BH 610050-RO

                                      STATE OF NEW YORK
                        DIVISION OF HOUSING AND COMMUNITY RENEWAL
                              OFFICE OF RENT ADMINISTRATION
                                       GERTZ PLAZA
                                 92-31 UNION HALL STREET
                                    JAMAICA, NY 11433



            ----------------------------------x
            IN THE MATTER OF THE ADMINISTRATIVE     ADMINISTRATIVE REVIEW
            APPEAL OF                               DOCKET NO.:                
                                                    BH 610050-RO
                     AEOLUS GREENE,                 RENT ADMINISTRATOR'S           
                                                    DOCKET NO.: 
                                     PETITIONER     BA 510338-S         
            ----------------------------------x                               

                            
                                                              
              ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW


            On August 7, 1987, the above-named petitioner-owner filed a 
            Petition for Administrative Review against an order issued on July 
            6, 1987, by the Rent Administrator at Gertz Plaza, Jamaica, 
            New York, concerning the housing accommodations known as 42 West 
            120th Street, Apt. 2-A, New York, New York, wherein the Adminis- 
            trator determined that the owner had failed to maintain certain 
            services and ordered a rent reduction.

            The Commissioner has reviewed all the evidence in the record and 
            has carefully considered that portion relevant to the issues raised 
            by the petition.

            The tenant commenced this proceeding on January 15, 1987 when she 
            filed a complaint alleging numerous conditions throughout her 
            apartment requiring repair.  Among the items complained of is the 
            refrigerator which the tenant said she purchased in 1982 after the 
            one the owner provided became inoperable and the owner refused to 
            replace it.  Now her refrigerator is defective and the owner 
            refuses to give her a functioning one.

            A copy of the complaint was mailed to the owner on February 2, 1987 
            with instructions to file an answer within twenty days.  No answer 
            was received.

            A physical inspection of the subject apartment by the Division of 
            Housing and Community Renewal (DHCR) took place on March 16, 1987.  
            The inspector reported that the two windows in the master bedroom 
            are defective, the walls and ceilings throughout the apartment have 
            peeling paint and plaster, and the refrigerator is defective.













          BH 610050-RO



            Based on the inspection report and the owner's default, the 
            Administrator ordered a rent reduction.

            In the petition for administrative review, the owner asserts that 
            he purchased a refrigerator for the tenant on February 27, 1987 but 
            she refused it and purchased her own refrigerator, the cost of 
            which she deducted from the rent.  The owner also states that the 
            tenant had her kitchen painted and deducted that from her rent as 
            well.  Attached to the petition is a copy of an answer to the 
            complaint dated April 15, 1987 stating that the faucets and buzzer 
            were repaired, that the tenant refused access for painting, and 
            that the tenant has refused refrigerators the owner has purchased 
            and prefers to purchase her own which she should not be permitted 
            to do.  Copies of receipts and money orders supporting the owner's 
            allegations were included with the petition.

            The tenant answered and stated in relevant part that the windows in 
            the master bedroom had not been repaired and the master bedroom had 
            not been painted.

            After careful consideration of the entire evidence of record, the 
            Commissioner is of the opinion that the petition should be denied.

            It is noted at the outset that the scope of review in these 
            administrative appeals is limited by Section 2529.6 of the Rent 
            Stabilization Code to a review of the facts or evidence that were 
            before the Administrator unless the petitioner established that 
            certain facts or evidence could not reasonably have been offered or 
            included in the proceeding prior to the issuance of the order being 
            appealed.

            In the instant case, although the owner included with the petition 
            a copy of an answer to the complaint, that answer was not in the 
            record that was before the Administrator and there is no proof that 
            the answer was either sent to or received by the Division.  It is 
            also dated April 15, 1987, more that 20 days after the complaint 
            was served on the owner.

            However, even considering the contents of that answer does not 
            warrant revocation of the rent reduction.  There is no supporting 
            documentation regarding the purported denial of access and there is 
            no reference to any repairs or attempted repairs to the defective 
            windows in the master bedroom.

            It appears to be undisputed that the tenant did purchase a refrig- 
            erator and deducted the cost from her rent.  While the owner 
            correctly states that the tenant should not resort to self-help 









          BH 610050-RO

            unless absolutely necessary, the owner must pursue his remedies 
            before a court of competent jurisdiction rather than this agency.  
            The owner is advised, however, that upon acceptance of the reduced 
            rent with the allowance for the refrigerator, the owner became the 
            owner of the refrigerator and therefore responsible for its repair 
            or replacement, as necessary. 

            The owner is advised to file a rent restoration application when 
            the peeling paint and plaster conditions throughout the apartment 
            have been corrected and the defective windows have been repaired or 
            the owner can establish by means of documentary evidence that the 
            tenant refused access for repairs.

            Since the physical inspection confirmed the existence of defective 
            conditions requiring repair, the Administrator was required, 
            pursuant to Section 2523.4 of the Code to order a rent reduction.  
            The owner has not established in the petition that the order is not 
            warranted.


            THEREFORE, in accordance with the Rent Stabilization Law and Code, 
            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.


            ISSUED:



                                                                             
                                                     JOSEPH A. D'AGOSTA
                                                     Acting Deputy Commissioner






    

TenantNet Home | TenantNet Forum | New York Tenant Information
DHCR Information | DHCR Decisions | Housing Court Decisions | New York Rent Laws
Disclaimer | Privacy Policy | Contact Us

Subscribe to our Mailing List!
Your Email      Full Name