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
-------------------------------------X ADMINISTRATIVE REVIEW
IN THE MATTER OF THE ADMINISTRATIVE DOCKET NO.: BH410342RO
APPEAL OF
IRVING STERN
RENT ADMINISTRATOR'S
DOCKET NO.: ZAG410005OD
PETITIONER
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ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW
On August 21, 1987, the above-named petitioner-owner filed a
Petition for Administrative Review (PAR) against an order issued on
August 6, 1987 by the Rent Administrator (Gertz Plaza, 92-31 Union
Hall Street, Jamaica, NY) concerning the housing accommodations
known as 305 W. 71st Street, New York, New York, various
apartments.
The Commissioner has reviewed all of the evidence in the record and
has carefully considered that portion of the record relevant to the
issues raised by this administrative appeal.
On July 21, 1986 the owner of subject seven (7) family dwelling
filed an application for seeking Division approval of the
elimination of the service of central air-conditioning in the
subject premises contending that the central air-conditioner had
ceased to function entirely in June 1986. The owner asserted that
the air-conditioning system was installed in a 1965 renovation of
the building and was not warrantied; that the owner's inspection
indicated that a replacement of the entire system was necessary;
that a replacement of the system was cost prohibitive; and that he
was requesting permission to discontinue the service and the
tenants given a rent reduction to reflect this diminution in
service.
Various tenants answered the owner's MCI application stating that
the owner should be ordered to repair the central air-conditioning;
that the apartments were virtually uninhabitable during the summer;
that their leases require air-conditioning; that a rent reduction
would not accurately reflect the diminution in service; and that
the building was designed for central air-conditioning. One tenant
stated that he had asked the owner for a rent reduction.
ADMIN. REVIEW DOCKET NO. BH410342RO
The owner's response to the tenants' answers included a reference
to correspondence between the owner and DHCR wherein DHCR personnel
suggested that the owner file an application for a modification of
service; a claim that one tenant had an individual air-conditioning
unit; and a claim that the owner attempted to repair the air-
conditioning system.
On August 6, 1987, the Rent Administrator denied the owner's
application for a modification of service, finding the following:
Section 2201.2 of the New York City Rent and Eviction Regulations
requires the landlord to furnish a housing accommodation with the
same essential services that were required on April 30, 1962; that
Section 2520.6 (r) (4) of the Rent Stabilization Code requires an
owner to maintain the same service that was required on May 31,
1968; and that central air-conditioning is an essential service.
(The Commissioner notes that services provided by the owner after
the applicable base date become an essential/required service
particularly where a rent increase has been obtained.)
In his petition, the owner states, in substance, that because the
replacement cost of the central air-conditioning system is
prohibitive to the owner and is not an essential service, he should
not be required to provide such service. The owner requests a rent
reduction on behalf of the tenants to reflect a decrease in
services. The owner states that many tenants already have air-
conditioning units in their apartments.
The tenants filed answers to the owner's petition claiming that the
owner refused to replace the central air-conditioning system when
it broke down; that when the building was remodeled in 1965 it was
redesigned for central air-conditioning with windows that do not
open or only partially open, and no cross ventilation; that air-
conditioning units are not adequate; and that internal temperatures
in the summer were uncomfortable.
The owner responds to one of the tenant's answer stating it was not
feasible to install a new central air-conditioning system when it
broke down in 1986, that cross ventilation did not exist in the
building prior to the renovation in 1965, and was not a required
service, and that the tenant received a rent abatement of $552.00
and an air-conditioner for the summer months of 1986 and 1987.
The Commissioner is of the opinion that this petition should be
denied.
The evidence of record in the instant case indicates that central
air-conditioning is a required/essential service for which the
owner is responsible to provide and maintain.
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ADMIN. REVIEW DOCKET NO. BH410342RO
The Commissioner notes that Section 2522.4 (d) and (e) of the Rent
Stabilization Code permits the owner to eliminate or modify an
required service with the approval of the DHCR provided that doing
so would not be inconsistent with the Rent Stabilization Law and
Code. Section 2202.21 of the Rent and Eviction Regulations also
permits an owner to apply to the DHCR to decrease essential
services in rent controlled apartments.
The Commissioner is of the opinion and finds that it would be
inconsistent with the rent laws and regulations to sanction the
elimination of air-conditioning as a required/essential service,
particularly where the subject building had been remodeled so as to
decrease access to window openings and cross ventilation, and where
the availability of air-conditioning service may have been a prime
factor in tenants choosing to rent the apartments in the first
instance. The Commissioner finds, therefore, that the owner's
petition should be denied.
The determination herein is without prejudice to the right of the
owner to file a new application with the Division provided he can
provide a detailed plan and the method of its implementation and
establish to the satisfaction of the Rent Administrator that he is
willing and able to provide a substantive equivalent service. If
warranted, an appropriate rent reduction may be made to reflect any
modification in service to the tenants inconsistent with the Rent
Regulations and Codes and any additional costs to the tenants, such
as electricity for individual air-conditioner units provided and
maintained by the owner.
The Commissioner notes that the Rent Administrator granted a
building-wide rent reduction for the subject premises under Docket
No. ZAG430087-B issued October 8, 1987 for the owner's failure to
provide central air-conditioning, and that the owner filed a PAR
against that order (Administrative Review Docket No. BK430372RO)
which was denied on February 5, 1993.
THEREFORE, in accordance with New York City 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, affirmed
based on the reasons set forth herein.
ISSUED:
____________________
Joseph A. D'Agosta
Deputy Commissioner
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