CL220065RO
                                    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.:              
                                                  CL220065RO
                    MIDWOOD REALTY,
                                                  RENT ADMINISTRATOR'S
                                                  DOCKET NO.:
                                                  BL220480S
                                   PETITIONER                         
          ----------------------------------x


            ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW
                                          

          The above-named petitioner-owner filed a timely Petition for 
          Administrative Review (PAR) of an order issued concerning the 
          housing accommodation known as 1122 Avenue N, also known as 1414 
          East 12th Street, Apartment 1-K, Brooklyn, New York.

          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 petition.

          The tenant commenced the proceeding below by filing a complaint on 
          December 18, 1987, asserting that the owner had failed to maintain 
          certain services in the subject apartment.

          The owner was sent a copy of the tenant's complaint on February 3, 
          1988, and requested an extension to March 23, 1988, in order to 
          make all of the necessary repairs.

          In an answer, the owner denied the allegations set forth in the 
          complaint or otherwise asserted that the leaks in the apartment 
          have been eliminated, that the apartment is due for a painting, but 
          the tenant advised that he would like to wait until May 1988, to 
          get it done, and that the windows are fairly new and any problems 
          regarding them are addressed as part of regular building main- 
          tenance that is handled by the superintendent.

          On September 19, 1988, the tenant answered that the leaks are still 
          present and the management has stated that exterior waterproofing 
          has to be done before the painting.  The tenant also stated that 
          the problem with two windows still exists.












          CL220065RO




          Thereafter an inspection of the subject apartment was conducted by 
          a Division of Housing and Community Renewal (DHCR) inspector on 
          October 6, 1988, who confirmed the existence of the following 
          defective conditions:

               1.   Bedroom ceiling and walls are leak damaged, 
                    stained, and peeling paint and plaster.

               2.   Bathroom wall is peeling paint and plaster.

          The Rent Administrator directed restoration of these services and 
          further ordered a reduction of the maximum rent by $8.00 per month.

          In its petition for administrative review, the owner states, in 
          substance, that the leaks have been repaired and all that remains 
          to be done is the plastering and painting; however, the tenant was 
          on vacation for three weeks when the owner attempted by letter 
          dated October 24, 1985 to schedule an appointment for painting.  
          The owner enclosed a copy of this letter sent certified to the 
          tenant and a form dated November 29,. 1988, with the tenant's 
          signature stating that the apartment has been plastered and painted 
          to the tenant's satisfaction.

          The DHCR served a copy of the petition on the tenant on February 
          15, 1989.  The tenant filed an affirmation of non-compliance on 
          December 7, 1988, stating that the leaks emanating from the bedroom 
          ceiling and walls were patched and painted quickly, that the 
          bathroom was done poorly, and that when the form was signed asking 
          if the job was done satisfactorily, the paint was still wet.  The 
          tenant states that she is not satisfied with the work done.

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

          Pursuant to Section 2202.16 of the Rent and Eviction Regulation, a 
          rent reduction is authorized where there has been a decrease in 
          essential services which are defined in Section 2200.3 to include 
          repairs, maintenance, janitorial services, and removal of refuse.  
          The owner's petition does not establish any basis for modifying or 
          revoking the Administrator's order which determined that the owner 
          was not maintaining essential services based on a physical inspec- 
          tion confirming the existence of defective conditions in the 
          subject apartment for which a rent reduction is warranted.












                    


          Since the owner responded to the tenant's complaint on February 22, 
          1988, and asked for an extension until March 23, 1988, and an  
          inspection of the apartment seven (7) months later on October 6, 
          1988, still revealed the defective conditions, the owner had ample 
          time to repair the leak and to schedule an appointment to paint and 
          plaster.

          The scope of review in administrative appeals is limited to a 
          review of facts or evidence that were before the Administrator.  
          The failure of the owner to raise the issue of access to the 
          tenant's apartment for the painting and plastering, and to submit 
          substantiating evidence below precludes consideration of the issue 
          for the first time in this appeal proceeding.

          The owner may file a rent restoration application if the facts so 
          warrant.  The rent will not be restored until a rent restoration 
          application is filed and granted.


          THEREFORE, in accordance with 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:




                                                                           
                                                JOSEPH A. D'AGOSTA
                                                Deputy Commissioner






    

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