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.: GF610131RO
DAS REALTY CORP./
BARRY GAVARIN DISTRICT RENT
ADMINISTRATOR'S
DOCKET NO.: EF610724S
PREMISES:1250 Franklin Ave.
Apt. 5A
Bronx, New York
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 May 15, 1992 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 issue in this appeal is whether the Administrator's order was
warranted.
This proceeding was commenced on June 26, 1990 by the tenant filing
a complaint asserting that the owner had failed to maintain numerous
services in the subject apartment.
On July 9, 1990, DHCR transmitted a copy of the tenant's complaint
to the owner.
In its answer filed on July 31, 1990, the owner asserted in
substance that workers had been dispatched to the subject apartment
but were not able to gain access. The owner submitted no
corroboration to this assertion.
Thereafter, an on-site inspection of the subject apartment was
conducted on April 22, 1992 by a DHCR staff member who reported
that the stove is missing knobs; that the broiler door is broken;
that the oven door falls; that the handles are loose; that the
master bedroom floor is broken and warped around the radiator; and
that the kitchen sink cabinet is rusted, missing a knob and doors
not closing properly.
GF610131RO
Based on the inspection, the Administrator directed on May 15, 1992
the restoration of services and further ordered a reduction of the
stabilized rent.
In its petition for administrative review, the owner contends in
substance that the tenant refused access, and submits a court
stipulation dated January 16, 1992, stating in relevant part that
"access is to be arranged by the tenant and landlord."
On June 29, 1992, DHCR mailed a copy of the petition to the tenant.
In an answer filed on July 10, 1992, the tenant denied the owner's
allegation that she refused access, and otherwise asserted that she
is always at home and still waiting for the owner's repairs.
On July 16, 1992, DHCR mailed a copy of the tenant's answer to the
owner.
In a reply filed on July 27, 1992, the owner stated that access was
made on July 20, 1992 and repairs were subsequently completed.
On September 25, 1992, DHCR sent a copy of the owner's reply to the
tenant who filed on October 10, 1992 a response stating that repairs
have not been completed and the kitchen sink is unusable.
After careful consideration, the Commissioner is of the opinion that
the petition should be denied.
The owner's petition does not dispute the Administrator's
determination which was based upon a DHCR inspector's finding of
numerous defective conditions within the apartment. Accordingly, the
determination was in all respects proper and is hereby sustained.
The allegation that the tenant refused access is not clear from the
alleged copy of a court stipulation, wherein the relevant proviso
merely states that the owner and the tenant had to arrange access.
In addition, this claim of an alleged court stipulation was not
raised in the proceeding below prior to the issuance of the
Administrator's order and is now raised as a bare assertion for the
first time on appeal. This unsubstantiated assertion is beyond the
scope of administrative review which is limited to the issues and
evidence before the Administrator.
The owner states that repairs were made subsequent to the issuance
of the Administrator's order. The tenant denies this statement. The
Commissioner is of the opinion, however, that the Administrator's
order was correct when issued, and that this Order and Opinion is
issued without prejudice to the owner's right to a rent restoration
application.
GF610131RO
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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