FH 410178 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
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IN THE MATTER OF THE ADMINISTRATIVE ADMINISTRATIVE REVIEW
APPEAL OF DOCKET NO.: FH 410178-RO
SALOMONE AND COMPANY/ DISTRICT RENT ADMINISTRATOR'S
JACK SALOMONE, DOCKET NO.: EL 410209-OR
SUBJECT PREMISES:
200 East 84th St., Apt. No. 84
New York, NY 10028
PETITIONER
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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 11, 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 owner commenced this proceeding on December 12, 1990 by filing
an application to restore rent based on the restoration of
services. The owner also alleged that all repairs were completed
except for extermination which the tenant allegedly refused access
to. The owner failed to request a No Access inspection. The
owner failed to provide the Administrator proof of certified mail
sent to the tenant, return receipt requested, and other
requirements pursuant to Policy Statement 90-5 (Arranging
Repairs/No Access Inspection).
Thereafter on February 19, 1991, the subject apartment was
inspected by DHCR which confirmed the existence of "roaches in
(the) kitchen area around (the) stove."
The Administrator denied on July 11, 1991 the owner's application.
In this petition, the owner repeats in substance its contention in
the proceeding below that the tenant refused access. The owner
submits a statement of the building superintendent, indicating
that the tenant refused access despite numerous attempts by the
building superintendent to exterminate her apartment. The owner
also submits an August 5, 1991 letter sent by certified mail,
return receipt requested, to the tenant to contact the owner to
arrange an extermination appointment.
FH 410178 RO
After careful consideration, the Commissioner is of the opinion
that this petition should be denied.
In the proceeding below prior to the issuance of the
Administrator's order, the owner failed to request a No Access
inspection by providing the Administrator proof of certified mail
sent to the tenant, return receipt requested, and other
requirements pursuant to Policy Statement 90-5 (Arranging
Repairs/No Access Inspection). The owner's petition as set forth
above also failed to prove tenant refusing access pursuant to the
evidentiary requirements of said Policy Statement.
In addition, the owner's alleged documentation insufficiently
showing tenant's refusal of access was not submitted in the
proceeding below prior to issuance of the Administrator's order,
and is now raised as insufficient evidence for the first time on
appeal. For example, the alleged certified mail was sent after
the issuance of the Administrator's order. Thus, this
insufficient evidence is beyond the scope of review, which is
limited to the issues and evidence before the Administrator.
Accordingly, the Administrator properly relied on the February 19,
1991 inspection finding defective conditions; and that based
thereon, the Administrator properly determined the continued
existence of decreased services, warranting denial of the owner's
application.
This Order and Opinion is issued without prejudice to the owner's
filing another application for rent restoration based on 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
Deputy Commissioner
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