ADM. REVIEW DOCKET NO.: FK 410327 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.:
FK410327RO
:
RENT ADMINISTRATOR'S
DOCKET NO.:
EL410487S
STEVEN ELGHANAYAN, SHIRLEY
ELGHANAYAN-KRAYEM AND ISAAC HAKIM
PREMISES: Apt. 14F,
279 East 44th Street,
PETITIONERS : New York, N.Y.
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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 October 7, 1991,
concerning the housing accommodations relating to the above-
described docket number.
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 tenant commenced this proceeding on December 26, 1990 by
filing a complaint asserting that the owner had failed to maintain
numerous services in the subject apartment, namely:
(1) The owner reduced personnel, causing delays
in repairs and a dirty building;
(2) There is roach and mice infestation; and
(3) The pipes must be old and rusty because two
or three times a week there is black dirty water
in the bathroom.
In an answer filed on January 24, 1991, the owner denied the
allegations as set forth in the tenant's complaint. The owner
submitted a copy of a superintendent's statement that "no change in
staffing has taken place"; a copy of an affidavit from the
exterminating contractor stating that regular services are being
ADM. REVIEW DOCKET NO.: FK 410327 RO
rendered to the building every week but the tenant has never signed
up for service; and a December 21, 1988 letter from the plumbing
company alleging "no signs of dirty water".
Thereafter, a physical inspection of the subject apartment was
conducted on September 9, 1991 by a Division staff member who
reported "evidence of roach and mice infestation in kitchen sink
cabinet" and "evidence of light dark dirty water in bathroom, water
not rusty but dirty."
Based on this inspection, the Administrator directed the
restoration of services and further ordered a reduction of the
stabilized rent.
In this petition, the owner contends in substance that the
tenant has either been out or has denied access to the exterminator
who comes to the building every Thursday. The owner submitted
copies of the same statements submitted below from the
superintendent and the exterminating people indicating that weekly
exterminating services are provided.
The owner further contends in the petition that on October 22,
1991, the water tower servicing the entire building was cleaned;
that "the water was tested and found to be fine"; and that "any
dirt in the system had to be from the city water supply." The
owner also notes that in another proceeding commenced by the tenant
(Docket No. DJ 420323-S), a physical inspection on November 30,
1990 revealed "No evidence of dirty rusty water in kitchen and
bathroom at time of inspection."
In answer, the tenant asserts in relevant part that
exterminating services were not available for about six weeks, that
the tenant chose to treat the problem herself when she found the
owner's exterminating services ineffective, that the dirty water
problem has existed for over a year and remains uncorrected, and
that the cleaning of the water tower occurred after the
Administrator's order was issued and did not address the condition
within her apartment.
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,
for the period for which it is found that the owner has failed to
maintain required services. Required services are defined by
Section 2520.6(r) as all services provided on the base date or
thereafter including repairs and maintenance.
When a complaint alleges an infestation condition, it is not
sufficient for an owner to establish that regular exterminator
ADM. REVIEW DOCKET NO.: FK 410327 RO
services are provided in order to avoid a rent reduction. The
availability of exterminator services is not determinative of
whether there is a failure to provide required services. A tenant
may take advantage of the exterminator services on a regular basis
and still have an infestation problem because the services are
ineffective. Or a tenant may have valid reasons for not signing up
for the service.
As with any other allegation of failure to repair, the owner
must investigate the specific condition described in the complaint
and take whatever steps are necessary to correct the defect. With
an infestation problem, the owner must, as an initial step, make
special appointments for the exterminator to treat the condition in
the subject apartment.
In the instant case, the owner merely established that
regularly scheduled services are provided and that the tenant does
not sign up for this service. The owner does not even allege that
appointments were made for the exterminator to go to the tenant's
apartment after the complaint was served on the owner. The
purported denial of access is therefore without merit.
With regard to the dirty water condition, the owner has also
not established that the condition within the tenant's apartment,
as complained of by the tenant and confirmed by the inspector, was
investigated and cured. The November 30, 1990 inspection referred
to by the owner pre-dates the complaint and is, therefore,
irrelevant. Similarly, the repairs to the water tower postdate the
issuance of the Rent Administrator's order and are also irrelevant
to whether the order was correct when issued. In any event, these
repairs address the condition of the water supply for the entire
building and not the condition within the tenant's apartment which
may be unique to that apartment.
Accordingly, the Commissioner finds that the Administrator
properly based his determination on the entire record, including
the September 9, 1991 physical inspection; and that 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 an 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,
ADM. REVIEW DOCKET NO.: FK 410327 RO
denied, and that the Administrator's order be, and the same hereby
is, affirmed.
ISSUED:
JOSEPH A. D'AGOSTA
Deputy Commissioner
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