DOC. NO.: BB 410007-RO
                                  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   S.J.R. 5322
          IN THE MATTER OF THE ADMINISTRATIVE :   ADMINISTRATIVE REVIEW
          APPEAL OF                               DOCKET NO. BB 410007-RO
                                                       DISTRICT RENT ADMINISTRATOR'S
                 155 ASSOCIATES,                :   DOCKET NO. LS003105-S
                                    PETITIONER  :   
            ------------------------------------X


              ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW
                  FOLLOWING REMIT FOR FURTHER CONSIDERATION PURSUANT TO
                                     ORDER OF COURT


            On February 2, 1987, the above-named owner filed a petition for 
            administrative review of an order issued on December 30, 1986 by a 
            District Rent Administrator concerning the housing 
            accommodations known as Apartment 9-H, 155 East 34th Street, New 
            York, New York wherein the Administrator reduced the rent due to 
            a diminution of services.

            On August 30, 1990, the Commissioner concluded that the tenant 
            had withdrawn her complaint before the Administrator's order was 
            issued, and issued an order and opinion granting the petition for 
            review.

            Subsequently, the tenant commenced a proceeding in the Supreme 
            Court of the State of New York, pursuant to Article 78 of the 
            Civil Practice Law and Rules, seeking annulment of the 
            Commissioner's order.

            On December 11, 1990, the Supreme Court (Gangel-Jacob, J.) issued 
            an order remitting the matter to the rent agency for further 
            consideration.

            The Commissioner has reviewed all of the evidence in the record 
            and has carefully reconsidered that portion of the record 
            relevant to the issues raised by the petition for review.




















            DOC. NO.: BB 410007-RO

            On December 27, 1984, the tenant filed an application for rent 
            reduction based on the owner's failure to maintain certain 
            services, to wit: vermin infestation, faulty windows, air 
            conditioning and hot water problems, and poor elevator services.  
            This complaint was processed under Docket No. LS 003105 S. 
            Contemporaneous with this action seventy other individual 
            complaints of reduced services were filed in the subject building 
            (Docket Nos. LS 003068-139S).  Also, one building-wide complaint 
            was filed (Docket No. LS000287B).

            On October 31, 1985, the District Rent Administrator conducted a 
            conference to arrange a procedure for the inspection of the 
            individual apartments involved in the individual complaints.  All 
            parties were represented at this conference.

            In a report dated November 19, 1985, a rent agency inspector 
            stated that the tenant's attorney advised that the case was 
            "dismissed."  The inspector also stated "Tenant drops complaint."  
            This inspection report was filed under the building-wide docket 
            number.

            The Administrator proceeded with the tenant's individual 
            complaint and on August 27, 1986 a second inspection was 
            conducted.  The report of this inspection indicated that three of 
            the windows in the subject apartment were defective.

            On December 30, 1986, the District Rent Administrator issued the 
            order here under review finding that a diminution of service had 
            occurred in the subject apartment and reducing the rent to the 
            level in effect prior to the last guideline increase which 
            commenced before the effective date of the order.

            In the petition for administrative review (PAR), the owner urged 
            revocation of the Administrator's order based on the tenant's 
            withdrawal of the initial complaint.  The owner resubmitted a 
            copy of the first agency inspection report of November 19, 1985 
            in support of its position.

            On April 7, 1987, the Division of Housing and Community Renewal 
            (DHCR) received an answer to the owner's PAR from the tenant.  In 
            her answer, the tenant asserted that she was assured that the 
            window conditions would be corrected and agreed not to pursue the 
            matter if the conditions were corrected and that, in fact, these 
            windows had never been properly repaired.




             

            In the order and opinion issued on August 30, 1990, the 
            Commissioner found that the withdrawal was unconditional, and 




            DOC. NO.: BB 410007-RO
            restored the rent.

            In the proceeding commenced by the tenant in the Supreme Court, 
            the tenant contended, among other things, that she was not 
            present during the inspection of November 19, 1985 and, 
            therefore, she couldn't have withdrawn her complaint.  Further, 
            the tenant asserted that the owner had still made no effort to 
            adequately repair the windows.

            After reconsideration, pursuant to the remit by the court, the 
            Commissioner is of the opinion that the petition for 
            administrative review should be denied.

            The Commissioner finds that the tenant's alleged "withdrawal" 
            should not have resulted in a revocation of the Administrator's 
            original order issued on December 30, 1986.  The evidence in the 
            record indicates that if any withdrawal was made by the tenant on 
            November 19, 1985, it was conditional:  If the repairs of the 
            defective windows would be effectuated by the owner, a subsequent 
            withdrawal would be made by the tenant.  A DHCR inspection dated 
            August 27, 1986 indicated that the condition precedent had not 
            been met and the windows were defective.  Further, the record is 
            devoid of any evidence of any subsequent withdrawal.

            A thorough reinvestigation of the records in both the building- 
            wide complaint and the individual apartment complaint reveals no 
            corroboration of the November 19, 1985 inspector's notation.  
            Nothing in writing, nor any omnibus settlement between the 
            parties, is present.
             
            Further, it is clear that the owner did not require notification 
            that the individual apartment complaint was proceeding.  It was 
            clearly indicated that the inspection report received by the 
            owner, which apparently indicated a withdrawal, was under the 
            docket number assigned to the building-wide complaint only.  As a 
            result, the owner could not have reasonably concluded that the 
            individual apartment complaint had been terminated.











            THEREFORE, pursuant to the Rent Stabilization Law and Code, it is

            ORDERED, that following further consideration pursuant to the 
            order of the court, the prior order and opinion issued by the 
            Commissioner on August 30, 1990 be, and the same hereby is, 












            DOC. NO.: BB 410007-RO
            revoked, and that this petition for administrative review be, and 
            the same hereby is, denied, and that the Administrator's order 
            issued on December 30, 1986 under Docket No. LS 003105-S be, and 
            the same hereby is, reinstated.


            ISSUED:

                                         
            JOSEPH A. D'AGOSTA
            Deputy Commissioner
    

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