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

          -----------------------------------X 
          IN THE MATTER OF THE ADMINISTRATIVE    ADMINISTRATIVE REVIEW
          APPEAL OF                              DOCKET NO.: FA610194RO      
                 
          Interboro Holding Corp. c/o            RENT ADMINISTRATOR'S
          Novick, Edelstein,                     DOCKET NO.: EF610480S       
          Lubell, etc. P.C.,
                                                 SUBJECT PREMISES:
                                                      Apt. 1M
                                                      3811 Giles Place
                                                      Bronx, NY
                                PETITIONER     
          -----------------------------------X                           

               ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW
                                             
            The above-named owner filed a timely petition for administrative 
            review of an order issued on December 12, 1990 concerning the 
            housing accommodations relating to the above-described docket 
            number.  

            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 tenant  commenced this proceeding on June 18, 1990 by filing a 
            complaint asserting that the owner had failed to maintain certain 
            services in the subject apartment. In relevant part, the tenant 
            stated that water from the leaking hall pipes is dripping into a  
            large hole of her apartment wall, causing the wall to be uneven and 
            the flooring to be rotted.

            In its answer, the owner denied the allegations as set forth in the 
            tenant's complaint or otherwise asserted that there was no leak but  
            "a condensation and sweating from a cold water return line"; and 
            that the tenant refused access to the owner's repairmen.

            The owner submitted a copy of a February 23, 1990 letter indicating 
            that the tenant on that day was "abusive" to the repairman 
            attempting to set up an appointment; a May 31, 1990 copy of a court 
            stipulation wherein the owner agreed to commence repairs  on June 6, 
            1990 and each day thereafter until completed and it is recognized 
            that the tenant may file a complaint with DHCR; and a June 7, 1990 
            copy of a work order signed by the tenant that the living room and 
            the bedroom were painted, that the entire apartment was plastered 
            where needed, and that the tenant agreed to paint the rest of the 
            apartment herself if paint is supplied.




            FA610194RO







            On July 26, 1990, a copy of the answer was mailed to the tenant who 
            replied by denying the owner's claim that the tenant refused access. 
            The tenant submitted, in relevant part, a copy of a February 20, 
            1990 letter of the NYC Department of Housing Preservation and 
            Development addressed to the owner, warning the owner not to play 
            "telephone tag" and informing the owner in writing to do repairs of 
            conditions resulting from a flood.

            The tenant also submitted a copy of a July 3, 1990 letter to the 
            owner, explaining that on June 7, 1990  she signed the work order as 
            to the painting job but not as to the plastering which should have 
            continued, that she waited for the plasterer and the plumber as 
            promised by the owner but they never came.

            Thereafter, a physical inspection of the subject apartment was 
            conducted on July 31, 1990 by a DHCR staff member who confirmed the 
            existence of defective conditions.

            On October 26, 1990, DHCR mailed a copy of Policy Statement 90-5 
            (Arranging Repairs; No Access Inspections), which in relevant part 
            states:

                      When the owner receives the copy of the tenant's
                      complaint from the DHCR, the owner has twenty days
                      in which to respond. If the owner asserts that he or she
                      is unable to gain access during this time, this fact     
                      should be included in the response. In order to obtain a
                      "no-access" inspection, the owner should then submit to   
                      the DHCR copies of two letters to the tenant attempting to
                      arrange access dates. Each of the letters must be mailed
                      at least eight days before the proposed date for access   
                      and the second letter must be sent by certified mail,     
                      return receipt requested.  The return receipt must also
                      be submitted with the request for a "no-access"    
                      inspection.

                      DHCR will not schedule a "no-access" inspection without   
                      receiving proof that both of these letters were sent as   
                      specified.

            The owner failed to respond to DHCR's October 26, 1990 request.

            By order dated December 12, 1990, the Administrator directed the 
            restoration of services and ordered a reduction of the stabilized 
            rent based on the July 31, 1990 inspection findings:

                 The hall pipes are exposed due to a large hole in the wall.
                 The adjacent wall is uneven.
                 The flooring in the hall is rotted.

