N.Y. Comp. Codes R. & Regs. tit. 9 § 2523.4

Current through Register Vol. 46, No. 50, December 11, 2024

Section 2523.4 - Failure to maintain services

(a)

(1) A tenant may apply to the DHCR for a reduction of the legal regulated rent to the level in effect prior to the most recent guidelines adjustment, subject to the limitations of subdivisions (c)-(h) of this section, and the DHCR shall so reduce the rent for the period for which it is found that the owner has failed to maintain required services. The order reducing the rent shall further bar the owner from applying for or collecting any further increases in rent that were or are authorized by this Title until such services are restored or no longer required pursuant to an order of the DHCR. If the DHCR further finds that the owner has knowingly filed a false certification, it may, in addition to abating the rent, assess the owner with the reasonable costs of the proceeding, including reasonable attorney's fees, and impose a penalty not in excess of $ 250 for each false certification.

(2) Where an application for a temporary rent adjustment pursuant to a Major Capital Improvement as set forth in section 2522.4(b) of this Title has been granted, and collection of such rent adjustment commenced prior to the effective date of the rent reduction order, the owner will not be permitted to continue to collect the rent adjustment while the rent reduction order is in effect.

(b) Proceedings pending on the effective date of this Code (May 1, 1987) involving tenant complaints of owners' failure to provide hotel services shall be determined in accordance with the RSL and Hotel Industry Code in effect on April 30, 1987.

(c) Except for complaints pertaining to heat and hot water or other conditions requiring emergency repairs, before filing an application for a reduction of the legal regulated rent pursuant to subdivision (a) of this section, a tenant should notify the owner or the owner's agent in writing of all the service problems listed in such application. A copy of the written notice to the owner or agent with proof of mailing or delivery should be attached to the application. Applications should be filed with the DHCR no earlier than 10 days after such notice is given to the owner or agent. Failure to provide such prior written notice will not be grounds for dismissal of the application. Applications based upon a lack of adequate heat or hot water must be accompanied by a report from the appropriate city agency finding such lack of adequate heat or hot water.

(d)

(1) In the event notice of any inspection is given by the DHCR in a proceeding commenced pursuant to this section, the inspection shall be conducted on notice to both the owner and tenant.

(2) Upon receipt of a copy of the tenant's complaint from the DHCR, an owner shall have 20 days in which to respond if the tenant provided DHCR with the proof of the written notice to the owner. If the tenant did not provide proof of written notice to the owner, an owner shall have 60 days in which to respond. If the tenant's complaint indicates that the tenant has been forced to vacate the premises, the owner shall have five days to respond. If the complaint pertains to heat and hot water or to a condition which in DHCR's opinion may require emergency repairs, the owner shall have 20 days to respond. Nothing herein shall preclude DHCR from granting an owner's request for a reasonable extension of time to respond in order to establish that service problems have been repaired. If during this period of time, an owner has attempted, but been unable to obtain access to the subject housing accommodation to correct the service or equipment deficiency, the owner should set forth such facts in the response. Upon receipt thereof, in order to facilitate the resolution of the complaint, the DHCR may direct an inspector to accompany the owner or the owner's agent to the housing accommodation to determine whether such access is being provided. In order for DHCR to coordinate the inspection, the owner should indicate that access has been denied in the response submitted to the DHCR and should include copies of two letters to the tenant attempting to arrange for access. Each of the letters must have been mailed at least eight days prior to the date proposed for access, and must have been mailed by certified mail, return receipt requested. Exceptions to such requirements for inspection may be permitted under emergency conditions, where special circumstances exist, or pursuant to court order. The service complaint, or objection to a rent restoration application, by a tenant who fails to provide access at the time arranged by the DHCR for the inspection will be denied.

(e) Certain conditions complained of as constituting a decrease in a required service may be de minimis in nature, and therefore do not rise to the level of a failure to maintain a required service for the purposes of this section. Such conditions are those that have only a minimal impact on tenants, do not affect the use and enjoyment of the premises, and may exist despite regular maintenance of services.

