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

     ------------------------------------X 
     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
     ------------------------------------X                             

       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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