GG210004RO



                                  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.: GG210004RO


                  Rage Realty, Inc.,

                                                       RENT ADMINISTRATOR'S
                                                       DOCKET NO.: FC210035S

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



          ORDER AND OPINION GRANTING PETITION FOR ADMINISTRATIVE REVIEW IN 
          PART 

               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.












          GG210004RO




          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 
          rent reduction.
              
          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 
          windows.

               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  








          GG210004RO

          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 
          some items.

          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 
          room walls.
             
          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 












          GG210004RO

          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..


          ISSUED:                           







                                                   _______________________
                                                     JOSEPH A. D'AGOSTA
                                                     Deputy Commissioner

















    

TenantNet Home | TenantNet Forum | New York Tenant Information
DHCR Information | DHCR Decisions | Housing Court Decisions | New York Rent Laws
Disclaimer | Privacy Policy | Contact Us

Subscribe to our Mailing List!
Your Email      Full Name