            In its petition for administrative review, the owner states, in 
            substance, that the tenant has unreasonably failed to provide 
            access; that it was denied due process by the Administrator's 
            failure to address the defense of denied access; that the conditions 
            were not part of the complaint; that repairs were completed before 
            the order' issuance; that DHCR lacks jurisdiction because the tenant 
            FA610194RO

            first elected to have the court case against the owner; that the 
            tenant settled her claims against the owner in the court proceeding; 



            and that the defective conditions were caused by the tenant's 
            negligence.

            In relevant part, the owner attached to the petition copies of an 
            owner-initiated nonpayment court proceeding against the tenant with 
            a May 31, 1990 stipulation for repairs and payment of arrears, which 
            as set forth above were submitted to the Administrator. Neither in 
            these papers is an indication that the tenant elected to bring the 
            owner in a housing court forum, nor a showing the tenant made a 
            final settlement of the case. Neither in these papers is any  
            evidence that the tenant refused access nor the repairs were 
            ccompleted prior to the order's issuance.

            On February 25, 1991, DHCR mailed a copy of the petition to the 
            tenant who filed an answer, stating that access to her apartment was 
            always available by herself or her neighbor; that three (3) 
            different contractors came to inspect the conditions but never came 
            back to repairs or complete repairs; that seven (7) building 
            managers came and went before any work commenced in the apartment; 
            and that the defective conditions still exist.

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

            The contentions that DHCR lacks jurisdiction because the tenant 
            first elected to have the court case against the owner and that the 
            tenant settled her claims against the owner in the court proceeding 
            were not raised before the Administrator and are now raised for the 
            first time on appeal. These contentions are beyond the scope of 
            administrative review, which is limited to the issues and evidence 
            before the Administrator.

            However, even if the Commissioner examines these contentions, the 
            documents submitted by the owner prove the contrary. It was the 
            owner who initiated a  nonpayment court proceeding against the 
            tenant; and the May 31, 1990 court stipulation recognizes the 
            tenant's complaint with DHCR. Neither in these papers is an 
            indication that the tenant elected to bring the owner in a housing 
            court forum, nor a showing that the tenant made a final settlement 
            of the case. In addition, the Commissioner notes that DHCR has 
            concurrent jurisdiction with the housing court.

            The claim of denied access is not supported by the record. The 
            Commissioner finds that on October 26, 1990, DHCR mailed to the 
            owner a copy of Policy Statement 90-5 (Arranging Repairs; No Access 
            Inspections); and that the owner failed to substantiate this defense 
            pursuant to the Policy Statement as set forth above. Additionally, 
            the owner offered no evidence in its answer or attachments to 
            clearly show that tenant unreasonably refused access. Thus, the 
            owner cannot be heard to say that its defense of denied access was 
            not considered by the Administrator and that it was denied due 
            process.


            FA610194RO

            The Commissioner notes that the tenant answered the petition, 
            stating that access to her apartment was always available by herself 
            or her neighbor; that three (3) different contractors came to 
            inspect the conditions but never came back to repairs or complete 






            repairs; that seven (7) building managers came and went before any 
            work commenced in the apartment; and that the defective conditions 
            still exist.

            The allegation that the conditions were not part of the complaint is 
            belied by the record. The tenant originally complained that water 
            from the leaking hall pipes is dripping into a large hole of her 
            apartment wall, causing the wall to be uneven and the flooring to be 
            rotted. These were the same conditions verified by an on-site 
            inspection.
             
            The assertion that repairs were completed prior to the issuance of 
            the order is contradicted by the report of DHCR inspector. In 
            addition, the owner has not established this assertion before the 
            Administrator; and the Commissioner notes the tenant's answer to the 
            petition, stating that these defective conditions continue to exist.  

            The unsubstantiated defense that the defective conditions were 
            caused by the tenant's negligence was not raised in the proceeding 
            below prior to the issuance of the Administrator's order and is now 
            raised for the first time on appeal. This defense is beyond the 
            scope of administrative review, which is limited to the issues and 
            evidence before the Administrator.

            Accordingly, the Administrator properly relied on the entire 
            evidence in record, including the July 31, 1990 physical inspection 
            which confirmed the existence of defective conditions in the 
            apartment. The determination was proper in all respects and is 
            hereby sustained.

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

            ORDERED, that this petition be, and the same hereby is, denied, and 
            that the Administrator's order be, and the same hereby is, affirmed.



            ISSUED:




                                                                          
                                                  JOSEPH A. D'AGOSTA
                                                  Deputy Commissioner


    

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