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STATE OF NEW YORK
DIVISION OF HOUSING AND COMMUNITY RENEWAL
OFFICE OF RENT ADMINISTRATION
92-31 UNION HALL STREET
JAMAICA, NEW YORK 11433
IN THE MATTER OF THE ADMINISTRATIVE ADMINISTRATIVE REVIEW
APPEAL OF DOCKET NO.: BG 410434 RO
3849 ASSOCIATES DISTRICT RENT
NO.: US 001763 S
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
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
8. Leaking and cracked refrigerator with mildew
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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.
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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
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
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.
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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
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
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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.
JOSEPH A. D'AGOSTA
Acting Deputy Commissioner