FA 110132 RO
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 S.J.R. NO.: 6053
IN THE MATTER OF THE ADMINISTRATIVE ADMINISTRATIVE REVIEW
APPEAL OF DOCKET NO.:
FA 110132-RO
RENT ADMINISTRATOR'S
OCEAN LEASING CO., DOCKET NO.:
EG 110667-S
PREMISES:
22-11 New Haven Avenue
PETITIONER Apt. 2-R, Queens, NY
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ORDER AND OPINION GRANTING PETITION FOR ADMINISTRATIVE REVIEW
AND REVOKING ADMINISTRATOR'S ORDER AFTER RECONSIDERATION
PURSUANT TO REMIT ON CONSENT
On January 14, 1991, the above-named owner filed a petition for
administrative review of an order issued on December 17, 1990,
concerning the housing accommodation known as Apartment 2- , 22-
11, New Haven Avenue, Queens, New York, wherein the Adminis-
trator ordered a rent reduction based on a finding that the owner
had not provided or maintained certain services.
On September 24, 1991, the Commissioner issued an Order and
Opinion denying the owner's petition and affirming the rent
reduction order.
Subsequent thereto, the owner sought judicial review of the
Commissioner's order pursuant to Article 78 of the Civil Practice
Law and Rules. The Division agreed to a remand of the proceeding
for reconsideration of certain evidence.
The Commissioner has again reviewed all the evidence in the
record and has carefully reconsidered that portion relevant to
the issues raised in the petition.
The tenant commenced this proceeding on July 25, 1990 by filing a
complaint with the Administrator in which she requested a rent
reduction based on the owner's failure to mainta n various ser-
vices including painting.
In answer to the complaint, the owner asserted that all necessary
repairs were completed with the exception of painting, that the
tenant was advised by letter on August 6, 1990 to contact the
painter, that the tenant told the painter that she would not
allow the painting to be done until September and that she subse
quently informed the building agent that she wanted to do the
painting herself.
FA 110132 RO
A physical inspection of the subject apartment by a DHCR employee
on November 13, 1990 revealed that various parts of the apartment
had been plastered but not painted and that there was evidence of
water stains and peeling plaster.
Based on the inspector's report, the Administrator ordered a
restoration of services and a reduction of the stabilized rent.
In the petition for administrative review, the owner asserts that
the order should be revoked because the tenant insisted on doing
all the painting herself and signed an affidavit on October 24,
1990 in which she withdrew the "painting overdue" portion of her
complaint because she was to receive a rent credit of $268.00 for
doing her own painting after the landlord inspects said painting.
The owner enclosed with the petition a copy of a receipt for
certified mail establishing that the aforementioned affidavit was
received by the Division on November 7, 1990.
In answer to the petition, the tenant concedes that she did paint
the apartment herself and did sign an agreement for a rent credit
of $268.00 for the painting.
After careful consideration of the entire evidence of record, the
Commissioner is of the opinion that the petition should be
granted and the Administrator's order should be revoked.
Section 2523.4 of the Rent Stabilization Code provides for a rent
reduction, upon application by a tenant, based on a finding that
the owner has failed to maintain required services.
In the instant case, it is undisputed that the tenant insisted on
doing the painting herself and that the owner agreed to grant her
a rent credit once the painting was completed in a satisfactory
manner. An owner cannot be penalized for failure to maintain a
service when the tenant has prevented the owner from providing
such service.
A review of the inspection report and the conditions cited as the
basis for the rent reduction confirms the owner's contention that
all the repairs identified as needed refer to painting and/or
conditions that would be corrected by a complete and workmanlike
painting of the entire apartment.
Finally, the owner has established that the tenant withdrew the
failure-to-paint aspect of her complaint before the order was
issued, and that this withdrawal was submitted to the Adminis-
trator in a timely manner but is not in the file for unknown
reasons. Since painting was the only service the owner was
directed to restore, the Commissioner finds that the tenant's
withdrawal was in effect a withdrawal of the complaint and the
rent reduction order should never have been issued.
THEREFORE, in accordance with the Rent Stabilization Law and
FA 110132 RO
Code, it is,
ORDERED, that this petition be, and the same hereby is, granted
and the Rent Administrator's order be, and the same hereby is,
revoked.
ISSUED:
JOSEPH A. D'AGOSTA
Acting Deputy Commissioner
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