GC420332RO
STATE OF NEW YORK
DIVISION OF HOUSING AND COMMUNITY RENEWAL
OFFICE OF RENT ADMINISTRATION
GERTZ PLAZA
92-31 UNION HALL
JAMAICA, NY 11433
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IN THE MATTER OF THE ADMINISTRATIVE ADMINISTRATIVE REVIEW
APPEAL OF DOCKET NO.:
GC420332RO
(Refile of
GB420201RO);
GB420333RO
The 400 East 58th Street Co.,
RENT ADMINISTRATOR'S
DOCKET NO.:
FJ420154S
PETITIONER
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ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW
The above-named owner filed and perfected a timely petition for
administrative review of an order issued on February 18, 1992,
concerning the housing accommodations known as 400 East 58th
Street, Apartment 2B, New York, New York, wherein the Rent
Administrator determined the tenant's complaint of decreased
service.
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 tenant commenced this proceeding by filing a complaint
asserting that the owner had failed to maintain certain services in
the subject apartment. The tenant's complaint was filed on
November 8, 1991.
GC420332RO
In an answer, the owner denied the allegations set forth in the
complaint or asserted that the tenant did not cooperate with the
owner's efforts to ascertain conditions requiring repairs, or
otherwise asserted that all required repairs had been or would be
completed. The owner's submissions included: a) a letter dated
October 22, 1991, certified, return receipt requested, calling for
access to paint the apartment; b) a letter dated October 30, 1991
certified, return receipt requested, calling for access to make
repairs; and c) purchase order dated November 26, 1991 for paint
for the apartment.
Thereafter, the DHCR conducted an inspection of the subject
apartment. The DHCR inspector reported peeling paint and plaster
in the living room, kitchen and bathroom, kitchen and bathroom
ceilings and walls. Other services were found to have been
maintained.
The Rent Administrator directed restoration of these services and
further ordered a reduction of the controlled rent.
In the petition for administrative review, and in supplements
thereto, the owner states that the tenant refused to provide the
owner access to paint and plaster the apartment during the pendency
of the proceedings below, but has since consented to provide said
access.
The tenant responded that she has never refused the owner or his
agents access to the apartment for the appropriate work, or broken
appointments or refused offers of service.
After careful consideration the Commissioner is of the opinion that
the petition should be denied.
The record of the proceedings below documented to some extent the
owner's attempts to obtain access to the tenant's apartment in
order to investigate and to correct the paint and plaster defects.
The owner submits, for the first time on appeal, a copy of the
envelope for the October 22, 1991 certified letter, stamped "Return
To Sender" by the U.S. Post Office with notations that delivery was
attempted on October 25 and November 10, 1991; other stamped
entries on the envelope were not legible. The submissions also
show that the tenant accepted the October 30, 1991 certified letter
on November 2, 1991.
Policy Statement 90-5: Arranging Repairs: No Access Inspections
sets forth the following:
GC420332RO
A "no-access" inspection may be conducted in response to
an owner's claim that a tenant (who has filed a service
complaint or an objection to a rent increase application)
has not provided access to his or her apartment to
correct a service or equipment deficiency.
When the owner receives the copy of the tenant's
complaint from the DHCR, the owner has twenty days in
which to respond. If the owner asserts that he or she is
unable to gain access during this time, this fact should
be included in the response. In order to obtain a "no-
access" inspection, the owner should then submit to the
DHCR copies of two letters to the tenant attempting to
arrange access dates. Each of the letters must be mailed
at least eight days before the proposed date for access
and the second letter must be sent by certified mail,
return receipt requested. The return receipt must also
be submitted with the request for a no-access inspection.
DHCR will not schedule a "no-access" inspection without
receiving proof that both of these letters were sent as
specified. Exceptions to this policy will be made under
emergency conditions or pursuant to court ordered
proceedings.
The Commissioner finds that the documentation below was
insufficient to trigger a "no-access" inspection, detailed in
Policy Statement 90-5, and cited above, in that the owner failed
below to specify no access and failed to submit the return receipt.
As Policy Statement 90-5 notes, the Rent Administrator does not
schedule a "no access" inspection without proof of the return
receipt of the notice letters sent to the tenant in the manner
specified. Although the owner submitted the return receipt on
appeal, it could not be considered, since the scope of review is
limited to issues and evidence presented to the Rent Administrator
for consideration.
The separate proceedings per PAR Docket No. GB420333RO, were
established inadvertently based on owner's submissions under
separate cover, which should have been referred to then pending
PAR Docket No. GB420201RO. The proceedings are terminated as
duplicative; the contents therein are merged with the instant
proceedings per Docket No. GC420332RO.
THEREFORE, in accordance with the provisions of the City Rent and
Eviction Law and Regulations, it is
ORDERED, that this petition be, and the same hereby is denied, and
the Rent Administrator's order be, and the same hereby is affirmed.
It is further
GC420332RO
ORDERED, that the petition per Docket No. GB420333RO be, and the
same hereby is, terminated as duplicative.
ISSUED:
JOSEPH A. D'AGOSTA
Deputy Commissioner
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