IB210051RO
                                  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.: IB210051RO

               161 President Associates,
                                                       RENT ADMINISTRATOR'S
                                                       DOCKET NO.: FI210141OR
                                   PETITIONER
          ------------------------------------x

                    ORDER AND OPINION GRANTING, IN PART, PETITION
                              FOR ADMINISTRATIVE REVIEW

          The above-named owner filed a timely petition for administrative 
          review of an order issued concerning the housing accommodations 
          known as 161 President Street, Apartment 6 (3R), Brooklyn, 
          New York, wherein the Rent Administrator determined the owner's 
          application to restore rent previously reduced per Docket No. 
          AF210183S on January 29, 1987.

          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 Rent Administrator had reduced the tenant's rent based on 
          findings that the apartment required extermination for rodent 
          infestation, repair of a cracked kitchen window pane, and 
          plastering and painting throughout the apartment.  In pertinent 
          part, the inspection report cited cracked plaster on the walls and 
          ceilings of the front room and the small bedroom and on the kitchen 
          wall above the radiator, as well as hairline cracks on the living 
          room walls and on the front room walls and ceilings. 

          Previous rent restoration applications per DC210107OR and 
          EE210216OR were denied for reasons more fully set forth below.  
          There is no record that either the tenant or the owner sought 
          administrative review of either order.

          In the previous rent restoration proceeding per DC210107OR, the 
          Rent Administrator denied the owner's rent restoration application 
          based on the results of an inspection conducted on October 11, 
          1989, finding that, while the apartment had been plastered and 
          painted, the front room ceiling and walls, the living room walls 
          had hairline cracks, the walls and ceiling of the small bedroom and 












          IB210051RO

          the kitchen wall above the radiator had cracked plaster.  No other 
          defects were noted.

          In a subsequent rent restoration proceeding per EE210216OR the Rent 
          Administrator again denied rent restoration finding that the 
          apartment had not been painted in a workmanlike manner based on the 
          results of an inspection conducted on December 12, 1990.  The 
          inspector reported the plaster crack defects found in the areas 
          noted on the October 11, 1989 inspection report, as well as rough 
          plaster patches on the living room wall and crack lines on the 
          "dressing room" ceiling and walls.

          The owner commenced the proceeding herein under review (FL210141OR) 
          in December 1991 stating the owner had restored the service for 
          which a rent reduction order was issued under Docket No. AF210183S, 
          except as to the parts of the apartment for which the tenant had 
          refused access for repainting, including wood trim at various 
          locations and two rooms, identified as a small room to the north of 
          the paint room "and a large room with the exposed brick wall."  In 
          support, the owner submitted the notarized affidavit of its 
          painting contractor detailing the work done, the procedures 
          followed, as well as various conversations and transactions 
          occurring among the various parties, including the contractor, 
          during the period repairs were undertaken.

          The tenant responded that in fact, the owner was provided access to 
          all areas of the apartment, albeit pursuant to a schedule 
          negotiated between them.  The tenant also claims that the paint 
          contractor's notarized affidavit is a forgery and alleges that the 
          painters had informed her that the affidavit the owner submitted 
          was not the affidavit signed.  She confirmed that she refused to 
          sign any statement regarding the work done.  In addition, the 
          tenant's answer details in several pages, her dissatisfaction with 
          the work completed.

          Thereafter, the DHCR conducted an inspection of the subject
          apartment.  The inspector reported cracks in the bedroom ceiling 
          walls, on the kitchen walls, on the foyer ceiling, on the dressing 
          room wall over the closet door, on the second bedroom walls and 
          ceiling, and on the living room ceiling.  The kitchen wall next to 
          the radiator and the living room ceiling were also reported to be 
          bulging.

          Based on a finding that the inspection had disclosed that not all 
          of the conditions that gave rise to the rent reduction had been 
          corrected, the Rent Administrator denied the owner's rent 
          restoration application.

          In the petition for administrative review, the owner reasserts that 
          the tenant refused access to certain rooms and areas and argues 
          that the inspection was not valid in that one should expect some 
          cracks to reappear in an old building more than a year after 






          IB210051RO

          repairs were completed.  The owner also suggests that there was 
          "misconduct by tenant or DHCR inspector [that] should  be 
          investigated."

          After careful consideration, the Commissioner is of the opinion 
          that the petition should be granted, in part, as more fully set 
          forth below.

          It is noted that a defective condition is not considered to be 
          fully corrected unless the repairs are completed in a workmanlike 
          manner and the obligation to do so is the owner's responsibility, 
          not the tenant's.

          Notwithstanding the owner's efforts to repair and the expense 
          incurred, certain defective conditions cited in the rent reduction 
          order remained or had recurred and have been cited as of the time 
          Rent Administrator issued the underlying rent reduction order in 
          1987 until the present.  These include a cracked wall over the 
          radiator, and cracks in the bedroom walls and ceilings, herein 
          denominated as the second bedroom.  

          None of the owner's assertions on appeal, i.e., as to partial lack 
          of access to other areas in the apartment, the suggestion of 
          misconduct, or that certain conditions are normal in an old 
          building, explain why these conditions remained uncorrected. If 
          repairs had been completed properly, these conditions would not 
          have remained or recurred.  To the extent that the Rent 
          Administrator denied the owner's rent restoration based on these 
          conditions, the Rent Administrator's order per FL210141OR is 
          correct and should be affirmed.

          However, some of the conditions reported below are not proper 
          grounds for denying rent restoration.  The prior determination per 
          DC210107OR issued on October 27, 1989, did not cite cracks in the 
          main bedroom end wall, the kitchen wall over the sink, in the entry 
          foyer or in the dressing room.  There is no record that the tenant 
          sought administrative review of the order to dispute and challenge 
          the Rent Administrator's findings as to the conditions in the 
          apartment other than those found by the DHCR inspector.

          These remaining conditions, which were not reported in these 
          intervening rent restoration proceedings but reported in the 
          proceedings herein must be deemed to be of more recent origin, and 
          therefore cannot be considered to relate to the conditions found in 
          the rent reduction proceedings.  Consequently, they should not have 
          been considered in processing the owner's rent restoration application.
          The owner's bare suspicion of misconduct by the DHCR inspector is 
          rejected as being without merit.  The owner fails to set forth the 
          nature of the alleged misconduct or to point to any evidence in 
          support thereof.  Moreover, with respect to the DHCR inspection, as 
          a rent agency employee, the inspector was not a party to the 
          proceedings, and was not an adversary to either the owner or the 












          IB210051RO

          tenant.  The inspector's impartial observations were properly 
          placed in the record for the Rent Administrator's consideration, 
          and were entitled to, and afforded, substantial weight.

          THEREFORE, in accordance with the Rent Stabilization Law and Code, 
          it is

          ORDERED, that the owner's petition be and the same hereby is 
          granted, in part, and that the Rent Administrator's order be and 
          the same hereby is amended to delete cracks on the main bedroom end 
          wall, on the kitchen wall over the sink, entry foyer ceiling and 
          the dressing room wall, as grounds for denying rent restoration.  
          In all other respects, the Rent Administrator's order is affirmed.
            


          ISSUED:




                                                                     
                                             JOSEPH A. D'AGOSTA
                                             Deputy Commissioner  
    

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