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

          ------------------------------------X                              
          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      : 
          ------------------------------------X                             

            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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