STATE OF NEW YORK
DIVISION OF HOUSING AND COMMUNITY RENEWAL
OFFICE OF RENT ADMINISTRATION
92-31 UNION HALL STREET
JAMAICA, NY 11433
IN THE MATTER OF THE ADMINISTRATIVE ADMINISTRATIVE REVIEW
APPEAL OF DOCKET NO.: CL410065RT
Sue G. Merk,
DOCKET NO.: CF410097OR
ORDER AND OPINION GRANTING PETITION FOR ADMINISTRATIVE REVIEW,
AND MODIFYING ADMINISTRATOR'S ORDER
On December 16, 1988, the above-named petitioner-tenant filed a
timely petition for administrative review of an order issued on
November 14, 1988, by the Rent Administrator, concerning the
housing accommodation known as 311 East 71st Street, Apt. 7B,
New York, New York, wherein the Administrator effective August 1,
1988, restored the rent that had previously been reduced by order
issued May 14, 1986.
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 administrative appeal.
This proceeding was commenced by the filing by the owner of an
application to restore rent dated June 1, 1988. A copy of the
owner's application was served on the tenant who opposed it stating
that the defective condition of the stove was never remedied, that
she was forced to purchase her own new stove in September 1986, and
that the condition of the kitchen wall was not repaired until June,
1988. The Administrator's order of November 14, 1988 found that
the conditions, upon which the rent was reduced, had been corrected
and granted a restoration of rent effective August 1, 1988 which is
the first rent payment date after service of the owner's
application on the tenant.
In addressing the fact that the tenant had purchased her own stove,
the Administrator's order further directed that, at the tenant's
option, the owner now provide a replacement stove, or the owner
must either supply a new stove, or reimburse the tenant for the
cost of the stove she purchased. In the latter two alternatives,
the Administrator directed that the owner could then increase the
rent by 1/40 the cost of the new equipment.
In the PAR, the tenant does not object to the restoration of the
rent, but argues that she should not have to pay monthly for the
remainder of the tenancy for a stove she was forced to replace.
After careful consideration, the Commissioner is of the opinion
that the petition should be granted.
The record reveals that the tenant documented her complaint about
the stove condition in 1984 and finally replaced the stove at her
own expense in 1986.
If the tenant's stove was not repairable, then the tenant would
have been entitled to choose the option of a used comparable stove
in good working order, if available, or a new stove with a 1/40th
increase for the cost thereof on consent. If no used comparable
stove was available and the tenant's stove could not have been
repaired, the owner would be obligated to provide a new comparable
stove at no cost to the tenant.
The Commissioner finds that the Administrator erred in the choice
of options given to the tenant with respect to the stove.
In giving the tenant three options regarding the stove, the
Administrator's focus was limited to the obligation of the owner to
provide a stove. The Administrator's order does not adequately
address a situation where the tenant has already purchased and
installed a new stove. Under these circumstances, it is redundant
to require the owner, after the fact, to go through the exercise of
providing a new or reconditioned stove. The Commissioner,
therefore, revokes the three alternatives given to the tenant in
the Administrator's order.
The policy previously iterated herein requires the owner to provide
a new stove at no cost to the tenant if no used comparable stove is
While the record does indicate that several repairs were made or
attempted, the problem with the stove was never remedied and the
owner has submitted no evidence to show that he offered to provide
a reconditioned stove.
The Commissioner further finds that the owner is not entitled to,
and the tenant is not obligated to pay, a rent increase for the use
of the stove that she purchased.
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,
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