ADM. REVIEW DOCKET NO.: FE 110390 RO
                                  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.:              
                                                 FE 110390 RO                
                                  
                                              :  RENT ADMIN. DOCKET NO.:
                                                 DK 110103 S
                                                     
                                                 SUBJECT PREMISES:           
                                                 66-22 Fleet Street,      
                                                 Apt. No. 6E, 
                                                 Forest Hills, NY 
             SAMUEL FISHER,
                              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 April 23, 1991 
          concerning the housing accommodations relating to the above- 
          described docket number, wherein a rent reduction was ordered based 
          on a finding of a failure to provide certain services.

               The Commissioner has reviewed all of the evidence in the 
          record and has carefully considered that portion of the record 
          relevant to the issues raised by the petition.  

               The tenants commenced this proceeding on November 2, 1989 by 
          filing a complaint asserting that the owner had "failed to repair 
          leaks in ceiling," "to repaint and repair cracked and peeling 
          plaster and surrounding areas" and "to bleed heating system or to 
          do whatever is necessary to reduce and eliminate excessive noise 
          and banging in heating system." 

               In an answer dated December 5, 1989, the owner asserted in 
          substance that the tenants have refused access, and that plumbers 
          have been scheduled to make repairs several times, but the tenants 
          would not wait for the plumbers and refused to leave a key.

               On December 11, 1990, the Division informed the owner of the 
          requirements for substantiating the claim of refusal of access as 
          follows:















          ADM. REVIEW DOCKET NO.: FE 110390 RO

                    "Send two (2) letters to the tenant attempting 
                    to arrange access dates.  Both of the letters 
                    must be mailed at least eight (8) days before 
                    the proposed date for access and the second
                    letter must be sent by certified mail, return
                    receipt requested.  Then, submit to the DHCR
                    copies of the two letters to tenant and also
                    a copy of the return receipt."

               In a response filed on December 26, 1990, the owner stated 
          that he could not comply with the stated requirements until 
          February 3, 1991 when the tenants were scheduled to return from 
          vacation abroad. 

               In a statement filed on March 20, 1991, the tenants reported 
          that the banging on the radiators had continued for two years; that 
          a plumber did come to the apartment but the repairs were 
          ineffective; that they are an elderly couple (the husband being ill 
          for a number of years) who need reasonable peace and quiet but 
          never have any; that the owner had more than adequate time to fix 
          whatever is wrong; that access to the apartment has always been 
          available on reasonable notice; that when they were away, they left 
          the keys with the next door neighbor and advised the owner 
          accordingly; that "if the owner cannot give an exact time when the 
          plumber will come, it can at least advise whether it will be in the 
          morning or the afternoon" as contractors usually do; and that the 
          owner "has never repainted those areas of the apartment that were 
          damaged by leaks...."  

               The Commissioner notes that the owner failed to submit the 
          required letters regarding appointments for access as described in 
          the Division's instructions of December 11, 1990.

               A physical inspection of the subject apartment was conducted 
          on April 11, 1991 by a Division staff member who confirmed the 
          existence of defective conditions.

               Based on the inspector's report, the Administrator determined 
          that the kitchen ceiling was plastered and painted in an 
          unworkmanlike manner; that there are leaks on the ceiling in 
          closets and hallway over the powder room door; that the powder room 
          has water stains on the wall behind the door; and that the master 
          bedroom has a minor water stain on the ceiling near the northeast 
          corner.  The Administrator directed the restoration of services and 
          further ordered a reduction of the stabilized rent.





               In this petition, the owner reiterates its allegations of 
          tenants' unreasonable refusal of access.  The owner submits inter 






          ADM. REVIEW DOCKET NO.: FE 110390 RO

          alia a letter dated May 21, 1991 from the painter stating that the 
          tenants canceled the scheduled repairs three or four times at the 
          last minute.  

               In answer to the petition, the tenants assert that the owner 
          was informed two years ago about these defective conditions but has 
          failed to make necessary repairs; that keys were left with a 
          neighbor when the tenants were away from November 1990 through 
          February 1991 and the owner did make certain repairs at that time; 
          that the banging in the heating pipes was not repaired but the  
          April 11, 1991 inspection did not confirm this condition because on 
          that day heat was not needed; and that the appointment with the 
          painter had to be postponed because the tenant was recovering from 
          major surgery. 

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

               Section 2523.4 of the Rent Stabilization Code requires DHCR to 
          reduce the legal regulated rent, upon application by the tenant 
          when it is found that the owner has failed to maintain required 
          services.  Required services are defined by Section 2520.6(r) to 
          include repairs, decorating and maintenance.

               In the instant case, the physical inspection revealed that the 
          owner had not made the necessary repairs and based on that 
          inspection, the Administrator was mandated to order a rent 
          reduction.

               The owner's petition does not establish any basis for 
          modifying or revoking the Administrator's order.  The owner alleges 
          a failure to obtain access but did not submit evidence to 
          substantiate this claim when the proceeding was before the 
          Administrator, despite the opportunity to do so.

               According to Policy Statement 90-5 (Arranging Repairs; No 
          Access Inspection), proof of failure to obtain access must include 
          copies of two letters sent to the tenant by regular and certified 
          mail attempting to arrange access dates.  The owner herein was 
          advised of these requirements in the December 11, 1990 notice
          and responded that it could not comply because the tenants were 
          away.  Nevertheless, when the tenants returned in February 1991 the 
          owner still did not attempt to arrange appointments for repairs any 
          time before the Administrator's order was issued. 




               Accordingly, the Commissioner finds that the owner has not 
          established that the tenants have unreasonably refused access; that 
          the Administrator properly based his determination on the entire 
          record, including the April 11, 1991 physical inspection; and that 












          ADM. REVIEW DOCKET NO.: FE 110390 RO

          pursuant to Section 2523.4(a) of the Code, a rent reduction is 
          warranted based on the finding that the owner has failed to 
          maintain required services. 

               This Order and Opinion is issued without prejudice to the 
          owner's rights as they may pertain to a de novo application to the 
          Division for a restoration of rent based upon the restoration of 
          services.

               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
                                          Acting Deputy Commissioner




                                                    

    

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