BH 410317 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. BH 410317 RT
: DRO DOCKET NO. ZAL 410692-S
SALLY AND ROY MARINE
PETITIONERS :
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ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW
On August 25, 1987, the above-named petitioner-tenants filed
a Petition for Administrative Review against an order issued on
July 23, 1987, by the Rent Administrator, 92-31 Union Hall Street,
Jamaica, New York, New York, concerning the housing accommodations
known as 245 East 63rd Street, New York, New York, Apartment No.
812.
The Administrative Appeal is being determined pursuant to the
provisions of Section 2523.4 of the Rent Stabilization Code.
The issue herein is whether the Rent Administrator's order
was warranted.
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 December 21,
1986, by the filing of an Individual Tenant Statement of Complaint
in which the tenants stated in substance that on a daily basis for
over three years the tenant in the apartment directly over the
subject apartment has been making intolerable noise - furniture
scraping, loud piano playing, group singing, dancing and
screaming. It was established that the tenants herein and others
had complained to the police, the owner, the managing agent, the
doorman, and the City Department of Environmental Protection
concerning this problem. In addition, it was established that the
owner had initiated a civil court proceeding against the offending
tenant due to the excessive noise and that such proceeding was
settled on September 10, 1986 by a stipulation wherein the
offending tenant agreed not to make loud noises. However, the
tenants herein stated that the offending tenant has continued to
make intolerable noises contrary to the stipulation.
In Order ZAL 410692-S, the Rent Administrator determined that
a rent reduction based on a service decrease was not warranted.
In this petition, the tenants allege in substance that as
BH 410317 RT
established by their complaint and numerous items of documentary
evidence submitted in support thereof, a service decrease has
occurred and that the Rent Administrator's order should be
reversed.
The Commissioner is of the opinion that this petition should
be denied.
Section 2523.4 of the Rent Stabilization Code provides in
pertinent part that a tenant may apply to the DHCR for a reduction
of the legal regulated rent to the level in effect prior to the
most recent guidelines adjustment, and the DHCR shall so reduce
the rent for the period for which it is found that the owner has
failed to maintain required services.
In the instant case the excessive noise made by the tenant in
the apartment directly over the subject apartment not done in
collusion with the owner, does not amount to a service decrease
pursuant to Section 2523.4. Accordingly the Rent Administrator's
order was warranted.
This order is issued without prejudice to any action the
tenants may bring in a court of competent jurisdiction regarding
the fact that the excessive noise may be a breach of the warranty
of habitability.
THEREFORE, in accordance with the provisions of the Rent
Stabilization Law and Code, it is
ORDERED, that this petition for administrative review be, and
the same hereby is, denied, and, that the order of the Rent
Administrator be, and the same hereby is, affirmed.
ISSUED
ELLIOT SANDER
Deputy Commissioner
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BH 410317 RT
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