GD 210212 RO
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 ADMINISTRATIVE REVIEW
APPEAL OF DOCKET NO.: GD 210212 RO
275 KING OCEAN CORP. RENT
ADMINISTRATOR'S DOCKET
NO.: FC 210640 S
PETITIONER
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ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW
On April 13, 1992 the above named petitioner-owner filed a
Petition for Administrative Review against an order of the Rent
Administrator issued March 19, 1992. The order concerned housing
accommodations known as Apt 5 located at 275 Ocean Ave., Brooklyn,
N.Y. The Administrator ordered a rent reduction for failure to
maintain required services.
The Commissioner has reviewed the record and carefully
considered that portion relevant to the issues raised by this
appeal.
The tenant commenced this proceeding on March 15, 1991 by
filing a Statement of Complaint of Decrease in Services wherein she
alleged the following services deficiencies:
1. Peeling paint and plaster in kitchen,
2. Refrigerator not working properly and smelling of
gas,
3. Plaster falling from hallway wall,
4. Hole in bathroom floor,
5. Missing bathroom tiles,
6. Sink falling out of bathroom wall and leaking
badly,
7. Falling plaster from bedroom wall,
8. Exposed electrical wires,
GD 210212 RO
9. Apartment and closet doors missing.
The owner was served with a copy of the complaint and afforded
an opportunity to respond. The owner filed a response on April 8,
1991 and stated that the tenant owes several months arrears in
rent, that the owner has had dealings with the New York State
Department of Social Services regarding these rent arrears, that
the owner has attempted to evict the tenant for nonpayment of rent
and that the tenant had not previously complained about the
services deficiencies until the owner had attempted to evict her.
The Administrator ordered a physical inspection of the subject
apartment. The inspection was conducted on February 25, 1992 and
revealed the following:
1. Refrigerator fresh food compartment temperature
measured to be 42 degrees,
2. Refrigerator frozen food compartment temperature
measured to be 20 degrees.
The following services were found to have been maintained:
1. No evidence of peeling paint and plaster in
kitchen,
2. Refrigerator light, gaskets, shelves, vegetable bin
and door adequate,
3. No evidence of peeling paint and plaster in
hallway,
4. Bathroom sink adequately fastened,
5. Sink plumbing adequate,
6. No evidence of peeling paint and plaster in
bedroom,
7. Bedroom wiring adequate,
8. Room doors are provided and are adequate.
The inspector reported that the tenant had stated that the
refrigerator was her property but that she desired that the owner
supply her with one.
The Administrator issued the order here under review on March
19, 1992 and ordered a rent reduction of an amount equal to the
most recent guideline adjustment based on the report of the DHCR
inspector.
GD 210212 RO
On appeal the owner states that the refrigerator is the
property of the tenant, that the owner has not given consent for
the tenant to use the refrigerator and the refrigerator is no
longer a service the owner is required to maintain.
The tenant filed a response to the petition on May 11, 1992
and stated that she had asked the owner to supply her with a new
refrigerator but that the owner had failed to do so and that she
was therefore required to purchase a refrigerator on her own.
After careful review of the evidence in the record, the
Commissioner is of the opinion that the petition should be denied.
The relevant inquiry before the Commissioner in deciding this
administrative appeal is whether the Administrator was correct in
issuing the order here under review based on the record at the time
of issuance. The Commissioner finds that the Administrator was
correct. The 1984 apartment registration statement lists a
refrigerator among the equipment provided to the subject apartment
and the owner has not denied that this is a service it provides.
While the owner is not expected to repair the tenant's equipment,
it is required to continue to provide a working refrigerator.
Since the Division's inspection reported that the refrigerator in
the tenant's apartment is defective, the rent reduction ordered by
the Administrator is warranted. The owner may comply with the
directive to restore by providing the tenant with a functioning
unit. The Commissioner further notes that the owner did not raise
the issue of who owns the refrigerator before the Administrator.
Pursuant to Section 2529.6 of the Rent Stabilization Code, the
scope of review in administrative appeals is limited to a review of
facts or evidence presented before the Administrator, unless it can
be shown that those facts or evidence could not have been so
presented. It is apparent that the refrigerator is a service the
owner is required to maintain regardless of who owns the unit
presently in the apartment.
Pursuant to 9 NYCRR 2523.4 a tenant may apply to the DHCR for
a rent reduction and the Administrator is required to reduce the
rent upon a finding that required services are not being
maintained. Required services are defined by 9 NYCRR 2520.6 (r) to
include that space and those services which the owner was
maintaining or was required to maintain on the applicable base
date. The Commissioner finds that the Administrator relied on the
entire record including the results of the on-site physical
inspection conducted on February 25, 1992. The order here under
review is affirmed.
The Commissioner notes that the owner has filed for rent
restoration and that this application is currently pending before
the agency (see Docket No. GD 210187 OR).
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THEREFORE, pursuant to the Rent Stabilization Law and Code it
is
ORDERED, that this petition be, and the same hereby is,
denied, and that the Rent Administrator's order be, and the same
hereby is, affirmed.
ISSUED:
JOSEPH A. D'AGOSTA
Acting Deputy Commissioner
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