GJ110181RO
                                    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     ADMINISTRATIVE REVIEW
          APPEAL OF                               DOCKET NO.:   
                                                  GJ110181RO  
                   RAINER HARSTRICK,      
                                                  RENT ADMINISTRATOR'S
                                                  DOCKET NO.:
                                   PETITIONER     FK110114S 
          ----------------------------------x



           ORDER AND OPINION GRANTING PETITION FOR ADMINISTRATIVE REVIEW,
                  IN PART AND MODIFYING RENT ADMINISTRATOR'S ORDER
                                          

          The above-named owner filed a timely petition for administrative 
          review (PAR) of an order issued on October 14, 1992 by the Rent 
          Administrator, concerning the housing accommodation known as 85-29 
          114th Street, Apartment 1-B, Queens, New York, wherein the Admin- 
          istrator determined the tenant's complaint of a reduction of 
          various individual apartment services.

          The Commissioner has reviewed all the evidence in the record and 
          has carefully considered that portion of the record relevant to the 
          issues raised by the petition.

          The tenant commenced this proceeding by filing a complaint, 
          assigned Docket No. FK110114S asserting that the owner had failed 
          to maintain certain services in the subject apartment.  A second 
          complaint, initially assigned Docket No. GH110449S was served on 
          the owner, and thereafter consolidated for disposition.  The 
          complete record includes the tenant's submissions through a 
          representative.

          In an answer, the owner denied the allegations set forth in the 
          complaint, or asserted that all required repairs had been or will 
          be completed, that the tenant had not previously brought various 
          conditions to the owner's attention, that the tenant was trouble- 
          some or uncooperative, or that the tenant had made unauthorized 
          alterations to the apartment that violated local ordinances.















          GJ110181RO

          Thereafter, an inspection of the subject apartment, was conducted 
          by a DHCR inspector, who confirmed the existence of the following 
          defective conditions:

               1.   Bedroom bottom window sash was loose.
               2.   Bathroom bottom window sash was loose.
               3.   Caulking had been applied to all windows 
                    throughout the apartment in an unworkmanlike- 
                    manner.
               4.   Kitchen hot water faucet was leaking.
               5.   Kitchen wall tiles (above the sink) were mis- 
                    sing.
               6.   Kitchen hot and cold water valves were mis- 
                    sing.
               7.   There was evidence of exposed wires under- 
                    neath the kitchen sink.
               8.   Bathroom ceiling had not been plastered and 
                    painted.
               9.   Bathroom soap dish was missing.
              10.   Toilet water valve was not working properly.
              11.   Bathroom sink cold water shut-off valve was 
                    inoperative.
              12.   Bathroom wall (above the sink) was bulged and 
                    stained, and that grouting to the bathroom 
                    wall tiles had been applied in an unworkman- 
                    like manner.
              13.   Living room ceiling had been painted in an 
                    unworkmanlike manner.
              14.   Apartment door frame and saddle sticks.


          The Administrator also found that the tenant's complaint of a 
          defective refrigerator did not warrant a rent abatement based on 
          the tenant's application of the self help doctrine.  However, the 
          order provided that the tenant was to present a paid bill for the 
          refrigerator to the owner, who was to reimburse the tenant for the 
          full amount, upon which the refrigerator would become the property 
          of the owner, who thereafter would be responsible for the repairs 
          and maintenance.

          The Rent Administrator directed restoration of these services and 
          further, ordered a reduction of the stabilized rent.

          Complaints of electrical defects and a defective door knobs were 
          not confirmed.






          In the petition for administrative review, the owner elaborates on 






          GJ110181RO

          the contention below that the tenant had refused the owner reason- 
          able access to the apartment.

          The record below reveals that the tenant would allow access grudg- 
          ingly, after extensive communications between the parties, or in 
          connection with judicial or other City and DHCR Administrative 
          proceedings.  However, once the owner obtained access, the repairs 
          that were undertaken were not completed in a workmanlike manner.
          The owner's submission below did not establish the tenant's inter- 
          ference prevented the owner from completing repairs.  The tenant 
          does concede that she refused access thereafter, arguing that it 
          would be futile since the owner failed to complete repairs properly 
          when he was given he opportunity.

          The owner's suggestion that certain of the conditions found were 
          minor and would have been addressed in the normal course of routine 
          periodic maintenance is rejected.  The conditions reported are 
          normally cited by the Administrator as predicate for rent abate- 
          ments when they are confirmed.  Moreover, the Courts have held that 
          once the Administrator determines that a diminution in required 
          services has occurred, rent reductions are mandated.  Hyde Park 
          Gardens v. DHCR, 140 A.D. 2d 351, 527 N.Y.S. 2d 841, Affd. 23 N.Y. 
          2d 998, 541 N.Y.S. 2d 345 (Ct. App. 1989).

          The owner contends for the first time on appeal that the refrig- 
          erator was the owner's property.  The Commissioner notes that the 
          owner failed to refute the tenant's complaint below that the tenant 
          was compelled to purchase the equipment.  The Commissioner finds 
          that the Administrator properly determined that the refrigerator 
          was the tenant's property.  However, that part of the Adminis- 
          trator's order which directed the owner to reimburse the tenant, 
          and thereafter, be responsible for repairs and maintenance is 
          revoked.  There was no basis in the record for the Administrator's 
          directive.  However, the owner has the option of complying with the 
          Administrator's directive, as well as a duty to provide a working 
          refrigerator if one is requested by the tenant.

          The owner may apply to restore rent predicated on a restoration of 
          services, or alternatively upon establishing before the Adminis- 
          trator that the tenant unreasonably refuses to provide the access 
          necessary to correct the conditions cited.  The Commissioner notes 
          that a "no access" inspection, may be conducted if the tenant fails 
          to provide access to correct the conditions cited.  In order to 





          schedule a "no-access" inspection, the owner must comply with the 
          requirements set forth in Policy Statement 90-5 Arranging Repairs
          No Access Inspections.  In pertinent part, the owner must submit 
          proof that the owner was unable to obtain access even though two 












          GJ110181RO

          letters were sent to the tenant attempting to arrange access dates.  
          Each letter must have been sent at least eight days before the 
          proposed date for access, and the second letter must have been sent 
          by certified mail.  If a "no-access" inspection is arranged, the 
          failure of either party to abide with the Administrator's requests, 
          shall be a factor in the Administrator's determination, as the 
          facts may warrant.


          THEREFORE, in accordance with the provisions of the Rent Stabili- 
          zation Law and Code, it is,

          ORDERED, that the owner's petition be, and the same hereby is, 
          granted, in part, to the extent that the Rent Administrator's order 
          is modified to delete that part of the order that directed the 
          owner to reimburse the tenant for the cost of the refrigerator 
          purchased by the tenant, and thereafter be responsible for its 
          repair and maintenance.


          ISSUED:



                                                                         
                                                JOSEPH A. D'AGOSTA
                                                Deputy Commissioner
    

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