BG 410238 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
APPEAL OF ADMINISTRATIVE REVIEW
DOCKET NO.: BG 410238-RO
HELMSLEY - SPEAR, INC.,
DRO DOCKET NO.: AK 410599-S
TENANT: EZELLE HOPKINS
PETITIONER
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ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW
AND
MODIFYING ADMINISTRATOR'S ORDER
On July 23, 1987 the above named petitioner-owner filed a
Petition for Administrative Review against an order issued on
June 18, 1987 by the District Rent Administrator, 92-31 Union
Hall Street, Jamaica, New York concerning housing accommodations
known as 251 West 91st Street, New York, New York, Apartment 6A
wherein the District 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 District Rent
Administrator's order was warranted.
The applicable sections of the Law are Sections 9 NYCRR 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 November 24, 1986 by
the tenant filing a complaint of decrease in services in which
she alleged "defective stove," "defective living room window,"
"apartment in need of painting and plastering," and "holes in
floor."
In a response dated December 29, 1986 William Harra, Vice
President of Helmsley - Spear, asserted in substance that he had
never been informed of any problems with the windows other than
broken glass in 1984; that the tenant had an almost - new stove
although she appeared confused as to how to operate the oven
portion; that the apartment was painted by the tenant about 2 1/2
years previous and would require painting in early Spring, 1987;
that the tenant had never before complained that the apartment
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needed painting; that he was not aware of any holes in the floor;
and that he had not received any complaints about such holes. He
requested an inspection of the apartment so there would "be no
dispute as to its condition."
On February 26, 1987 a staff member of the Division conducted a
physical inspection of the subject premises, and reported that
the living room window sash was rotted and peeling, that the
window pane was loose, that wind was entering through a four-inch
hole in the sash, that the knobs on two of the pilot lights were
missing and the oven was inoperative; that there was peeling
paint and plaster on the ceilings and walls of all rooms; and
that there were man-made grooves in the bedroom and living room
floors, apparently used by a prior tenant to support partitions
or gates.
In an order issued on June 18, 1987, the Administrator determined
that the owner had failed to maintain services, and reduced the
tenant's rent to the level in effect prior to the most recent
guideline increase, effective January 1, 1987. Among the
decreased services the order listed "window pane is broken" and
"kitchen stove pilots are missing defective oven."
In this petition the owner's attorney contends in substance that
the owner was never served with the complaint; that an appeal of
another order in Docket No. AD 410752-S, involving similar issues
complained of by the tenant, is currently pending; that the
peeling paint and plaster were repaired prior to the issuance of
the Administrator's order; that while any problem with the stove
is likely due to the tenant's inability to operate it properly
rather than mechanical failure, access will be needed to check on
the alleged malfunctioning; that the owner is by letter dated
July 22, 1987 [the same day as its petition] asking the tenant
for access to determine repairs needed to the window and floors;
and that the ordered rent reduction should be held in abeyance
until the owner is provided access and given an opportunity to
repair. With the petition is enclosed an affidavit from William
Hana swearing to substantially the same contentions.
The Commissioner is of the opinion that this petition should be
denied, and that the District 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 the evidence of record, which includes a
physical inspection of the subject premises, discloses that
certain conditions at the subject premises were in need of
repair. Accordingly, the Commissioner finds that the District
Rent Administrator's determination that the owner had failed to
maintain services was warranted and that the Administrator
properly reduced the tenant's rent. However, the reasons for the
reduction require modification. The living room window pane was
not broken as stated by the Administrator, but loose. Two pilot
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light knobs, not the pilot lights themselves, were missing.
Defective floors were found in the living room and bedroom, not
the "entire apartment."
Regarding Mr. Harra's contention that the owner was never served
with the tenant's complaint; his sworn affidavit to that effect
would be more persuasive were it not for the fact that he
submitted an answer to the complaint, referring to the complaint
by its assigned docket number as well as responding to its
specific allegations, in addition to enclosing the Notice and
Transmittal of Tenant's Complaint form stamped with the docket
number.
The other proceeding referred to (Docket No. AD 410752-S) has
limited relevance, since none of the service decreases found,
other than "[s]tove needs repair, back burners light sporadic,"
are similar to those in the present case. That particular
service decrease was affirmed on appeal (Docket No. BE 410378-
RO). It had been noted in an inspection that took place August
25, 1986 (three months prior to the tenant's complaint about the
stove and other items in this proceeding). While the owner's
contention that the stove can appear to be defective to someone
who doesn't realize the need to wait up to 120 seconds for the
glowhead to light a flame has some plausibility, the Commissioner
notes that two different inspectors both found the stove to be
defective. Also, the owner does not indicate that any attempt
was made subsequent to the tenant's complaint to check into the
tenant's complaint about the stove.
While the owner contends that it is, more than a month after the
Administrator's order, requesting access to examine the windows
and floors, such request (which in any case does not substitute
for repairs) has not bearing on the issue of whether the
Administrator's order was warranted when issued.
The owner's request that the rent reduction be held in abeyance
until it is given an opportunity to repair is not granted, as its
attention was already directed to the claimed defects when it was
sent a copy of the tenant's complaint on December 15, 1986. The
owner's letter of two weeks later evidenced a belief that there
were no defects, and an intention not to look into the claims but
to let a Division of Housing and Community Renewal (DHCR)
inspector do it. Since the inspection did confirm each of the
tenant's claims, it was appropriate to reduce the rent for
service decreases which the tenant was experiencing and which the
owner was informed of but did nothing about. While the owner
claims to have repaired the peeling paint and plaster prior to
the Administrator's order (and presumably after the inspection),
the owner has not presented any evidence to support such claim.
Even if such repairs were made, they would have little
significance in this proceeding. The other items of service
decrease found by the DHCR inspector suffice to uphold the
ordered rent reduction. If the repairs were actually made, then
peeling paint and plaster would presumably not be a barrier to
approval of a rent restoration application. This order is issued
without prejudice to the owner making such an application after
services have been restored.
THEREFORE, in accordance with the Rent Stabilization Law and
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Code, it is
ORDERED, that this petition be, and the same hereby is, denied
and that the District Rent Administrator's order be, and the same
hereby is, modified in accordance with this Order and Opinion.
ISSUED:
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ELLIOT SANDER
Deputy Commissioner
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