ADM. REVIEW DOCKET NO.: ART 05390 - Q

                                  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  SJR 2934 
          IN THE MATTER OF THE ADMINISTRATIVE :  ADMINISTRATIVE REVIEW
          APPEAL OF                              DOCKET NO.:               
                                                 ART 05390 - Q
                                              :
                                                 DRO DOCKET NO.:           
                                                 70747 - B                   
                LE HAVRE TENANTS ASSOCIATION
                                             
                                                  

                              PETITIONER      : 
          ------------------------------------X                             


            ORDER AND OPINION GRANTING PETITION FOR ADMINISTRATIVE REVIEW
               IN PART AND REMANDING PROCEEDINGS TO THE ADMINISTRATOR
                              FOR FURTHER CONSIDERATION


               The instant Administrative Review determination is issued 
          pursuant to a Court ordered stipulation of settlement to remand to 
          the Division for further consideration the tenants' petition for 
          judicial review under Article 78 of the Civil Practice Law and 
          Rules, challenging the Commissioner's Order and Opinion under PAR 
          Docket Numbers ARL 05327-Q and ART 05390-Q. 

               The tenants commenced these proceedings in March 1983 by 
          filing a joint complaint seeking rent reductions based on 
          allegations that there had been a decrease in certain complex-wide 
          base date services at the subject accommodations, known 
          collectively as the Le Havre Apartments, Queens, New York.

               The tenants complained, in pertinent part, that there had been 
          a decrease in certain recreational services provided on May 31, 
          1968, and thereafter.  The tenants contended that the number of 
          swimming pools had been reduced from three (3) to two (2); that the 
          number of tennis courts had been reduced from five (5) to three, 
          and that handball courts, the  basketball court and a childrens 
          playground, as well as a clubhouse and boating facilities, had been 
          eliminated.

















          ADM. REVIEW DOCKET NO.: ART 05390 - Q

                The owner, who took title to the subject complex in 1979, 
          disputed that there had been a reduction in the recreational 
          facilities provided as required services.  The owner argued that 
          the area known as the "Ripples" (beach club), abutting the  
          complex, was never a service provided to the tenants.  The area had 
          contained a clubhouse, a pool, two tennis courts, handball  
          and basketball courts, a boating dock and a children's area.  
          However, the tenants' access to the "Ripples" appeared to have been 
          restricted prior to the base date and thereafter.  Some of the 
          facilities at the "Ripples" also appeared to have been eliminated 
          or allowed to deteriorate. 

               Based on an extensive record, which consisted of the parties' 
          submissions, testimony at a hearing, a review of post-hearing 
          submissions, and an inspection of the premises, the Rent  
          Administrator determined that the base date owners of the complex 
          had offered the tenants a variety of recreational facilities 
          situated throughout the complex, as required services, as well as 
          ancillary services located in the "Ripples" area, provided by the 
          owner for a separate fee, which the current owner (the holder of 
          unsold shares of the remaining rent regulated apartments) remained 
          obligated to provide, but at a charge not subject to rent 
          regulation. 

               The Administrator did not grant the tenants rent abatements 
          but directed the owner to: 1) Restore services as they existed on 
          the base date or; 2) Supply tenants with the equivalent service 
          off-premises and provide transportation thereto or; 3) provide an 
          alternative plan acceptable to the tenants and/or the 
          Compliance/Enforcement Bureaus of the DHCR. 

               In administrative appeals by both the tenants and the owner, 
          the Commissioner found that the complex and the "Ripples" area were 
          owned in common on the base date, and that therefore the subsequent 
          owner remained obligated to provide the services, notwithstanding 
          the absence of commonality of ownership between the new owner of 
          the complex and the owner/operator of the "Ripples".

               Concerning the amenities described as a private beach and 
          stone pier, the Commissioner recommended that proper substitutes be 
          provided as they did not lend themselves to being readily restored. 









               The Commissioner also affirmed the Administrator's 
          determination below that rent abatements were not warranted on  






          ADM. REVIEW DOCKET NO.: ART 05390 - Q

          equitable grounds.  The Commissioner noted that only a minority of 
          tenants had availed themselves of the "Ripples" facility, that only 
          a small number of stabilized tenants had expressed 
          dissatisfaction with the elimination of certain facilities, that
          the complaining tenants had waited four (4) years after a new owner 
          took possession to bring the complaint, and that the tenants had 
          failed to establish the extent to which facilities were utilized or 
          would be utilized. 

               The tenants' Article 78 petition for judicial review 
          challenged the Commissioner's determination that rent abatements 
          were not warranted.  They also requested clarification concerning 
          which required services were included in the rent, which required 
          services were provided at an additional fee subject to rent 
          guidelines, and which services were not subject to guidelines 
          limitations.   

               The Commissioner concurs.  Consequently, the proceedings 
          should be remanded to the Administrator for further fact-finding, 
          as more fully set forth below. 

               It is not disputed that two pools and three tennis courts 
          located in the complex are required services the owner remains 
          obligated to provide.  On remand, the Administrator shall ascertain 
          whether these services are included in the apartment rent, or 
          whether the tenants pay additional rent for their use subject to 
          guidelines increases.  The owner concedes that a children's 
          playground in the complex is provided at no additional cost.     

               It appears from the record that the additional recreational 
          facilities, i.e., one swimming pool, two tennis courts, an 
          additional children's area, handball and basketball courts, a 
          clubhouse, a boating facility, a beach area, and a stone pier were 
          all facilities located in the beach club in the "Ripples" area, 
          which the tenants were and are entitled to join for a separate fee 
          not subject to the guidelines limitations.    

               On remand, the Administrator shall confirm the accuracy of the 
          present record as to the location of the facilities and amenities 
          enumerated herein for the "Ripples" area.  It does not appear from 
          the record that their use was available other than through 
          membership in the club.  If confirmed, only those tenants 






          who utilized the "Ripples" facilities, and who paid the prescribed 
          membership fee, subject to specific provisions in individual base 
          date leases, are entitled to claim a reduction of services for 
          these facilities.     












          ADM. REVIEW DOCKET NO.: ART 05390 - Q


               The limited use of some of the facilities at the Ripples by 
          certain tenants who did not pay the membership fee, may have been 
          unauthorized and without consent.  However, on remand, tenants,  
          individually or collectively, may establish by appropriate 
          evidence, and not by mere assertion, whether any facilities at the 
          "Ripples" were made available to them at no additional cost with 
          the owners' knowledge and consent.  

               The determination below that rent abatements were not 
          warranted reflected the Division's then policy that a decision  to 
          impose rent reductions was a proper exercise of the Administrator's 
          discretion.  The Courts have since held that once the Division 
          determines that a diminution in required services has occurred, the 
          Division must order rent reductions.  Hyde Park Gardens v DHCR, 140 
          AD 2d 351 527 NYS 2d 841, affd. 23 NY 2d 998, 541 NYS 2d 345 (Ct. 
          App 1989).

               On remand, the Administrator shall, as reflected in Section 
          2527.7 of the Rent Stabilization Code that determination of pending 
          proceedings be made in accordance with current law, grant rent 
          abatements to those tenants who may be entitled, in accordance with 
          the above order and opinion.

               If necessary to render a proper determination, a hearing may 
          be scheduled.

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

               ORDERED, that this petition be, and the same hereby is, 
          granted to the extent of remanding these proceedings to the Rent 
          Administrator for further processing in accordance with this order 
          and opinion.

          ISSUED:


                                                                        
                                          JOSEPH A. D'AGOSTA
                                          Acting Deputy Commissioner



                                                    

    

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