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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
APPEALS OF DOCKET NO.:CK110098RO
CL110062RT
Fans Associates, Owner and
Walter Goldstein, Tenant RENT
ADMINISTRATOR'S DOCKET
NO.: BJ110945S
PETITIONERS
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ORDER AND OPINION GRANTING PETITIONS FOR ADMINISTRATIVE REVIEW IN
PART AND MODIFYING RENT ADMINISTRATOR'S ORDER
On November 21, 1988 and December 7, 1988 the above named
petitioner-owner and tenant filed Petitions for Administrative
Review of an order issued on November 3, 1988, by the Rent
Administrator, concerning the housing accommodations known as Apt.
6I, 149-43 35 Avenue, Flushing, NY wherein the Rent Administrator
found that the owner was not maintaining certain required services,
directed restoration of such services, and ordered a rent
reduction. The order also found that certain services complained
of were being maintained.
The Commissioner has reviewed the record and carefully considered
that portion relevant to the issues raised by these appeals.
A review of the record reveals that on October 30, 1987, the tenant
filed a statement of complaint of decrease in services in which he
asserted that the window blinds need to be repaired, the shower
pressure is inconsistent, the air conditioner does not cool down
the apartment, water and air seep through the air conditioner in
stormy weather, the elevator and boiler are constantly being shut
down for repair, and there is insufficient heat in the apartment.
The tenant included with the complaint a copy of his lease for the
1977-80 term which contains the following clauses:
The apartment contains air conditioning equipment in
proper working order, which shall remain the property of
the Landlord. The Tenant agrees to maintain the said
air-conditioning equipment at the tenant's expense.
Landlord agrees to paint apt. and record blinds at its
expense.
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In answer to the complaint, the owner stated that it was determined
in prior proceedings that the blinds and air conditioner belong to
the tenant, that the shower pressure was checked and found to be in
good condition, that sufficient heat is provided to each apartment,
and that the elevator and boiler are repaired and maintained in
proper condition.
In reply, the tenant submitted a copy of a brochure advertising the
subject building complex when it was built in 1965. The brochure
states that "free air-conditioning" and "venetian blinds and
screens" are included in the rent.
A physical inspection by DHCR on June 22, 1988 revealed that "the
studio slats cord and tapes are rotted" on the venetian blinds, the
shower was mixed to 100 degrees and fluctuated 12 degrees, the air
conditioner coil temperature was 72 degrees, there was no evidence
of a defective elevator, the hot water temperature in the apartment
was above 120 degrees, and the master TV antenna was connected to
the tenant's TV but all the stations were snowy indicating a low
signal.
A second inspection on October 18, 1988 revealed signs of a water
leak around the air conditioner unit and air seepage due to the
rotted window sill.
In the order appealed herein, the Rent Administrator reduced the
legal regulated rent for this rent stabilized apartment to the
level in effect prior to the last guidelines adjustment for the
following conditions:
1. Defective master antenna, low signal.
2. Low water pressure in shower.
3. Wall area around the livingroom air conditioner showed
signs of water leak and air seepage.
The order stated that the following services were resolved:
1. Hot water adequate (above 120 degrees F.)
2. No evidence of defective elevator.
The issues of window blinds and air conditioner were found to have
been resolved in a prior docket.
In the petition for administrative review, the owner states that
the tenant did not complain about the master TV antenna, that there
is no guideline for what constitutes "low" water pressure, and that
the part of the air conditioner which caused the leak has been
repaired and the leak damage is scheduled to be repaired the next
week.
The petition was served on the tenant on January 25, 1989. In
response, the tenant stated that the defective Master TV antenna
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was repaired but the low water pressure and air seepage conditions
were not corrected. The tenant added that the owner had sent a
worker to repair the leak damage.
The tenant, in his petition, questions the Rent Administrator's
determination regarding the blinds and air-conditioner. The tenant
resubmitted the aforementioned brochure and lease for the 1977-80
term, and copies of determinations by DHCR pertaining to other
tenants in the same building wherein it was determined that the
owner must replace blinds if they become irreparable and must
repair the air conditioner units not more than once during each
lease term.
The tenant's petition was served on the owner on January 6, 1989.
In response, the owner states that the other determinations by
DHCR, on which the tenant relies, concerned other tenants in the
building who signed leases with different landlords and the leases
contained different terms and conditions which are not applicable
to the tenant herein.
After careful consideration of the entire evidence, the
Commissioner is of the opinion that both the owner's and tenant's
petitions should be granted in part and the Rent Administrator's
order should be modified.
Pursuant to Section 2523.4 of the Rent Stabilization Code, DHCR is
required to order a rent reduction, upon application by a tenant,
where it is found that the owner has failed to maintain required
services. Required services are defined in Section 2520.6(r) as
that space and those services which the owner was maintaining or
was required to maintain on the applicable base date. For the
subject building which was built in 1965, the applicable base date
for building-wide and individual dwelling unit services is May 29,
1974.
The Commissioner finds first that the tenant did not make any
mention of the master TV antenna in his complaint. The
determination regarding the "low signal" must, therefore, be
deleted as a basis for a rent reduction. As for the water pressure
and the air conditioner, the inspection adequately supports the
Administrator's determination that necessary repairs were not done
and the rent reduction ordered by the Administrator for these
conditions is warranted. The inspector reported extreme
fluctuation in the water temperature. The adequacy of the repairs
to correct this condition will be determined in a rent restoration
proceeding. As for the water seepage from the air conditioner, the
owner admits in the petition that the damage from this leakage was
not repaired at the time the Administrator's order was issued.
With regard to the tenant's petition, the Commissioner is of the
opinion that Rent Administrator's order should be modified to
clarify the responsibilities of the parties pertaining to the air
conditioner and venetian blinds. The evidence of record, including
the brochure advertising the building when it was first built, the
1977-80 lease and the prior determinations by this agency
concerning this and other tenants establishes that the venetian
blinds were provided to tenants and included in the rent and that
the owner undertook responsibility for re-cording the blinds, if
necessary. Inasmuch as the inspection found that re-cording was
required, this condition must be added to the rent reduction order
being appealed herein.
The Division's records reveal that the owner filed a rent
restoration application (Docket No. DF110102OR) which was denied on
March 5, 1990, and that no subsequent application has been filed.
The owner is advised that the rent will be restored only when
another application is filed and granted, and any such application
must establish that, in addition to the services cited in the order
appealed herein, the blinds have been re-corded as necessary.
As for the air conditioner units, these are consistently purported
to belong to the owner, with the tenant responsible for their
maintenance. The term maintenance, however, connotes routine care
such as cleaning the units and replacing the filters but does not
entail repairs to defective components or replacement of the units
if they become irreparable. The unit in the tenant's apartment was
found to provide adequate cooling and required repairs only to
correct the water and air seepage. The Rent Administrator properly
reduced the rent for these conditions only. If the air conditioner
become irreparable or requires further repairs, the tenant is
advised to file another complaint.
Therefore, in accordance with the Rent Stabilization Law and Code,
it is
ORDERED that these petitions be and the same hereby are granted in
part and the Rent Administrator's order be and the same hereby is
modified to deleted the master TV antenna as a condition requiring
repair, to add re-cording of the venetian blinds as a service the
owner must provide, and to affirm the Rent Administrator's order in
all other respects.
ISSUED:
JOSEPH A. D'AGOSTA
Deputy Commissioner
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