ADM. REVIEW DOCKET NO.: FE 110390 RO
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.:
FE 110390 RO
: RENT ADMIN. DOCKET NO.:
DK 110103 S
SUBJECT PREMISES:
66-22 Fleet Street,
Apt. No. 6E,
Forest Hills, NY
SAMUEL FISHER,
PETITIONER :
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ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW
The above-named owner filed a timely petition for
administrative review of an order issued on April 23, 1991
concerning the housing accommodations relating to the above-
described docket number, wherein a rent reduction was ordered based
on a finding of a failure to provide certain services.
The Commissioner has reviewed all of the evidence in the
record and has carefully considered that portion of the record
relevant to the issues raised by the petition.
The tenants commenced this proceeding on November 2, 1989 by
filing a complaint asserting that the owner had "failed to repair
leaks in ceiling," "to repaint and repair cracked and peeling
plaster and surrounding areas" and "to bleed heating system or to
do whatever is necessary to reduce and eliminate excessive noise
and banging in heating system."
In an answer dated December 5, 1989, the owner asserted in
substance that the tenants have refused access, and that plumbers
have been scheduled to make repairs several times, but the tenants
would not wait for the plumbers and refused to leave a key.
On December 11, 1990, the Division informed the owner of the
requirements for substantiating the claim of refusal of access as
follows:
ADM. REVIEW DOCKET NO.: FE 110390 RO
"Send two (2) letters to the tenant attempting
to arrange access dates. Both of the letters
must be mailed at least eight (8) days before
the proposed date for access and the second
letter must be sent by certified mail, return
receipt requested. Then, submit to the DHCR
copies of the two letters to tenant and also
a copy of the return receipt."
In a response filed on December 26, 1990, the owner stated
that he could not comply with the stated requirements until
February 3, 1991 when the tenants were scheduled to return from
vacation abroad.
In a statement filed on March 20, 1991, the tenants reported
that the banging on the radiators had continued for two years; that
a plumber did come to the apartment but the repairs were
ineffective; that they are an elderly couple (the husband being ill
for a number of years) who need reasonable peace and quiet but
never have any; that the owner had more than adequate time to fix
whatever is wrong; that access to the apartment has always been
available on reasonable notice; that when they were away, they left
the keys with the next door neighbor and advised the owner
accordingly; that "if the owner cannot give an exact time when the
plumber will come, it can at least advise whether it will be in the
morning or the afternoon" as contractors usually do; and that the
owner "has never repainted those areas of the apartment that were
damaged by leaks...."
The Commissioner notes that the owner failed to submit the
required letters regarding appointments for access as described in
the Division's instructions of December 11, 1990.
A physical inspection of the subject apartment was conducted
on April 11, 1991 by a Division staff member who confirmed the
existence of defective conditions.
Based on the inspector's report, the Administrator determined
that the kitchen ceiling was plastered and painted in an
unworkmanlike manner; that there are leaks on the ceiling in
closets and hallway over the powder room door; that the powder room
has water stains on the wall behind the door; and that the master
bedroom has a minor water stain on the ceiling near the northeast
corner. The Administrator directed the restoration of services and
further ordered a reduction of the stabilized rent.
In this petition, the owner reiterates its allegations of
tenants' unreasonable refusal of access. The owner submits inter
ADM. REVIEW DOCKET NO.: FE 110390 RO
alia a letter dated May 21, 1991 from the painter stating that the
tenants canceled the scheduled repairs three or four times at the
last minute.
In answer to the petition, the tenants assert that the owner
was informed two years ago about these defective conditions but has
failed to make necessary repairs; that keys were left with a
neighbor when the tenants were away from November 1990 through
February 1991 and the owner did make certain repairs at that time;
that the banging in the heating pipes was not repaired but the
April 11, 1991 inspection did not confirm this condition because on
that day heat was not needed; and that the appointment with the
painter had to be postponed because the tenant was recovering from
major surgery.
After careful consideration, the Commissioner is of the
opinion that the petition should be denied.
Section 2523.4 of the Rent Stabilization Code requires DHCR to
reduce the legal regulated rent, upon application by the tenant
when it is found that the owner has failed to maintain required
services. Required services are defined by Section 2520.6(r) to
include repairs, decorating and maintenance.
In the instant case, the physical inspection revealed that the
owner had not made the necessary repairs and based on that
inspection, the Administrator was mandated to order a rent
reduction.
The owner's petition does not establish any basis for
modifying or revoking the Administrator's order. The owner alleges
a failure to obtain access but did not submit evidence to
substantiate this claim when the proceeding was before the
Administrator, despite the opportunity to do so.
According to Policy Statement 90-5 (Arranging Repairs; No
Access Inspection), proof of failure to obtain access must include
copies of two letters sent to the tenant by regular and certified
mail attempting to arrange access dates. The owner herein was
advised of these requirements in the December 11, 1990 notice
and responded that it could not comply because the tenants were
away. Nevertheless, when the tenants returned in February 1991 the
owner still did not attempt to arrange appointments for repairs any
time before the Administrator's order was issued.
Accordingly, the Commissioner finds that the owner has not
established that the tenants have unreasonably refused access; that
the Administrator properly based his determination on the entire
record, including the April 11, 1991 physical inspection; and that
ADM. REVIEW DOCKET NO.: FE 110390 RO
pursuant to Section 2523.4(a) of the Code, a rent reduction is
warranted based on the finding that the owner has failed to
maintain required services.
This Order and Opinion is issued without prejudice to the
owner's rights as they may pertain to a de novo application to the
Division for a restoration of rent based upon the restoration of
services.
THEREFORE, in accordance with the Rent Stabilization Law and
Code, it is
ORDERED, that this petition be, and the same hereby is,
denied, and that the Administrator's order be, and the same hereby
is, affirmed.
ISSUED:
JOSEPH A. D'AGOSTA
Acting Deputy Commissioner
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