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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.: FH 410071-RO
PAUL BRUSCO, DISTRICT RENT ADMINISTRATOR'S
DOCKET NO.: EK 420696-S
203 West 85th Street
PETITIONER Apt. No. 5, New York, NY 10024
ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW
The above-named owner filed a timely Petition for Administrative
Review of an order issued on July 23, 1991, 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 the original proceeding below on November 23,
1990 by filing a complaint asserting that "(t)he tile in my
bathroom has not been fixed"; that "(w)ater from one of the
apartments above mine came through one of the ceiling lights in my
kitchen ... (t)he light fixture is rusty; that the owner came to
the apartment "on September 14, 1990 to fix my toilet .... I don't
know what he did, but I haven't been able to flush it since ...";
and that he spoke to the owner on August 21, 1990 and October 12,
1990 about this matter without result.
In its answer filed on January 2, 1991, the owner denied the
allegations set forth in the tenant's complaint and otherwise
asserted that the tenant refused access.
Thereafter on March 6, 1991, DHCR mailed to both the tenant and
the owner a Notice of Inspection (For Access), scheduling "10:00
AM sharp" on March 14, 1991 for repairs, with this warning:
"Failure of the owner and/or his repair persons to be
present and ready to attend the repair and/or restore
services ... will result in a determination based solely
on the evidence presently in the record."
Inspection conducted on March 14, 1991 revealed defective
conditions, namely: broken and missing tiles, three separate
holes in the bathroom wall, and hole in floor by closet door.
The owner was present. Though duly notified to do so, the owner
failed to appear at the inspection.
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In a statement filed with DHCR on May 30, 1991 the tenant included
a copy of her letter mailed to the owner, asserting that repairs
had not yet been performed.
The Administrator directed on July 23, 1991 restoration of these
services and a reduction of the legal regulated rent.
In this petition, the owner contends in substance that he "was not
allowed access to the apartment"; that "the holes in the bathroom
wall were not complained-of by the tenant"; and that "the problems
alleged by the tenant were of her own creation."
In a reply dated on September 27, 1991, the tenant states that
"repairs ha(d) been taken care of."
After careful consideration, the Commissioner is of the opinion
that this petition should be denied.
After alleging below that tenant refused access, the owner was
duly informed of a No Access inspection on March 19, 1991; which
the owner failed to attend to do repairs. On May 30, 1991, the
tenant informed the owner that repairs had not yet been performed
and the owner also failed to act on this letter of the tenant
prior to issuance of the Administrator's order.
Accordingly, the Administrator properly based its determination on
the entire record, including the results of the March 14, 1991
inspection, that the owner had failed to maintain services.
Moreover, the owner had eight months from being informed of the
tenant's complaint until the issuance of the Administrator's order
to investigate the tenant's complaint and to make the necessary
repairs, but the owner failed to do so.
As to the owner's allegations that the "holes in the bathroom
wall" were not in the tenant's original complaint and that the
tenant caused the disrepairs, these allegations were not raised in
the proceeding below and are now raised as unsubstantiated
assertions for the first time on appeal. Accordingly, these
unproven assertions are beyond the scope of review, which is
limited to the issues and evidence before the Administrator.
It is noted that as set forth above, the tenant did complain about
defective tiles in the bathroom, which inspection confirmed by
finding "three separate holes in the bathroom wall."
THEREFORE, in accordance with the Rent and Eviction Regulations,
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ORDERED, that this petition be, and the same hereby is, denied
and that the Administrator's order be, and the same hereby is,