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
                                                       
                                                  
          ------------------------------------X                           
          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
          -------------------------------------X
                             
            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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