BJ110088RT;  BJ130288RT
                                    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 NOS.:                 
          BJ110088RT;  BJ130288RT
                     BURTON SYKEN,      
                                                  RENT ADMINISTRATOR'S
                                                  DOCKET NO.:
                                   PETITIONER     BA110002OR          
          ----------------------------------x



            ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW
                                          

          On October 16, 1987, the above named petitioner-tenant filed a 
          petition for administrative review (PAR) assigned PAR Docket No. BJ 
          110088RT, appealing an order issued on September 17, 1987 by the 
          Rent Administrator, concerning the housing accommodation known as 
          263-10 73rd Avenue, Apartment 95E2-2, Queens, New York, wherein the 
          Administrator determined the owner's application to restore rents 
          previously reduced per Docket Nos. TC077656B and Q000893B, issued 
          respectively on February 11, 1985 and October 28, 1985.

          A duplicate PAR was inadvertently established per PAR Docket No. 
          BJ130288RT.

          In the rent reduction proceedings, it was confirmed that there were 
          potholes in the driveway areas, that the driveway area leading to 
          the garage was flooded due to a clogged catch basin, that the 
          clotheslines were missing and that the clotheslines area concrete 
          pad was broken.

          In the application to restore rent, the owner claimed that the 
          conditions cited in the rent reduction orders had been corrected.  
          In support, the owner attached copies of work orders concerning 
          pothole repairs and catch basins, although they were not signed by 
          the tenant.

          The tenant disputed the owner's claims. In responses dated February 
          10, 1987, March 31, 1987, and May 2, 1987, the tenant alleged that 
          the driveway catch basin, as well as two additional catch basins in 
          the "dumpster area" were still clogged and that the potholes had 
          re-appeared.  The tenant acknowledged that the clotheslines area 
          and equipment had been repaired, but complained that only 75% of 
          the concrete pad was replaced, while the surrounding area, adjacent 
          to the clotheslines poles was dirtfill.










          BJ110088RT;  BJ130288RT




          The challenged order restored the tenant's rent based on the 
          results of a subsequent inspection conducted on June 17, 1987, 
          wherein the inspector reported that there was no evidence of a 
          clogged catch basin at the time of the inspection, no evidence of 
          potholes in the driveway leading to the garage, and that clothes- 
          line area concrete pad and equipment had been repaired.

          On appeal, the tenant reiterates the assertions below.  In addi- 
          tion, the tenant suggests that the inspection was improper as to 
          the catch basin issue if it was done on a sunny day, contends that 
          the order does not address the alleged reduction of the clothes- 
          lines area, and claims that clotheslines were reduced from nine (9) 
          to five (5).

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

          The report of the Division's inspector belied the tenant's asser- 
          tion below that pothole patches had deteriorated and that new      
          potholes had formed.  In light of the record, the tenant's recita- 
          tion of the identical complaint on appeal does not warrant further 
          consideration.

          The tenant's suggestion that the inspection was not adequate as to 
          the catch basin matter, if the inspection was conducted on a sunny 
          day, constitutes mere speculation as to the weather conditions on 
          the date of the inspection.  The tenant's speculation is insuffi- 
          cient to establish that there were errors of law and fact requiring  
          a different result or reconsideration.  Furthermore, the record 
          below, which includes inspection reports and the owner's work 
          orders, supports the owner's claim that the driveway catch basin 
          was cleared.  

          The tenant's further allegation below and on appeal that additional 
          catch basins in the dumpster area are clogged, adding to driveway 
          flooding problems, are not properly raised.  The rent restoration 
          proceedings below and the instant administrative appeal are 
          strictly limited to a review of whether of the items cited in the 
          underlying rent reduction proceedings have been corrected, and not 
          to consider new claims or evidence.

          The Commissioner also notes that, while the specific problems in 
          these proceedings concern events that occurred several years ago, 
          certain of the items could be expected to reoccur in the absence of 
          adequate and periodic maintenance.  The Division's records fail to 
          reveal that the tenant filed a subsequent service decrease com- 
          plaint for similar conditions alleged herein since the rent 
          restoration order was issued.







          BJ110088RT;  BJ130288RT


          The tenant has also suggested, below and on appeal, that the 
          clothesline area repairs modifying the clotheslines area concrete 
          pad, into 75%  concrete and 25% dirtfill or lawn area, constitutes 
          a service decrease.  Since no space was appropriated from the 
          tenant, and in light of the inspector's report indicating that 
          repairs were adequate, it cannot be concluded that a decrease in 
          space or services has occurred. 

          Concerning the tenant's allegation that the number of available 
          clotheslines had been reduced from nine (9) to five (5), amounting 
          to a service decrease, the Commissioner notes that the tenant did 
          not raise any objection to this element in the rent restoration 
          proceedings below, precluding the Commissioner's consideration of 
          the issue for the first time on appeal as a factor in the rent 
          restoration.  

          The record reveals that, as to the question of repair to the 
          clothesline equipment the Compliance Bureau reached a similar 
          conclusion.  An inspection conducted on July 7, 1988, at their 
          request, found a total of twenty-eight (28) separate clotheslines.  
          While noting that it was impossible to determine by inspection if, 
          at one time, there were more than seven pairs of poles, and more 
          than twenty-eight (28) clotheslines, the Compliance Bureau 
          concluded that the owner had complied with the Administrator's 
          directive to restore the services.


          THEREFORE, in accordance with the provisions of the Rent Stabili- 
          zation Law and Code, it is,

          ORDERED, that the tenant's petition be, and the same hereby is, 
          denied, and that the Rent Administrator's order be, and the same 
          hereby is, affirmed.  The PAR proceedings per Docket No. BJ130188RT 
          are hereby terminated as duplicative and moot. 


          ISSUED:



                                                                           
                                                JOSEPH A. D'AGOSTA
                                                Deputy Commissioner


                                          






    

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