The following schedule sets forth conditions that will generally not constitute a failure to maintain a required service. However, this schedule is not intended to be exclusive, and is not determinative in all cases and under all circumstances. Therefore, it does not include all conditions that may be considered de minimis, and there may be circumstances where a condition, although included on the schedule, will nevertheless be found to constitute a decrease in a required service.

Schedule of De Minimis Conditions Building-Wide Conditions

1. Air conditioner--failure to provide in lobby, hallways, stairwells, and other non-enclosed public areas.

2. Building entrance door--removal of canopy over unlocked door leading to vestibule; changes in door-locking devices, where security or access is not otherwise compromised.

3. Carpeting--change in color or quality under certain circumstances; isolated stains on otherwise clean carpets; frayed areas which do not create a tripping hazard.

4. Clotheslines--removal of, whether or not dryers are provided.

5. Cracks--sidewalk cracks which do not create a tripping hazard; hairline cracks in walls and ceilings.

6. Decorative amenities--modification (e.g., fountain replaced with rock garden); removal of some or all for aesthetic reasons.

7. Elevator--failure to post elevator inspection certificates; failure to provide or maintain amenities (e.g., ashtray, fan, recorded music).

8. Floors--failure to wax floors; discrete areas in need of cleaning or dusting, where there is evidence that janitorial services are being regularly provided and most areas are clean (see janitorial services, item 12).

9. Garage--any condition that does not interfere with the use of the garage or an assigned parking space (e.g., peeling paint where there is no water leak).

10. Graffiti--minor graffiti inside the building; any graffiti outside the building where the owner submits an affidavit of on-going maintenance indicating a reasonable time period when the specific condition will be next addressed.

11. Landscaping--modification; failure to maintain a particular aspect of landscaping where the grounds are generally maintained.

12. Janitorial services--failure to clean or dust discrete areas, where there is evidence that janitorial services are being regularly provided because most areas are, in fact, clean.

13. Lighting in public areas--missing light bulbs where the lighting is otherwise adequate.

14. Lobby or hallways--discontinuance of fresh cut flowers; removal of fireplace or fireplace andirons; modification of furniture; removal of some furnishings (determined on a case by case basis); removal of decorative mirrors; reduction in lobby space where reasonable access to tenant areas are maintained; elimination of public area door mat; failure to maintain a lobby directory that is not associated with a building intercom; removal or replacement of window coverings (see decorative amenities, item 6).

15. Mail distribution--elimination of door-to-door or other methods of mail distribution where mailboxes are installed in a manner approved by the U.S. Postal Service.

16. Masonry--minor deterioration; failure to point exterior bricks where there is no interior leak damage.

17. Painting--Change in color in public areas under certain circumstances (e.g., not in violation of the New York City housing maintenance code); replacement of wallpaper or stenciling with paint in the public areas; isolated or minor areas where paint or plaster is peeling, or other similarly minor areas requiring repainting, provided there are no active water leaks; any painting condition in basement or cellar areas not usually meant for or used by tenants; any painting condition that is limited to the top-floor bulkhead area provided there is no active water leak in such area.

18. Recreational facilities--modifications, such as reasonable substitution of equipment, combination of areas, or reduction in the number of items of certain equipment where overall facilities are maintained (see roof, item 19).

19. Roof--discontinuance of recreational use (e.g., sunbathing) unless a lease clause provides for such service, or formal facilities (e.g., solarium) are provided by the owner; lack of repairs where water does not leak into the building or the condition is not dangerous.

20. Sinks--failure to provide or maintain in compactor rooms or laundry rooms.

21. Storage space--removal or reduction of, unless storage space service is provided for in a specific rider to the lease (not a general clause in a standard form residential lease), or unless the owner has provided formal storage boxes or bins to tenants within three years of the filing of a tenant's complaint alleging an elimination or a reduction in storage space service.

