Docket Number:  CA-130166-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 
     IN THE MATTER OF THE ADMINISTRATIVE :  ADMINISTRATIVE REVIEW
     APPEAL OF                              DOCKET NO.: CA 130166-RO
                                         :  
          KREISEL COMPANY, INC.,            DRO DOCKET NO.: BG 110011-B

                           PETITIONER    : 
     ------------------------------------X                           

       ORDER AND OPINION GRANTING IN PART PETITION FOR ADMINISTRATIVE REVIEW 
                            AND IN REMANDING PROCEEDING

     On  January  13,  1988,  the  petitioner-owner  filed   a   Petition   for
     Administrative Review against an order issued on December 10, 1987 by  the
     Rent Administrator, 92-31 Union Hall Street, Jamaica,  NY  concerning  the
     housing accommodations known as 215-40 47th  Avenue,  Bayside,  New  York,
     various apartments.  

     The instant matter stems from a multiple tenants' complaint  of  decreased
     services filed with the Division on July 1,  1987  alleging,  among  other
     things, the elimination of both a playground and sitting area with benches
     and that the incinerator was removed.

     On September 15, 1987 a notice of the tenants'  complaint  was  mailed  to
     the petition-owner.  No response was received thereto.

     On October 13, 1987 a physical inspection was  conducted  of  the  subject
     address the report of which disclosed that:  1) the incinerator doors were 
     locked, 2) "playground  area  [is]  eliminated"  and  3)  "no  benches  in
     development."

     The herein appealed order of the Rent Administrator reduced the stabilized 
     rent based on the aforementioned inspection.

     In its petition for administrative review the owner contends, among  other
     things, that it had no record of being served with  this  complaint,  thus
     resulting in a denial of due process.  Further, addressing the  merits  of
     the tenants' complaint, as reflected in  the  Administrator's  order,  the
     owner contends, in substance, that incinerator  service  was  discontinued
     more than 15 years ago in compliance  with  prevailing  Law  (excerpts  of
     which were submitted with the petition) under which  owners  of  buildings
     with fewer than 40 apartments per incinerator chute were permitted to seal 
     incinerators upon a showing that upgrading would not be practical; that  a
     formal playground or sitting area with  traditional  playground  fixtures,
     sports facilities or benches was never a provided service; that  a  "black
     top" area was replaced by a lawn which serves the same functional  purpose
     and is aesthetically more pleasing; and that absent  independent  evidence
     that benches or  a  playground  were  eliminated  it  was  error  for  the
     Administrator to have reduced the rent for these items.
     In answer thereto the tenant of apartment 3-D states, in  substance,  that
     the owner's present procedure for refuse  removal,  whereby  tenants  must
     bring their garbage to a designated basement  room,  which  room  is  kept
     locked during the night, is both unsightly  and  unhealthy;  and  that  he






          Docket Number:  CA-130166-RO
     "grew-up" living within the development and has personal knowledge of  the
     fact that the center courtyard (now converted to  a  lawn)  contained  two
     small playgrounds and benches.

     In its reply, the owner states that  the  basement  refuse  room  is  kept
     locked between the hours of 8:00 p.m. and 7:00 a.m. for security  reasons;
     that "anyone wishing to dispose  of  refuse  in  the  late  hours  of  the
     evening or the wee hours of the morning may leave  neat  bags  beside  the
     basement door so they can be brought in by building employees";  that  the
     Administrator's order is predicated on the incinerator door being  locked,
     not due to a lack of cleanliness; and that  having  providing  a  suitable
     substitute services, a reduction in rent is  inappropriate.   In  addition
     the owner submitted the affidavit of a managing partner of  the  owner  of
     the subject premises to the effect that playground facilities  were  never
     provided during the approximately 30 years he owned or had an interest  in
     the subject premises; and that such facilities were not  provided  on  the
     1968 base date for stabilized apartments.

     After a careful consideration  of  the  entire  record,  as  amplified  on
     appeal, the Commissioner is of the opinion that this  petition  should  be
     granted in part and the proceeding remanded to the Rent Administrator  for
     further processing in accordance with this order and opinion.

     At the outset the Commissioner notes that Division records  disclose  that
     the subject premises constitutes part of a housing complex  consisting  of
     six buildings each of which has been divided in three separate units  with
     each unit being assigned a separate mailing address.  The records  of  the
     Division further disclose that similar service complaints  were  filed  by
     other tenants throughout the complex, which complaints were  responded  to
     by  the  owner  in  detail  in  the  respective  proceedings  before   the
     Administrator.  (The Administrator's determinations therein were  not  the
     subject of administrative appeal by either  the  owner  or  the  tenants.)
     Accordingly, the Commissioner accepts as credible  the  owner's  assertion
     that it would have responded in kind had it received notice of the instant 
     complaint in the proceeding below.

