ADM. REVIEW DOCKET NO.: BD 510296-RO
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. BD 510296-RO
D.R.O. DOCKET NO.:
: ZAH-410515-S
Tenant: Paula Walzer
DYCKMAN ASSOCIATES,
PETITIONER :
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ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW
AND MODIFYING RENT ADMINISTRATOR'S ORDER
On April 23, 1987 the above named petitioner-owner filed a
Petition for Administrative Review against an order issued on
April 13, 1987 by the Rent Administrator, 92-31 Union Hall Street,
Jamaica, New York concerning housing accommodations known as 2-12
Seaman Avenue, New York, New York, Apartment No. 5G wherein the
Rent Administrator determined that the owner had failed to
maintain services and, based thereon, reduced the tenant's rent.
The issue in this appeal is whether the 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.
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 originally commenced on August 28, 1986
by the tenant filing a complaint of decrease in services in which
she alleged, among other things, that the living room had a broken
and defective painted and plastered surface, that a recent
inadequate tile job had left buckling bathroom tiles with the
grout already having fallen off, that the bathroom floor had
cracks in the tile, that the tiles were beginning to come off, and
that moisture seeping in between the double-glazed panels of the
bedroom window had fogged the entire window. With her complaint
the tenant enclosed two photographs of tiles buckling near the
bathtub faucet handles and two photographs showing 6 tiles having
fallen off the wall into the bathtub.
On September 10, 1986 the owner was sent a copy of the
tenant's complaint. By answer dated September 15, 1986 the owner
ADM. REVIEW DOCKET NO.: BD 510296-RO
indicated that a work order had been made out and that repairs
would soon be made. By letter dated October 28, 1986 the owner
submitted a contractor's work order dated October 3, 1986 stating:
"Foyer wall installed; bathroom wall and tiles installed-wall
broken by plumber to fix leak." The tenant signed the work order
beneath the phrase "[t]he above work has been completed to my
satisfaction."
On December 19, 1986 a DHCR staff member conducted a physical
inspection of the subject apartment, and reported among other
things that:
-(Bedroom) Paint and plaster is water stained
at 2 areas of the ceiling. Window sill is
water stained.
-(Livingroom) Wall near the ceiling has been
replastered in an unworkmanlike manner,
lumpy at areas.
-(Bathroom) Broken and missing bathroom wall
and floor ceramic tiles.
-There was a mass of moisture and fogging of
of windows in the bedroom and living room.
The entire windows, double-glazed panels
were full of moisture and were foggy.
In an order issued on April 13, 1987 the Rent Administrator
found that there had been a decrease in services, and reduced the
rent effective October 1, 1986.
In an Affirmation of Non-Compliance submitted April 16, 1987
the tenant contended that "[b]edroom ceiling was scraped and
plastered, but not painted. The window in the bedroom, not the
living room, is foggy and wet. All the other conditions still
exist, and the bathroom floor has worsened by cracking."
In this petition, the owner contends in substance that it has
completed repairs of the items listed by the tenant; that the
tenant signed a work order indicating that repairs had been
completed to her satisfaction; that, as stated in the completed
work order, the bathroom tiles were repaired; the foyer and
bathroom ceilings were plastered, and the entire apartment was
scraped, painted and plastered; that the rent reduction was based
only on lack of repairs of minor water stains and foggy windows;
that the DHCR obviously did not reinspect the apartment before
granting a rent reduction; that the DHCR never indicated to the
owner that the work was not completed or was completed
unsatisfactorily; and that a rent reduction should be used to
penalize only an owner who refuses to correct conditions in an
apartment, and not an owner who makes all efforts to, and in fact
does, comply with requests to make repairs. With its petition the
owner has enclosed among other things a February 18, 1986 work
order, signed by the tenant as having been completed to her
satisfaction, for the contractor to "scrape, plaster and pai t 3-
room apartment complete. Plaster bathroom and foyer ceilings
complete."
