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.: BJ430366RO
                                              :                        
            WHITNEY MUSEUM OF AMERICAN ART,   :   DRO DOCKET NO.:
                                              :              AL430078B
                                              :                            
                                              :
                                PETITIONER.   :     
          ------------------------------------X

             ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW


               On October 26, 1987 the above named owner-petitioner filed a 
          Petition for Administrative Review (PAR) of an order issued on 
          September 22, 1987 by the Rent Administrator, 92-31 Union Hall 
          Street, Jamaica, NY, concerning the housing accommodation known as 
          939 Madison Avenue, New York, NY, wherein the Administrator ordered 
          a rent reduction affecting various rent controlled apartments at 
          the subject premises based on a finding of a building-wide 
          reduction in essential services.
               
               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 administrative appeal. 

               This proceeding was commenced on December 18, 1986 by the 
          tenant of Apartment 3S of the subject premises filing a complaint 
          of a building-wide decrease in services, alleging, among other 
          things, that janitorial services had been cut back and the public 
          areas were not kept clean.  A copy of the complaint was forwarded 
          to the owner's managing agent on January 1, 1987.

               On March 23, 1987, the managing agent submitted an answer 
          disputing the tenant's claim, stating in pertinent part that in 
          1986 the former super, a part-time employee of the managing agent, 
          was replaced by a full-time super who devoted as much if not more 
          time to servicing the building than had the prior super; that the 
          public areas were regularly cleaned by the new super; and that 
          improvements had been made in the public areas (e.g., painting and 
          newly installed light fixtures in the public corridors). 














          DOCKET NO. BJ430366RO

               On April 3, 1987, a Division staff member conducted an on-site 
          physical inspection of the premises.  It was noted in the report, 
          among other things, that the public areas needed to be cleaned and 
          that there was no resident superintendent in the building.

               In the order issued on September 22, 1987, the Administrator 
          reduced the rents of the complainant-tenant and four other rent 
          controlled tenants at the building by $3.00/mo. based on a 
          determination of a building-wide decrease in services, in that the 
          public areas were in need of cleaning.

               In the PAR, the owner seeks revocation of the order and argues 
          that, first, the public areas are regularly cleaned and the 
          Administrator's finding to the contrary was erroneous; second, the 
          DHCR failed to give to the owner notice of the inspection and an 
          opportunity to comment on the results thereof, and the DHCR has 
          thereby acted inconsistently with its own long-standing procedures 
          and effectively denied the owner from challenging the order in 
          violation of due process; and third, the Administrator reduced the 
          rents for all five apartments in the building despite the fact that 
          the four remaining tenants, other than the complainant, were not 
          reflected in the complaint application as joining therein, and the 
          DHCR has thereby precluded the owner from being informed of its 
          potential liability and additionally has acted beyond its authority 
          in granting rent reductions for tenants who did not request it.

               The owner certified that a copy of the petition was mailed to 
          the tenant on October 26, 1987.

               The tenant did not file an answer to the PAR.

               The Commissioner is of the opinion that the owner's petition 
          should be denied.

               Section 2202.16 of the Rent And Eviction Regulations provides 
          that an owner's failure to maintain services may result in an order 
          of decrease in maximum rent which the Administrator, in his 
          discretion, may determine.

               Review of the record in the instant case discloses that the 
          Administrator based his determination on the entire record, 
          including the results of the Division's April 3, 1987 inspection 
          report which disclosed that the public areas were in need of 
          cleaning.  Therefore, the Commissioner finds that the Administrator 
          correctly determined that the owner had failed to maintain services 
          and properly ordered a $3.00/ mo. reduction in the maximum rent.

               The owner's assertion, raised in the answer and maintained on 
          appeal, that the public areas are regularly cleaned fails to refute 
          the contrary inspectorial finding which is accorded great weight.
          DOCKET NO. BJ430366RO









               There was no error with the Division's failure to provide the 
          owner with prior notice of the inspection.  Agency practice and due 
          process considerations do not require that this be done.  
          Similarly, there was no requirement for the agency to forward the 
          inspection report to the owner for purposes of affording the owner 
          an opportunity to comment on it prior to the issuance of the 
          Administrator's order.  Having received a copy of the tenant's 
          complaint in January, 1987, the owner was on notice as to the 
          allegations in the proceeding and was afforded an opportunity to 
          investigate and take necessary action prior to the issuance of the 
          order.  (Empress Manor Apts. v. DHCR, 547 NYS2d 49, 2nd Dept. 1989)

               As to the Administrator's inclusion in the order of the four 
          remaining tenants in addition to the complainant, Section 2202.16 
          of the Rent and Eviction Regulations provides that where there is 
          a finding of a decrease in essential services, the maximum rent for 
          the housing accommodation shall be decreased by the amount which 
          the Administrator finds to be the reduction in the rental value of 
          the housing accommodation because of the decrease in essential 
          services.  Where the service is a building-wide service, the rental 
          value of all rent controlled accommodations in the building is 
          affected and rent reductions are warranted, regardless of whether 
          a rent controlled tenant signed the complaint or requested a 
          decrease.  The apartments of the four named tenants are duly 
          reflected in the Division's records as rent controlled 
          accommodations and the four tenants were therefore entitled to the 
          rent reduction.

               The owner is advised to file a rent restoration application 
          upon the restoration of the condition cited in the order.  The rent 
          reduction remains in effect until an order restoring the rent is 
          issued by DHCR.     

               THEREFORE, in accordance with the NYC Rent and Eviction 
          Regulations, it is

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

          ISSUED:



                                                                           
                                             JOSEPH A. D'AGOSTA
                                             Deputy Commissioner






    

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