AR Docket No. FH 410228-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 410228-RO
GREENWICH REALTY CO./ DRO DOCKET NO.: DK 410391-S
ARTHUR WIENER,
SUBJECT PREMISES:
33 Greenwich Ave., Apt. No. 12C
PETITIONER New York, N.Y. 10014
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ORDER AND OPINION REMANDING PROCEEDING ON APPEAL
The above-named owner filed a timely Petition for Administrative
Review of an order issued on July 25, 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.
On November 21, 1989, the tenant commenced this proceeding by
filing a complaint asserting that the owner had failed to maintain
certain services in the subject apartment, namely "a 4' by 3' hole
in the ceiling leaking water."
In its answer filed on January 12, 1990, the owner asserted in
substance that "arrangements ha(d) been made with the tenant" for
repairs, and that the tenant's complai t is duplicative of DL-
410039-S.
Thereafter on September 12, 1990, the subject apartment was
inspected by DHCR which confirmed the existence of "a water leak
above the living room window, coming from the terrace above
presumably."
The owner was informed by mail on September 20, 1990 of the
inspection report.
In its answer filed on October 31, 1990, the owner submitted a
copy of a letter sent by certified mail on October 25, 1990 to the
tenant requesting access. The owner also submitted a second
letter dated November 5, 1990 requesting the tenant to provide
access on November 19, 1990 and November 20, 1990.
In a reply filed on November 28, 1990, the tenant asserted that
"no one showed up" for the "completion of plastering and painting"
on November 19, 1990 and November 20, 1990.
The owner filed with DHCR on December 21, 1990 an affidavit by the
superintendent asserting that "all work ha(d) been completed in
Apartment #12C"; however, that he failed "to touch up the water
stains above the living room window per DHCR inspection" because
the tenant refused access.
AR Docket No. FH 410228-RO
Although the Administrator had some evidence of tenant refusing
access, the Administrator failed to schedule a No Access
inspection. The tenant (not the owner) was informed of an
inspection conducted on July 1, 1991 which revealed "evidence of
leak stain, mildew and water damage" in the living room and the
"(l)iving room ceiling not plastered and painted properly."
Based on said inspection, the Administrator directed on July 25,
1991 restoration of these services and further ordered a reduction
of the stabilized rent.
In this petition, the owner contends in substance that "the 4' x
3' hole in the ceiling leaking water" in the tenant's complaint
had been repaired because DHCR inspection on September 12, 1990
revealed only "evidence of water leak above living room window";
and that the tenant, however, refused access for completion of
repairs even though duly twice notified of scheduled repairs.
After careful consideration, the Commissioner is of the opinion
that this petition should be remanded to the Administrator for
further processing.
It is noted that DL-410039-S s not duplicative of the above-
described docket number, and is therefore not consolidated in this
petition.
The record shows that though the owner repaired the water leak,
the owner failed to complete plastering and painting of the
subject apartment because the owner alleged no access and the
Administrator failed to deal properly with the allegation. The
Administrator failed to consider the owner's submission below of
certified mail, regular mail, return receipt etc. indicating the
owner's requests to the tenant for access and the tenant not
responding to same. Furthermore, the Administrator failed to
inform all parties (the owner in particular) of a No Access
inspection so that repairs could be performed.
THEREFORE, in accordance with the Rent Stabilization Law and Code,
it is
ORDERED, that this petition be, and the same hereby is, remanded
to the Administrator to consider the owner's submission below of
evidence showing tenant's alleged refusal of access and to
implement accordingly in this case Policy Statement 90-5
(Arranging Repairs/No Access Inspection), and for the issuance of
a new order. The automatic stay of so much of the District Rent
AR Docket No. FH 410228-RO
Administrator's order as directed repairs and a retroactive rent
abatement is hereby continued until a new order is issued upon
remand. However, the Administrator's determination as to a
prospective rent abatement is not stayed and shall remain in
effect until the Administrator issues a new Order upon remand.
ISSUED:
JOSEPH A. D'AGOSTA
Deputy Commissioner
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