DOCKET NO.: GF420212RO
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 : SJR 6693
APPEAL OF ADMINISTRATIVE REVIEW
: DOCKET NO. GF420212RO
VILLAGE RENTING CORPORATION, DISTRICT RENT ADMINISTRATOR'S
: DOCKET NO. GB420071OI
PETITIONER
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ORDER AND OPINION GRANTING PETITION FOR ADMINISTRATIVE REVIEW IN PART
On June 25, 1992, the above-named landlord filed a petition for
administrative review of an order issued on June 5, 1992 by a Rent
Administrator concerning the housing accommodation known as Apartment 3D,
225 West 10th Street, New York, New York.
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 for review.
This proceeding was commenced by the landlord filing an application, dated
February 19, 1992, for a rent increase of $45.83 per month, based on the
landlord painting the subject apartment.
The aforementioned application alleged that the subject apartment was
painted on October 7, 1991 through October 9, 1991; that the total cost of
painting the apartment was $1,650.00; that the landlord stated, "since
painting must be done every three (3) years, Owner is requesting a rent
increase equal to 1/36th of the cost of the painting"; that the subject
tenants had always painted their apartment, and that it is the tenant's
obligation to paint their apartment.
On March 11, 1992 the subject tenants filed an answer which asserted,
among other things, that they have resided in the subject apartment for
forty eight years; that the subject tenants alleged that they had always
painted the subject apartment themselves; and that the tenants asserted
that as the law requires the landlord to paint every three years it is the
landlord's obligation to paint the subject apartment at its own expense.
In the order under review herein, the Administrator stated that:
"Evidence on file indicates that subject apartment is required to be
painted by owner. Therefore, no increase is warranted at this time."
The subject landlord's petition asserts, among other things, that the
subject landlord was not required to paint the subject tenants' apartment;
DOCKET NO.: GF420212RO
that the subject landlord "is entitled to the rent increase set forth in
the Owner's application," and that the landlord asserts that at the
minimum it is entitled to an increase of 10% of the subject apartment's
maximum rent, as it has painted the subject apartment, and that painting
the subject apartment was not an essential service under the rent
regulations, pursuant to Information Sheet No. 2.
On December 7, 1992 the subject tenants filed their answer which assert,
among other things, that the tenants should not have to pay for a service
that the landlord has to provide; that the subject tenants have resided in
the subject apartment since May, 1944; that the tenants allege that one
week after they moved into the subject apartment "a man identifying
himself as a painter" went to the tenants' apartment, and stated that,
"the landlord sent him to find out what colors I wished the rooms
painted"; that the tenants allege that several days later this
aforementioned man painted the subject apartment; that for the next
fifteen to twenty years whenever the subject apartment was painted the
subject tenants did the work; that in the early 1960's the tenants
requested that the subject landlord paint the subject apartment; that
sometime in the early 1960's, as the tenants allege, the landlord painted
the subject apartment; that, subsequently, when the subject apartment was
painted the tenants did the work, up until 1985 - 1986 when it became a
physical hardship for the tenants to paint their apartment.
After careful consideration, the Commissioner is of the opinion that this
petition should be granted in part.
The Commissioner notes that the Administrator of the Office of Rent and
Housing Maintenance - Rent Control Division (the governmental agency which
regulated rent control apartments prior to April 1, 1984), promulgated
guidelines for painting and decorating requirements under the Rent Law in
Information Sheet No. 2 (Revised February 25, 1969 and effective April 1,
1969). Pursuant to the above-mentioned Information Sheet No. 2, a
landlord must continue to provide the same painting and decorating service
as it was required to provide on April 30, 1962. This will not require
the landlord to paint any more frequently than was the custom immediately
prior to March 1, 1943, the Federal maximum rent date, nor will the
landlord in any case be required to paint more frequently than every two
years. While there is a presumption of a two-year painting practice, the
landlord may submit evidence rebutting this presumption.