In answer, the tenant asserts among other things that the
ADM. REVIEW DOCKET NO.: BD 510296-RO
October 3, 1986 work order about fixing the large hole in the
bathroom wall involved only one of many problems with falling
tile, and not the problem which she photographed; that the
bathroom floor tiles crack a little more each day and the tiles
are slowly but surely coming off; that the tiles constitute a
chronic problem which the owner attends to only sloppily at best;
and that she will be happy to withdraw her complaint when the
problems in her apartment are corrected and the repairs last
longer than three weeks.
The Commissioner is of the opinion that this petition should
be denied; and that the Rent Administrator's order should be
modified.
Section 9 NYCRR 2525.2 of the Rent Stabilization Code
requires an owner to maintain the services described in Section 9
NYCRR 2520.6; including repairs and maintenance. Section 26-514
of the Rent Stabilization Law mandates a reduction in rent upon a
finding that the owner has failed to maintain services. In the
present case an inspection took place in December 1986, 2 1/2
months after the tenant signed a work order indicating "bathroom
wall and tiles installed" and 10 months after she signed a work
order indicating satisfaction with work consisting of "scrape,
plaster and paint 3-room apartment complete". Although noting
that a new roof had been installed the inspection found, as
alleged by the tenant in August, that the bedroom ceiling had been
damaged by water leakage. Neither the October 3, 1986 work order
nor a September 15, 1986 work order unsigned by the tenant
concerned this item. The inspection found unworkmanlike
plastering of the living room wall, despite the (unsigned)
September 15th work order to check the living room wall that had
been painted and plastered. The tenant's August complaint had
mentioned unevenness, although she ascribed it to unscraped paint
rather than plaster. In August the tenant asserted that a recent
tile job had been inadequate, as the tiles were buckling and the
grout was falling out. While acknowledging "bathroom wall and
tiles installed" in October, it appears either that (as claimed
by the tenant) this referred only to repair of one hole, or else
that repairs were again inadequate, as the December inspection
found broken and missing tiles. In August the tenant claimed that
moisture had fogged her entire bedroom window. Although the
(unsigned) September work order mentioned "window in bedroom" it
appears that nothing was done, as the inspection found the window
foggy and full of moisture. The February and October work orders
signed by the tenant did not constitute a retraction of her
complaint (even aside from the fact that she did not send a letter
to the DHCR withdrawing the complaint and the fact that her
complaint was filed 6 months after she signed the February work
order), but was rather just evidence that some work had been done.
However, some items complained of were not mentioned at all in the
work orders, some were referred to only in part, and even some
items on which work was done were not repaired in a workmanlike
manner or did not have underlying problems fixed. If a tenant
complains of a problem and an inspection subsequently finds the
problem to exist, an owner cannot convincingly claim lack of
notice just because it attempted repairs which it considered to be
(but which actually were not) adequate. When the DHCR has sent an
ADM. REVIEW DOCKET NO.: BD 510296-RO
owner a tenant's complaint, and has found by inspection that the
allegations are correct, it may issue an order without having to
give the owner further opportunity to correct conditions found by
the inspection, since the owner's attention was already directed
to those items by the complaint.
Regarding the owner's contention that the rent reduction was
based just on minor water stains and foggy windows, the
Commissioner finds that the combination of the four items found by
the inspection is not de minimus but should be considered to
constitute a service decrease, and that a rent reduction is
therefore mandated by Section 2525.2 of the Code.
The Administrator's order does need to be changed in one
respect. The inspection found the living room window(s), as well
as the bedroom window, to be defective. However, the tenant's
complaint had not put the owner on notice of any problem with the
living room window(s), so the Administrator's order should not
have listed that item as being one of the bases for a rent
reduction.
This Order and Opinion is issued without prejudice to the
owner's right to file an application with the DHCR for a
restoration of the rents based upon the restoration of services,
if the facts so warrant.
THEREFORE, in accordance with the Rent Stabilization Law and
Code, it is
ORDERED, that this petition be, and the same hereby is,
denied and that the Rent Administrator's order be, and the same
hereby is, modified in accordance with this Order and Opinion.
ISSUED:
ELLIOT SANDER
Deputy Commissioner
ADM. REVIEW DOCKET NO.: BD 510296-RO
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