STATE OF NEW YORK
DIVISION OF HOUSING AND COMMUNITY RENEWAL
OFFICE OF RENT ADMINISTRATION
92-31 UNION HALL
JAMAICA, NY 11433
IN THE MATTER OF THE ADMINISTRATIVE ADMINISTRATIVE REVIEW
APPEAL OF DOCKET NO.:
The 400 East 58th Street Co.,
ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW
The above-named owner filed a timely petition for administrative
review of an order issued January 31, 1992, concerning the housing
accommodations known as 400 East 58th Street, Apt. 15F, New York,
New York, wherein the Rent Administrator determined the tenant's
complaint of decreased services.
The Commissioner has reviewed all evidence in the record and has
carefully considered that portion of the record relevant to the
issues raised by the petition.
The tenant commenced this proceeding by filing a complaint
asserting that the owner had failed to maintain certain services in
the subject apartment.
In an answer, the owner denied the allegations set forth in the
complaint, or asserted that the tenant failed to cooperate with the
owner's efforts to ascertain conditions requiring repairs, or
otherwise asserted that required repairs had been or would be
Thereafter, the DHCR conducted an inspection of the subject
apartment. The DHCR inspector reported plaster cracks in the
living room walls and ceilings and kitchen ceiling, kitchen living
room and foyer walls and ceiling that required painting, broken
bathroom tiles, evidence of mice droppings in the kitchen, a leaky
cold water faucet, kitchen cabinet doors that did not close shut,
a small hole in one bedroom floor board and a broken lock on the
kitchen door leading to the hall.
The Rent Administrator directed restoration of these services and
further, ordered a reduction of the stabilization rent.
In the petition for administrative review and supplements thereof,
the owner states that the tenant would not permit the landlord to
make various repairs to the apartment until the DHCR had inspected
and/or had issued the Rent Administrator's order, that various
repairs were nevertheless completed prior to the order as evidenced
by work orders signed by the tenant on January 13, and 16, 1992,
that the tenant had cancelled orders to paint the tenant's
apartment on November 26 and December 11, 1992, which the tenant
did not reschedule, and that the tenant would not permit access for
The owner states that the remaining repairs including painting and
plastering were completed by May 21, 1992 and that any delays in
completing repairs were due to the tenant's lack of or reluctant
cooperation up until that time.
The tenant denied the owner's allegations of the denial of access.
The owner's reply thereto reiterates the owner's previous
After careful consideration, the Commissioner is of the opinion
that the petition should be denied.
Pursuant to Section 2523.4 of the Rent Stabilization Code, DHCR is
required to order a rent reduction, upon application by a tenant,
where it is found that an owner has failed to maintain required
services. The owner's petition does not establish a proper basis
for modifying or revoking the Administrator's order, which
determined that the owner was not maintaining required services
based on a physical inspection confirming the existence of
defective conditions in the subject apartment for which a rent
reduction is warranted. The evidence the owner submitted in the
proceedings below did no rise to the level sufficient to trigger a
"no-access" inspection, detailed in Policy Statement 90-5:
Arranging Repairs No Access Inspections.
The additional evidence of attempts to gain access and of repairs
completed prior to the order, submitted for the first time on
appeal, could not be considered since scope of review is limited to
issues and evidence submitted to the Rent Administrator for
consideration. The further evidence that repairs were completed
subsequent to the Rent Administrator's order does not warrant
reconsideration of the order, since the determination was correct
when issued based on the record presented below.
The automatic stay of the retroactive rent abatement that resulted
by the filing of this petition is vacated upon issuance of this
order and opinion.
THEREFORE, in accordance with the provisions of the City Rent and
Eviction Regulations, it is
ORDERED, that this petition be, and the same hereby is, denied, and
that the Rent Administrator's order be, and the same hereby is,
JOSEPH A. D'AGOSTA