STATE OF NEW YORK
DIVISION OF HOUSING AND COMMUNITY RENEWAL
OFFICE OF RENT ADMINISTRATION
92-31 UNION HALL STREET
JAMAICA, NEW YORK 11433
IN THE MATTER OF THE ADMINISTRATIVE ADMINISTRATIVE REVIEW
APPEAL OF DOCKET NO.:
ORDER AND OPINION GRANTING PETITION FOR ADMINISTRATIVE REVIEW,
IN PART AND MODIFYING RENT ADMINISTRATOR'S ORDER
The above-named owner filed a timely petition for administrative
review (PAR) of an order issued on October 14, 1992 by the Rent
Administrator, concerning the housing accommodation known as 85-29
114th Street, Apartment 1-B, Queens, New York, wherein the Admin-
istrator determined the tenant's complaint of a reduction of
various individual apartment services.
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,
assigned Docket No. FK110114S asserting that the owner had failed
to maintain certain services in the subject apartment. A second
complaint, initially assigned Docket No. GH110449S was served on
the owner, and thereafter consolidated for disposition. The
complete record includes the tenant's submissions through a
In an answer, the owner denied the allegations set forth in the
complaint, or asserted that all required repairs had been or will
be completed, that the tenant had not previously brought various
conditions to the owner's attention, that the tenant was trouble-
some or uncooperative, or that the tenant had made unauthorized
alterations to the apartment that violated local ordinances.
Thereafter, an inspection of the subject apartment, was conducted
by a DHCR inspector, who confirmed the existence of the following
1. Bedroom bottom window sash was loose.
2. Bathroom bottom window sash was loose.
3. Caulking had been applied to all windows
throughout the apartment in an unworkmanlike-
4. Kitchen hot water faucet was leaking.
5. Kitchen wall tiles (above the sink) were mis-
6. Kitchen hot and cold water valves were mis-
7. There was evidence of exposed wires under-
neath the kitchen sink.
8. Bathroom ceiling had not been plastered and
9. Bathroom soap dish was missing.
10. Toilet water valve was not working properly.
11. Bathroom sink cold water shut-off valve was
12. Bathroom wall (above the sink) was bulged and
stained, and that grouting to the bathroom
wall tiles had been applied in an unworkman-
13. Living room ceiling had been painted in an
14. Apartment door frame and saddle sticks.
The Administrator also found that the tenant's complaint of a
defective refrigerator did not warrant a rent abatement based on
the tenant's application of the self help doctrine. However, the
order provided that the tenant was to present a paid bill for the
refrigerator to the owner, who was to reimburse the tenant for the
full amount, upon which the refrigerator would become the property
of the owner, who thereafter would be responsible for the repairs
The Rent Administrator directed restoration of these services and
further, ordered a reduction of the stabilized rent.
Complaints of electrical defects and a defective door knobs were
In the petition for administrative review, the owner elaborates on
the contention below that the tenant had refused the owner reason-
able access to the apartment.
The record below reveals that the tenant would allow access grudg-
ingly, after extensive communications between the parties, or in
connection with judicial or other City and DHCR Administrative
proceedings. However, once the owner obtained access, the repairs
that were undertaken were not completed in a workmanlike manner.
The owner's submission below did not establish the tenant's inter-
ference prevented the owner from completing repairs. The tenant
does concede that she refused access thereafter, arguing that it
would be futile since the owner failed to complete repairs properly
when he was given he opportunity.
The owner's suggestion that certain of the conditions found were
minor and would have been addressed in the normal course of routine
periodic maintenance is rejected. The conditions reported are
normally cited by the Administrator as predicate for rent abate-
ments when they are confirmed. Moreover, the Courts have held that
once the Administrator determines that a diminution in required
services has occurred, rent reductions are mandated. Hyde Park
Gardens v. DHCR, 140 A.D. 2d 351, 527 N.Y.S. 2d 841, Affd. 23 N.Y.
2d 998, 541 N.Y.S. 2d 345 (Ct. App. 1989).
The owner contends for the first time on appeal that the refrig-
erator was the owner's property. The Commissioner notes that the
owner failed to refute the tenant's complaint below that the tenant
was compelled to purchase the equipment. The Commissioner finds
that the Administrator properly determined that the refrigerator
was the tenant's property. However, that part of the Adminis-
trator's order which directed the owner to reimburse the tenant,
and thereafter, be responsible for repairs and maintenance is
revoked. There was no basis in the record for the Administrator's
directive. However, the owner has the option of complying with the
Administrator's directive, as well as a duty to provide a working
refrigerator if one is requested by the tenant.
The owner may apply to restore rent predicated on a restoration of
services, or alternatively upon establishing before the Adminis-
trator that the tenant unreasonably refuses to provide the access
necessary to correct the conditions cited. The Commissioner notes
that a "no access" inspection, may be conducted if the tenant fails
to provide access to correct the conditions cited. In order to
schedule a "no-access" inspection, the owner must comply with the
requirements set forth in Policy Statement 90-5 Arranging Repairs
No Access Inspections. In pertinent part, the owner must submit
proof that the owner was unable to obtain access even though two
letters were sent to the tenant attempting to arrange access dates.
Each letter must have been sent at least eight days before the
proposed date for access, and the second letter must have been sent
by certified mail. If a "no-access" inspection is arranged, the
failure of either party to abide with the Administrator's requests,
shall be a factor in the Administrator's determination, as the
facts may warrant.
THEREFORE, in accordance with the provisions of the Rent Stabili-
zation Law and Code, it is,
ORDERED, that the owner's petition be, and the same hereby is,
granted, in part, to the extent that the Rent Administrator's order
is modified to delete that part of the order that directed the
owner to reimburse the tenant for the cost of the refrigerator
purchased by the tenant, and thereafter be responsible for its
repair and maintenance.
JOSEPH A. D'AGOSTA