STATE OF NEW YORK
DIVISION OF HOUSING AND COMMUNITY RENEWAL
OFFICE OF RENT ADMINISTRATION
92-31 UNION HALL STREET
JAMAICA, NEW YORK 11433
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.,
3811 Giles Place
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
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.
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
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"
DHCR will not schedule a "no-access" inspection without
receiving proof that both of these letters were sent as
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
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
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
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
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
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
THEREFORE, in accordance with the Rent Stabilization Law and Code,
ORDERED, that this petition be, and the same hereby is, denied, and
that the Administrator's order be, and the same hereby is, affirmed.
JOSEPH A. D'AGOSTA