DOCKET NUMBER: BC 110047-RO; BC 110083-RT
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.: BC 110047-RO
: BC 110083-RT
RICHARD ALBERT DISTRICT RENT ADMINISTRATOR'S
PETITIONER : DOCKET NO.: P 000382-OR
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ORDER AND OPINION DENYING OWNER'S PETITION FOR ADMINISTRATIVE REVIEW
AND GRANTING TENANT'S PETITION FOR ADMINISTRATIVE REVIEW
On February 23, 1987, the above-named owner and the above-named tenant
filed Petitions for Administrative Review of an order issued on February
18, 1987, by a District Rent Administrator concerning the housing
accommodation known as Apartment 6F, 94-05 222nd Street, Queens Village,
New York wherein the Administrator directed the restoration of rent as
based upon a finding that the owner had restored services.
The Commissioner has reviewed all of the evidence in the record and has
carefully considered that portion of the record relevant to the issues
raised by the petition for administrative review.
This proceeding was originally commenced on December 27, 1983 by the
tenant's filing of a complaint of reduced services, specifically that
there was water seepage through the bedroom walls and ceiling, and that
such condition was dangerous as it allowed water entry that was close to
electrical outlets.
On July 2, 1984, order number 78041-P was issued, in which the
Administrator determined that the tenant's complaint was valid and that as
a result a reduction of services had occurred. The order then directed a
reduction of rent to the former level in effect prior to the most recent
guidelines increase effective January 1, 1984, to refund to the tenant the
amount of such increase and to restore the services mentioned in the
order.
On August 19, 1984 the tenant submitted an Affirmation of Non-Compliance
to the DHCR, stating therein that the leak and the water damages to the
bedroom had not been repaired, and that the owner had not expressed its
intention to make these repairs.
On October 24, 1984 the Commissioner issued Administrative Order number
ARL 00324-Q, denying the owner's petition of the order.
On November 1, 1985 the subject owner filed an application for the
restoration of rent, affirming therein that the service for which a rent
DOCKET NUMBER: BC 110047-RO; BC 110083-RT
reduction order was issued on July 2, 1984 been restored. Attached to the
application was the transcript of a stipulation by the subject owner and
the subject tenant, each represented by counsel, discontinuing the owner's
action against the tenant as well as the teannt's counterclaim, as filed
in Housing Court, Queens Januiary 2, 1985. This transcript docketed as L
& T No. 525084 and signed by the Official Court Reporter, stated the
following: that the tenant agreed to fully paint his entire apartment
within 30 days, and that the owner agreed to "allow the tenant towards the
cost of same one month's rent... in the amount of $336.30. That the
tenant does hereby acknowledge that as of the date hereof that the
landlord has restored and is currently maintaining all essential and/or
required services in the tenant's apartment. That the balance of the
tenant's counterclaims are hereby withdrawn and discontinued without
prejudice." It is noted that this application was assigned two different
docket numbers.
On December 26, 1985, in a letter responding to a request from the
Administrator on a different matter, the owner amended its application to
request the restoration of rent retroactive to January 2, 1985, the date
of the above stipulation. This letter is filed under docket number Q
000382-OR.
On May 2, 1986 the tenant was served with a copy of the owner's
application under the assigned docket number Q 000382-OR, and requested to
respond within 20 days. On September 22, 1986 the tenant was served with
a copy of the same application, under the assigned docket number Q 000394
OR, and directed to respond within 20 days. The tenant did not respond to
either of the applications.
On January 13, 1987 the Administrator requested additional information
from the tenant concerning the leak and water damage. This request was
notated with docket number Q 000394-OR.
The tenant responded to the above request in a letter received by the DHCR
on January 27, 1987, wherein he stated that the owner had not provided
complete and effective repairs, and that the water seepage had recurred in
the same areas. The tenant then requested a new inspection to verify this
condition.
On February 17, 1987 a physical inspection of the subject housing
accommodations was conducted by the DHCR. The inspector's report noted
the following: that part of the bedroom ceiling and adjacent wall was
discolored and had peeling paint and plaster due to water seepage; that
part of the closet wall was peeling paint and plaster and discolored due
to water seepage. This inspection report is filed under docket number Q
000394-OR.
