STATE OF NEW YORK
DIVISION OF HOUSING AND COMMUNITY RENEWAL
OFFICE OF RENT ADMINISTRATION
GERTZ PLAZA
92-31 UNION HALL STREET
JAMAICA, NEW YORK 11433
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IN THE MATTER OF THE ADMINISTRATIVE ADMINISTRATIVE REVIEW
APPEAL OF DOCKET NO.: BA 210012-RT
Ann Wollock, D.R.O DOCKET NOS.:
ZAA-200062-OR
KS-000879-S
OWNER: Stanley Gallant
PETITIONER
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ORDER AND OPINION REMANDING PROCEEDING ON APPEAL
On January 21, 1987 the above named petitioner-tenant filed a
Petition for Administrative Review against an order (No. ZAA-
200062-OR) issued on December 31, 1986 by the District Rent
Administrator 92-31 Union Hall Street, Jamaica, New York
concerning housing accommodations known as 60 Plaza Street,
Brooklyn, New York, Apartment 5L wherein the District Rent
Administrator restored the rent reduced in Docket No. KS-000879-S
on August 20, 1985.
The issue in this appeal is whether the District Rent
Administrator's order was warranted.
The applicable sections of the Law are Sections 9NYCRR 2520.6 and
2525.2 of the Rent Stabilization Code and Section 26-514 of the
Rent Stabilization Law.
On January 31, 1986 the owner filed an application to restore the
rent. In the space given for a description of the restored
services the owner stated "[p]aid bill to have apartment painted
is enclosed." With his application the owner enclosed a January
10, 1986 invoice for $325.00 for repairing the walls and
ceilings, and plastering and painting 4 rooms, in the subject
apartment.
On April 4, 1986 the tenant informed the DHCR that her apartment
had been painted in January, 1986 by an owner-provided painter.
In an order issued on December 31, 1986 the Administrator granted
the owner's application and restored the rent effective February
1, 1986.
In this petition, the tenant contends in substance that one of
the two reasons for the rent reduction was that the owner was not
providing "[e]limination of water seepage"; that neither the
owner's nor the tenant's answer claimed that the seepage had been
eliminated; that her affirmation of non-compliance was received
by the DHCR 26 days before the order was issued restoring the
rent; that she has had to move her dining room furniture into the
living room and to put large plastic sheets on the dining room
carpet to prevent water damage; and that the rent should not have
been restored. With her petition the tenant has enclosed a
mailing receipt showing a letter mailed on December 3, 1986 and
received by the DHCR 2 days later; and a letter dated December 2,
1986 whereby she informed the DHCR that roof leaks were allowing
rainwater to leak and seep through her dining room window and
window frame and to splash onto the window sill and carpeting.
The file for Docket No. AA 200062-OR does not contain this
letter, nor indeed any submission by the tenant after her April
4, 1986 answer stating that the apartment had been painted.
In answer, the owner asserts in substance that 60 Plaza
Associates has repaired the pointing around the subject apartment
and will continue to repair any problems which develop causing
seepage; that to the extent that any new leakage problems have
developed or repairs made have failed to alleviate defective
conditions, the tenant is at fault since she did not allow
reasonable access for evaluating the need for or for performing
pointing work before it became too cold to do so; that the
cooperative corporation that controls the building has arranged
to have new windows installed throughout the building and has
intentions of having pointing done throughout the building as
soon as weather permits; and that any rent reduction should
reflect that one of the conditions that resulted in that rent
reduction has admittedly been corrected.
With its answer the owner has enclosed an October 21, 1985
invoice for pointing 4 apartments, and sealing and waterproofing
another (none of them being the subject apartment); a June 23,
1986 invoice for $375.00 in roofing work; a January 6, 1987
proposal from Capri Home Improvement Corp. for new windows; and a
February 26, 1987 check to Capri, to be delivered to Capri upon
the signing of a contract.
The Commissioner is of the opinion that this proceeding should be
remanded to the Rent Administrator.
The Commissioner notes initially that Section 26-514 of the Rent
Stabilization Law provides "for a reduction in the rent to the
level in effect prior to its most recent adjustment," and that
"the commissioner shall so reduce the rent if it is found that
the owner has failed to maintain such services." This is an all-
or-nothing proposition if one or more conditions is found to
constitute a service decrease then a rent reduction to the
previous rent is required. The provision that a rent reduction
is mandatory rather than discretionary has been upheld by the
Courts in Hyde Park Gardens v. State Division of Housing and
Community Renewal, 527 N.Y.S. 2d 841 (A.D.2nd Dept. 1988), aff.
541 N.Y.S. 2d 345 (Ct. App. 1989). Therefore, even though the
tenant acknowledged in Docket No. AA 200062-OR that here
apartment had been painted, the full rent reduction ordered in
Docket No. KS-000879-S should have remained in effect until the
other item in which the rent reduction was based had been
corrected. Because neither the owner's rent restoration
application nor the tenant's answer to it claimed that it had
been corrected (in fact, the tenant's December 2, 1986 letter,
which did not reach the Administrator's file even though it was
apparently received by the DHCR, specifically claimed that it had
not been corrected), the Administrator was not warranted in
restoring the rent as of February 1, 1986. However, since it is
likely that the planned pointing and window work did correct the
condition sometime in 1987, this proceeding is being remanded for
a determination of the period of time on and after February 1,
1986 for which the tenant should have been charged a reduced
rent.
THEREFORE, in accordance with the Rent Stabilization Law and
Code, it is
ORDERED, that this petition be, and the same hereby is, granted
to the extent of remanding this proceeding to the District Rent
Administrator for further processing in accordance with this
order and opinion. However, the Administrator's determination in
Order No. ZAA-200062-OR as to the rent is not stayed and shall
remain in effect, except, for any adjustments pursuant to lease
renewals, until the Administrator issues a new Order upon remand.
ISSUED:
ELLIOT SANDER
Deputy Commissioner
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