DA-810140-RT
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
----------------------------------x
IN THE MATTER OF THE ADMINISTRATIVE ADMINISTRATIVE REVIEW
APPEAL OF DOCKET NO.:
DA-810140-RT
GRACE & JOHN LAMORTE,
RENT ADMINISTRATOR'S
DOCKET NO.:
PETITIONERS CF-810114-S
----------------------------------x
ORDER AND OPINION GRANTING PETITION FOR ADMINISTRATIVE REVIEW
On January 8, 1989, the above-named petitioner-tenants filed a
Petition for Administrative Review against an order issued on
January 3, 1989, by the District Rent Administrator, 55 Church
Street, White Plains, New York, concerning housing accommoda-
tions known as Apartment 4-H, 485 White Plains Road, Eastchester,
New York, wherein the District Rent Administrator dismissed the
tenants' complaint of reduced services due to the owner's refusal
to repair or replace the air conditioning unit.
The issue in this appeal is whether t e District Rent Adminis-
trator's order was warranted.
The applicable Section of the Law is Section 2502.3 of the Tenant
Protection Regulations.
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 originally commenced by the filing of an
Individual Tenant Statement of Complaint on May 23, 1988, in
which the tenants complained in substance that the landlord
refuses to repair or replace the air-conditioner, which has
ceased to function after 16 years of continuous use. The air
conditioner had been in the apartment when the tenants took
occupancy on May 1, 1973. The tenants requested that the owner
either restore the air conditioner or that the rent be reduced
accordingly.
The tenants further pointed out that Paragraph 34 in the lease
dated June 28, 1977 was incorrect in that it said that the
landlord was not responsible to the tenants for any failure or
breakdown of the equipment and that there should be no rent
reduction should this occur. The tenants disputed the clause
because the air conditioner was "included in the rent" on the
date of occupancy, and the tenants should not be expected to bear
DA-810140-RT
the expense for the breakdown of the owner's equipment which,
after 16 years, was simply the result of wearing out from normal
use over a long period of time.
In its petition, dated January 8, 1989, the tenants restate the
arguments made in the complaint and contend that the "ambiguous
wording" in Paragraph 34 of the lease should not excuse the owner
from replacing the air conditioner that was in the apartment when
the tenants first moved in, and which only stopped working as a
result of 16 years of normal use.
The Commissioner is of the opinion that this petition should be
granted.
Section 2502.3 of the Tenant Protection Regulations defines
essential services as those services which the landlord was main
taining, or which he was obligated to maintain on May 29, 1974.
A review of the record establishes that, although the earliest
lease available, dated June 28, 1977, contained a clause, number
34, which stated that the owner was not responsible for the
maintenance, repair or replacement of the air-conditioning unit,
such clause cannot shield the owner from the responsibility of
providing a service that was provided to the tenants on the base
date. The owner does not dispute that the use of the air
conditioner was provided on the base date, and that it has ceased
to function after 16 years of continuous normal use. It must be
acknowledged that the entire useful life of the item has expired
after this length of time, and that it must be replaced
altogether if the tenants are to get the benefits promised them
under the Tenant Protection Regulations. Based upon the special
facts in this case, including the Administrator's dismissal of
the complaint; the owner's reasonable reliance on that dismissal;
and that the diminution of service was based upon an issue of
law the Commissioner finds that the rent is to be reduced to the
level in effect prior to the most recent guidelines increase
effective as of September 1, 1991, the first payment day of the
month following the service of this order on the owner.
This Order and Opinion is issued without prejudice to the owner's
right to file an application with the Division for a restoration
of rent based upon a restoration of services, if the facts so
warrant.
THEREFORE, in accordance with the Emergency Tenants Protection
Act of 1974 and the Tenant Protection Regulations, 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.
ISSUED:
DA-810140-RT
ELLIOT SANDER
Deputy Commissioner
|