CH 630118 -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. 6142 MANDAMUS

IN THE MATTER OF THE ADMINISTRATIVE     ADMINISTRATIVE REVIEW
APPEAL OF                               DOCKET NO.: CH 630118 RO

     GREYSTONE ASSOCIATES               DISTRICT RENT
                                        ADMINISTRATOR'S DOCKET
NO.:  BK 610009 B
                        PETITIONER
----------------------------------x


  ORDER AND OPINION GRANTING PETITION FOR ADMINISTRATIVE REVIEW
        IN PART AND MODIFYING RENT ADMINISTRATOR'S ORDER
                                
      On August 31, 1988 the above named petitioner-owner filed a
Petition  for Administrative Review against an order of the  Rent
Administrator issued July 27, 1988.  The order concerned  housing
accommodations  located  at 474 West 238th  Street,  Bronx,  N.Y.
wherein  the Administrator ordered a building-wide rent reduction
for failure to maintain required or essential services.

      The  Commissioner  has reviewed the  record  and  carefully
considered  that portion relevant to the issues  raised  by  this
appeal.

      The  tenants  of  38  apartments in  the  subject  building
commenced  this proceeding by filing a Statement of Complaint  of
Decrease  in  Building-Wide Services on November  2,  1987.   The
following services deficiencies were noted:

          1.   Use  of storage room has been restricted since new
               owners took over
          
          2.   Defective roof which leaks
          
          3.   Sidewalk and steps outside building in disrepair
          
          4.   Elevator frequently does not work
          
          5.   Back yard pavement in disrepair
          
          6.   Sun deck outside lobby unusable
          
          
          7.   Public hallways, windows and lobby dirty
          
          8.   Public windows do not close
          
          9.   Building   used   to   have   both   porter    and
               superintendent but porter is no longer employed
          
         10.   Garbage room dirty
     
         11.   Lobby doors do not close properly
     
         12.   Building  water  supply  cloudy  and  filled  with
               particles
     
         13.   Fire exit blocked
     
         14.   Ashtrays no longer in hallways
     
         15.   No running water in incinerator room sinks
     
         16.   Garage windows broken and never repaired
     
         17.   Door to roof does not open properly
     
         18.   Brackets for window shades and blinds were removed
               and never replaced
     
         19.   Intermittent heat and hot water problems
     
The  complaint  was  served on the owner and  an  opportunity  to
respond was afforded.

      The  owner filed a response on December 18, 1987.  In  that
response  it  stated that the complaint herein is a duplicate  of
another  previously filed with DHCR (see Docket No.  630009  HW).
Although  the  owner  filed  a response  in  that  proceeding  it
supplied a copy of that response as an answer to this one.
Specifically,  the  owner  stated:  that  there  was  no  chronic
heat/hot  water problem, that the new owners merely  removed  old
and  unclaimed items from the storage room to make room for other
tenants' items, that the defective roofing and masonry were being
repaired,  that  the  elevators were in good  working  order  and
constantly  serviced, that the yard and deck pavement were  being
repaired,  that  the public hallways were not unclean,  that  the
public  windows were in the process of being replaced,  that  the
building  did not have a porter for 10 years but that  a  weekend
cleaning  service  had  been added, that the  garbage  rooms  are
cleaned  daily  and  are under contract to be painted,  that  the
lobby  doors are scheduled to be repaired or replaced,  that  the
building  water is not within the control of the owner  but  that
the  building plumbing is in good condition, that the fire  exits
have  been unblocked, that ashtrays were never in the halls, that
the  incinerator room sinks are not for the tenants to use,  that
the  garage  windows are constantly being vandalized despite  the
owner's  efforts to keep them in good repair, that the roof  door
is  being  repaired, and that personally owned  window  brackets,
blinds  and air conditioners were removed during the installation
of new thermopane windows.

      The  Administrator  ordered a physical  inspection  of  the
building.  That inspection was carried out on April 12, 1988  and
revealed the following:

          1.   Tenants do not have access to storage room
          
          2.   Incinerator rooms do not have water
          
          3.   Defective public area windows on all floors
          
          4.   Defective garage windows
          
          5.   Defective roof door
          
      Based  on  the above report, the Administrator  issued  the
order here under review on July 27, 1988.  A rent reduction
was ordered for rent controlled and rent stabilized tenants.  The
Commissioner  notes that the owner subsequently  filed  for  rent
restoration.   This application was granted on January  30,  1992
(see Docket No. FD 630305 OR).

      On  appeal the owner, through counsel, makes the  following
arguments in seeking reversal of the order here under review:

          1.   The  owner was denied due process in that  it  was
               never  served with a copy of the complaint  herein
               nor afforded an opportunity to respond thereto
          
          2.   The  Administrator's order has a  severe  economic
               impact  on  the  owner who is attempting  to  make
               repairs to the building
          
          3.   The  order  here under review contains errors  and
               inconsistencies  to  wit--  the  storage  area  is
               secured  to  protect from theft, but  the  tenants
               have  access  through the building superintendent,
               the  basins in the compactor rooms are for use  by
               the building maintenance staff and not the tenants
               personal use and water can be obtained by  turning
               a valve under the sink to the "on" position, there
               are  two  finding  of defective windows  with  two
               separate  rent reductions and said reductions  are
               vague  and  indefinite in that the nature  of  the
               defects  are  not reported nor is  the  manner  in
               which  they are to be remedied, and, finally,  the
               roof door was repaired in the spring of 1988.
          
