BL410249RO                                  
                                    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     
          IN THE MATTER OF THE ADMINISTRATIVE     ADMINISTRATIVE REVIEW
          APPEAL OF                               DOCKET NO.:              
BL410249RO
                BARK LEE REALTY COMPANY,
                                                  RENT ADMINISTRATOR'S
                                                  DOCKET NO.:
                                     PREMISES     BE510634S
          ----------------------------------x



            ORDER AND OPINION GRANTING PETITION FOR ADMINISTRATIVE REVIEW
                                       IN PART


          On December 10, 1987, the above-named petitioner-owner filed a 
          petition for administrative review (PAR) of an order issued on 
          November 10, 1987, by the Rent Administrator, concerning the 
          housing accommodation known as Apartment 15, 205 West 147th Street, 
          New York, New York, wherein the Administrator ordered a rent 
          reduction based on a finding that the owner was not maintaining 
          required services.

          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 May 20, 1987 when the tenant filed 
          a complaint of decrease in services, alleging, among other things, 
          that the apartment had been water damaged as a result of a roof 
          leak and had not been painted in eight years.

          In answer to the complaint, the owner stated, in substance, that 
          the tenant is rent-controlled, that a new roof was installed in 
          1984 and all damaged areas were repaired at that time, and that the 
          tenant's rent is so low that a rent reduction would constitute an 
          unfair penalty.  The owner attached copies of bills for various 
          repairs made in the subject apartment.

          A physical inspection of the apartment on September 29, 1987 by a 
          DHCR employee revealed that the six rooms are in need of painting 
          and that one bedroom, which had been damaged by the leaking roof, 
          had been replastered but not painted.












          BL410249RO                                  



          An order was issued on November 10, 1987 reducing the rent by the 
          percentage of the most recent guidelines adjustment which commenced 
          before August 1, 1987, the effective date of the rent reduction.  
          The order cited "peeling paint and plaster throughout the apart- 
          ment" as the basis for the order.

          In the petition for administrative review, the owner asserts that 
          the Administrator's order is wrong because the apartment is rent- 
          controlled and not rent-stabilized, that no inspection is 
          mentioned, and that there is no evidence that the service for which 
          the rent was reduced was ever provided.  The petitioner also argues 
          that the order is based on information not in the record, that the 
          tenant's rent is well below the maximum base rent (MBR) that the 
          owner is not permitted to collect the full increases authorized by 
          the MBR cycle, that retroactive rent decreases are prohibited, that 
          the tenant's rent is less than what is required to maintain the 
          property, that a rent reduction is an illegal penalty, that rent 
          decrease applications filed by tenants are processed more quickly 
          that rent increase applications filed by owners, and that the rent 
          statutes and regulations constitute an unfair taking of property 
          without just compensation.  

          The owner's petition was served on the tenant on February 2, 1988.

          After careful consideration of the evidence of record, the Commis- 
          sioner is of the opinion that the petition should be granted in 
          part.

          The Division's records confirm the owner's contention that the 
          apartment is rent-controlled and not stabilized.  Accordingly, the 
          rent should not have been reduced by a guideline and the reduction 
          should not have been retroactive.  The order is modified to state 
          that the maximum legal rent is reduced by 10% per month, effective 
          the first rent payment following November 10, 1987.

          The other arguments raised by the owner are without merit.  The 
          reference in the order to "peeling paint and plaster throughout the 
          apartment" is based on the September 29, 1987 inspection by a DHCR 
          employee.  Based on the results of this inspection, a rent reduc- 
          tion is authorized by Section 2202.16 of the Rent and Eviction 
          Regulations, regardless of the actual rent the tenant is paying.

          While painting may not be a required service provided to a rent- 
          controlled apartment if it had never been provided, in this case, 
          the owner asserted that the apartment was plastered and painted 
          after water damage occurred and even submitted receipts substan- 
          tiating this work.  However, the painting and plastering was 









          BI 230194-RO

          apparently not done properly because the inspection by DHCR just 
          two months after the owner submitted its answer, revealed that the 
          entire apartment needed to be plastered and painted.  For this 
          condition, a rent reduction is warranted, pursuant to Section 
          2202.16 of the Rent and Eviction Regulations.

          The Division's records reveal that the owner's rent restoration 
          application (DA510162OR) was denied on July 17, 1989 after an 
          inspection revealed that painting and plastering had been done in 
          an unworkmanlike manner.  The rent reduction remains in effect and 
          the owner is advised to file a new rent restoration application if 
          all necessary repairs have now been completed.


          THEREFORE, in accordance with the provisions of the Rent Control 
          Law for New York City, and the Rent and Eviction Regulations for 
          New York City, it is

          ORDERED, that this petition be, and the same hereby is, granted in 
          part, and that the Administrator's order be, and the same hereby 
          is, modified to order a rent reduction of 10% of the maximum legal 
          rent, effective the first rent payment following November 10, 1987, 
          the date of issuance of the Administrator's order.


          ISSUED:




                                                                           
                                                JOSEPH A. D'AGOSTA
                                                Deputy Commissioner


                                          








    

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