The Commissioner further notes that where painting is not an essential
service under the Rent Regulations, and the landlord paints for the first
time in order to comply with the requirements of the Housing Maintenance
Code, the painting is considered to be an increase in services under
Section 2202.4 of the City Rent and Eviction Regulations. Upon completion
of the painting the landlord may file an application with the rent agency
for a rent increase, limited to the customary 10% rental value of such
service. Upon the issuance of a rent increase order, the landlord will
then be obligated to paint the apartment at no more than three year
intervals.
In the present case, the Commissioner finds the subject apartment's
registration card does not specify that painting was an essential service
on March 1, 1943.
DOCKET NO.: GF420212RO
The Commissioner further finds that both the subject landlord and the
tenants admit, in the proceeding before the Administrator, that prior to
the landlord painting the subject apartment in 1991 the subject tenants
had always painted the subject apartment.
As to the subject tenants' assertion in their answer to the landlord's
petition, that in 1944, and sometime in the early 1960's, the landlord had
painted the subject apartment, the Commissioner finds that that assertion
is belied by the tenants' answer in the proceeding before the
Administrator that asserted that the tenants had always painted the
subject apartment.
As the subject landlord and tenants both asserted in the proceeding before
the Administrator that the subject tenants had always painted the subject
apartment, and that the subject building's registration card does not
specify that painting was an essential service on March 1, 1943, the
Commissioner find that in this proceeding the subject landlord has
successfully rebutted the presumption of painting as an essential service.
Accordingly, the Commissioner finds that the painting of the subject
apartment is not an essential service under the applicable rent
regulations.
Pursuant to the aforementioned Information Sheet No.2, as the Commissioner
determined that painting the subject apartment is not an essential service
under the applicable rent regulations, the Commissioner finds that the
subject landlord may increase the subject apartment's rent by 10% of the
maximum rent that was in effect on the first rent payment date subsequent
to the issuance of the Administrator's order.
Accordingly, the Commissioner finds that the Administrator's order should
be revoked.
As to the landlord's assertion that it is entitled to 1/36 of the total
cost of painting the subject apartment, the Commissioner finds that there
is no provision in the applicable Rent and Eviction Regulations or in the
aforementioned Information Sheet No. 2 that permits such an increase.
The Commissioner notes that, pursuant to the Housing Maintenance Code of
the City of New York, the subject landlord is required to paint the
subject apartment every three years.
Accordingly, the Commissioner finds that, pursuant to the aforementioned
Information Sheet No. 2, upon the issuance of this order and opinion the
subject landlord will be obligated to paint the subject apartment at no
more than three-year intervals.
THEREFORE, in accordance with the City Rent and Rehabilitation Law and the
Rent and Eviction Regulations, it is
ORDERED, that this landlord's petition be, and the same hereby is, granted
in part, in accordance with this order and opinion, and that the
Administrator's order be, and the same hereby is, revoked, it is
FURTHER ORDERED, that the subject landlord may increase the subject
apartment's rent by 10% of the maximum rent that was in effect on the
DOCKET NO.: GF420212RO
first rent payment date subsequent to the issuance date of the
Administrator's order under review herein, and it is
FURTHER ORDERED, that if the landlord has already complied with the
Administrator's order and there are arrears due to the landlord as a
result of the instant determination, the subject tenants may pay off the
arrears in twelve equal monthly installments beginning with the first rent
payment date after the issuance of this order and opinion. Should the
tenants vacate after the issuance of this order or have already vacated,
said arrears shall be payable immediately.
ISSUED:
JOSEPH D'AGOSTA
Acting Deputy Commissioner
Note: The increase in the subject apartment's maximum rent in this
proceeding was as a result of an increase in services, that is the
landlord painting the subject apartment, pursuant to Section 2202.4 of the
City Rent and Eviction Regulations. As Section 2202.20 of the Rent and
Eviction Regulations state, orders that increase the maximum rent pursuant
to Section 2202.4 of the above-mentioned regulations, are not subject to
the senior citizen rent increase exemption (SCRIE).
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