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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.: BI 410177 RO
NORMAN GARDNER DISTRICT RENT
ADMINISTRATOR'S DOCKET
NO.: AI 410728 S
PETITIONER
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ORDER AND OPINION GRANTING PETITION FOR ADMINISTRATIVE REVIEW
IN PART AND MODIFYING RENT ADMINISTRATOR'S ORDER
On September 7, 1987 the above named petitioner-owner filed a
Petition for Administrative Review against an order of the Rent
Administrator issued August 4, 1987. The order concerned housing
accommodations known as Apt. 5C, located at 36 West 56th Street,
New York, N.Y. The Administrator ordered a rent reduction for
failure to maintain required services.
The Commissioner has reviewed the record and carefully
considered that portion relevant to the issues raised by this
appeal.
The tenant commenced this proceeding by filing a Statement of
Complaint of Decrease in Services on September 15, 1986 wherein she
alleged the following services deficiencies:
1. Hot water provided on sporadic basis
2. Roof leaking causing damage to apartment walls,
ceilings and furniture
3. Broken windows
4. Apartment in need of painting
5. Electricity often interrupted
The owner was served with a copy of the complaint and afforded
an opportunity to respond. The owner filed a response on November
5, 1986 and stated that:
1. There had been no interruption in hot water service,
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2. The building contains a new roof and any leaks are
immediately fixed. Furthermore, the tenant has
never reported the existence of leaks,
3. The tenant never asked him to paint the apartment
and he is not legally obligated to paint since the
tenant does not have a lease to the apartment.
4. Any interruption of electricity in the apartment
was through no fault of his.
The owner also stated that the hot water complaint was being
processed in a proceeding bearing Docket No AJ 420004 HW.
The Administrator ordered a physical inspection of the subject
apartment. The inspection was conducted on February 10, 1987 and
revealed the following:
1. Leak damage to ceiling and walls throughout
apartment,
2. Five broken windows,
3. Peeling paint and plaster throughout apartment;
apartment in need of painting.
The Administrator issued an order on August 4, 1987 and
ordered a rent reduction of $60.50 per month based on the
inspector's report. On September 1, 1987 the Administrator issued
an Amended Order which corrected a typographical error in the
original order. The order was made effective the first rent
payment date after August 4, 1987.
On appeal the owner states the following:
1. The apartment is not rent controlled, as it was
ordered decontrolled by an order of the
Commissioner dated July 2, 1986. Therefore, the
order is incorrect to the extent it orders a rent
reduction of a specific dollar amount.
2. The apartment is in need of a paint job but the
tenant does not have a lease. Therefore, the owner
states that he is not statutorily required to
paint. With regard to the windows, the owner
states that they are not broken but cracked. It is
the owner's contention that cracked windows do not
merit a rent reduction.
The owner's third argument was addressed by the Administrator when
the amended order was issued. The amendment corrected the
typographical error the owner speaks of, which involved the amount
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of the rent reduction.
The tenant did not respond to the petition.
After careful review of the evidence in the record, the
Commissioner is of the opinion that the petition should be granted
in part and the order modified and, as so modified, affirmed.
The Commissioner notes that, on July 2, 1986, an order bearing
Docket No. CPLA 33,545 was issued by the Commissioner. The
Commissioner ruled that the apartment in question became rent
stabilized on July 1, 1974 pursuant to the provisions of the
Emergency Tenant Protection Act of 1974. Therefore, the owner is
correct in his assertion that the order here under review is
defective to the extent that it orders a monetary rent reduction
effective the first rent payment date following August 4, 1987.
The owner's assertion that he is not legally obligated to
paint the apartment until the tenant signs a lease is without
merit. The obligation to paint every three years is contained in
the Housing Maintenance Code and is not contingent upon the
existence of a lease. Moreover, Section 2520.6 (r) of the Rent
Stabilization Code defines required services as "that space and
those services which the owner was maintaining or was required to
maintain on the applicable base date...and any additional space or
services provided or required to be provided thereafter by
applicable law. These may include, but are not limited to...
repairs, decorating and maintenance..." In view of the
aforementioned determination by the Commissioner that the subject
apartment is stabilized, painting is a service required by
applicable law regardless of whether the parties have entered into
a lease.
The owner's statement that the windows were cracked and not
broken, is totally without merit or legal significance. The
inspector's report clearly stated that the windows were broken and
cracked in several places and it is settled that this report is
entitled to more probative weight than the unsupported assertions
of the owner. Even assuming that the windows were found to be
cracked, such a finding would be legally sufficient on which to
premise the granting of a rent reduction pursuant to Section 2523.4
which mandates a rent reduction, upon application by a tenant,
based on a finding that the owner has failed to maintain required
services .
With regard to the remedy for the defect herein found in the
order, the Commissioner modifies the order to provide for a rent
reduction of the most recent guideline adjustment. The rent
reduction is to be effective the first rent payment date following
October 21, 1986. This is in keeping with DHCR policy making a
rent reduction for a rent stabilized tenant effective the first
rent payment date following service of the complaint on the owner.
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THEREFORE, pursuant to the Rent Stabilization Law and Code it
is
ORDERED, that this petition be, and the same hereby is,
granted in part, and that the Rent Administrator's order be, and
the same hereby is, affirmed as modified herein.
ISSUED:
JOSEPH A. D'AGOSTA
Acting Deputy Commissioner
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