ADM. REVIEW DOCKET NO.: BK 410144 RT
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 410144 RT
:
RENT ADMINISTRATOR'S
DOCKET NO.:
BC 420437 - S
TERENCE KIRK
PETITIONER :
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ORDER AND OPINION GRANTING PETITION FOR ADMINISTRATIVE REVIEW
On November 18, 1987, the above-named petitioner-tenant filed
a petition for administrative review of an order issued on October
21, 1987, by the Rent Administrator, concerning the housing
accommodation known as Apartment 3F (#4), 98 Eighth Avenue, New
York, N.Y., wherein the Administrator denied the tenant's
application for a rent decrease.
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.
The tenant commenced this proceeding on March 13, 1987 by
filing a complaint in which he alleged that from the time he first
moved into his apartment in March 1970 until June 1980 heat was
provided from a central heating system. In June 1980, the prior
owner installed a gas heater in the tenant's apartment and
connected it to the gas pipe in the kitchen which provides gas for
the stove. The tenant is billed by Con Edison for the gas this
heater uses. He added that he tries not to use the heater because
he thinks it is an illegal safety and health hazard.
The owner was served with the complaint on April 8, 1987 but
did not respond.
ADM. REVIEW DOCKET NO.: BK 410144 RT
A DHCR inspector visited the subject apartment on August 25,
1987 and confirmed that the radiators had been removed and a gas
heater was installed.
The Administrator's order stated that the facts did not
warrant the relief requested under Sections 2520.6(r) and 2523.4 of
the Rent Stabilization Code and denied the tenant's application for
a rent reduction.
In the petition for administrative review, the tenant asserts
first that the order is legally wrong because it cites sections of
the Rent Stabilization Code and the apartment is rent controlled.
The tenant further contends that the order is factually incorrect
because the elimination of central steam heat and the installation
of a gas heater for which the tenant has to pay for the gas
warrants a rent reduction. The tenant again asserted that the gas
heater in his apartment is an illegal health and safety hazard.
In answer to the petition, the owner states that the tenant's
statement is incorrect and that the rent charged is proper.
After careful consideration of the entire evidence of record,
the Commissioner is of the opinion that the tenant's petition
should be granted.
The tenant indicated in the complaint that he first took
occupancy of the subject apartment in March 1970 and that he is a
rent controlled tenant. The landlord has not disputed this.
Pursuant to Section 2202.16 of the Rent and Eviction
Regulations applicable to rent controlled apartments, a rent
reduction is authorized where there has been a decrease in the
dwelling space, essential services, furniture, furnishings or
equipment required to be provided. The rent reduction is to be an
amount which the administrator finds to be the reduction in the
rental value of the housing accommodation because of the decrease
in space, services, furniture, furnishings or equipment. Essential
services are defined in Section 2200.3 as those essential services
which the landlord furnished or which he was obliged to furnish on
April 30, 1962, and which were included in the maximum rent for the
housing accommodation on that date.
In the instant case, the tenant's statement of facts was
confirmed by the physical inspection and not disputed by the
landlord. According to these facts a central steam heating system
was maintained and operated by the owner at his expense and was an
essential service provided on April 30, 1962 and included in the
maximum rent on that date. The removal of this heating system
ADM. REVIEW DOCKET NO.: BK 410144 RT
constitutes a decrease in an essential service for which a rent
reduction is warranted. The installation of a gas heater in the
tenant's apartment which the tenant must pay to operate and which
may in fact be illegal is not an approved equivalent substitute,
even though the tenant is not deprived of heat. Accordingly, the
Commissioner finds that the tenant's rent should be reduced by 50
per cent per month effective the first rental payment following
October 21, 1987, the date of issuance of the Administrator's
order. The owner is further directed to restore the central
heating system. If the owner fails to restore the service within
30 days, the tenant is advised to commence a noncompliance
proceeding with this agency.
The tenant may also wish to file a harassment complaint
against the landlord.
The tenant is also advised to contact the New York City
Department of Buildings for information on whether the heating unit
in his apartment is legal.
THEREFORE, in accordance with the Rent and Eviction
Regulations for New York City, it is
ORDERED, that this petition be and the same hereby is granted
and the Rent Administrator's order be and the same hereby is
modified in accordance with this order and opinion.
ISSUED:
JOSEPH A. D'AGOSTA
Acting Deputy Commissioner
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