BH410285RT
                                    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.:   
                                                  BH410285RT  
                   MICHAEL MCKEE, 
                                                  RENT ADMINISTRATOR'S
                                                  DOCKET NO.:
                                   PETITIONER     LCS000568B
          ----------------------------------x



            ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW
                                          

          On August 26, 1987, the above-named petitioner-tenant filed a 
          petition for administrative review (PAR) against an order issued on 
          March 19, 1987, by the Rent Administrator at Gertz Plaza, Jamaica, 
          New York, concerning the housing accommodation known as 233 West 
          21st Street, New York, New York, building-wide, wherein the Admin- 
          istrator determined the tenants' services reduction complaint. 

          The applicable laws are Section 2523.4 of the Rent Stabilization 
          Code and Section 2202.16 of the Rent and Eviction Regulations.

          The tenants commenced these proceedings on October 28, 1985, by 
          filing a joint complaint alleging decreases of various building- 
          wide services.  The tenant complained, in substance, that:

           1.  The elevator was defective in that the elevator doors did 
               not close properly, the shaft was dirty, and a safety 
               plate was missing on the fourth floor.

           2.  Electrical service was inadequate, and wiring defective 
               and hazardous.

           3.  There were various plumbing problems in a majority of 
               apartments (unidentified).

           4.  The "C" line apartment kitchens did not have adequate 
               mechanical or window ventilation, and were in violation 
               of applicable law and regulation.















          BH410285RT

           5.  The heating system was inadequate and the boiler plant 
               equipment was defective.

           6.  There was no on-premises superintendent, janitorial 
               services were inadequate, and the public areas were 
               poorly maintained and dirty, and had roach and rodent 
               infestation.

           7.  The concrete curb, sidewalk, front steps and vestibule 
               areas were cracked and dirty.

           8.  The public areas were poorly lit and banisters were 
               broken.

           9.  The exterior side and rear areas of the subject premises 
               were poorly lit, had cracked concrete paving, and poor 
               drainage.

          10.  The roof surface was wavy and bubbled, resulting in 
               puddling of water and ceiling leaks in the top floor 
               apartments.

          11.  The brick chimney was cracked and in need of mortar 
               repairs and pointing.

          12.  The fire escapes were rusted and blistered, and the win- 
               dow mortar joint bricks were loose.

          13.  The exterior brick walls were defective.

          14.  The window frames, sashes, panes and blinds were de- 
               fective.

          15.  The front and vestibule doors did not close properly.

          16.  The intercom system did not work properly.


          In a detailed response, stamped received by the Division of Housing 
          and Community Renewal (DHCR) on February 3, 1986, the owner 
          asserted that there had been no reduction in services, that the 
          complaint was an attempt by the tenants to coerce the owner to make 
          extensive improvements before conversion of the premises to co- 
          operative status, and that some of the complaints concerned 
          conditions the owner had already changed or was in the process of 
          upgrading, e.g., rewiring, painting of the common areas, and 
          replacement of the front doors. 



          As to a purported electrical fire, the owner stated that a fire had 
          occurred in 1977 due to extension cords strung by the then superin- 






          BH410285RT

          tendent across hot water-pipes in his basement apartment, rather 
          than from the building's electrical wiring.

          An inspection conducted May 8, 1987 by a member of the Division's 
          inspection staff found no evidence of any of the numerous condi- 
          tions detailed in the tenants' complaint.  The inspector reported, 
          in substance, that:

           1.  The elevator was operational, the doors closed properly, 
               the shaft was clean and found no safety plate to be 
               missing.

           2.  There was an on-premise superintendent, and the 
               janitorial services were adequate, but that the 
               superintendent's name, address and telephone number were 
               not posted.

           3.  There was no evidence of roach and rodent infestation in 
               the public areas or the basement.

           4.  The building's sidewalk areas were clean.

           5.  The public area lighting and exterior lighting were ade- 
               quate and the drainage effective.

           6.  The intercom was operational.

           7.  There was no evidence of broken or defective banisters, 
               broken sidewalk curb or entranceway, or courtyard area 
               concrete, of broken entrance or vestibule stairs, of 
               chimney or exterior brick defects, of defective fire 
               escapes, or of defective entrance or vestibule doors or 
               locks. 

          Based on the inspection report, the Administrator denied the relief 
          requested, stating that the conditions had been corrected.

