EG 530202 RO
                        STATE OF NEW YORK
                           GERTZ PLAZA
                     92-31 UNION HALL STREET
                     JAMAICA, NEW YORK 11433
APPEAL OF                               DOCKET NO.: EG 530202 RO

                                        ADMINISTRATOR'S DOCKET
NO.: DG 530059 B

      On  July 16, 1990 the above named petitioner-owner filed  a
Petition  for Administrative Review against an order of the  Rent
Administrator issued June 11, 1990.  The order concerned  housing
accommodations  located  at 33-39 Post  Avenue,  New  York,  N.Y.
wherein  the Administrator ordered a building-wide rent reduction
for failure to maintain required or essential services.

      The  Commissioner  has reviewed the  record  and  carefully
considered  that portion relevant to the issues  raised  by  this

      This proceeding was commenced when 23 tenants joined in the
filing  of  a Statement of Complaint of Decrease in Building-Wide
Services  on July 25, 1989.  They alleged the following  services

          1.   Front door unsecured
          2.   Roof door unsecured
          3.   Fire escapes rusted and not maintained
          4.   Public hallways in need of painting
          5.   Leaks in entrance ceiling
          6.   Broken glass in stairway windows
The  complaint  was  served on the owner, and an  opportunity  to
respond was afforded.

      The  owner filed a response on October 2, 1989 and  alleged
that  it was never notified about the problems set forth  in  the
complaint.  Additionally, the owner stated that the roof door has
been  repaired many times but is being constantly broken  by  the
tenants; that the front door has been repaired and secured;  that
the  fire  escapes have been painted and are not rusty; that  the
public  hallways are constantly painted; that the ceiling at  the
entrance door has been repaired and is not leaking; and that  the
stairway  windows were repaired.  The owner stated that no  basis
for a rent reduction existed.

      The  Administrator  ordered a physical  inspection  of  the
premises,  which was carried out on July 8, 1990.  The inspection
revealed the following:

          1.   Missing  entrance  door lock; defective  vestibule
               door lock
          2.   Fire escapes rusty and in need of painting
          3.   Evidence  of peeling paint and plaster  in  public
          4.   Roof door closes properly but has no lock
The following services were found to have been maintained:

          1.   No leaks on ceiling between entrance and vestibule
          2.   No  evidence  of  broken  panes  in  public  areas
The  Administrator issued the order here under review on June 11,
1990.   A  rent  reduction  was ordered for  all  rent  regulated
tenants.   The Commissioner notes that the owner  filed for  rent
restoration  and that application was granted in part,  for  rent
controlled  tenants,  on  September 20,  1991.   The  owner  then
refiled for restoration on November 8, 1991 and that  application
is currently pending with DHCR.

      On  appeal  the  petitioner,  through  counsel,  makes  the
following  arguments in seeking reversal of the order here  under

          1.   The door locks and roof door were repaired but are
               the  target of vandalism caused by tenants  and/or
               visitors.   Petitioner states that  attempts  have
               been made to repair the locks and door and that it
               should  not be penalized for acts allegedly beyond
               its control.
          2.   The  petitioner states that, in August of  1989  a
               painter was hired to paint and plaster all  walls,
               ceilings and railings on both wings from the lobby
               to  the  roof.  Copies of paid bills and  invoices
               are  annexed  to the petition.  The  owner  states
               that,  although  it  pursued a regular  course  of
               maintenance,   the  walls  became  scratched   and
               graffiti covered.  As a result, the owner retained
               the  services  of another painter who  effectuated
               repairs.  The repairs were allegedly completed  on
               May  8,  1990.  The owner states that it  was  not
               requested  to  submit any further information  nor
               was it sent an copy of the inspector's report.
          3.   With  regard to the rusty fire escapes, the  owner
               states  that  a painter was employed in  September
               1989,  to  make  needed repairs.  Copies  of  paid
               bills  and  cancelled checks are  annexed  to  the
               petition.  The fire escapes were allegedly painted
               in  a workmanlike manner and were rust free.   The
               owner  states that the fire escapes were  in  good
               working  order   and that any rust which  remained
               constitutes  a de minimis violation, which  should
               not be the basis for a rent reduction.

      After  careful  review of the evidence in the  record,  the
Commissioner  is  of  the  opinion that the  petition  should  be

      With  regard  to the allegations of tenant  and/or  visitor
vandalism of the door locks and roof door, the Commissioner finds
the  defense  to  be  inadequate to disturb  the  Administrator's
findings.  Indeed, the Commissioner has consistently held that
vandalism does not relieve an owner of the obligation to maintain
all  required  services  and where a diminution  of  services  is
confirmed  by a physical inspection a rent reduction is warranted
even  if  the cause of the condition is due to vandalism (Accord:
Docket  No. ARL 03088-B).  The owner is free to take legal action
against  any individual who engages in vandalism on its property.
However, all required or essential services must be maintained.

      With regard to the issue of peeling paint and plaster,  the
owner's  allegations are at variance with the inspector's report.
It  is settled that the report of a DHCR inspector is entitled to
more  probative  weight than the allegations of a  party  to  the
proceeding.   On  July 8, 1990 the inspector  found  evidence  of
peeling   paint   and  plaster  in  the  public  hallways.    The
Administrator was correct in ordering a rent reduction  based  on
this report.

      Similarly, the Administrator was correct in ordering a rent
reduction based, in part, on the inspector's report regarding the
fire  escapes.  The tenant's complaint specifically  stated  that
the fire escapes were rusted and not maintained.  The inspector's
report  stated  that  the  escapes were  rusty  and  in  need  of
painting.   This  report is dispositive of the issue,  as  stated
above.  The owner's contention that it was entitled to see a copy
of  the  inspector's report has been considered and  consistently
rejected by the Commissioner on other occasions.  This policy has
been  upheld by the courts (see Empress Manor Apartments v.  DHCR
147  AD2d 642, 538 NYS2d 49 [2nd Dept., 1989]).  The Commissioner
rejects  the  owner's  contention that  the  rusty  fire  escapes
constitute a de minimis violation in that rusted metal is often a
sign  of  potential structural problems. Sound fire  escapes  are
fundamental  to  the  issue  of  tenant  safety.   Any  potential
compromise  of  that safety based on a failure to make  necessary
repairs  warrants a rent reduction.  The order here under  review
is affirmed.

      THEREFORE, pursuant to the Rent Stabilization Law and  Code
and Rent and Eviction Regulations it is

      ORDERED,  that  this petition be, and the same  hereby  is,
denied, and that the Rent Administrator's order be, and the  same
hereby is, affirmed.


                                   JOSEPH A. D'AGOSTA
                                   Acting Deputy Commissioner


TenantNet Home | TenantNet Forum | New York Tenant Information
DHCR Information | DHCR Decisions | Housing Court Decisions | New York Rent Laws
Disclaimer | Privacy Policy | Contact Us

Subscribe to our Mailing List!
Your Email      Full Name