CD520046RO
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.:
CD520046RO
THOMAS CARVELLAS,
RENT ADMINISTRATOR'S
DOCKET NO.:
Petitioner BH420059S
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ORDER AND OPINION GRANTING PETITION FOR ADMINISTRATIVE REVIEW,
IN PART
The above-named owner filed a timely petition for administrative
review (PAR) of an order issued on March 29, 1988, concerning the
housing accommodations known as 426 Audubon Avenue, Apartment 3-F,
New York, New York, wherein the Rent Administrator determined that
certain conditions found in the subject apartment constituted serv-
ices decreases.
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. In addition, the tenant complained
that the two month rent credit the tenant had agreed to in lieu of
painting had been insufficient to cover the tenant's costs.
The tenant commenced this proceeding by filing a complaint as-
serting that the owner had failed to maintain certain services in
the subject apartment.
In an answer, the owner denied the allegations set forth in the
complaint or otherwise asserted that all required repairs had been
or will be completed.
Thereafter, an inspection of the subject premises was conducted by
a Division of Housing and Community Renewal (DHCR) inspector who
reported that the living room window pane was broken, that the bell
and buzzer system was defective and that the apartment required
painting.
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The Rent Administrator directed restoration of these services, and
further, ordered a reduction of the control rent.
In the petition for administrative review, the owner contends, in
pertinent part, that the tenant did not complain that the owner was
not providing painting service, but rather, that the two month rent
credit the tenant had agreed to beforehand in lieu of painting had
been insufficient to cover the tenant's costs.
The owner did not specifically address the remaining services
reductions, but did contend that the rent was reduced without prior
notice of the complaint. Recent correspondence indicates that
title passed to a new owner, a relative, who asserts that all
services are being provided.
After careful consideration, the Commissioner is of the opinion
that the petition for administrative review, should be granted in
part.
Pursuant to Section 2202.16 of the Rent and Eviction Regulations,
the DHCR may decrease the legal rent if there has been a decrease
in essential services which may include, but are not limited to,
repairs, painting, decorating and maintenance.
The record below and the tenant's answer to the owner's petition
confirmed the owner's assertions as to the parties' agreement
concerning painting. The Commissioner concurs, therefore, that the
Rent Administrator's order went beyond the allegations of the ten-
ant's complaint in granting a rent reduction for painting defects.
The rent reduction granted because the apartment required painting
(10% of the maximum legal rent) should, therefore, be revoked.
The Commissioner makes no finding herein as to whether painting is
an essential service the owner must provide the tenant. The
painting service, if any, the owner is obligated to provide a rent
controlled tenant is based on prior practice. The tenant stated
that the tenant had done painting in the past, and the owner sug-
gested that painting services had been provided in some instances
in the past. The record below and on appeal does not resolve the
question of prior practice. This order is without prejudice to a
determination, in separate proceedings, whether painting is a
service the owner is required to provide.
The owner's petition does not establish any further basis for
modifying or revoking the Administrator's order which determined
that the tenant's complaint of a broken window and a defective bell
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and buzzer were true based on a physical inspection. The claim on
appeal that there was no notice of the complaint is belied by the
record below, which reveals that the then owner was served properly
and that an answer was filed. The tenant was therefore entitled to
rent reductions pursuant to Section 2202.16 of the City Rent and
Eviction Regulations.
Any rent arrears due the owner from the tenant as a result of this
determination shall be paid in monthly installments equal to the
number of months the tenant's rent reduction has been in effect.
The owner may apply for rent restoration if the facts so warrant.
THEREFORE, in accordance with the Rent and Eviction Regulations for
the City of New York, it is
ORDERED, that the owner's petition be, and the same hereby is,
granted, in part, to the extent that the rent reduction granted
based on a finding that the apartment required painting be, and the
same hereby is, revoked. In all other respects, the Rent Adminis-
trator's order is affirmed.
ISSUED:
JOSEPH A. D'AGOSTA
Deputy Commissioner
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