
    In the Matter of Atran Foundation, Inc., Petitioner, v. Hortense W. Gabel, as City Rent and Rehabilitation Administrator, Respondent.
    Supreme Court, Special Term, New York County,
    August 2, 1963.
    
      Waldman é Waldman for petitioner. Beatrice S'hainswit for respondent. Moses <& Singer for intervenor-respondent.
   Edward T. McCaffrey, J.

Motion, pursuant to article 78 of the Civil Practice Act, for an order annulling the determination of respondent which denied petitioner’s protest from an order of the Local Rent Administrator, which order decreased the maximum rental for an apartment in a building owned by petitioner, is denied and the petition dismissed. The decrease in rent was ordered, based upon a finding of a decrease in essential services provided by landlord for said apartment. The tenant of that apartment had applied for the decrease, claiming that the refrigerator in the apartment was 22 years old, went out of order frequently, and finally ceased functioning. Tenant thereafter, at its own expense, repaired the refrigerator. Landlord claims that as the refrigerator is now functioning, and as it is willing to refund to tenant the moneys paid by tenant for the repair, the decrease in rent was unwarranted. The determination of respondent that the refrigerator frequently was out of repair is primarily one of fact, not to be disturbed on review if there exists a sufficient basis in the record therefor (see Matter of Stratford Leasing Corp. v. Gabel, 17 A D 2d 332, affd. 13 N Y 2d 607). Clearly the statutes allow respondent to order a decrease in rental for a decrease in service. If a landlord were to be allowed, as a matter of law, an increase back to the original rent after a tenant, at its own expense, remedied •the decrease, the purpose of the law would be frustrated. If landlord contends that it has remedied the decrease, sufficient means exist for it to obtain an increase in the maximum rent.  