, the owner filed an answer contending, among
other things, that it had always attended to service problems
promptly but that this particular tenant denied access to the
subject apartment to the superintendent.
On December 5, 1989, a physical inspection of the subject apartment
was carried out by the Division of Housing and Community Renewal
(DHCR). The inspector, in his report, indicated that the oven racks
were rusted, the refrigerator gasket was soft, the ceiling and walls
in the living room were cracked, the bathtub and sink were in need
of reglazing, bedroom walls were stained and needed painting,
windows throughout the apartment needed painting, there was evidence
Docket Number: EA-110011-RO
of a leak in the bedroom, and the right wall electrical outlet in
the living room was not working.
On December 18, 1989, the District Rent Administrator issued the
order here under review, finding that a diminution in services had
occurred and reducing the rent to the level in effect prior to the
last rent guideline increase which commenced before the effective
date of the order.
In its petition for administrative review the owner requests
reversal of the Administrator's order repeating its allegation of
denial of access to the superintendent. The owner includes copies
of letters to the tenant to document its allegations.
This petition for review triggered an exchange of supplemental
pleadings from both parties. The tenant acknowledges that she
refuses access to the subject apartment to the superintendent.
However, she claims that such denial is reasonable. The tenant
states that on a prior occasion she had been physically and verbally
threatened by the superintendent. A notarized letter from a
neighbor-witness is submitted verifying the occurrence of this
incident. The tenant further states that a complaint was filed with
the police and she is and would be willing to allow access to any
agent of the owner except this particular superintendent. Included
is a statement from a window repairman who was granted access by
the tenant, corroborating the tenant's assertion that she allows
access to anyone to make repairs with the exception of the
The owner's supplemental pleadings acknowledge that an incident took
place between the superintendent and the tenant but state that it
wished not to get involved. Further, the owner states that it
cannot set a precedent of contracting for outside help at the demand
of the tenant when the work required is an ordinary superintendent
function. Finally, the owner acknowledges that the tenant had
permitted access to the subject apartment to an air conditioner
After careful consideration, the Commissioner is of the opinion that
the petition should be denied.
Pursuant to Section 2523.4 (a) of the Rent Stabilization Code:
A tenant may apply to the DHCR for a reduction
of the legal regulated rent to the level in
effect prior to the most recent guidelines
adjustment, and the DHCR shall so reduce the
rent for the period for which it is found that
the owner has failed to maintain required
Docket Number: EA-110011-RO
Required services are defined in Section 2520.6(r) to include
repairs and maintenance.
It is acknowledged by both parties that the subject apartment was in
need of repairs and maintenance. It is also acknowledged that the
superintendent was denied access to the subject apartment. Clearly,
the owner has a continuing duty to maintain required services, and
access to the premises is mandatory for the owner to fulfill this
obligation. However, there are situations where the Commissioner
may determine that the tenant's denial of access is reasonable.
In this case, the record indicates that the tenant and
superintendent engaged in a serious confrontation which almost
resulted in physical contact. The uncontested evidence, including
the neighbor's letter, supports the conclusion that the
confrontation was initiated by the superintendent. The
superintendent is an agent of the owner. Despite the owner's
contention, it cannot avoid "involvement." The Commissioner is of
the opinion that under the extraordinary circumstances present in
this case, the tenant's denial of access to the superintendent was
reasonable. The owner, accordingly, was obligated to have another
of its repair persons make the required repairs.
Further, the record indicates that the tenant's statement that she
would permit access to the subject apartment to repair persons other
than this particular superintendent is creditable. Both the
statement of the window repairman and the acknowledged access to the
air conditioner repairman support this assertion.
The Commissioner finds that the administrator properly based his
determination on the entire record, including the results of the on
site physical inspection conducted on December 5, 1989, and that
pursuant to Section 2523.4(a) of the Code, the administrator was
mandated to reduce the rent upon determining that the owner had
failed to maintain services.
This order and opinion is issued without prejudice to the owner's
rights as they may pertain to an application to the Division for a
restoration of rent based upon the restoration of services.
THEREFORE, in accordance with the Rent Stabilization Law and Code,
ORDERED, that this petition be, and the same hereby is, denied, and
that the Rent Administrator's order be, and the same hereby is,