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
          IN THE MATTER OF THE ADMINISTRATIVE          ADMINISTRATIVE REVIEW
          APPEAL OF                                    DOCKET NO.: FK110118RO


                 Wiener Property Co.,

                                                       RENT ADMINISTRATOR'S
                                                       DOCKET NO.: EB110262S

                                   PETITIONER
          ------------------------------------x



          ORDER AND OPINION GRANTING PETITION FOR ADMINISTRATIVE REVIEW IN 
          PART, AND MODIFYING RENT ADMINISTRATOR'S ORDER

              On November 19, 1991, the above-name petitioner-owner filed a 
          petition for administrative review (PAR) of an order issued on 
          October 16, 1991, by the Rent Administrator, concerning the housing 
          accommodation known as 40-05 Ithaca Street, Elmhurst, N.Y., Apt.2- 
          E, wherein the Administrator determined that the rent for the 
          subject apartment should be reduced to the level in effect prior to 
          the last rent guideline increase, which commenced before the 
          effective date of the order based upon a showing that the 
          refrigerator was in a state of disrepair. The Rent Administrator's 
          determination was based on an inspection held on May 30, 1991. All 
          of the other complained-of conditions were found to have been 
          maintained. The Rent Administrator also directed restoration of all 
          services.

               The Commissioner has reviewed all of the evidence in the record and 
          has carefully considered that portion of the record relevant to the 
          issue raised by the administrative appeal.
             
               The issue herein is whether the Rent Administrator properly reduced 
          the rent of the subject apartment.















          FK110118RO



          The tenant filed a complaint on April 5, 1990, alleging that the 
          faucets in the bathroom and kitchen are defective, that the 
          electrical outlets throughout the apartment are bad and once caused 
          the refrigerator to go off, and that the refrigerator is rusty 
          inside and must be leaking.

          In answer to the complaint, the owner submitted a statement signed 
          by the tenant that "The owner has complied by repairing the items 
          listed in my complaint."

          A physical inspection by the DHCR on May 30, 1991 revealed several 
          defects in the refrigerator including rust under the freezer 
          compartment, a worn out gasket, an accumulation of ice in the 
          freezer compartment, and a broken left side edge.  All other 
          conditions cited in the complaint were found to have been repaired.
               
          The results of the inspection were served on the owner and in 
          response, the owner advised that the tenant had been provided with 
          a replacement refrigerator.

          In reply, the tenant advised that she does not have a new or 
          replacement refrigerator because the one the owner gave her was 
          unacceptable.

          The Administrator's order cited as the basis for the rent reduction 
          refrigerator food temperature; freezer temperature; and 
          refrigerator light, gaskets, and shelves.

          On appeal,the petitioner-owner asserted, that the tenant did not 
          complain about the refrigerator in her original complaint but that 
          it had defrosted because of an electrical problem, that the owner 
          replaced the refrigerator after the inspection but the tenant 
          rejected the replacement and said she only wanted a new 
          refrigerator, and that the rent reduction order cites conditions 
          not reported by the inspector.

              The petition was served on the tenant on December 16, 1991 and the 
          tenant answered the petition alleging that the three different 
          replacement refrigerators offered by the owner were either 
          defective or otherwise unacceptable.

               After a careful consideration of the entire evidence of the record 
          the Commissioner is of the opinion that the administrative appeal 
          should be granted in part.






               Pursuant to Section 2523.4 (a) of the Rent Stabilization Code, a 






          FK110118RO

          tenant may apply to the DHCR for a reduction of the legal regulated 
          rent to the level in effect prior to the most recent guidelines 
          adjustment, and the DHCR shall so reduce the rent for the period 
          for which it is found that the owner has failed to maintain 
          required services.

               Required services are defined in Section 2520.6 (r) to include 
          repairs and maintenance.

          Concerning the owner's argument on appeal that the tenant did not 
          complain about the refrigerator, the Commissioner finds that the 
          statement in the complaint that the refrigerator was rusty and must 
          be leaking sufficiently put the owner on notice that this appliance 
          was defective.  Even if the subject of the complaint was ambiguous, 
          the notice of inspection results clearly described various defects 
          in the refrigerator which made it clear to the owner that a 
          replacement was required.

          It is undisputed that the owner did replace the refrigerator and so 
          notified the Rent Administrator on July 25, 1991.  The tenant's 
          response describing the inadequacies of the replacement was 
          received by the Division on August 25, 1991 but was not served on 
          the owner.  The Commissioner is of the opinion that the owner was 
          entitled to notice that his attempt to comply with the directive
          to repair or replace the appliance that the inspector had found to 
          be defective was unsuccessful and that the proceeding before the 
          Division was not being terminated or withdrawn.  The failure to so 
          notify the owner warrants modification of the effective date of the 
          rent reduction to November 1, 1991, the month following issuance of 
          the Administrator's order when the owner had actual notice that the 
          replacement was rejected and the refrigerator was still defective.
                
          The Commissioner also agrees with the petitioner that the order 
          cites defects in the refrigerator that are not alleged in the 
          complaint or reported by the inspector.  The inspector found rust 
          under the freezer compartment, a worn out gasket, an accumulation 
          of ice in the freezer compartment, and a broken left side edge.  
          These, and only these, are the conditions which establish a failure 
          to maintain services for which a rent reduction pursuant to Section 
          2523.4 (a) is warranted and which the owner must repair in order to 
          qualify for restoration of the rent.  The inspector did not report 
          any problem with the refrigerator light, shelves, or temperature of 
          the fresh food or freezer compartments and these items are hereby 
          deleted from the order.





          The Division's records reveal that the owner's rent restoration 
          application was denied on July 12, 1993 (GA110028OR) based on a 
          finding that the conditions cited in the rent reduction order were 












          FK110118RO

          partially restored.  The owner is advised to refile or seek 
          reconsideration of that order because of this modification of the 
          rent reduction order.

          The automatic stay of the retroactive rent abatement that resulted 
          by the filing of this petition is vacated upon issuance of this 
          order and opinion.
                                                                             

          THEREFORE, in accordance with the provisions of the Rent 
          Stabilization Law and Code, it is


          ORDERED, that this petition be, and the same hereby is, granted in 
          part, and that the Administrator's order be, and the same hereby 
          is, modified in accordance with this order and opinion.


          ISSUED:






                                                                          
                                                       JOSEPH A.D'AGOSTA
                                                      Deputy Commissioner  
    

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