STATE OF NEW YORK
DIVISION OF HOUSING AND COMMUNITY RENEWAL
OFFICE OF RENT ADMINISTRATION
92-31 UNION HALL STREET
JAMAICA, NY 11433
IN THE MATTER OF THE ADMINISTRATIVE ADMINISTRATIVE REVIEW
APPEAL OF DOCKET NO.: GG210004RO
Rage Realty, Inc.,
DOCKET NO.: FC210035S
ORDER AND OPINION GRANTING PETITION FOR ADMINISTRATIVE REVIEW IN
On July 1, 1992, the above-named petitioner-owner filed a
petition for administrative review (PAR) of an order issued on May
29, 1992, by the Rent Administrator, concerning the housing accom-
modations known as 140 Fourth Avenue, Brooklyn, N.Y., Apt.4-L,
wherein the Administrator determined that a diminution of service
had occurred and reduced the rent to the level in effect prior to
the last rent guideline increase which commenced before the
effective date of the order. Based on inspections held on June 24,
1991, and March 18, 1992, the rent was reduced because of non-
maintenance of the following services:
1. Living room walls
2. Window sash / frame in bathroom
3. Floor covering in bathroom
4. Floor leveling in kitchen
The Rent Administrator also directed full restoration of 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 record reveals that the tenant filed a complaint on March 4,
1991 listing repairs needed to the kitchen floor, the kitchen
window, the bathroom wall, the bathroom window, the bathroom door,
the bathroom floor, roach and mice infestation, and inadequate
water pressure. The tenant added that she is home during the day
to admit workers for repairs and does not need to leave the key
with the super.
The owner's answer filed on March 14, 1991, alleged in pertinent
part, that some repairs were completed and others not completed
because the tenant was making apartment access difficult.
A "no access" inspection was scheduled for June 24, 1991 at which
both parties were notified to be present. The tenants, the
managing agent, and the window repairman were present. The
inspector confirmed all the conditions cited in the complaint
except for the water pressure which was found to be adequate. A
second inspection on March 18, 1992 revealed that the kitchen
window and the bathroom door had been repaired but the living room
walls, bathroom window, bathroom floor and kitchen floor were
defective, and there was evidence of roach infestation.
Based on the second inspection report, the Administrator ordered a
The issue herein is whether the Rent Administrator properly reduced
the rent of the subject apartment based upon the diminution of
services reported by the inspector.
On appeal, the petitioner-owner alleged, in substance, that the
tenant was making access to her apartment difficult; that all
repairs specified on the complaint were completed to the tenant's
satisfaction, and that the tenant failed to make any complaint
about the condition of the livingroom walls or the bathroom
The petition was served on the tenant on July 7, 1992.
After a careful consideration of the entire evidence of record the
Commissioner is of the opinion that the administrative appeal
should be denied.
The claim of no access was not substantiated with copies of letters
sent to the tenant by regular and certified mail as required by
Policy Statement 90-5. Nevertheless, the owner was afforded the
benefit of a "no access" inspection with the opportunity to have
workers, tools and equipment available at a scheduled time to make
the necessary repairs to the conditions cited in the tenant's
complaint. Although the owner arranged to have a window repair
person present, the bathroom window was apparently not repaired at
that time and there was no one available to address the other
conditions cited in the complaint. The owner had adequate
opportunity to gain access to make repairs and, in fact, did repair
With regard to the owner's claim on appeal that the tenant's
complaint failed to specify deficient living room walls and
bathroom windows a careful review of the complaint shows that the
tenant made specific reference to drafts emanating from the
bathroom window but made no reference to any problems with living
A rent reduction for a condition which was not noted in the
tenant's complaint and where the owner was never put on notice of
the obligation to repair is not warranted. The portion of the
order referring to the living room walls must be revoked.
Pursuant to Section 2523.4 (a) of the Rent Stabilization Code, a
tenant may apply to the Division of Housing and Community Renewal
(DHCR) for a reduction of the legal regulated rent to the level in
effect prior to the most recent guideline 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.
It is apparent that the owner had approximately fourteen months
from the time the complaint was mailed to the owner on March 7,
1991 until the Rent Administrator's order was issued on May 29,
1992 to attend to all the complained-of-conditions, but had failed
to do so, prior to the issuance of the Rent Administrator's order.
The Commissioner finds that pursuant to Section 2523.4 (a) of the
Code, the Administrator was mandated to reduce the rent upon
determining that the owner had failed to maintain services.
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.
This Order and Opinion is issued without prejudice to the owner's
right to file the appropriate application with the Division for a
restoration of rent based upon the restoration of services, if the
facts so warrant.
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, affirmed, as modified herein to delete the living room walls as
a service not being maintained..
JOSEPH A. D'AGOSTA