BL130325RO                                  

                          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




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IN THE MATTER OF THE ADMINISTRATIVE     ADMINISTRATIVE REVIEW
APPEAL OF                               DOCKET NO.:              
BL130325RO
      COSMOPOLITAN ASSOCIATES,
                                                  RENT ADMINISTRATOR'S
                                        DOCKET NO.:
                                     PREMISES     BD130065B
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  ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW
                                

On December 30, 1987, the above-named petitioner-owner timely re- 
filed a petition for administrative review (PAR) of an order issued 
on October 15, 1987, by the Rent Administrator, concerning the 
housing accommodation known as 35-46 65th Street, Woodside, 
New York, various tenants, wherein the Administrator determined 
that the rent for rent stabilized apartments should be reduced to 
the level in effect prior to the last rent guideline increase which 
commenced before the effective date of the order based upon a 
diminution of services and further determined that the maximum 
legal rent for rent controlled apartments should be reduced by 
$26.00 per month based upon a diminution of services.  The Rent 
Administrator's order was based upon an inspection held on June 23, 
1987.  The inspection report revealed that the following service 
deficiencies existed at the time of the inspection:

               1.   Missing building front entrance door lock.
               2.   Defective bell and buzzer system.
               3.   Defective roof door lock.
               4.   Missing building front entrance door glass.
               5.   No incinerator service provided.
               6.   No superintendent on premises and no posting 
                    of super's name, address and telephone number.
               7.   Inadequate janitorial service.

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



          The issue herein is whether the Rent Administrator properly reduced 
          the rents of various rent stabilized and rent controlled apartments 








          BL130325RO                                  

          in the subject building.

          On appeal, the petitioner-owner asserted, among other things, that 
          most of the service items which were the subject of the reduction 
          order have been corrected pursuant to rehabilitation loans negoti- 
          ated with New York State and pursuant to agreements negotiated with 
          the New York City Department of Housing Preservation and Develop- 
          ment; that the registration statement for the subject building 
          shows that the building was not provided with an incinerator; that 
          a compactor was installed on the ground floor; that the building 
          had a superintendent on premises contrary to the inspector's 
          finding; that the superintendent's name and telephone number is 
          usually posted in the building but that the sign was removed by 
          vandals and that janitorial service and rubbish removal services 
          are provided to the tenants.

          The Division served a copy of the petition on the tenants on 
          January 24, 1988.

          Answers were submitted from 18 tenants, each stating, in substance 
          that all repairs were completed before the rent reduction order was 
          issued.

          After a careful consideration of the entire evidence of record the 
          Commissioner is of the opinion that the administrative appeal 
          should be denied.

          Pursuant to Section 2523.4(a) of the Rent Stabilization Code, a 
          tenant may apply to the Division of Housing and Community Renewal 
          (DHCR) for a reduction of the legal regulated rent to the level in 
          effect prior to the most recent guidelines adjustment, 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.

          Required services are defined in Section 2520.6(r) to include 
          repairs and maintenance.

          Section 2202.16 of the Rent and Eviction Regulations provides, that 
          an owner's failure to maintain essential services may result in an 
          order of decrease in maximum rent, in an amount determined by the 
          discretion of the Rent Administrator.

          On May 28, 1987, the tenants replied to the owner's answer to the 
          complaint and emphatically reiterated that the owner's proposed 
          rehabilitation of the building should not be permitted as an excuse 
          for the owner's past negligence and further that the complained-of 
          conditions were omnipresent and serious.





          The inspection held on June 23, 1987, fully supported the com- 
          plaining tenants' assertion that the owner was not providing 
          required and essential services.





          BL130325RO                                  

          The owner submitted a certificate of work completion dated 
          September 14, 1987, on appeal, which showed that the rehabilitation 
          of the subject building was substantially completed prior to the 
          issuance of the appealed order.

          However, the Commissioner finds that the owner's rehabilitation of 
          the building, whether completed or not, does not run counter to the 
          Rent Administrator's determination that the owner was not main- 
          taining services prior to the issuance of the appealed order.

          Assuming that the work performed in the rehabilitation of the 
          building was synonymous with the service items specified in the 
          complaint, the certificate of completion was not submitted to the 
          Administrator who based the order appealed herein on DHCR inspec- 
          tion findings, nor would it be dispositive of the issue of whether 
          owner was providing required services.

          Required services are defined by Section 2520.6(r) as that space 
          and those services provided on the base date.  The inclusion or 
          omission of services on the initial registration statements is not 
          determinative of which services an owner must provide.

          Since the scope of review in administrative appeals is limited to 
          a review of the facts or evidence before the Administrator, 
          evidence submitted by the owner for the first time with the 
          petition may not be considered, in the absence of any explanation 
          for failure to submit this evidence before the issuance of the 
          Administrator's order.

          The Commissioner also notes that the owner's answer of May 11, 1987 
          to the tenants' complaint did not dispute the tenants' allegations 
          and it certainly did not allege that incinerator service was not 
          included on the registration statement or was never provided.  
          Rather, the owner's answer contended, in effect, that all repairs 
          were in progress.

          By not raising it below, the issue of whether incinerator service 
          is a service the owner is required to maintain was not considered 
          and may not be raised for the first time on appeal.
           
          If it is impossible or illegal for the owner to restore incinerator 
          service to the subject building, the owner may qualify for restora- 
          tion of the rents only by establishing that an adequate substitute 
          service is being provided, such as door-to-door garbage pickup or 
          the placement of garbage receptacles on each floor.





          Accordingly, the Commissioner finds that the Administrator properly 
          based his determination on the entire record, including the results 
          of the on-site physical inspection conducted on June 23, 1987 and 
          that pursuant to Section 2523.4(a) of the Code and Section 2202.16 
          of the Rent and Eviction Regulations the rent reductions ordered by 
          the Administrator were warranted.   








          BI 230194-RO



          THEREFORE, in accordance with the provisions of the Rent Stabili- 
          zation Law and Code, and the Rent and Eviction Regulations for 
          New York City, it is

          ORDERED, that this administrative appeal be, and the same hereby 
          is, denied, and the Rent Administrator's order be, and the same 
          hereby is, affirmed.

          Upon a restoration of services the owner may separately apply for 
          a rent restoration.


          ISSUED:




                                                                           
                                                JOSEPH A. D'AGOSTA
                                                Deputy Commissioner


                                          

    

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