          In the appeal, the petitioner requested that the Administrator's 
          order be set aside on the grounds that many of the conditions 
          complained of remained, that the inspector's findings were in 
          error, that failure to serve the tenants' representative with the 
          inspection report in order to afford the tenants the opportunity to 
          respond was a denial of due process, and that the order was vague, 





          unspecific and cited no law upon which the Administrator based his 
          conclusions.  The DHCR's then procedures permitted service of the 
          appeal by the petitioner, who asserted that he served the owner on 
          August 26, 1987.












          BH410285RT


          The owner responded that the building became a residential co- 
          operative on November 16, 1987, that the building was in excellent 
          condition and that the complaint was an attempt to forestall the 
          conversion.

          After careful consideration, the Commissioner is of the opinion 
          that the petition should be denied.

          Section 2523.4 of the Rent Stabilization Code provides, in perti- 
          nent part, that a tenant may apply for a rent reduction if the 
          owner fails to maintain required services.  Section 2202.16 of the 
          Rent and Eviction Regulations requires that rents be reduced if it 
          is found that services have not been maintained. Thus, to effectu- 
          ate rent reductions for a decrease in services, the Administrator, 
          generally relying on an inspection, must make an affirmative 
          finding of a failure to maintain services.

          Since the May 8, 1987 inspection revealed no condition constituting 
          service reductions, the Administrator properly determined that rent 
          reductions were not warranted.  In light of the fact that there 
          were no items found constituting services reductions, the peti- 
          tioner's criticism that the Administrator's order was vague and 
          unspecific is rejected.  

          The petitioner also asserts that the May 8, 1987 inspection was not 
          the first performed by the Division in this proceeding; that 
          another inspection took place in May 1986.  He argues that since 
          the Administrator's order found that conditions were corrected, the 
          first inspection must have shown diminished services upon which 
          rent reduction should have ensued.  A copy of that inspection was 
          not found in the case docket.  The Examiner's progress sheet notes 
          do indicate a request for an inspection in April 1986. In addition, 
          Inspection Unit log records do disclose that although the inspector 
          failed to obtain access to the subject premises on May 15, 1986, an 
          inspection was completed on May 28, 1986.  Efforts were made at PAR 
          to locate the report.  Despite diligent efforts, the May 28, 1986 
          inspection report could not be located.

          The Commissioner will not speculate as to the contents of the 
          missing inspection report.  The Commissioner does note that the 
          owner acknowledged that certain items were being repaired and 




          upgraded prior to and in the course of the proceedings below.  The 
          record further shows that there was no evidence of decreased 
          services at least two months prior to the Administrator's order.  
          The Commissioner is of the opinion that the record presented 
          establishes that the owner made prompt and effective efforts to 
          provide the tenants with required services and that such services 






          BH410285RT

          were in fact provided.  Accordingly, the Commissioner finds that 
          the Administrator did not abuse his discretion to determine that 
          rent reductions were not warranted.

          The Commissioner rejects the petitioner's assertion that lack of 
          opportunity to address the inspector's May 8, 1987 findings consti- 
          tuted a lack of due process.  Neither the Division's then 
          procedures nor  due process requirements compelled the Adminis- 
          trator to give the parties notice of an inspection or to apprise 
          them of the results for comment.  Moreover, the report was prepared 
          by a rent agency employee not a party to the proceeding, and not an 
          adversary to the tenants.  The report was entitled to, and given, 
          great weight by the Administrator.

          The owner disputes the petitioner's status as a tenant.  As the 
          matter was not before the Administrator in the proceedings below, 
          the Commissioner declines further consideration of this issue on 
          appeal, which is strictly limited to a review of the issues and 
          evidence presented to the Administrator for determination.

          Parenthetically, the Commissioner also notes that Section 2529.1 of 
          the Rent Stabilization Code provides that a PAR must be verified or 
          affirmed by each person joining therein and that a PAR filed by an 
          alleged representative must include, at the time of filing the PAR, 
          written evidence of authorization to act in such representative 
          capacity for the purpose of filing the PAR. In light of the instant 
          determination, the question of whether the petition was properly 
          filed on behalf of other tenants, or whether the petition should be 
          considered to have been filed individually, has been rendered moot, 
          and need not be considered herein.


          THEREFORE, in accordance with the applicable provisions of the Rent 
          Stabilization Law and Code, the City Rent Control Law, and the Rent 
          and Eviction Regulations for New York City, it is,









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


          ISSUED:














          BH410285RT


                                                                         
                                                JOSEPH A. D'AGOSTA
                                                Deputy Commissioner
    

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