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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
APPEAL OF DOCKET NO.: DF610197RO
GILES PROPERTIES CO. RENT
ADMINISTRATOR'S DOCKET
NO.: B001843S
PETITIONER CE610033RP
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ORDER AND OPINION GRANTING PETITION FOR ADMINISTRATIVE REVIEW
IN PART AND MODIFYING RENT ADMINISTRATOR'S ORDER
On June 26, 1989 the above named petitioner-owner filed a
Petition for Administrative Review against an order of the Rent
Administrator issued May 22, 1989. The order concerned housing
accommodations known as Apt. 2K located at 3311 Giles Place, Bronx,
N.Y. The Administrator directed restoration of services and
ordered a rent reduction for failure to maintain required services.
The Commissioner has reviewed the record and carefully
considered that portion relevant to the issues raised by this
appeal.
The tenant commenced this proceeding on April 1, 1985 by
filing a Statement of Complaint of Decrease in Services alleging
that the owner was not maintaining the bathroom sink, dishwasher
and air conditioner. The proceeding was assigned Docket No.
B001843S. The owner was served with a copy of the complaint and
afforded an opportunity to respond. The owner filed a response and
stated that, pursuant to the lease signed in 1975, it was not
responsible for the maintenance of these items. The tenant filed
a reply and stated that he had been paying additional rent for the
dishwasher and air conditioner since he took occupancy in 1964 but
the owner has disclaimed responsibility for the upkeep of these
items since 1975.
The owner replied that its records indicate that the prior
owner had a service agreement for repairs to the dishwasher at the
owner's expense but that the earliest lease for this apartment does
not indicate any additional charge for any appliances. The owner
stated that the sink had been repaired.
The tenant conceded that the bathroom sink had been corrected
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but asserted that he has been paying additional rent for the air
conditioner and dishwasher since 1964 and purchased an air
conditioner himself 8 or 9 years ago when the owner refused to
repair it.
The Administrator issued an order on February 25, 1986
terminating this proceeding based on the tenant's alleged
acknowledgement that the conditions in the complaint had been
resolved.
The tenant filed an administrative appeal from this order.
The appeal was assigned Docket No. ART8784B. On April 26, 1988 the
Commissioner issued an order and opinion granting the petition and
remanding the proceeding to the Administrator. The Commissioner
ruled that the tenant had only acknowledged that the bathroom sink
was restored and that issues regarding the dishwasher and air
conditioner still remained to be determined.
On November 28, 1988 the Administrator, after having notified
the parties that the proceeding was being reopened under Docket No.
CE610073RP, requested that the DHCR Hearings Bureau conduct a
hearing to determine whether the dishwasher and air conditioner
were base date services that the owner was required to maintain and
also to determine the rent regulated status of the subject
apartment. The decision of the Administrative Law Judge was issued
on May 15, 1989. The Administrative Law Judge ruled that the
subject apartment is rent stabilized, that the dishwasher and air
conditioner are services which are required to be maintained, that
it is undisputed that the dishwasher is broken and that the owner
refused to repair the air conditioner in 1974, forcing the tenant
to purchase his own, and that, therefore, a rent reduction is
warranted. The proceeding was then sent back to the Administrator.
The Administrator issued the order here under review on May
22, 1989 and granted a rent reduction of an amount equal to one
guideline increase based on the decision of the Administrative Law
Judge. The rent reduction was ordered effective May 1, 1985.
On appeal the owner, as represented by counsel, states that
the order here under review is erroneous because the tenant's
original allegations with regard to the dishwasher and air
conditioner were contradicted by other statements made by the
tenant at the hearing described. The owner also states that the
tenant has provided no documentary evidence in support of the
allegation that the owner is required to maintain these two
services and that the owner has discovered a copy of a lease dated
November 1, 1963 which makes no mention of the owner's duty to
supply and maintain a dishwasher or air conditioner. The owner
also states that the parties entered into a stipulation by which
the rent was reduced by $10.00 per month. The petition was served
on the tenant on September 19, 1989.
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The tenant filed a response on September 25, 1989 and stated,
in sum, that the Administrator's order issued after the hearing was
correct and should be affirmed. The tenant claimed that the owner
refused to accept the terms of the stipulation when the
Administrative Law Judge attempted to negotiate it and it was not
presented to the Division and the tenant no longer wishes to be a
party to it. The owner filed a reply on October 19, 1989 that the
Administrator found that the services in question were being
provided in 1964 but that the relevant base date is May 31, 1968
and that the apartment registration records for 1974 should have
been searched to determine if the owner was required to maintain
these services.
After careful review of the evidence in the record, the
Commissioner is of the opinion that the petition should be granted
in part.
Section 2523.4 of the Rent Stabilization Code provides that
the DHCR shall order a rent reduction, upon application of a
tenant, based on a finding that the owner has failed to maintain
required services. Required services are defined by 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
and include, among other things, repairs and maintenance.
The applicable base date for required services for housing
accommodations subject to the Rent Stabilization Law on June 30,
1974 is May 31, 1968.
There is sufficient evidence in the record to establish that
a dishwasher and air conditioner were appliances provided to the
subject tenant on the base date and included in the rent. The 1975
lease submitted by the owner merely states that the landlord is not
responsible for the repair of appliances "except as provided by
law." The requirement of the Rent Stabilization Law to repair and
maintain base date services sufficiently establishes an obligation
to repair. It is also noted that the owner admitted in response to
the tenant's complaint that the prior owner had a service contract
for repair of dishwashers at the owner's expense.
The omission of any mention in the 1964 lease is not
dispositive of the issue of services provided or required to be
provided on the base date or thereafter. The lease makes no
mention of appliances included or excluded from the rent and the
relevant inquiry is whether the equipment was provided by the owner
on the base date and the evidence indicates that the two items in
question were provided.
The Administrative Law Judge determined that there is no
dispute between the parties that the dishwasher is broken and for
this condition the rent reduction ordered by the Administrator is
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warranted. The rent may be restored when the dishwasher is
repaired and the owner applies for and is granted rent restoration.
With regard to the air conditioner, however, it is undisputed
that the tenant did not file a complaint with DHCR until until 8 or
9 years after he purchased his own unit, and there is no evidence
that the owner was asked to make repairs and afforded an
opportunity to do so before the tenant purchased his own air
conditioner. The tenant remains responsible for the maintenance
and repair of his own air conditioner but if it becomes
irreparable, the owner is obligated to provide this equipment and
the tenant may file a complaint if the owner refuses to supply the
tenant, upon request, with a working air conditioner. However,
since the tenant is providing his own air conditioner, the
directive to repair this item must be deleted from the rent
reduction order.
The Commissioner notes that the owner has applied for rent
restoration and that the proceeding, which was assigned Docket No.
HF610051OR is pending before the DHCR.
THEREFORE, pursuant to the Rent Stabilization Law and Code 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, affirmed as modified herein.
ISSUED:
JOSEPH A. D'AGOSTA
Deputy Commissioner
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