FH 410365 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.: FH 410365 RO
GREG SCHUBERT/ DISTRICT RENT ADMINISTRATOR'S
SOLIL MGMT. CORP., DOCKET NO.: EK 410371-S
SUBJECT PREMISES:
106 East 81st Street, Apt. No.4D
PETITIONER New York, NY 10028
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ORDER AND OPINION GRANTING PETITION FOR ADMINISTRATIVE REVIEW
AND REVOKING ADMINISTRATOR'S ORDER
The above-named owner filed a timely Petition for Administrative
Review of an order issued on June 24, 1991, concerning the housing
accommodations relating to the above-described docket number.
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 on November 13, 1990 by
filing a complaint asserting that the tenant moved in the
apartment on April 1, 1989 and now has a current lease; that at
the time, the rental agent and building superintendent verbally
told her that her apartment is rented with a "supposedly working
fireplace"; and that in fact, the fireplace does not work and is
merely decorative.
In his answer filed on December 18, 1990, the owner asserted that
the fireplace in Apartment #4D is merely decorative; that the
tenant knew that the owner is not responsible for the fireplace
when she signed the lease.
The tenant was informed on April 24, 1991 of the owner's answer
and was requested to verify from other parties that the fireplace
works and that other apartments in the building have working
fireplaces.
In her response dated April 29, 1991, the tenant submitted an
unsworn statement from a tenant of Apartment #3B, alleging that
when she moved in, the fireplace in Apartment #3B works as
promised.
On May 10, 1991, the owner was informed of the tenant's response
and was requested to answer same.
In his answer filed on May 28, 1991, the owner reiterated that a
functioning fireplace was never a part of the lease of the tenant
of Apartment #4D; that the "D" line, wherein the tenant's
Apartment #4D belongs, never had working fireplaces; that he did
suggest to the tenant to request another apartment with a working
FH 410365 RO
fireplace because the New York City Fire Department ordered the
fireplaces at the "D" line closed-off; that the statement of the
tenant of Apartment #3B shows that the "D" line had no functioning
fireplaces because the tenant of Apartment #3B used to live in
Apartment #1-D and upon her request was transferred out of the "D"
line of apartments.
The owner also submitted a notarized statement from his building
superintendent who denied the tenant's allegations and otherwise
asserted that it is his standard practice to tell all tenants and
prospective tenants to the "D" line of apartments that the
"apartment fireplaces do not work as they are bricked-up at the
roof and sealed off."
Based on the determination that the fireplace is a base date
service that was discontinued by the owner, the Administrator
directed restoration of this service and reduction of the
stabilized rent.
In this petition, the owner contends in substance that the
fireplaces in Apartment #4D and the entire "D" line of apartments
have always been ornamental and never usable as fireplaces since
prior to the stabilization base date of May 31, 1968; that a rent
controlled tenant of Apartment #5D since April 24, 1968 signed an
affidavit to that effect; that the same applies to Apartment #4D,
which was continuously occupied by a rent-controlled tenant from
October 1, 1940 through March 31, 1989 and which was rented to the
complaining tenant on April 1, 1989 to date; and that the tenant
waited almost two years to file a decreased services complaint
about a non-functioning fireplace after she acknowledged that the
fireplace was merely decorative in her vacancy lease.
In reply, the tenant alleges that before signing the lease, she
was verbally promised a working fireplace by the rental agent.
After careful consideration, the Commissioner is of the opinion
that this petition should be granted and the Administrator's order
revoked.
The record shows that the subject apartment was continuously
occupied by a rent-controlled tenant from October 1, 1940 through
March 31, 1989 and that the complaining tenant took over from
April 1, 1989 to date. A rent-controlled tenant of Apartment #5D
since April 24, 1968 signed an affidavit stating that the
fireplace in her apartment had never been usable since her
occupancy. Also, a tenant of Apartment #3B used to live in
Apartment #1D, which has no working fireplace; and upon her
request for a functioning fireplace, she was transferred out
FH 410365 RO
of the "D" line of apartments. Accordingly, the Commissioner
finds that the fireplaces in Apartment #4D and the "D" line of
apartments have been merely decorative and never usable as
fireplaces since prior to the stabilization base date of May 31,
1968.
The tenant's allegation that she was verbally promised by the
rental agent a working fireplace is without merit. The tenant
signed a lease acknowledging that the fireplace is not guaranteed
to work as such. In addition, the tenant took almost two years to
file a decreased services complaint after signing the vacancy
lease containing the same provision about the fireplace.
THEREFORE, in accordance with the Rent Stabilization Law and Code,
it is
ORDERED, that this petition be, and the same hereby is, granted,
and that the Administrator's order be, and the same hereby is,
revoked.
ISSUED:
JOSEPH A. D'AGOSTA
Deputy Commissioner
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