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






     --------------------------------------X
     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                                  
     --------------------------------------X            


      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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