On February 18, 1987, under docket number Q 000382-OR, the Rent
Administrator issued the order hereunder review, finding that the
conditions upon which the rent reduction order were based had been
corrected, warranting a restoration of rent. The order directed the
restoration of rent retroactive to June 1, 1986. It is noted that the
file under this docket number contains the notation, dated January 13,
DOCKET NUMBER: BC 110047-RO; BC 110083-RT
1987, that the tenant had not responded to the owner's application which
had been served on May 22, 1986.
In its petition of the above order, dated February 23, 1987, the owner
states that the entire matter was resolved by the stipulation "made in
open court", dated January 2, 1985, which establishes "that the condition
complained of as the basis for the rent reduction had been repaired to the
tenant's satisfaction. As a result the owner requests that the order be
revised so as to restore the rent retroactive to January 2, 1985, the date
of the stipulation. In addition, the owner requests copies of the
tenant's statements in the record which differ from the tenant's
statements in the stipulation so that they may be utilized "as the basis
for a possible perjury action against the tenant".
On March 19, 1987 the tenant filed its petition against the order
requesting that it be revoked without qualification, as the conditions
upon which the original order was based have not been corrected. Attached
to the tenant's petition are a copy of the tenant's request for
reinspection dated January 27, 1987, a copy of the DHCR Notice of
Inspection to the tenant, which was held on February 17, 1987 and a copy
of a letter to the owner dated December 27, 1986 in which the tenant
requested repair of its bedroom wall and bedroom closet wall because of
water seepage.
In its answer to the tenant's petition, dated May 6, 1987, the owner
states that the waterproofing contractor had concluded there was no leak
but that the stain from an old leak that had been corrected had bled
through the newly applied paint and that all that was required was for the
stain to be resealed and painted again, a process that may commonly
require several applications. The owner also states that, although the
tenant had informed the owner that he could not provide access for repairs
on May 5, 1987 because he would be at the airport the most of the day, the
tenant was seen in the building courtyard on that date until approximately
3PM, thus showing his frequent use of "inaccurate statements "to retain a
rent reduction. The owner further contends that, even if the excuse was
legitimate it was the tenant's responsibility to provide access.
Finally, the owner contends that the tenant has "unreasonably obstructed"
the performance of repairs in order to obtain or to retain rent
reductions.
On May 7, 1987 the tenant filed an answer to the owner's petition, stating
therein that the restoration order was incorrect in its determination that
the violations that resulted in the rent reduction order had been
repaired. The answer then referred to the order of April 15, 1987 to
emphasize that the DHCR's own inspection had found the conditions
unchanged. The tenant also submitted a copy of the owner's letter to him
dated May 2, 1987, notifying him of the schedule repair date of May 8,
1987, thereby establishing the owner's acknowledgement that further
repairs were required. Finally, the tenant pleads for the reinstatement
of the rent reduction, as directed in order number 78041-P, until such
time as the conditions are completely repaired.
DOCKET NUMBER: BC 110047-RO; BC 110083-RT
It is noted that the Rent Administrator issued order number Q 000394-OR
denying the owner's application to restore rent on April 15, 1987. This
order stated that the inspection of February 17, 1987 revealed that the
conditions upon which the original rent reduction order had been based
had not been repaired, and that for that reason the application was
denied. The order further explained that the bedroom ceiling and wall
above the east window and the closet wall were discolored and had peeling
paint and plaster due to water seepage. It is further noted that the
owner has not filed a petition of this order, nor does the owner refer to
it in its answer dated May 6, 1987.
The Commissioner is of the considered opinion that the tenant's petition
should be granted, thereby revoking the Administrator's order, and that
the owner's petition should be denied.
Section 2520.13 of the new Rent Stabilization Code provides, inter alia,
that an agreement by the tenant to waive the benefit of any provision of
the RSL is void, provided, however, that based upon a negotiated
settlement between the parties and with the approval of the DHCR, or a
court of competent jurisdiction which a tenant is represented by
counsel, a tenant may withdraw, with prejudice, an complaint pending
before the DHCR.
In the present case, the owner applied for restoration of rent, and the
removal of a rent reduction as directed in an order of the DHCR, dated
July 2, 1984. As submitted on November 1, 1985, the application relied
exclusively upon the text of a "stipulation" between the owner and tenant,
each represented by counsel, which resolved their long-term dispute in
Housing Court. Dated January 2, 1985, the agreement "restored" all
essential and/or required services in the apartment, and stated that the
tenant's counterclaims were to be withdrawn and discontinued "without
prejudice".
