BH 420082 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
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IN THE MATTER OF THE ADMINISTRATIVE : ADMINISTRATIVE REVIEW
APPEAL OF DOCKET NO. BH 420082 RO
: DRO DOCKET NO.ZAJ 420314-S
BARHITE & HOLZINGER, INC.
PETITIONER :
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ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW AND MODIFYING
RENT ADMINISTRATOR'S ORDER
On August 17, 1987, the above-named petitioner-landlord filed
a Petition for Administrative Review against an order issued on July
13, 1987, by the Rent Administrator, 92-31 Union Hall Street,
Jamaica, New York, concerning the housing accommodations known as
215 West 90th Street, New York, New York, Apartment No. 2E,
wherein the Rent Administrator determined that the owner had
failed to maintain adequate hot water service and accordingly
reduced the rent of the subject apartment.
The Administrative Appeal is being determined pursuant to the
provisions of Section 2202.16 of the Rent and Eviction Regulations
for New York City.
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 by the filing of an
Individual Tenant Statement of Complaint in which the tenant
stated in substance that there was no hot water in the kitchen.
In an answer to the complaint dated November 25, 1986, the
landlord stated in substance that the tenant denied access to
allow repairs to be made. On December 9, 1986, the landlord
stated in substance that the tenant had now allowed access and
that the repair work was being done.
An inspection was held at the subject apartment on February
24, 1987. Such inspection disclosed that the hot water
temperature in the kitchen was 104 degrees and not the required
120 degrees.
In Order Number ZAJ 420314-S, the Rent Administrator
determined that, based upon the physical inspection, there was
BH 420082 RO
inadequate hot water in the kitchen and reduced the maximum legal
rent by 7 1/2% per month effective the first rent payment day
following the issuance of the Rent Administrator's order.
However, the front page of the order incorrectly listed the rent
decrease as 2 1/2% while on the back page of the order, the
correct decrease of 7 1/2% was listed. A 7 1/2% rent decrease for
rent controlled apartments due to a finding of lack of heat and /
or hot water service is standard.
In this petition, the landlord alleges in substance that no
rent decrease was warranted since the tenant refuses to provide
proper access. Subsequently, the landlord advised that its
plumbing specialist visited the subject apartment on December 4,
1987 to effectuate repairs, but was denied access. In support of
such contention, the landlord submitted an affidavit from the
plumbing specialist to the effect that the tenant's wife was
about to give birth and would not give access for repairs to be
made for approximately three months.
In answer to this petition, the tenant stated in substance
that he does provide proper access to allow repairs to be made,
but did object when the landlord wanted to commence repair work on
the Thanksgiving holiday weekend in November 1986.
The Commissioner is of the opinion that this petition should
be denied and the Rent Administtrator's order modified.
Section 2202.16 of the Rent and Eviction Regulations for New
York City provides in pertinent part that if the landlord fails to
maintain services, the Administrator may order a decrease in the
maximum rent in an amount which the Administrator in his
discretion may determine.
In the instant case, the evidence of record including a
physical inspection discloses that there was inadequate hot water
service in the kitchen of the subject apartment. Accordingly, the
Rent Administrator's order reducing the rent was warranted.
It is noted that the tenant's refusal to allow repair work to
be commenced during the Thanksgiving holiday weekend was
reasonable and that the landlord has conceded that it had access
to effectuate the repairs on December 9, 1986. However, such
repair work failed to remedy the condition as evidenced by the
subsequent physical inspection. Further, the landlord's attempt
at repair work subsequent to the issuance of the Rent
Administrator's order cannot be used to overturn such order.
Moreover, the Commissioner is of the opinion that the tenant's
alleged request to delay repair work at that time due to the
imminent birth of her baby was reasonable and that the landlord
has been afforded adequate access to complete the required repair
work.
This order is issued without prejudice to the landlord's
filing of an application to restore the rent due to a restoration
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of services when the required repair work has been completed.
THEREFORE, in accordance with the provisions of the Rent and
Eviction Regulations for New York City, 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, modified to list the
decrease in the monthly maximum legal rent as 7 1/2% rather than 2
1/2% on both the fron and back page of the order. In all other
respects, the Rent Administrator's order is affirmed.
ISSUED
JOSEPH A. D'AGOSTA
Deputy Commissioner
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