STATE OF NEW YORK
DIVISION OF HOUSING AND COMMUNITY RENEWAL
OFFICE OF RENT ADMINISTRATION
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.,
DOCKET NO.: DF410236OR
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
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
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
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
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
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
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
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
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
THEREFORE, in accordance with the Rent Stabilization Law and Code,
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.
JOSEPH A. D'AGOSTA