STATE OF NEW YORK
DIVISION OF HOUSING AND COMMUNITY RENEWAL
OFFICE OF RENT ADMINISTRATION
92-31 UNION HALL STREET
JAMAICA, NEW YORK 11433
IN THE MATTER OF THE ADMINISTRATIVE ADMINISTRATIVE REVIEW
APPEAL OF DOCKET NO.:
BARK LEE REALTY COMPANY,
ORDER AND OPINION GRANTING PETITION FOR ADMINISTRATIVE REVIEW
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
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.
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
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
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.
JOSEPH A. D'AGOSTA