STATE OF NEW YORK
DIVISION OF HOUSING AND COMMUNITY RENEWAL
OFFICE OF RENT ADMINISTRATION
92-31 UNION HALL STREET
JAMAICA, NY 11433
IN THE MATTER OF THE ADMINISTRATIVE ADMINISTRATIVE REVIEW
APPEAL OF DOCKET NO.:
28th Street Investors Co.,
ORDER AND OPINION GRANTING PETITION FOR ADMINISTRATIVE REVIEW
On August 13, 1993, the above-named petitioner-owner filed a
petition for administrative review of an order issued on July 12,
1993 by the Rent Administrator, concerning the housing
accommodation known as 137-139 East 28 Street, Apt. 6A, New York,
N.Y., wherein the Administrator denied the owner's application to
restore the rent, which had been previously reduced under Docket
The Commissioner has reviewed all of the evidence in the record and
has carefully considered that portion of the record relevant to the
issue raised by the administrative appeal.
This proceeding was commenced by the filing by the owner of an
application to restore rent dated November 11, 1991. In the
application the owner alleged that the tenant had, on at least two
occasions, refused access to the owner's contractor for the purpose
of making repairs of the conditions cited in the order.
An inspection conducted by a DHCR staff inspector on June 10, 1993
revealed peeling paint and plaster on the kitchen ceiling and wall
and defective bathroom wall tile. The Administrator thereafter on
July 12, 1993 issued an order denying the owner's application on
the basis that services had not been restored.
In the PAR, the owner states that the Administrator's order
erroneously concludes that the owner's application to restore rent
was based on a restoration of services whereas the application to
restore rent was made by the owner on the ground that the tenant
has unreasonably prevented access for repairs. The owner further
states that the tenant, on at least two occasions, has refused
access to the owner's contractor; that the owner continued to
attempt to schedule access after the application to restore rent
was filed but the tenant continued to refuse the owner's
contractor; that after the tenant filed a harassment complaint with
this Division's Enforcement Unit, the Division was also unable to
obtain the tenant's cooperation to complete repairs.
After careful consideration, the Commissioner is of the opinion
that the petition should be granted.
The Commissioner notes that by a previous order issued under Docket
No. FJ420229RO on May 17, 1994, the rent reduction relating to the
bathroom wall tiles was revoked. Accordingly, the only condition
remaining in this administrative appeal relates to the kitchen
painting and plastering.
The evidence of record discloses that the owner's rent restoration
application was not based on a restoration of services but on the
tenant's refusal to permit access to the owner to make repairs.
The owner documented the tenant's refusal on at least two occasions
after the rent reduction order was issued and before the
application to restore rent was filed. It was therefore error for
the Administrator to schedule an inspection to determine whether
repairs had been made and thereafter issue an order finding that
services had not been restored.
The record in this case is replete with statements and letters
alleging each party has obstructed repair efforts. The Division's
records in the numerous other proceedings before this agency
involving this tenant and owner are likewise filled with identical
letters and documents which all together draw a detailed picture
of a history of conflict between these parties. The Commissioner
notes that counsel in this Division's Office of Enforcement was
also unable to solicit the tenant's cooperation to allow repairs to
be made as indicated by the numerous pieces of correspondence
between counsel and this tenant both in this record and in the
records of other proceedings. It is especially noteworthy that
this tenant refused to allow repairs and/or inspection by this
Division in order that he could preserve the status quo and
thereby, pursue an action against the owner in Civil Court.
In addition to the foregoing, the Commissioner notes that the
inspection in the proceeding under Docket No. EK420436S occurred on
August 28, 1991 and that the inspection in this case took place on
June 10, 1993. The record reveals that there was an intervening
fire in the apartment above the subject apartment on October 26,
1992 that caused significant water damage to the tenant's
apartment. Given this fact, the Commissioner is of the opinion
that the defect reported by the inspector relating to the kitchen
constitutes a new condition that was not the subject of the
original rent reduction order. The evidence of record establishes
that any defects noted in the inspection of June 1993 would have to
be the subject of a new complaint.
THEREFORE, in accordance with the provisions of the City Rent Law
and the Rent and Eviction Regulations, it is
ORDERED, that the administrative appeal be, and the same hereby is,
granted, and that the Administrator's order be, and the same hereby
is, revoked, and that the rent be restored in the amount of $5.00
for the condition described as paint/plaster kitchen effective the
first rent payment due after July 12, 1993.
JOSEPH A. D'AGOSTA