Upon the tenant's failure to respond to the application, the Administrator
issued the order hereunder review restoring the rent as of June 1, 1986.
Although the owner contends that its application and enclosed stipulation
agreement were sufficient under the Code to permit the rent restoration,
and indeed that it should have been effective as of the date of the
agreement, the Commissioner does not regard the stipulation as valid for
the purpose of the above provision Section 2520.13.
As the owner submitted no background information with the agreement, the
basis of the dispute in Housing Court remains unknown. However, the major
issue specified in the agreement - namely the painting of the tenant's
apartment - is in no way identical to the present issue concerning damage
from water seepage. Contrary to the owner's contention that the leak had
been "corrected" and that the problem was only a stain from where the
leak had been, the record indicates an ongoing condition that may be
caused by defective plumbing and which is likely to damage the tenants's
furnishings as well as the internal structure of the apartment. It is
DOCKET NUMBER: BC 110047-RO; BC 110083-RT
therefore unreasonable to assume that the tenant meant to correct this
problem merely by painting the walls and ceiling.
The tenant's petition, its answers to the owner's petition, and its
response to the Administrator's letter all clearly assert that the
condition had not been corrected and that compliance with the order had
yet to be performed. Nowhere in these statements does the tenant indicate
that the matter had ever been resolved by the stipulation or that the
complaint had been withdrawn. Furthermore, instead of reading the
stipulation as a withdrawal of its complaint, the tenant in its petition
has done just the opposite by insisting that the problem has never been
resolved. This is consistent with an ordinary reading of the stipulation
as applying only to a repainting of the apartment.
The owner also contends that the stipulation directly addressed the water
seepage problem because it affirmed that the owner "... has restored ...
all essential... and/or required services." But if both parties actually
understood that the stipulation referred to the problem, why did they use
language that was so vague and ambiguous that no person reading the
stipulation would know it? Conversely if the tenant did not mean to
refer to the problem, was there any language in it that would alert him to
that possibility? The Commissioner requires greater specificity in the
kind of agreements covered by Section 2520.13, especially when, as in the
instant case, the DHCR is not mentioned even once.
Reaching the merits of the dispute, the record clearly supports the
finding that the water seepage problem has never been fully corrected and
that the original order directing a rent reduction must remain in effect.
The inspector's report clearly supports this conclusion, and nothing in
the owner's petition challenges it. Although the duplication of orders
was an error, there is no evidence that this prejudiced the owner in any
way. The owner's plea for the restoration of rent relies not on the
completion of repairs but only on its submission of the stipulation from
Housing Court, which, because it involved unrelated matters, could have no
legal effect on the order of the DHCR. Finally the owner's claim that the
tenant denied access by not being available for the scheduled repair date
of May 5, 1987 was not raised in the record below and is thus inadmissible
on appeal. At any rate the claim of one missed appointment is hardly
suficient to establish that the tenant systematically denies access for
repairs.
It is noted that the second order issued on the owner's application, Q
000394-OR, which denied it, has not been petitioned for review and is thus
beyond the scope of this decision. Nevertheless that order had the effect
of restoring the rent reduction that was imposed in the July 2, 1984
order. As the Commissioner is revoking the order of restoration, the
owner is directed to refund such amount as had been restored to the rent,
if any, as of the effective date of order number Q 000382-OR. The
Commissioner also directs that order number 78041-P be re-imposed, if this
has not already occurred. Insofar as the owner's petition of order number
000382-OR was concerned solely with its effective date, and plea for
greater relief, the Commissioner denies the petition as moot, since the
order is hereby revoked in its entirety.
DOCKET NUMBER: BC 110047-RO; BC 110083-RT
This order is issued without prejudice to the owner's filing of an
application to restore the rent due to a restoration of services when
this has in fact been accomplished.
THEREFORE, in accordance with the Rent Stabilization Law and Code, it is
ORDERED, that the tenant's petition of order number Q 000382-OR be and the
same hereby is, granted and that this order be revoked, and that the
owner's petition of order number Q 000382-OR be, and the same hereby, is
denied.
ISSUED:
ELLIOT SANDER
Deputy Commissioner
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