BJ 510199-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.:
BJ 510199-RO
ALSTATLEVINE REALTY, INC.,
RENT ADMINISTRATOR'S
DOCKET NO.:
PETITIONER BA 510363-S
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ORDER AND OPINION GRANTING PETITION FOR ADMINISTRATIVE REVIEW
IN PART AND MODIFYING ADMINISTRATOR'S ORDER
On October 6, 1987 the above named petitioner-owner filed a peti
tion for Administrative Review against an order of the Rent
Administrator issued September 3, 1987. The order concerned
housing accommodations known as Apartment 5-C located at 1795
Riverside Drive, New York, New York. The Administrator reduced
the rent for failure to maintain services.
The Commissioner has reviewed the record and h s carefully con-
sidered that portion relevant to the issues raised by this
appeal.
The tenant commenced this proceeding by filing a complaint of de
creased services on January 4, 1987. The tenant complained about
the following conditions - foyer floor out of level and swelled
in one spot, bathroom floor in bad condition, and bathroom wall
tiles uneven and discolored.
The petitioner answered the complaint and stated that the bath-
room tiles were repaired and that the foyer floor would be
repaired. A physical inspection of the apartment was conducted
on July 15, 1987. That inspection revealed the following:
1. Repairs to foyer floor done in unworkmanlike manner.
2. Bathroom ceiling cracked and bulging.
The Administrator's order duly followed.
On appeal, the owner alleges that the tenant agreed to accept the
apartment as is in consideration of a reduced initial rental.
Petitioner also states that the tenant denied access to repair
properly the flooring, which requires only a coat of shellac.
Petitioner points out that the Administrator improperly reduced
the rent based on the bathroom ceiling, since the ceiling was not
a part of the tenant's original complain . Finally, the peti-
tioner in a separate filing, provides a letter of withdrawal of
BJ 510199-RO
complaint from the tenant. In that letter the tenant requested
the complaint be dismissed with prejudice and the proceeding
terminated. The record contains no other response from the
tenant.
After careful consideration of the evidence in the record the
Commissioner is of the opinion that this petition should be
granted in part and the Commissioner's order should be modified.
Section 2523.4(a) of the Rent Stabilization Code, requires DHCR
to reduce the rent, upon application by the tenant, upon a
finding that the owner has failed to maintain required services.
Required services are defined by Section 2520.6(r) to include
that space and those services which the owner was maintaining or
was required to maintain on the applicable base date plus
additional space or services provided or required thereafter by
applicable law, including but not limited to repairs, and
decorating and maintenance.
Section 2520.13 of the Code provides that;
"an agreement by the tenant to waive the ben-
efit of any provision of the Rent Stabiliza-
tion Law or this Code is void; provided that
based upon a negotiated settlement between
the parties and with the approval of the
DHCR, or a court of competent jurisdiction
where a tenant is represented by counsel, a
tenant may withdraw, with prejudice, and
complaint pending before the DHCR."
According to these Code sections, the purported agreement by the
tenant to rent the apartment in an "as is" condition in exchange
for a reduced rental would be an impermissible waiver of a statu
tory benefit and therefore does not relieve the owner of the
obligation to provide required services includi g necessary re-
pairs.
The attempted withdrawal of the complaint is also unacceptable
since it does not comply with the requirements of Section
2520.13. Once the Administrator's order was issued finding a
failure to maintain services and ordering a rent reduction, the
tenant's complaint was no longer "pending". The alleged settle
ment between the parties does not indicate that the repairs have
been done or that the tenant has received any consideration for
withdrawing the complaint. Accordingly, the attempted withdrawal
is unacceptable and has no effect on the rent reduction order.
The owner, however, is correct in the contention that a rent
reduction for a cracked and bulging bathroom ceiling is inappro-
priate since this condition was not included in the tenant's
complaint. This item should be deleted from the Administrator's
order.
The owner's assertion that the tenant has denied access is an
inappropriate matter for consideration in this administrative
BJ 510199-RO
appeal which is limited in scope of review, according to Code
Section 2529.6 to facts or evidence before the Administrator.
The owner did not raise the access issue when the proceeding was
before the Administrator and has submitted o evidence to sup-
port this allegation. Moreover, the eviden e of record estab-
lishes that repairs have been done in the apartment, albeit in an
unworkmanlike manner.
The owner is advised to file a rent restoration application when
it can establish that the foyer floor has been repaired.
THEREFORE, in accordance with 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, modified in accordance with this order and opinion.
ISSUED:
ELLIOT SANDER
Deputy Commissioner
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