STATE OF NEW YORK
DIVISION OF HOUSING AND COMMUNITY RENEWAL
OFFICE OF RENT ADMINISTRATION
GERTZ PLAZA
92-31 UNION HALL STREET
JAMAICA, NY 11433
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IN THE MATTER OF THE ADMINISTRATIVE ADMINISTRATIVE REVIEW
APPEAL OF DOCKET NO.: FK110118RO
Wiener Property Co.,
RENT ADMINISTRATOR'S
DOCKET NO.: EB110262S
PETITIONER
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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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