CJ130057RO et al.


                                  STATE OF NEW YORK
                      DIVISION OF HOUSING AND COMMUNITY RENEWAL
                            OFFICE OF RENT ADMINISTRATION
                                     GERTZ PLAZA
                                  92-31 UNION HALL
                                  JAMAICA, NY 11433





          ------------------------------------x
          IN THE MATTER OF THE ADMINISTRATIVE          ADMINISTRATIVE REVIEW
          APPEALS OF                                   DOCKET NOS.:
                                                       CJ130057RO     
                                                       CJ110250RT
               Athena Vrettos Papakonstadinou
                    and
               Linda Harris,
                                                       RENT ADMINISTRATOR'S
                                                       DOCKET NO.:
                                                       CC130015B
                                   PETITIONERS
          ------------------------------------x

            ORDER AND OPINION GRANTING OWNER'S PETITION FOR ADMINISTRATIVE
                   REVIEW, IN PART, AND DENYING TENANT'S PETITION 
                              FOR ADMINISTRATIVE REVIEW

          The above-named owner and tenant filed timely petitions for 
          administrative review of an order issued concerning the housing 
          accommodations known as 43-09 43rd Street, Various Apartments, 
          Sunnyside, New York.

          These petitions are being consolidated for disposition herein 
          because they involve common questions of law and fact. 

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

          The record reveals that 38 tenants of the 48 units in the building 
          joined in filing a complaint on March 2, 1988, asserting that the 
          owner had failed to maintain certain services in the subject 
          building.  Specifically, the tenants alleged, in pertinent part, 
          that the elevator has been out of service since January 22, 1988, 
          the roof is leaking, most of the machines have been removed from 
          the laundry room, and there is no access to the basement.
















          CJ130057RO et al.

          In an answer, the owner stated that the elevator was previously out 
          of service because the traction sheave hoist cables had to be 
          replaced, that a new roof was installed four years ago and any 
          sporadic leaks are repaired immediately, and that the laundry room 
          is in complete operating condition but the tenants chose to boycott 
          it. 

          Thereafter an inspection of the subject building was conducted by 
          a DHCR inspector on June 6, 1988, who confirmed the existence of 
          the following defective conditions:

          1.   Elevator does not level with the floors and the elevator tiles 
               are worn out and cracked.

          2.   The sixth (6th) floor ceiling (above incinerator door) is 
               blistered and discolored due to water seepage from roof.

          3.   All laundry machines are disconnected.

          4.   Tenants do not have access to basement.

          Other conditions complained of were found to have been corrected.

          The Rent Administrator directed restoration of these services and 
          further ordered a guideline reduction of the stabilization rent for 
          rent stabilized apartments and a $10 per month reduction of the 
          maximum rent for rent controlled apartments.

          In its petition for administrative review, the owner states, in 
          substance, that the tenants complained of the elevator being out of 
          service since January 22, 1988, and not about leveling problems or 
          defective tiles.  The owner further states that though the sixth 
          floor ceiling is blistered and discolored due to water seepage from 
          the roof, this is not what the tenants complained of, which was 
          leaks from the roof to the hallway and vestibule of the first 
          floor, and lastly that the laundry machines were never used so 
          there should not be a rent reduction for a service tenants never 
          took advantage of.  The owner enclosed an affidavit by the 
          supervisor of the building stating that the laundry machines earned 
          only $10.00 to $20.00 per month which did not cover their operating 
          costs. 

          The DHCR served a copy of the owner's petition on the tenants on 
          November 22, 1988.

          In the petition for administrative review filed by one tenant, it 
          is alleged that the inspector overlooked the severe mouse and roach 
          infestation in the building, that the public areas and incinerator 
          rooms are filthy, and that no 24-hour emergency number is posted.

          The tenant's petition was served on the owner on December 2, 1988.  
          The owner answered and referred to its own petition. 






          CJ130057RO et al.


          After careful consideration, the Commissioner is of the opinion 
          that the owner's petition should be granted in part and the 
          tenant's petition should be denied.

          Pursuant to Section 2523.4 of the Rent Stabilization Code, DHCR is 
          required to order a rent reduction, upon application by a tenant, 
          where it is found that an owner has failed to maintain required 
          services.  Required services are defined by Section 2520.6(r) as 
          those services provided on the base date or thereafter including 
          repairs, decorating and maintenance, elevator services and 
          janitorial services.

          Section 2202.6 of the Rent and Eviction Regulations authorizes a 
          rent reduction where there has been a decrease in essential 
          services which are defined in Section 2200.3 as those services 
          furnished or required to be furnished on April 30, 1962 which were 
          included in the maximum rent.  They may include repairs, decorating 
          and maintenance, elevator service, laundry facilities and 
          privileges, and janitor service.

          The Commissioner is of the opinion that the Rent Administrator's 
          order appealed herein properly ordered a rent reduction and 
          restoration of services with regard to the water damage to the 
          sixth floor ceiling and the laundry machines that were found to be 
          disconnected and inaccessible.  The allegation in the complaint 
          that the roof was leaking was insufficient to put the owner on 
          notice of the need to repair the condition on the sixth floor 
          ceiling noted by the inspection.

          Similarly, the complaint regarding the laundry machines was 
          confirmed by the inspector.  The fact that the machines earned an 
          insufficient return to cover operating expenses is irrelevant, 
          given the inspector's report that the tenant's do not have access 
          to the basement to use the machines.

          As for the elevator, however, the Commissioner is of the opinion 
          that the finding regarding leveling problems and defective tiles is 
          not related to the complaint.  The tenants stated in the complaint 
          that the elevator had been out of service for several weeks.  The 
          Division's inspector reported that the elevator was operating.  The 
          leveling and the tile conditions were not part of the complaint and 
          the owner was not on notice of the need to correct these items.





          Reference to the elevator conditions must be deleted from the 
          order.  For rent controlled tenants, the result is a revocation of 
          $2.00 of the $10.00 rent reduction which the tenants may refund to 
          the owner in installments of $2.00 per month until all arrears are 












          CJ130057RO et al.

          repaid.

          The rent reduction by a guideline for stabilized tenants is 
          unaffected by the deletion of the elevator conditions from the 
          order.

          The tenant's petition challenges the accuracy of the inspection 
          report.  However, the Commissioner deems it appropriate to rely on 
          the impartial observations of the Division's employee rather than 
          the unsupported allegations of a party to the proceeding.  The 
          tenant retains the right to file additional complaints if the facts 
          so warrant.      

          The Division's records reveal that the owner's rent restoration 
          application has been granted (Docket No. CJ120017OR).

          The automatic stay of the retroactive rent abatement that resulted 
          by the filing of this petition for rent stabilized tenants is 
          vacated upon issuance of this order and opinion.
             
          THEREFORE, in accordance with the Rent Stabilization Law and Code, 
          the Emergency Tenant Protection Act of 1974 and the Rent and 
          Evictions Regulations for New York City, it is

          ORDERED, that the tenant's petition be, and the same hereby is, 
          denied, and the owner's 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
                                             Deputy Commissioner  
    

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