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.:
KRAUS MANAGEMENT INC.,
ORDER AND OPINION GRANTING PETITION FOR ADMINISTRATIVE REVIEW
IN PART, AND MODIFYING RENT ADMINISTRATOR'S ORDER
The above-named petitioner-owner filed a timely petition for admin-
istrative review (PAR) of an order issued concerning the housing
accommodation known as 137-01 68th Drive, Apartment A,
Flushing, New York.
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 the petition.
The tenant commenced the proceeding below by filing a complaint on
November 20, 1987, asserting that the owner had failed to maintain
certain services in the subject apartment. Specifically, the
tenant alleged that the owner was not maintaining the outer door
lock; that the bathroom floor tiles, sink and ceiling are in bad
shape; and that the TV antenna had been removed and never replaced.
In an answer, the owner stated that the entrance door lock issue is
the subject of another proceeding that is on appeal before the
Appellate Division and that roof antennas are not a base date
service, are prohibited by the lease, and are damaging to the
roof's surface. The owner submitted, with the answer, a work order
dated November 27, 1987 for repairs to the bathroom ceiling and
walls and signed by the tenant under the statement "work performed
to my satisfaction".
Thereafter an inspection of the subject apartment was conducted by
a Division of Housing and Community Renewal (DHCR) inspector on
August 9, 1988, who confirmed that the following defective condi-
tions had not been repaired:
1. Bathroom tiles.
2. Bathroom sink.
3. T.V. Antenna
4. Outer door lock.
The Rent Administrator directed restoration of these services and
further ordered a reduction of the stabilization rent.
In its petition for administrative review, the owner seeks
modification of the order, stating that a rent reduction for the
outer door lock was improper when this matter is the subject of
litigation to which the Division is a party and for which a stay is
in effect, that the bathroom conditions were repaired in the Fall
of 1987 and again in January 1988, and that TV antenna service is
not a base date service.
The DHCR served a copy of the petition on the tenant on December 8,
After careful consideration, the Commissioner is of the opinion
that the petition should be granted in part and the Administrator's
order should be modified.
The Division's records confirm the owner's statement that the
matter of the front door locks was the subject of another
proceeding and that the directive to restore the locks building-
wide was stayed pending the determination of the appeals in that
case. It was improper for the Administrator to direct the owner in
the instant case to repair or install the entrance door lock while
a judicial stay was in effect. Accordingly, this item must be
deleted from the Administrator's order.
The TV antenna was also improperly included as a basis for a rent
reduction when there was no investigation as to whether the
installation of an antenna is a required base date service. A
remand of the proceeding to determine this issue is not warranted
at this time because the Division's records reveal that the tenant
subsequently obtained cable TV service and no longer wishes to have
an antenna installed on the roof.
As for the repairs needed to the bathroom floor tiles and sink, the
record including the physical inspection adequately supports the
determination that the owner failed to repair these conditions and
a rent reduction for those conditions is warranted.
Pursuant to Section 2523.4 of the Rent Stabilization Code, DHCR is
required to order the rent reduction, upon application the tenant,
where it is found that the owner has failed to maintain required
services. The owner's petition does not establish any basis for
revoking the Administrator's determination based on a physical
inspection that the bathroom tiles and sink had not been repaired.
The work order signed by the tenant referred to the bathroom walls
and ceiling only and not the conditions reported by the inspector.
The owner submitted no evidence to the Administrator establishing
the completion of repairs prior to the issuance of the rent
reduction order confirming the existence of defective conditions in
the subject apartment for which a rent reduction is warranted.
The Division's records indicate that the owner's rent restoration
application (EA110115OR) was denied based on a finding that the
bathroom tiles and sink had not been repaired.
The owner may refile a rent restoration application if the facts so
warrant. The rent will not be restored until a rent restoration
application is filed and granted.
The automatic stay of the retroactive rent abatement that resulted
by the filing of this petition is vacated upon issuance of this
Order and Opinion.
THEREFORE, in accordance with the Rent Stabilization Law and Code
and the Emergency Tenant Protection Act of 1974, it is
ORDERED, that this petition be, and the same hereby is, granted in
part, and that the Rent Administrator's order be, and the same
hereby, is modified in accordance with this Order and Opinion.
JOSEPH A. D'AGOSTA