STATE OF NEW YORK
DIVISION OF HOUSING AND COMMUNITY RENEWAL
OFFICE OR RENT ADMINISTRATION
92-31 UNION HALL STREET
JAMAICA, NEW YORK 11433
IN THE MATTER OF THE ADMINISTRATIVE ADMINISTRATIVE REVIEW
APPEAL OF DOCKET NO.: EE410448RO
SOLOW MANAGEMENT CORP., RENT ADMINISTRATOR'S
DOCKET NO.: DE410322S
ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW
On May 28, 1990, the above-named petitioner-owner filed a petition
for administrative review (PAR) of an order issued on April 17,
1990, by the Rent Administrator, concerning the housing
accommodation known as 265 East 66th Street, New York, N.Y., Apt.
17-E, wherein the Administrator determined that the rent of the
subject apartment should be reduced to the level in effect prior to
the last guideline increase based upon the owner's failure to
provide painting services to the subject tenant. The order was
based on an inspection held on April 3, 1990, which showed that the
subject apartment is in need of painting throughout, except where
wall paper is in evidence.
The Rent Administrator also directed full restoration of services.
The Commissioner has reviewed all of the evidence in the record and
has carefully considered that portion of the record relevant to the
issue raised by the administrative appeal.
The issue herein is whether the Rent Administrator properly reduced
the rent of the subject apartment.
On appeal, the petitioner-owner asserted, in substance, that the
Rent Administrator erred by reducing the rent because the subject
tenancy was terminated legally prior to the owner's receipt of the
notice of complaint; that its right to due process was denied
because it had a pending extension to file an answer to the
tenant's complaint and further that the DHCR failed to give it
notice of the inspection or the results thereof.
The petition was served on the tenant on July 6, 1990 and on July
26, 1990, the tenant filed an answer to the petition stating, in
substance, that the owner failed to paint the apartment; that the
owner had actual notice of the complaint; that the owner's filing
of the petition is one part of a series of attempts to harass him
out of the apartment; that he had filed the complaint before the
owner had filed the Notice of Termination and that the Notice of
Termination was dated May 4, 1989; not March 4, 1989, as alleged by
the owner in the PAR.
After a careful consideration of the entire evidence of record the
Commissioner is of the opinion that the administrative appeal
should be denied.
Pursuant to Section 2523.4 (a) of the Rent Stabilization Code, a
tenant may apply to the Division of Housing and Community Renewal
(DHCR) for 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 services.
Required services are defined in Section 2520.6 (r) to include
repairs and maintenance.
Section 2520.6 (r) (5) of the current Rent Stabilization Code
Each housing accommodation must be painted at least once
every three year in compliance with title 27 of the Ad-
ministrative Code of the City of New York (the "Housing
A review of the record discloses that the owner requested and the
DHCR granted nine separate extensions to answer the tenant's
complaint, ranging from June 16, 1989 to February 26, 1990, but
that it had failed to answer the complaint.
The Commissioner finds, therefore, that the petitioner having
failed to raise any issue whatsoever while the proceeding was
pending before the Rent Administrator it may not now raise issues
for the first time on administrative appeal.
Moreover, administrative policy and precedent do not require that
an owner be given notice of the inspection or the actual inspection
results and the courts have upheld this procedure (Empress Manor
Apartments v. NYS DHCR, 538 N.Y.S. 2d 49, 147 A.D. 2d 642, February
A review of the record indicates that the Administrator based his
determination on the entire evidence of record, including the April
3, 1990 inspection which disclosed that the apartment is in need of
painting. Therefore, the Commissioner finds that the Administrator
properly determined that the owner had failed to maintain services
and correctly reduced the tenant's rent.
The Commissioner notes that the owner has failed to produce
credible evidence that the subject tenancy was terminated prior to
the filing of the complaint below.
The Commissioner further notes that the Rent Administrator granted
the owner's application to restore the rent of the subject
apartment on March 27, 1991 and that the tenant filed an appeal of
that order, under Docket No.: EH410055OR, which is pending.
The automatic stay of the retroactive rent abatement that resulted
by the filing of this petition is vacated upon issuance of this
order and opinion.
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,
JOSEPH A. D'AGOSTA