22. Superintendent/maintenance staff/management--decrease in the number of staff, other than security, provided there is no decrease in janitorial services; elimination of on-site management office; failure to provide an on-site superintendent, provided there is no decrease in janitorial services.

23. Television--replacement of individual antennas with master antenna; visible cable; television wires; or other technologies.

24. Toilet in public areas--removal of (except in buildings containing class B units).

25. Windows--sealed, vented, basement or crawl space windows, other than in areas used by tenants (e.g., laundry rooms); cracked fire-rated windows; peeling paint or other nonhazardous condition of exterior window frames.

Individual Apartment Conditions

1. Appliances and fixtures--chips on appliances, countertops, fixtures or tile surfaces; color-matching of appliances, fixtures or tiles.

2. Cracks--hairline cracks; minor wall cracks, provided there is no missing plaster, or no active water leak.

3. Doors--lack of alignment, provided condition does not prevent proper locking of entrance door or closing of interior door.

4. Floor--failure to provide refinishing or shellacking.

5. Noise--caused by another tenant.

6. Window furnishings--failure to re-tape or re-cord venetian blinds.

(f) In determining whether a condition is de minimis, the DHCR may consider the passage of time during which a disputed service was not provided and during which no complaint was filed by any tenant alleging failure to maintain such disputed service, as evidencing that such service condition is de minimis, and therefore does not constitute a failure to maintain a required service, provided that:

(1) for purposes of this subdivision, the passage of four years or more shall be considered presumptive evidence that the condition is de minimis, with such four-year period to be measured without reference to any changes in building ownership or the tenancy of the subject housing accommodation;

(2) services required to be provided by laws or regulations other than the RSL and this Code shall not be subject to this subdivision.

(g)

(1) Except as to complaints of inadequate heat and/or hot water, or applications relating to the restoration of rents based upon the restoration of such services, whenever a complaint of building-wide reduction in services, or an owner's application relating to the restoration of rents based up on the restoration of such services is filed, the tenants or owner may submit with the complaint, answer or application, the contemporaneous affidavit of an independent licensed architect or engineer, substantiating the allegations of the complaint, answer, or application. The affidavit shall state that the conditions that are the subject of the complaint, answer or application were investigated by the person signing the affidavit and that the conditions exist or do not exist. The affidavit shall specify what conditions were investigated and what the findings were with respect to each condition. The affidavit shall state when the investigation was conducted, must be submitted within a reasonable time after the completion of the investigation, and when served by DHCR on the opposing party, will raise a rebuttable presumption that the conditions that are the subject of the complaint, answer or application exist or do not exist.

(2) The presumption raised by the affidavit may be rebutted only on the basis of persuasive evidence, including a counter affidavit by an independent licensed architect or engineer, or a report of a subsequent inspection conducted, or a subsequent violation imposed by a governmental agency, or an affirmation signed by 51 percent of the complaining tenants. Except for good cause shown, failure to rebut the presumption within 30 days will result in the issuance of an order without any further physical inspection of the premises by DHCR.

(3) There must be no common ownership, or other financial interest, between such architect or engineer, and the owner or tenants, and the affidavit shall state that there is no such relationship or other financial interest. The affidavit must also contain a statement that the architect or engineer did not engage in the performance of any work, other than the investigation, relating to the conditions that are the subject of the affidavit, and must contain the original signature and professional stamp of the architect or engineer, not a copy. DHCR may conduct follow-up inspections randomly to ensure that the affidavits accurately indicate the conditions of the premises. Any person or party who submits a false statement will be subject to all penalties provided by law.

(h) The amount of the reduction in rent ordered by the DHCR pursuant to this section shall be reduced by any credit, abatement or offset in rent which the tenant has received pursuant to section 235-b of the Real Property Law, that relates to one or more conditions covered by such order.

N.Y. Comp. Codes R. & Regs. Tit. 9 § 2523.4

Amended New York State Register November 8, 2023/Volume XLV, Issue 45, eff. 11/8/2023