ADM. APPEAL DOCKET NOS. DD 110086 - RO & FH 110330 - 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 :
APPEALS OF ADMINISTRATIVE APPEAL
DOCKET NOS.:
DD 110086 - RO
FH 110330 - RO
:
D.R.O. DOCKET NOS.:
CK 110330 - S
FA 110172 - OR
SHALIMAR LEASING COMPANY
PETITIONER :
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ORDER AND OPINION GRANTING PETITION FOR ADMINISTRATIVE REVIEW
(DD 110086 RO) AND TERMINATING PETITION FOR
ADMINISTRATIVE REVIEW (FH 110330 RO)
On April 11, 1989, the above-named petitioner-owner filed a
petition for administrative review (PAR) (DD 110086 RO) of an order
(CK 110330-S) issued on March 21, 1989 by the Rent Administrator
concerning the housing accommodation known as Apartment 8-A, 98-23
Horace Harding Expressway, Rego Park, New York, wherein the
Administrator ordered a rent reduction based on a finding that the
owner was not maintaining required services.
On January 3, 1992, the Commissioner issued an order and
opinion granting the owner's petition and revoking the rent
reduction.
The owner had also filed on August 21, 1991 a petition for
administrative review (FH 110330 RO) of an order (FA 110172 OR)
issued on July 17, 1991 denying the owner's rent restoration
application. On February 19, 1992, the Commissioner issued an
order and opinion denying the petition and affirming the
Administrator's order.
ADM. APPEAL DOCKET NOS. DD 110086 - RO & FH 110330 - RO
By letter dated May 13, 1992, the subject tenant requested
reopening and reconsideration of the above referenced
administrative review proceedings on the ground that they were
contradictory.
On July 3, 1992, the Commissioner issued an order granting the
tenant's request for reconsideration and reopening administrative
review orders and opinions DD 110086 RO and FH 110330 RO.
The Commissioner has again reviewed all the evidence in all
the records involved herein and has carefully reconsidered those
portions relevant to the issues raised in the appeals.
This proceeding was commenced on November 15, 1988 when the
tenant filed a complaint in which she alleged in pertinent part:
"3. I have requested for painting work to be done
which I am entitled to every two years. For
my efforts, I was given the run around by the
super and the rental office as to how I was
to go about scheduling for such work (I want
the work done due to the fact that there was
slight water damage done from the 9th floor in
April of this year."
The tenant submitted with the complaint a copy of her renewal
lease for the two year term commencing December 1, 1986. The lease
makes no reference to painting service.
In answer to the complaint, the owner stated that the
apartment was last painted on March 28, 1986 and the tenant is not
entitled to have it painted again until three years from that date,
i.e. in March 1989.
The DHCR inspector who inspected the apartment on March 14,
1989 reported that it was in need of painting. All other
conditions that the tenant had complained of, including the air
conditioner, windows, toilet, bathroom sink leak, and infestation,
were found to have been corrected.
Based on the inspector's report, the Administrator issued an
order on March 21, 1989 reducing the rent to the level in effect
prior to the most recent guidelines adjustment, citing "Apartment
is in need of painting." as the basis for the finding that the
owner has failed to maintain required services.
In the petition for administrative review of that order, the
owner again asserts that the apartment was not due for painting
ADM. APPEAL DOCKET NOS. DD 110086 - RO & FH 110330 - RO
until March 1989 and that letters were sent to the tenant on March
24 and 27, 1989 to schedule the painting but access had not yet
been obtained. Copies of said letters were enclosed with the
petition.
In answer to the petition, the tenant denied that the owner
had made several attempts to contact her. She claimed that she did
not want the painting done until other repairs are taken care of
first and she enclosed copies of letters sent to the owner
confirming her position. The other repairs she wanted done
included a broken clothes rack, defective screens, testing of a
newly installed air conditioner, and repairs to leak-damaged floor
tiles and woodwork near the entrance door.
The Commissioner granted the owner's petition on January 3,
1992 and revoked the rent reduction, stating that there was no
evidence in the record that leak damage to walls and ceilings is an
issue in the proceeding, that the other items of repair did not
affect the appearance of the walls and ceilings in the apartment,
and that there was no basis to order painting sooner than three
years.
The owner had filed four rent restoration applications. The
first three were denied when physical inspections revealed water
stains. The fourth application was withdrawn after the rent
reduction was revoked. The owner had filed a petition for
administrative review of the order denying the third application
and that petition was denied on February 19, 1992 on the ground
that the evidence of record supported the Administrator's finding
that the repairs had not been done in a workmanlike manner.
After careful reconsideration of the two administrative review
proceedings, the Commissioner is of the opinion that the owner's
PAR of the rent reduction order was properly granted and that the
PAR of the denial of the rent restoration application should have
been terminated as moot.
A careful reading and reasonable interpretation of the
tenant's complaint reveals that the tenant was seeking to have her
apartment painted in the mistaken belief that she was entitled to
this service every two years. She does parenthetically refer to
"slight water damage" but in no way suggests that there is a
recurring leak that the owner should investigate and repair. The
tenant has never denied, throughout this protracted and actively
contested proceedings, that the apartment was painted in March 1986
which would make it not due for painting until March 1989. The
inspector's visit in March 1989 wherein the apartment was found to
be in need of painting cannot possibly sustain a finding that the
owner had failed to provide a service that had only just become
due. It is noted that the inspector did not report any leak
ADM. APPEAL DOCKET NOS. DD 110086 - RO & FH 110330 - RO
damaged or water stained walls and ceilings at that time.
The other repairs that the tenant sought prior to painting did
not mention a recurring leak and were not preconditions to an
effective paint job, other than the tenant's apparent concern that
having this other work done would mar newly painted walls.
It was clearly error then for the Administrator to order a
rent reduction for the apartment being in need of painting.
The subsequent Commissioner's order denying the owner's PAR
against the denial of the rent restoration order was an error.
That PAR should have been terminated as moot because restoration of
the rent had resulted when the rent reduction was revoked.
The three rent restoration applications were denied when
physical inspections revealed water-stained walls and ceilings.
Since the owner is now on notice of a subsequently developed leak
condition in the subject apartment, it is directed to make the
necessary repairs within 30 days of the issuance of this order and
if the owner fails to do so, the tenant is advised to contact the
Compliance Unit of this agency.
THEREFORE, in accordance with the provisions of the Rent
Stabilization Law and Code, it is
ORDERED, that the petition under Docket NO. DD 110086 RO be,
and the same hereby is, granted, and the Administrator's order be,
and the same hereby is, revoked and it is further
ORDERED, that the petition under Docket No. FH 110330 RO be,
and the same hereby is, terminated.
ISSUED:
JOSEPH A. D'AGOSTA
Acting Deputy Commissioner
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