EB410294RO
                                  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        SJR No.:7342
          IN THE MATTER OF THE ADMINISTRATIVE          ADMINISTRATIVE REVIEW
          APPEAL OF                                    DOCKET NO.: EB410294RO

                    BIJU Realty Co.,
                                                       RENT ADMINISTRATOR'S
                                                       DOCKET NO.: DF410236OR
                                   PETITIONER
          ------------------------------------x

            ORDER AND OPINION GRANTING PETITION FOR ADMINISTRATIVE REVIEW

          The above-named owner filed a timely petition for administrative 
          review of an order issued on January 30, 1990, concerning the 
          housing accommodation known as 945 West End Avenue, Apt. 2B, 
          New York, New York, wherein the Rent Administrator denied the 
          owner's application to restore rent previously reduced under Docket 
          No. BC410529S.

          Thereafter, the owner commenced proceedings in the Supreme Court, 
          pursuant to Article 78 of the Civil Practices Law and Rules, in the 
          nature of mandamus, seeking expeditious processing of its 
          administrative appeal.

          The Rent Administrator had reduced the tenant's rent under 
          BC410529S based on findings that kitchen cabinets were cracked and 
          needed to be painted, that sashes of four living room windows were 
          defective, and that the paint and plaster throughout the apartment 
          was peeling, cracked and water damaged.

          The Rent Administrator had denied the owner's prior rent 
          restoration application under CD410155OR, based on findings that 
          the kitchen cabinets showed cracks through the paint, that four 
          living room windows were hard to open, and that the apartment had 
          been painted in an unworkmanlike manner.

          The owner commenced the proceedings herein under review by filing 
          a rent restoration application asserting that the tenant had 
          unreasonably refused to permit the owner access to restore the 
          services for which the rent reduction had been granted.

          The owner asserted that the tenant had permitted access to the 
          owner's managing agent to inspect the apartment and had initially 












          EB410294RO

          agreed to have defective painting corrected but later refused to 
          provide access.  The owner memorialized the above in a certified 
          letter to the tenant, also advising the tenant that the owner 
          remained ready, willing and able to make all repairs at the 
          tenant's convenience.

          The tenant responded, contending that access was not being denied 
          but that the tenant insisted on a letter setting forth, in detail, 
          work to be done.  The tenant's response also referred to 
          negotiations under way between the owner's and tenant's 
          representatives "attempting to work out an agreeable solution to 
          get the painting corrected and the windows fixed",  including 
          consideration of the tenant's wish to hire his own contractor for 
          completion of the work at the owner's expense.

          The tenant also argued that he was under no obligation to provide 
          access if the owner proposed to use the same individual who had 
          failed to perform the corrective work in a workmanlike manner in 
          the first instance, as evidenced by the rent restoration denial 
          order (CD410155OR), and speculated that the owner's further offer 
          would not insure prompt completion of repairs in a workmanlike 
          manner.

          The owner replied that neither the tenant nor the tenant's attorney 
          provided the owner an estimate for the painting work or a date upon 
          which access for the owner's repair staff would be provided.

          Thereafter, the DHCR conducted an inspection of the subject 
          apartment.  The DHCR inspector confirmed that the defective 
          conditions remained uncorrected.

          The Rent Administrator denied the owner's rent restoration 
          application on the grounds that the conditions had not been 
          corrected.

          In the petition for administrative review, the owner contends, in 
          substance, that the results of an inspection are irrelevant in the 
          case where the owner's application is based on the tenant's refusal 
          to permit restoration of services, and that the case should have 
          been determined only upon the written submissions.      

          The owner also argues that, if the tenant's answer was considered 
          to dispute the owner's claim of lack of access, the failure to 
          provide the owner a copy of the tenant's answer, and an opportunity 
          to respond, constituted a denial of due process.



          After careful consideration, the Commissioner is of the opinion 
          that the petition should be granted.

          As a general rule, an owner is not considered to have corrected 






          EB410294RO

          defective conditions unless repairs are completed in a workmanlike 
          manner.  In order that repairs can be completed, the tenant has an 
          obligation to cooperate with the owner's efforts and to provide 
          access.

          Repairs could not be delayed indefinitely in expectation of 
          negotiating a mutually agreeable solution.  Nor could the tenant 
          insist that it was under no obligation to provide the owner access 
          because the owner intended to use the same staff employee who 
          previously failed to complete the repairs in a workmanlike manner, 
          or because the tenant was concerned that the employee's other 
          duties could delay prompt completion of repairs.  It is not within 
          the purview of the tenant to determine which workman shall attend 
          to repairs.  This is solely within the purview of the owner.  
          Thereafter, the Division, by inspection, shall determine if the 
          repairs were made in a workmanlike manner.  Had the tenant granted 
          the owner access to make repairs, such concerns would have been 
          factors for the Rent Administrator to consider.

          The record, particularly the tenant's statements below, effectively 
          acknowledging the tenant's refusal to provide the owner access, 
          establishes that the tenant unreasonably denied the owner access, 
          notwithstanding the tenant's contention therein to the contrary.  
          The owner is therefore correct that the inspection was irrelevant 
          to the proceedings, and that the owner was entitled to rent 
          restoration without any further processing, effective October 1, 
          1989 the first day of the month following service of the owner's 
          application on the tenant.

          The owner remains obligated to correct the defects and to restore 
          service upon being granted access by the tenant to effect repairs.

          Any arrears due the owner from the tenant as a result of the order 
          shall be paid in equal installments at the amount of the monthly 
          rent reduction granted in the proceedings below, but restored 
          herein.










          THEREFORE, in accordance with the Rent Stabilization Law and Code, 
          it is

          ORDERED, that the owner's petition be, and the same hereby is 
          granted, and that the Rent Administrator's order be and the same 
          hereby is, revoked, in accordance with the above.












          EB410294RO

             

          ISSUED:




                                                                     
                                             JOSEPH A. D'AGOSTA
                                             Deputy Commissioner