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 March 12, 1992, concerning the housing
accommodations known as 400 East 58th Street, Apt. 4F, 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 some cracked or mismatched
bathroom tiles, a cracked bedroom window frame, an old bedroom
window sash requiring painting, a new bedroom window that did not
open and close properly, and mice droppings in the kitchen.
The Rent Administrator directed restoration of these services and
further, ordered a reduction of the stabilization rent.
In the petition for administrative review the owner reiterates that
the tenant allowed access to the apartment on an intermittent basis
stretching out the time to complete repairs at the tenant's
convenience, that all work was substantially completed or was in
progress when the Rent Administrator's order was issued, and that
the tenant has continuously postponed the bathroom repairs that the
owner is prepared to complete.
The tenant responded that work was postponed because the owner's
staff failed to appear for scheduled appointments.
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 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 not rise to the level required to trigger a "no-access"
inspection, detailed in Policy Statement 90-5: Arranging Repairs
No Access Inspections.
The owner did not substantiate allegations that the tenant failed
to provide the owner access or that the tenant stretched out the
time required to complete repairs by allowing access for small
periods of time weeks apart.
Also, the owner's allegations on appeal, that various repairs were
completed or were in progress when the Rent Administrator issued
the order below, is beyond the scope of review, which is strictly
confined to issues and evidence submitted to the Rent Administrator
for consideration. Moreover, the owner's submission on appeal,
consisting of the affidavit of the owner's superintendent, is
insufficient to warrant reconsideration of the order in any event,
since it was correct when issued based on the record presented
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 Rent Stabilization Law and Code,
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