     Notwithstanding the foregoing, the Commissioner is of the opinion  that  a
     reduction in rent is warranted  after  giving  consideration  to  the  the
     owner's submissions on appeal, as in the matter of Parkchester  Management
     Corp. (ARL 5219-B) cited by the owner on appeal and where additional  fact
     finding is not required, as in the matter of 1840 Realty Co. (ARL  2398-B)
     also cited by the owner.  It  is  undisputed  that  garbage  disposal  via
     incinerator was a service provided to the subject premises on the May 1968 
     base   date   for   required   building-wide   services.    The   conceded
     discontinuance of incinerator service and the  failure  of  the  owner  to
     provide an adequate substitute service to the tenants warrants a reduction 
     in rent in accordance with established Division policy and the  policy  of
     the former New York City Conciliation and Appeals Board (DG 830193-RO).








          Docket Number:  CA-130166-RO
     The CAB held that where an owner was required to discontinue a service  or
     facility pursuant to an order of another regulatory agency, the owner  was
     not relieved of its obligations under the Rent Stabilization Law and Code. 
     Such rulings were sustained by the courts (Mehlman  Management  Corp.   v.
     CAB,  N.Y.L.J.,  June  6,  1972,  p.2  col.  3  (Sup.  Ct.,  Queens   Co.,
     Fitzpatrick, J.); Sherwood Associates  v. CAB, N.Y. Co., Helman, J.).   In
     situations somewhat analogous to that  involved  in  the  instant  matter,
     where the owners attempted to comply with  New  York  City  Local  Law  14
     (cited as justification by the owner herein) by shutting down incinerators 
     and placing garbage cans on the street, in the basement  or  in  the  rear
     courtyard, the CAB required door-to-door or floor-by-flo r  garbage  pick-
     up, ruling that the tenants were entitled to a level of service equivalent 
     to that provided on the base date (Accord: CAB Opinion  Nos.  2411,  2917,
     3663, 3920, 4346 and 5595).

     Moreover, the Board held, under circumstances similar to those involved in 
     the instant proceeding, that the  discontinuance  of  incinerator  service
     pursuant to, and with the consent of the appropriate municipal agency does 
     not constitute a diminution  of  required  services,  provided  the  owner
     furnishes an adequate substitute service not requiring the tenant to leave 
     his or her floor to dispose of his or her refuse.  (CAB Opinion Nos. 3088, 
     8130 et seq.).  In Opinion No. 14,080, the CAB found that  the  method  of
     garbage collection provided by the owner in said proceeding after  it  had
     discontinued incinerator service, that being placing  garbage  receptacles
     in each  of  the  previous  incinerator  refuse  rooms,  was  an  adequate
     substitute.

     In the instant proceeding it is  conceded  that  the  owner  has  replaced
     incinerator service with a method of garbage  disposal  which  requires  a
     tenant to leave his or  her  floor  and  to  carry  their  refuse  to  the
     basement storage area which is kept locked between the hours of  8:00  p.m
     and 7:00 a.m.  This clearly does not  constitute  an  adequate  substitute
     service.  Accordingly, the  Commissioner  finds  that  there  has  been  a
     reduction in required garbage disposal service for which the Administrator 
     properly reduced  the  stabilized  rents  of  the  subject  accommodation.
     However, since the owner did not have  notice  of  the  instant  complaint
     until receipt of the order appealed  herein,  the  Commissioner  deems  it
     appropriate to modify said order by changing the effective  date  of  said
     rent reduction to January 1, 1988,  the  first  rent  payment  date  after
     issuance of said order.

     However, in view of the sharply conflicting allegations of the  owner  and
     tenants with respect to the elimination of a playground area  and  benches
     and since a physical inspection which merely discloses the absence of said 
     facilities is not dispositive of the  issue,  the  Commissioner  deems  it
     appropriate to remand this proceeding to the Rent Administrator  for  such
     further processing as  may  be  deemed  necessary,  which  may  include  a
     hearing on notice to the parties, in order to resolve the issue of whether 
     or not such facilities are required base date services.

     THEREFORE, in accordance with the provisions  of  the  Rent  Stabilization
     Code, it is









          Docket Number:  CA-130166-RO
     ORDERED, that this petition be, and the same hereby is granted in part  to
     the extent of remanding this proceeding to the Rent Administrator for 
     further processing in accordance with this order and opinion.  The order 
     and determination of the Rent Administrator  remains  in  full  force  and
     effect, except as to the effective date  of  the  rent  reduction  ordered
     therein which is changed to January 1, 1988 (rather than October 1, 1987), 
     until a new order is issued upon the remand.

     ISSUED:



                                                                   
                                     ELLIOT SANDER
                                     Deputy Commissioner
    

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