BG 410434 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


          ----------------------------------x
          IN THE MATTER OF THE ADMINISTRATIVE     ADMINISTRATIVE REVIEW
          APPEAL OF                               DOCKET NO.: BG 410434 RO
                                                  
               3849 ASSOCIATES                    DISTRICT RENT
                                                  ADMINISTRATOR'S DOCKET 
                                                  NO.: US 001763 S
                                  PETITIONER            
          ----------------------------------x


            ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW
                                          
               On December 3, 1986 the above named petitioner-owner filed a 
          Petition for Administrative Review against an order of the Rent 
          Administrator issued November 20, 1986.  The order concerned 
          housing accommodations known as Apt 10 A located at 601 West 160th 
          Street, New York, N.Y..  The Administrator ordered a rent reduction 
          for failure to maintain required services.  

               The Commissioner has reviewed the record and carefully 
          considered that portion relevant to the issues raised by this 
          appeal.

               The tenant commenced this proceeding by filing a Statement of 
          Complaint of Decrease in Services on December 30, 1984 wherein he 
          alleged the following services deficiencies:

                    1.   Lack of fire escape causing potential fire hazard.

                    2.   Leaks in apartment walls and ceilings.        

                    3.   Mildewed walls throughout apartment.

                    4.   Rotted kitchen sink with rusted and rotted counter 
                         tops.  Falling plaster under sink.

                    5.   Roach infestation.

                    6.   Hole in bathroom room surrounding pipe.

                    7.   Bedroom wall falling and has peeling paint and 
                         plaster.

                    8.   Leaking and cracked refrigerator with mildew 
                         inside.












          BG 410434 RO

                    9.   Peeling paint and plaster in bedroom closet.

                   10.   Insufficient heat.

                   11.   Problems with water pressure.

               The owner was served with a copy of the complaint and afforded 
          an opportunity to respond. The owner, through counsel,
          filed a response on July 12, 1985 and stated that the lack of fire 
          escape was not a housing code violation, that there were adequate 
          means of escape from the building in case of fire, that a new roof 
          was installed in 1984, that there have been no reports of leaks, 
          that the tenant's apartment was painted in October, 1984, that 
          mildewing was caused by the tenant's creation of a "greenhouse 
          condition" in the apartment, that a new sink and sink cabinet were 
          installed in the apartment, that the exterminator visits the 
          building twice a month but the tenant has denied access for this 
          and all other repairs, that there is sufficient heat and that any 
          problems with water pressure were caused by conditions beyond the 
          control of the owner.  The owner attached 3 invoices to its answer.  
          The invoices were offered to show that the apartment had been 
          painted in October, 1984, that the owner had attempted to repair 
          the refrigerator but the tenant had denied access, and that the 
          owner had repaired the sink and cabinet in January, 1985.

               The tenant filed a reply on July 10, 1986 wherein he, in sum, 
          reaffirmed the allegations in the complaint.  He added that he is 
          never notified of when the exterminator visits but does let him in 
          when he is home, that there is no greenhouse condition that would 
          cause the mildew problem, and that he has never denied access to 
          the refrigerator repairman.
           
               The Administrator ordered a physical inspection of the subject 
          apartment.  The inspection was conducted on July 30 and August 11, 
          1986 and revealed the following:

                    1.   Evidence of mice and roach infestation.

                    2.   Bathroom ceilings mildewed.

                    3.   Living room closet mildewed.

                    4.   Refrigerator freezer door and tray are broken.
                                                                             
               The Administrator issued the order here under review on 
          November 20, 1986 and ordered a rent reduction of $16.00 per month 
          based on the report of the inspector. 

               On appeal the owner states that both the infestation and 
          mildewing conditions are caused by the tenant's refusal to keep the 
          apartment clean and that the tenant is responsible for the fact 
          that replacement refrigerators it has installed have all broken. 






          BG 410434 RO

          Specifically, the owner states that the tenant is accumulating 
          garbage in the apartment and refusing to give access to the 
          exterminator, that the tenant is causing the mildew condition by 
          refusing to allow fresh air to circulate in the apartment or to 
          clean the walls, that the roof has been inspected and there is 
          nothing wrong with it, and that the owner has provided four 
          replacement refrigerators and the tenant has admitted that these 
          refrigerators have been installed but that the refrigerators have 
          all been reported broken shortly after the installation.

