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.: BJ430049RO
Albert Kalimian c/o
Rosenberg and Estis, P.C., RENT ADMINISTRATOR'S
DOCKET NO.: AH410811S
AL410254S
SUBJECT PREMISES:
339 E.57th. St.
Apt.2D
New York, NY
PETITIONER
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ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW
The above-named owner filed a timely petition for administrative
review of an order under docket number AL410254S issued on August
28, 1987 concerning the housing accommodations relating to the
above-described docket number.
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
(AH410811S) on August 24, 1986 asserting that the owner had failed
to maintain certain services in the subject apartment.
In its answer, the owner asserted that the tenant refused the
replacement refrigerator; the tenant failed to submit the painting
deposit necessary for painting; that the tenant refused access; and
that the other services have been repaired and are maintained. The
Commissioner notes that the attachments to the answer do not clearly
substantiate these assertions.
The Commissioner notes that on December 12, 1986, the tenant filed
another complaint (AL410254S) which replicated this proceeding.
On December 1, 1986 and under the docket no. AH410811S, an
inspection of the subject apartment was conducted by a DHCR staff
member who reported that the refrigerator was inoperative at the
time of inspection; the freezer temperature was 58@F; and the
refrigerator was 68@F.
BJ430049RO
Under the duplicate proceeding AL410254S, a physical inspection was
conducted on March 19, 1987 by a DHCR staff member who reported
among other things that the refrigerator and freezer were defective;
neither the freezer nor the refrigerator element of the applicance
worked; the freezer temperature was 48@F; and the refrigerator
temperature was 58@F.
By order AH410811S dated July 15, 1987, the Administrator directed
the owner to provide the tenant a good working refrigerator model
comparable to the original unit now with the tenant. The
Administrator determined that though the tenant did request a rent
reduction, a rent reduction is not warranted.
However, by order AL410254S dated August 28, 1987, the Administrator
determined that the refrigerator and the freezer were defective,
directed the restoration of services, and ordered a rent reduction.
In its petition for administrative review, the owner contends that
in a July 28, 1987 letter, it offered the tenant a replacement
refrigerator because the existing refrigerator is obsolete without
available spare parts; however, the tenant merely wanted repairs so
as to avoid the corresponding rental increase for new equipment; and
due to the contradictory findings, the Administrator's order
AH410811S should be affirmed and AL410254S revoked.
On December 14, 1987, DHCR mailed a copy of the petition to the
tenant who filed an answer stating in relevant part that she
"sweated over the reinstallation" of her sixth refrigeration unit in
three (3) years; and that her refrigerator/freezer is still
defective.
After careful consideration, the Commissioner is of the opinion that
the petition should be denied.
The common ground of the apparently contradictory orders is in the
inspection results of December 1, 1986 and March 19, 1987. The first
inspection revealed that the refrigerator was inoperative at the
time of inspection; the freezer temperature was 58@F; and the
refrigerator was 68@F. The second inspection confirmed the first,
i.e. the refrigerator and freezer were defective; neither the
freezer nor the refrigerator element of the applicance worked; the
freezer temperature was 48@F; and the refrigerator temperature was
58@F. The Commissioner finds these defective conditions serious
decreased services, warranting a rent reduction; and that
accordingly, the Administrator's order AH410811S dated July 15, 1987
which incorrectly failed to reduce the rent should be revoked.
Pursuant to Section 2523.4 of the Rent Stabilization Code, DHCR is
authorized to order a rent reduction, upon application by a tenant,
where it is found that an owner has failed to maintain required
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BJ430049RO
services. The claim of attempts to replace the refrigerator or to
repair effectively is not supported by the record. There is no
sufficient evidence to substantiate the contention that the tenant
refused access. The petition does not at all establish any basis for
modifying or revoking the challenged order (AL410254S), which
determined that the owner was not maintaining required services in
the apartment for which a rent reduction is warranted.
The automatic stay of the retroactive rent abatement that resulted
by the filing of this petition is vacated upon issuance of this
Order and Opinion.
The Commissioner notes that the owner's rent restoration application
CD410085OR was denied on May 5, 1989; and that the next application
DG410133OR was granted on April 6, 1990.
THEREFORE, in accordance with the Rent Stabilization Law and Code,
it is
ORDERED, that this petition be, and the same hereby is, denied;
that the Administrator's order (AL410254S) be, and the same hereby
is, affirmed; and that the order (AH410811S) be, and the same
hereby, is revoked.
ISSUED:
JOSEPH A. D'AGOSTA
Deputy Commissioner
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