DF610197RO

                                  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
          ----------------------------------x


            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.
           






          DF610197RO

               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 












          DF610197RO

          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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