               The owner also listed the numerous complaints that the tenant 
          has filed with the DHCR and claims that rent reductions have 
          already been granted for some of the complaints the tenant now 
          makes.  The owner annexed the following documents to the petition:

                    1.   A letter dated June 7, 1984 from a licensed 
                         exterminator attesting to the fact that services 
                         are available in the building and that the tenant's 
                         apartment is maintained in an unsanitary manner, as 
                         well as a letter from the exterminator to the 
                         tenant advising him of its unsuccessful attempts to 
                         reach the tenant to gain access.

                    2.   A work ticket for exterminating done in the 
                         apartment, dated January 13, 1986 and signed by the 
                         tenant.

                    3.   An invoice from a painting contractor, dated 
                         October 15, 1984, for painting and plastering done 
                         in the apartment.

                    4.   A notarized affidavit from the painting contractor, 
                         dated June 29, 1984, in which the contractor 
                         attests to the owner's statement that the tenant is 
                         causing the mildew to form by refusing to allow 
                         fresh air to circulate and that the tenant was 
                         refusing access to the apartment for painting to be 
                         done.

                    5.   A letter from a roofer who stated that the building 
                         roof is not causing the conditions in the apartment 
                         and that the apartment has a "terrible condensation 
                         problem" as well as a copy of the guarantee for the 
                         roof it installed at the building.

                    6.   A copy of a work ticket from a stove and 
                         refrigerator supplier who stated that it had 
                         attempted to deliver a new refrigerator but was  
                         denied access on several occasions.  The owner also 
                         provided a copy of a cancelled check it had paid to 
                         the supplier for the refrigerator.













          BG 410434 RO

               The tenant filed a response on December 21, 1987 wherein he 
          stated that any problems in the apartment were the result of poor 
          workmanship by the owner in making repairs.  The tenant also stated 
          that there had been numerous complaints to the former Conciliation 
          and Appeals Board, DHCR and the Housing Court with regard to the 
          conditions in his apartment.  He attached a copy of a consent order 
          entered into with the landlord wherein the landlord agreed to 
          correct conditions existing in the apartment.  The tenant also 
          attached copies of a Notice of Violations and a Report of 
          Violations issued by the Department of Housing Preservation and 
          Development.  The tenant requested that the order here under review 
          be affirmed.

               After careful review of the evidence in the record, the 
          Commissioner is of the opinion that the petition should be denied.

               Section 2202.16 of the Rent and Eviction Regulations provides 
          that if it is found that the landlord is not maintaining essential 
          services, the Rent Administrator may order a decrease in the 
          maximum rent in an amount which may be determined in the reasonable 
          exercise of discretion.  The record in the instant case reveals 
          that the tenant complained about certain conditions at the subject 
          apartment and a physical inspection of said apartment confirmed 
          that these conditions indeed existed.

               With regard to exterminator services, the landlord's 
          contention that regular service is available on a monthly basis was 
          disputed by the tenant.  The landlord did not submit any evidence 
          to show that these regular visits took place and which tenants 
          signed up for service.  The letter by the exterminator regarding 
          unsuccessful attempts to gain access pre-dates the complaint and is 
          therefore not relevant.  The signed work ticket regarding 
          exterminating done on January 13, 1986 is contradicted by the 
          subsequent DHCR inspection which revealed that the condition had 
          not been corrected.

               As for the mildew condition and the defective refrigerator, 
          the Commissioner notes that these same complaints have appeared 
          repeatedly in various proceedings commenced by the tenant before 
          the former Conciliation and Appeals Board, DHCR, and the Housing 
          Court and have been confirmed by numerous inspections including a 
          court ordered inspection on April 15, 1987 which found "penetrating 
          dampness"  throughout the apartment as well as defects in the 
          refrigerator.  The mildew problem is therefore clearly not just a 
          housekeeping matter.  A review of these earlier proceedings 
          however, do not confirm the owner's contention that a rent 
          reduction has already been ordered for these same conditions.  
          Therefore, the Commissioner finds that the Rent Administrator 
          properly determined that the owner had not corrected conditions and 
          for this reason a rent reduction is  warranted

               The Commissioner notes that the owner has filed for rent 






          BG 410434 RO

          restoration and said application was granted on January 29, 1988 
          (see Docket No. BF 520020 OR).

               THEREFORE, pursuant to the Rent and Eviction Regulations for 
          New York City 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, affirmed.

          ISSUED:



                                                                             
                                             JOSEPH A. D'AGOSTA
                                             Acting Deputy Commissioner






    

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