DG210068RO
                                  STATE OF NEW YORK
                      DIVISION OF HOUSING AND COMMUNITY RENEWAL
                            OFFICE OF RENT ADMINISTRATION
                                     GERTZ PLAZA
                               92-31 UNION HALL STREET
                                  JAMAICA, NY 11433





          ------------------------------------x
          IN THE MATTER OF THE ADMINISTRATIVE          ADMINISTRATIVE REVIEW
          APPEAL OF                                    DOCKET NO.: DG210068RO

                    Kenneth Birnbaum,
                                                       RENT ADMINISTRATOR'S
                                                       DOCKET NO.: CD210114S

                                   PETITIONER
          ------------------------------------x

                    ORDER AND OPINION GRANTING, IN PART, PETITION
                              FOR ADMINISTRATIVE REVIEW

          The above-named owner filed a timely petition for administrative 
          review of an order issued on June 5, 1989 concerning the housing 
          accommodations known as 9524 Fort Hamilton Parkway, Apt. 407, 
          Brooklyn, New York, wherein the Rent Administrator determined the 
          tenant's complaint of decreased services.

          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 petition.

          The tenant commenced this proceeding by filing a complaint 
          asserting that the owner had failed to maintain certain services in 
          the subject apartment.  The tenant complained, in pertinent part, 
          that the owner had painted the apartment only once in fourteen 
          years, compelling the tenant to do so, and noting that the tenant 
          "had repeatedly asked [the owner] for a new shower head...."

          In an answer, the owner denied the allegations set forth in the 
          complaint asserting that all required repairs had been completed.

          Thereafter, the DHCR conducted an inspection of the subject 
          apartment.  The DHCR inspector's report stated that the "tenant had 
          painted the apartment at [her] own expense", that the living room 
          ceiling had leak damage that had occurred after the painting, and 
          that the bathroom shower head was defective.


          The Rent Administrator directed the owner to restore these services 
          and further, ordered a reduction of the stabilization rent.












          DG210068RO


          In his petition for administrative review, the owner makes the bare 
          assertion that the apartment had been painted since the complaint.  
          The owner also states that he was not aware of the leak damage 
          which was of recent origin, but acknowledges that the defective 
          shower head had been an oversight, which would be rectified, and 
          characterizes the condition as de minimis.
            
          After careful consideration, the Commissioner is of the opinion 
          that the petition should be granted, in part, as more fully set 
          forth below.

          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 an owner has failed to maintain required 
          services.  Pursuant to provisions of the City Housing Maintenance 
          Code, owners of buildings are required to paint apartments every 
          three years.

          Neither the record below nor the owner's petition establishes that 
          the owner painted the apartment every three years, as required.  
          Based on the record, the Rent Administrator's conclusion that the 
          owner had failed to paint the apartment as required, was reasonable 
          and should be affirmed. 

          The owner is correct, however, that a rent reduction was not 
          warranted for the living room ceiling leak damage, as the owner did 
          not have notice of the condition until receipt of the Rent 
          Administrator's order.

          In accordance with the above, the Rent Administrator's order is 
          amended to reflect that the rent reduction was warranted based on 
          a finding that the owner had failed to paint the apartment at the 
          required interval, in accordance with the City Housing Maintenance 
          Code.  The Rent Administrator's order is further amended to delete 
          evidence of living room ceiling water leaks as a predicate for the 
          rent reduction.  In all other respects, the Rent Administrator's 
          order is affirmed.

          The owner may file a rent restoration application if the facts so 
          warrant.

          The automatic stay of the retroactive rent abatement that resulted 
          by the filing of this petition is vacated upon issuance of this 
          order and opinion.



          THEREFORE, in accordance with the Rent Stabilization Law and Code, 
          it is

          ORDERED, that this petition be, and the same hereby is, granted, in 






          DG210068RO

          part, and that the Rent Administrator's order be, and the same 
          hereby is, affirmed, as modified in accordance with the above.

           

              


          ISSUED:






                                                                     
                                             JOSEPH A. D'AGOSTA
                                             Deputy Commissioner  






    

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