      The tenants, also through counsel, filed a response to  the
petition on October 17, 1988.   They raised the following  points
in arguing for affirmation of the order here under review:

          1.   The petition filed by the owner is untimely
          
          2.   The  owner has failed to maintain services and its
               arguments  to  the  contrary  are  irrelevant  and
               contradictory
          
          3.   The  owner was given ample notice of the  services
               defects  and  still  failed to make  the  required
               repairs
          
The Commissioner notes that the owner filed an application for  a
stay of the Rent Administrator's order on September 12, 1988. The
retroactive rent abatement was automatically stayed by the filing
of the petition for administrative review and the application for
a  stay  of the prospective rent abatement was denied on February
7, 1990.

      After  careful  review of the evidence in the  record,  the
Commissioner  is  of  the opinion that this  petition  should  be
granted  in  part,  and the order here under review  modified  to
delete  the  first  and second findings of the  Administrator  as
independent bases for reductions in rent.

      Initially, the Commissioner rejects petitioner's  statement
to the effect that it was never notified of the complaint herein.
The  record clearly contains a lengthy answer filed by the owner,
as  set forth above.  Therefore, the Commissioner concludes  that
there  was  adequate  notice  of  the  services  defects  and  an
opportunity to comment on and correct them.

      Similarly,  the  Commissioner rejects the owner's  "adverse
economic  impact"  defense  as  a basis  for  revoking  the  rent
reduction  order.  Section 2523.4 of the Rent Stabilization  Code
provides  that  upon application by the tenants, the  DHCR  shall
reduce  the  rent for the period for which it is found  that  the
owner   has   failed   to   maintain  required   services.    The
determination to order a rent reduction is not discretionary once
a  failure  to  maintain services is confirmed and the  financial
impact  of  the  rent reduction on the owner is  not  a  relevant
consideration.

      Turning to the individual rent reductions, as based on  the
report of the inspector, the Commissioner finds that the findings
regarding  public area windows on all floors, garage windows  and
the  roof door were amply supported.  The inspector reported that
the  first,  second, third, fourth, fifth and  sixth  west  floor
public area windows would not close properly and the second floor
window is loose and in danger of falling out.  The fourth,  fifth
and  sixth floor east side public area windows were also reported
to be defective.  With regard to the garage windows the inspector
reported  several cracked panes.  Finally, with  respect  to  the
roof  door,  the inspector reported that it was off  its  hinges.
Therefore,  the Administrator was correct in issuing  the  third,
fourth and fifth findings.  Those findings are affirmed.

     With regard to access to the storage room, the owner did not
raise  the  issue  of access being available  by  contacting  the
superintendent  while  this proceeding  was  pending  before  the
Administrator.  This allegation could not be investigated by  the
inspector  who  simply reported that there was no access  to  the
storage  areas.  The tenants specifically stated that  access  to
the storage areas had been restricted and the owner responded  to
this  portion of the Complaint by stating that more room had been
made available for storage.  Nothing was said about how access to
the  storage  area  is obtained.  Since the scope  of  review  in
administrative appeals is limited to facts or evidence before the
Administrator, the owner's contention regarding the  availability
of   access   through  the  superintendent,  which   is   sharply
contradicted  by  the tenants, is not an appropriate  matter  for
consideration for the first time on appeal.

      With  regard  to  the  finding of  lack  of  water  in  the
incinerator rooms, the Commissioner is of the opinion that a rent
reduction  for  this condition is not warranted.  The  owner  has
repeatedly  stated that the sinks in the compactor (the  building
does  not have incinerators) rooms were never intended to be used
by tenants.  They were used by the building superintendent and/or
building maintenance personnel for cleaning public areas.   Since
the  tenants have not provided any explanation for why they  need
to  use the sinks in the compactor rooms, the Commissioner  finds
that  this  is not a required service.  The $3.00 per month  rent
reduction  for  this item is revoked for rent controlled  tenants
and  the  owner need not restore this service in order to  obtain
restoration of rent for stabilized tenants.  The order here under
review  is  modified to reflect the decision herein  and,  as  so
modified, is affirmed.
     As noted above, the owner has been granted rent restoration.
With  regard  to rent controlled tenants residing in the  subject
building,  if rent arrears are due and owing the owner  based  on
the  Order and Opinion of the Commissioner, said tenants may  pay
off the arrears in twelve (12) equal monthly installments. Should
any  such  tenant  vacate  their  apartment  or  have  previously
vacated, the arrears are due and payable immediately.

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

      ORDERED,  that  this petition be, and the same  hereby  is,
granted in part, and that the Rent Administrator's order be,  and
the  same  hereby is, modified in accordance with this Order  and
Opinion.

ISSUED:




JOSEPH A. D'AGOSTA
                                   Acting Deputy Commissioner



    

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