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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.
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PHILIP J. RUDD,
RENT ADMINISTRATOR'S
DOCKET NO.
PETITIONER BC 410263-S
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ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW
On November 24, 1987, the above-named owner filed a petition for
administrative review of an order issued on October 20, 1987 by
a District Rent Administrator concerning t e housing accommoda-
tions, known as Apartment 1-R, 12 1/2 West 10th Street, New York,
New York.
The Commissioner has reviewed all the evidence in the record and
has carefully considered that portion of the record relevant to
the issues raised by the petition for review.
This proceeding was commenced by the filing of an application by
the tenant on November 24, 1987 for a reduction in rent based on
the owner's alleged failure to maintain services in the subject
apartment. More specifically, the tenant, in substance, asserted
that the smokestack for the subject apartment's fireplace had
deteriorated and was removed but had never been replaced. The
tenant requested that the smokestack be replaced or the rent re-
duced accordingly.
In his answer, which was not received by the Rent Administrator
below, the owner asserted, in pertinent part, that a functioning
fireplace is not a required service for the subject apartment,
and he requested that the complaint be dismissed.
An inspection of the subject apartment was conducted on July 23,
1987 by a rent agency inspector, who confirmed that the smoke-
stack had been removed from the subject apartment's chimney and
that the hole where the smokestack had been was covered over,
preventing the use of the fireplace.
On October 20, 1987 the Rent Administrator issued the order here
under review in which the owner was directed to restore the
smokestack so that the subject tenant could use her fireplace.
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In his petition for administrative review, the owner asserts, in
pertinent part that a working fireplace is not a base date ser-
vice for the subject apartment and therefore is not a required
service.
In her answer, the tenant asserts, in pertinent part, that the
fireplace in the subject apartment was in excellent condition
when she first took occupancy (February 1973).
After careful consideration, the Commissioner is of the opinion
that this petition should be denied.
The record reveals that the subject tenant, in substance, asserts
that the fireplace was working when she originally took occupancy
in February 1973 and that the other fireplaces in the building
are functioning. Although the owner's answer to the tenant's
original complaint was not considered when this proceeding was
before the Rent Administrator, his answer is considered herein.
In his answer the owner disputed the tenant's assertion stating
that the fireplace is not a required service. However, the
owner, in his petition, asserts, in pertinent part, that the
prior owner's representative informed him that the fireplace was
not in working order in November 1974. The Commissioner notes
that not only is the current owner's assertion derived from
another's statement and that the owner has not submitted an
affidavit of the prior owner to this effect, but that this
assertion does not serve to prove whether the fireplace was
working on the May 29, 1974 base date, nor does it show whether
it was a required service at that time. Based upon the entire
evidence of record, the Commissioner finds that a preponderance
of the evidence indicates that the fireplace is a required
service for the subject apartment. Accordingly, the Commissioner
is of the opinion that the order of the Rent Administrator should
be affirmed.
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:
ELLIOT SANDER
Deputy Commissioner
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