BH410310RO

                                  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
          IN THE MATTER OF THE ADMINISTRATIVE      ADMINISTRATIVE REVIEW
          APPEAL OF                                DOCKET NO.: BH410310RO

                  JRD MANAGEMENT                   RENT ADMINISTRATOR'S
                                                   DOCKET NO.: AL410097S

                                   PETITIONER
          -----------------------------------x

          ORDER AND OPINION GRANTING PETITION FOR ADMINISTRATIVE REVIEW IN 
          PART

          The above-named owner filed a timely petition for administrative 
          review of an order issued on July 21, 1987 concerning the housing 
          accommodations known as 120 East 89th Street, Apartment #2J, New 
          York, New York, wherein the Rent Administrator determined that 
          certain conditions found in subject premises constituted services 
          decreases. An amended order was issued on May 30, 1989 to reflect 
          the owner's correct name and address.  All other parts of the order 
          remained unchanged.

          The Commissioner has reviewed all the evidence in the record and 
          has carefully considered that portion of the record relevant to the 
          issue raised by the petition.

          The tenant commenced this proceeding by filing a complaint 
          asserting that noises, odor and vibrations coming from the bakery 
          below the tenant's bedroom reduced the habitability of the 
          apartment so as to constitute a decrease in required services.

          In an answer, the owner denied the allegations set forth in the 
          complaint or otherwise asserted that all required repairs had been 
          or will be completed.

          Thereafter, an inspection of the subject apartment was conducted by 
          a DHCR inspector who reported odors, noise and vibrations in 
          evidence due to business operations in the restaurant and/or bakery 
          below the subject apartment.



















          BH410310RO


          The Rent Administrator's order identified the business operations 
          as a restaurant, without any reference to the bakery operations 
          cited in the inspector's report or the complaint.  The order 
          directed restoration of services, and further ordered a reduction 
          of the stabilization rent.  

          In its petition for administrative review, the owner states there 
          is no restaurant below, but a bakery that has been there for the 
          last thirty years.  The owner argues that there could not have been 
          a decrease in services in the absence of violations of City 
          Ordinances as any noise or odors were present at the base date. The 
          owner further contends that it was entitled to review the 
          inspector's report before a decision was issued, and reiterates 
          that the owner was entitled to a hearing to cross-examine the 
          inspector.

          After careful consideration, the Commissioner is of the opinion 
          that the petition should be granted in part.

          Pursuant to Section 2523.4 of the Rent Stabilization Code, DHCR is 
          required to order a rent reduction, upon application by a tenant 
          where it is found that an owner has failed to maintain required 
          service.

          The owner correctly points out that the tenant's complaint referred 
          to disturbances from the bakery below the tenant's apartment, 
          rather than from a restaurant.  In fact, the DHCR inspector's 
          report reflected that there was a "restaurant or bakery" on the 
          ground floor, although the facilities were denominated a restaurant 
          in the Administrator's order.  The order is hereby amended to 
          reflect the evidence of record.

          The inspector's observation that there was a "bread odor" in the 
          tenant's bedroom was insufficient to support a finding of a 
          reduction of services.  It suggests that the odor was nothing more 
          than the scent of fresh baked goods rather than noxious odors.

          The owner's petition does not establish any further basis for 
          modifying or revoking the Administrators order which determined 
          that the tenant's complaints of noise and vibrations in the subject 
          apartment were true based on a physical inspection.  The Rent 
          Administrator properly held that noise and vibrations emanating 
          from the commercial establishment below constituted a reduction in 
          services within the meaning of the Code.  The conditions interfered 
          with and limited the tenant's normal use and enjoyment of his 
          residence.  Although the problem was created by a commercial 
          tenant, the owner had a responsibility to restrain the commercial 
          tenant and to stop the noise and vibrations.  


          No conclusion can be drawn from the fact that there was only one 






          BH410310RO

          prior complaint, with which the tenant had some involvement, or 
          from the fact that no City agency violation proceedings were 
          conducted during the pendency of the DHCR proceedings below.

          Concerning the owner's claim that it was denied due process because 
          it was not given a copy of the inspection report, and an 
          opportunity to cross-examine the inspector at a hearing, the 
          Commissioner notes that due process doesn't require that the owner 
          be given a copy of the report or that he have an opportunity to 
          respond to the report.  Moreover, the inspection report was in the 
          file and available for examination by the owner through a Freedom 
          of Information Law (FOIL) request.  

          Nor does due process require that DHCR hold a hearing.  All that is 
          required is that the parties have notice of the proceedings and an 
          opportunity to present their positions.  Since the owner was served 
          with a copy of the complaint, it had notice of the alleged 
          conditions, and as it attempted to refute them in answering papers, 
          it cannot successfully claim that it was denied due process.
                  
          The owner may file a rent restoration application if the facts so 
          warrant.

          The automatic stay of the retroactive rent abatement that resulted 
          by the filing of this petition is vacated upon issuance of this 
          order and opinion.

          THEREFORE, in accordance with the Rent Stabilization Law and Code 
          and the Emergency Tenant Protection Act of 1974, it is

          ORDERED, that this petition be, and the same hereby is granted in 
          part, in that the Rent Administrator's order be, and the same 
          hereby is, amended to revoke the finding of food odors as a basis 
          for the rent reduction.  It is further

          ORDERED, that the Rent Administrator's order be amended to reflect 
          that the noise and vibrations found in evidence were, in fact due 
          to business operations in the restaurant or bakery establishment 
          below the subject apartment.  In all other respects, the 
          Administrator's order, as amended herein, and as amended May 30, 
          1989 to correct the owner's name and address, is affirmed.

          ISSUED:


                                                                          
                                                     JOSEPH A. D'AGOSTA
                                                     Deputy Commissioner


                 






    

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