ADM. REVIEW DOCKET NO.: FI420261RO

                                 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


          ------------------------------------X
          IN THE MATTER OF THE ADMINISTRATIVE     ADMINISTRATIVE REVIEW
          APPEAL OF                               DOCKET NO.: FI420261RO

                                                  DISTRICT RENT
                                                  ADMINISTRATOR'S DOCKET
                                                  NO.: EJ420114BO
            LUCILLE BIRNKAMMER                         (DJ420940BR)
                                   PETITIONER
          ------------------------------------X

            ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW

               The above-named owner filed a timely petition for 
          administrative review of an order issued concerning the housing 
          accommodations known as 1041 Madison Avenue, apartment 3F, New 
          York, N.Y.

               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 before the Commissioner is whether the 
          Administrator's order was correct.

               The Administrator's order being appealed, EJ420114BO was 
          issued on August 23, 1991.  In that order, the Administrator 
          affirmed the finding of DJ420940BR, issued September 20, 1990, that 
          the owner be denied eligibility for a 1990/91 Maximum Base Rent 
          (MBR) increase, due to the owner's failure to meet the violation 
          certification requirements necessary to the owner's being granted 
          an MBR increase.  Specifically, the Administrator found that 
          "Inspection at premises conducted August 14, 1991 and August 15, 
          1991 found criteria not met."

               On appeal the owner contends that she "was not informed at the 
          time (the above-mentioned inspections were) supposedly conducted."  
          The owner also submits various documentation proving that various 
          violations were cleared.  The owner additionally submits a copy of 
          a letter apparently first submitted to the Administrator at the 
          Challenge level of the instant proceeding, in which letter the 
















          ADM. REVIEW DOCKET NO.: FI420261RO

          owner alleges that she received eligibility to raise MBRs at the 
          subject premises for the previous (1988/89) MBR Cycle.  The owner 
          then notes the age of the violations (they were first reported in 
          1986 or 1983).

               The Commissioner is of the opinion that this petition should 
          be denied.

               The Commissioner is of the opinion that violations reported as 
          cleared for the purposes at gaining the owner eligibility for 
          1988/89 MBR increases at the subject premises may have reoccurred.

               In any case, the issue before the Commissioner is whether the 
          Administrator was correct in denying the owner eligibility to raise 
          MBRs at the subject premises for the 1990/91 cycle, not whether the 
          Administrator was correct in granting the identical owner 
          eligibility to raise MBRs at the identical premises for the 1988/89 
          cycle.

               A List of Pending Violations discloses that there were of 
          record against the subject premises one rent-impairing and nine non 
          rent-impairing violations.  Pursuant to Section 2202.3(h) of the 
          New York State Rent and Eviction Regulations, in order to gain 
          eligibility to raise MBRs at the subject premises for 1990/91 the 
          owner had to certify to the Administrator that the one rent- 
          impairing violation and 80% (seven) of the non rent-impairing 
          violations had been cleared from the subject premises.

               Pursuant to the owner's request at Challenge, on July 29, 1991 
          a DHCR inspector made an appointment with the owner to inspect the 
          subject premises on August 14 and 15, 1991.  Upon his inspection of 
          the subject premises the inspector noted that of the nine non rent- 
          impairing violations four had been cleared, and two were located in 
          an apartment to which the inspector was denied access.  In his 
          report, the inspector stated that he was unable to determine 
          whether the three remaining non rent-impairing violations (as well 
          as the one rent -impairing violation) had been cleared because he 
          was denied access to the sites of these violations (all in public 
          areas) by the superintendent of the premises.  As the inspector 
          noted in his report: "No response from superintendent who knew I 
          was on the premises (emphasis added) to gain access to the 
          building."  The inspector noted that he was thus denied access on 
          both inspection dates.

               The Commissioner notes that the owner specifically requested 
          the DHCR inspection, and was informed of the dates of the 
          inspection, and consented to those dates.

                  

               The Commissioner notes that, per DHCR procedure, if an 
          inspector is denied access to an apartment, the Administrator will 






          ADM. REVIEW DOCKET NO.: FI420261RO

          generally consider any violations located within that apartment as 
          cleared, in order to avoid prejudicing the rights of the owner in 
          her attempt to gain eligibility to raise MBRs at the subject 
          premises.  

               In the instant proceeding however, the DHCR inspector was 
          denied access to violations located in public areas.  This lack of 
          access is due to the owner's failure to notify her agent (the 
          superintendent) that a DHCR inspection would occur that day.  The 
          Commissioner is thus of the opinion that the owner would not be 
          prejudiced if the three non rent-impairing and one rent-impairing 
          violation to which the DHCR was thus denied access are regarded as 
          outstanding. 

               The Commissioner notes that, considering the above the owner 
          has failed to remove a requisite number of rent-impairing as well 
          as non rent-impairing violations from the subject premises.

               THEREFORE, in accordance with the provisions of the Rent and 
          Eviction Regulations, it is 

               ORDERED, that this petition for administrative review be, and 
          the same hereby is, denied, and that the order of the Rent 
          Administrator be, and the same hereby is, affirmed.

          ISSUED:




                                                                            
                                             JOSEPH A. D'AGOSTA
                                             Deputy Commissioner
                                               






    

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