STATE OF NEW YORK
DIVISION OF HOUSING AND COMMUNITY RENEWAL
OFFICE OF RENT ADMINISTRATION
92-31 UNION HALL STREET
JAMAICA, NY 11433
IN THE MATTER OF THE ADMINISTRATIVE ADMINISTRATIVE REVIEW
APPEAL OF DOCKET NO.: IB210051RO
161 President Associates,
DOCKET NO.: FI210141OR
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
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
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
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
repairs were completed. The owner also suggests that there was
"misconduct by tenant or DHCR inspector [that] should be
After careful consideration, the Commissioner is of the opinion
that the petition should be granted, in part, as more fully set
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
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,
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.
JOSEPH A. D'AGOSTA