CA430053RT





                                  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


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          IN THE MATTER OF THE ADMINISTRATIVE     ADMINISTRATIVE REVIEW
          APPEAL OF                               DOCKET NO.: CA430053RT
                                                  

          MARCIA LACH C/O ROSE ANN MAGALDI        RENT
                                                  ADMINISTRATOR'S DOCKET
                                                  NO.: BG430001HW

                                  PETITIONER            
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            ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW
                                          
          On January 21, 1988 the above named petitioner-tenant 
          representative filed a Petition for Administrative Review against 
          an order of the Rent Administrator issued December 16, 1987 
          concerning the housing accommodations known as various apartments, 
          945 Fifth Avenue, New York, NY, wherein the Administrator denied 
          the tenants' complaint based on a finding that adequate heat and 
          hot water services were being provided.
                    
          The Commissioner has carefully reviewed all the evidence of record 
          and has carefully considered that portion relevant to the issues 
          raised on appeal.

          A review of the record reveals that in July 1987, twelve tenants in 
          this 107 unit building joined in filing a complaint alleging in 
          relevant part that the owner had failed to provide adequate heat 
          and hot water services on various days between January and April 
          1987.

          A DHCR inspector visited the building on October 7 and 26, 1987.  
          Of the twelve complaining tenants, the inspector gained access to 
          six apartments and was advised by the tenants that the hot water 
          temperature was OK or that the tenants had never made a complaint.  
          The remaining six apartments did not provide access. 

          The tenant representative was informed on November 17, 1987 that 
          the inspector reported that he had been told that the conditions 












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          complained of had been corrected.  In response, a representative 
          stated that the problem with the heat and hot water occurs only 
          during periods of extremely cold temperatures.

          The order appealed herein was issued on December 16, 1987 denying 
          the tenants' complaint which order included a warning to the 
          landlord to provide adequate heat and hot water service.

          In the petition for administrative review, the tenants, through 
          counsel, assert that they were denied due process because they were 
          not served with a copy of the owner's answer, that one physical 
          inspection before the heating season commenced was insufficient to 
          resolve this complaint of a lack of heat and hot water services 
          which continues to exist, that a hearing should have been held, and 
          that a rent reduction should have been ordered.
                    
          In answer to the petition, the owner, through counsel, alleges that 
          the tenants were not denied due process because no answer to the 
          complaint was submitted by the owner, that the order was properly 
          based on inspections in October because heating season begins 
          October 1, and that it was within DHCR's discretion to determine 
          the tenants' complaint without a hearing.

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

          Section 2523.4 of the Rent Stabilization Code requires the Division 
          to order a rent reduction, upon application by a tenant, where it 
          is found that the owner has failed to maintain required services.  
          Required services are defined in Section 2520.6(r) to include heat 
          and hot water services.

          For rent controlled tenants, Section 2202.16 of the Rent and 
          Eviction Regulations authorizes a rent reduction where there has 
          been a decrease in essential services which include heat and hot 
          water services.  
            
          The evidence of record supports the Administrator's determination 
          that a rent reduction was not warranted.  A review of the record 
          confirms that the owner did not submit an answer to the complaint  
          and the tenants were therefore not deprived of any due process 
          rights.  The Rent Administrator's order was properly based on the 
          results of two physical inspections during the heating season
          which revealed that adequate services were being provided.  If the 
          problems alleged in the complaint persist as the tenants allege, a 
          subsequent complaint could have been filed but the Division's 
          records reveal that there have been no such complaints.

          The decision to hold a hearing to resolve a complaint is within the 
          discretion of the Rent Administrator and the Commissioner is of the 
          opinion that it was not an abuse of discretion to decline to have 
          a hearing in this case which was suitable for determination by 






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          means of physical inspection.  The tenants have not established any 
          basis for modifying or revoking the Administrator's determination 
          that a rent reduction is not warranted.

          Therefore in accordance with the Rent Stabilization Law and Code 
          and the Rent and Eviction Regulations for New York City, 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