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.: BK 230073-RO
:
DRO DOCKET NO.: BB 230068-B
TOM VITTA,
PETITIONER :
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ORDER AND OPINION GRANTING PETITION IN PART FOR ADMINISTRATIVE REVIEW
AND MODIFYING THE RENT ADMINISTRATOR'S ORDER
On November 30, 1987 the above named petitioner-owner filed a Petition for
Administrative Review against an order issued on November 6, 1987 by the
Rent Administrator, 92-31 Union Hall Street, Jamaica, New York concerning
housing accommodations known as 217 Quentin Road, Brooklyn, New York,
various accommodations.
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 commenced on February 12, 1987 by various tenants
filing a complaint of a decrease in building-wide services alleging, among
other things, that the ground floor radiators were not attached, some
steps were loose and/or cracked and there were dogs in the basement that
howled all night.
In response the owner asserted, among other things, that the ground floor
radiators were reconnected by the superintendent, all loose and cracked
steps were repaired and the dog which was kept in the basement for
security had been removed. The tenants subsequently confirmed that the
dog had been removed.
On may 1, 1987 a physical inspection of the subject premises was conducted
which revealed, among other things, that the ground floor radiator was
defective, there was one cracked public hall step on the first floor, the
basement was dirty and there was no dog in the basement.
In the herein appealed order the Administrator determined that the owner
was not maintaining services based on the inspection, directed the
restoration of services, reduced the rents of the rent controlled tenants
involved in the proceeding by $5.50 (defective radiator: $2.00, cracked
step: $2.00, dirty basement: $1.50) per month, effective the first rent
payment date following the issue date of the order and reduced the rents
of the rent stabilized tenants involved in the proceeding to the level in
effect prior to the last guideline increase which commenced before April
1, 1987, the effective date of the order.
DOCKET NUMBER: BK 230073-RO
In this petition the owner contends that the ground floor radiator was
recently inspected by the superintendent and found to be in proper working
order, the radiator service was not supplied during the initial
registration and therefore it is not a required service, the step with the
"hairline" crack was secure, posed no safety threat, was a minor repair
and did not warrant a rent reduction, and the tenants' complaint did not
indicate a dirty basement. The owner submitted a copy of an affidavit
from the superintendent stating that the radiator was working.
Two tenants submitted answers to the petition asserting that the owner had
not restored services indicated in the Administrator's order and was not
maintaining other services.
The Commissioner is of the opinion that this petition should be granted in
part.
Section 2205.1 of the Rent and Eviction Regulations requires an owner to
maintain essential services, defined in Section 2200.3 to include repairs
and maintenance. Sections 2202.16 of the Regulations provides that if the
owner fails to maintain essential services, the Rent Administrator may
order a decrease in maximum rent in an amount which the Administrator, in
his discretion, may determine.
Section 2525.2 of the Rent Stabilization Code requires an owner to
maintain services, defined in Section 2520.6 to include repairs and
maintenance. Section 2523.4 of the Code provides that a tenant may apply
to the Division for a reduction of rent and the Division shall so reduce
the rent based on a finding that the owner has failed to maintain
services.
In the instant case the evidence of record, which includes the physical
inspection of the subject premises, disclosed that the ground floor
radiator was defective and one public hall step was cracked. Based
thereon, the Administrator properly determined that the owner was not
maintaining services and properly reduced the tenants' rents.
Regarding the owner's contention that the ground floor radiator is in
proper working order, the Commissioner notes that the owner has not
submitted evidence sufficient to substantiate this contention. However,
this Order and Opinion is issued without prejudice to the owner's right to
file the appropriate application for a restoration of rent, if the facts
so warrant.
Regarding the owner's contention that the ground floor hall radiator was
not a required service since it was not supplied at the time the initial
registration was required, Section 2520.6 of the Code provides that
required services are those services furnished or required to be furnished
to continuously stabilized housing accommodations on May 31, 1968 and all
additional services provided or required to be provided thereafter.
Section 26-517 of the Rent Stabilization Law only provided for the
registration of information with the DHCR including services provided on
DOCKET NUMBER: BK 230073-RO
April 1, 1984, and in any event, an owner cannot rely on a defective
condition on the base date to evade the responsibility to provide
services.
Accordingly, the Commissioner finds that the owner's contention is
without merit.
Regarding the owner's contention that a rent reduction was not warranted
for the public hall step, the physical inspection disclosed that step was
cracked and the owner acknowledged in his appeal that this condition
existed. The owner has not submitted any evidence to substantiate his
contention that the cracked step is a minor repair condition.
Accordingly, the Commissioner finds that the Administrator properly
determined that a rent reduction was warranted.
Regarding the owner's contention that the tenants did not complain about a
dirty basement, a review of the record reveals that this allegation was
not raised in the tenants' original complaint. Accordingly, the
Commissioner finds that the reference to the dirty basement should be
deleted from the Administrator's order. For the rent controlled
apartments involved in this proceeding that part of the rent reduction
based on the dirty basement ($1.50 per month) is hereby be revoked. For
the rent stabilized apartments involved in this proceeding, since other
service decreases still exist, the rent reduction remains in effect.
This order is issued without prejudice to the tenants' filing another
application for a rent decrease due to any current service problem
including a dirty basement.
THEREFORE, in accordance with the Rent and Eviction Regulations and the
Rent Stabilization Law and Code, it is
ORDERED, that this petition be, and the same hereby is, denied, and 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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