FH 610197 RO
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 610197-RO
RITA COPPOLECCHIA, DRO DOCKET NO.: FB 610610-S
ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW,
AND AFFIRMING ADMINISTRATOR'S ORDER AS MODIFIED
On August 19, 1991, the above-named petitioner-owner filed a
Petition for Administrative Review (PAR) against an order issued
on July 18, 1991 by the Rent Administrator at Gertz Plaza,
Jamaica, New York, concerning the housing accommodations known as
265 East 201 Street, Basement Apartment, Bronx, New York, wherein
the Administrator determined the tenant's complaint of a
diminution of individual apartment services.
The owner responded that the tenant was engaged in a campaign of
harassment against the owner, that the tenants filed multiple
unfounded complaints, that the tenant would not cooperate with the
owner and would not grant access to correct the conditions
The Administrator's order granted the tenant a rent reduction
based on the results of an inspection conducted on June 20, 1991
by a member of the Division's inspection staff. The inspector
reported, in pertinent part, the following:
1. Water damaged living room walls.
2. Holes in living room, kitchen and bathroom walls,
and around pipe near the door.
3. Water stained bedroom ceiling.
4. Uninsulated pipes throughout the apartment.
5. Odor of garbage.
By appeal, the owner requests that the order be reversed in its
entirety as: (1) the order contradicted prior orders, (2) that the
tenant refused the owner access to the apartment for inspection
and repair of the conditions as indicated in the proceedings
below, and (3) that the tenant did not avail herself of the
extermination services provided by the owner.
FH 610197 RO
The owner also argues that the owner was denied due process in
that (1) the order fails to state facts upon which it is based,
(2) the Division failed to give the owner prior notice and the
opportunity to cure violations prior to the issuance of the order,
and (3) that the conditions alleged were not supported by a
subsequent inspection by the Department of Housing Preservation
and Development of the City of New York.
In support of the assertions below that the tenant would not
cooperate are the owner's efforts to correct the conditions
reported, the petitioner, on appeal, submits copies of notices
forwarded to the tenant, by ordinary mail and by certified mail,
return receipt requested, refused by the tenant, requesting the
tenant to provide access to the owner's repairmen. Also submitted
were the superintendent's affidavit attesting that the tenant had
refused access to make repairs, paid invoices reflecting pest
exterminator services provided by the owner to tenants, including
the basement apartment, and a statement from the owner's
plastering contractor that he was unable to obtain access to the
The applicable law is Section 2520.6(r) and 2523.4 of the Rent
After careful consideration, the Commissioner is of the opinion
that the petition should be denied, but that the Administrator's
order should be modified as provided below.
The petitioner is correct that the order reducing the rent
contradicted prior determinations, based on inspections, to the
effect that ceiling heating pipes in the subject basement
apartment operate properly without insulation (CH 610314-S), and
that garbage cans which give rise to the odor reported by the
inspector in the proceedings herein under appeal were placed in
the most appropriate location for garbage cans to be kept for the
subject building, and did not constitute a basis for harassment
(20,179-HL). In addition, no violations were issued by the City
Department of Housing Preservation and Development for the
complaint of exposed pipes or for the complaint of odor from the
garbage cans. While the HPD violation report also failed to note
a hole in the livingroom, kitchen or bathroom, water leaks and
damaged walls, there was some indication that the apartment
required some repairs.
In light of the record, the Commissioner is of the opinion that
the Administrator's rent reduction order should be modified, in
part, on the grounds that it has not been shown that heating pipes
are required to be insulated and that the placement of the garbage
cans was a violation.
The owner confirmed, on appeal, the assertions below that the
tenant refused access, by statements from workmen and contractors,
FH 610197 RO
certified letters to the tenant requesting access, and evidence
of other official proceedings which to some degree failed to
support the tenant's numerous claims. However, the owner's
failure to properly raise and establish the lack of access in the
proceedings below, pursuant to Policy Statement (90-5): Arranging
Repairs - No Access Inspections, precludes consideration of the
issue and submissions on appeal. Consequently, a rent reduction
was properly granted on the record presented.
This order is issued without prejudice to the owner's right to
file an application for restoration of rent, predicated upon a
restoration of services. The owner may also apply for a rent
restoration if the tenant continues to refuse access to effect
The petitioner's claim of lack of due process is rejected.
Division procedures do not require the Division to give parties
notice of the results of an inspection prior to issuance of an
Administrator's order. The owner was afforded due notice by
service of the tenant's complaint. Additionally, the inspection
report is available to the parties by filing a FOIL request.
THEREFORE, in accordance with the provisions of the Rent
Stabilization Law and Code, it is
ORDERED, that the owner's petition be denied. The Administrator's
order is modified, to the extent of revoking uninsulated pipes and
the garbage odors as a basis for the rent reduction. In all other
respects, the Administrator's order is affirmed.
JOSEPH A. D'AGOSTA