CD630207RO

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





          ------------------------------------x
          IN THE MATTER OF THE ADMINISTRATIVE          ADMINISTRATIVE REVIEW
          APPEALS OF                                   DOCKET NOS.: 
                                                       CD630207RO
                                                       CE620080RT
                    Grace DiTomaso, Petitioner-owner
                    and
                    Walter Ganz, Petitioner-tenant
                                                       RENT ADMINISTRATOR'S
                                                       DOCKET NOS.:
                                                       BJ630002OR
                                                       BG630050OR

                                   PETITIONER
          ------------------------------------x

                ORDER AND OPINION GRANTING, IN PART, OWNER'S PETITION
                 FOR ADMINISTRATIVE REVIEW AND TERMINATING, AS MOOT,
                     TENANT'S PETITION FOR ADMINISTRATIVE REVIEW

          The above-named owner and tenant filed timely petitions for 
          administrative review of orders issued by the Rent Administrator 
          concerning the housing accommodations known as 1560 Silver Street, 
          Bronx, New York, wherein the Rent Administrator determined the 
          owner's applications to restore rent previously reduced per Docket 
          No. B003398B.

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

          The Rent Administrator had reduced the tenants' rent (B003398B) 
          based on findings of defective front and rear entrance door locks 
          and inadequate janitorial maintenance in the building in that the 
          public hallways were not cleaned.



















          CD630207RO

          In an order dated September 25, 1987, the Rent Administrator 
          granted the owner a partial rent restoration (AJ620073OR) of $8.00
          per month for rent controlled tenants, effective October 1, 1987, 
          based on findings that the front and rear door locks had been 
          repaired and were operating properly.  The Rent Administrator 
          otherwise denied rent restoration for both rent controlled and rent 
          stabilized tenants based on a finding that an inspection revealed 
          that the courtyard and outside areas of the building were not 
          clean; these conditions had not been cited in the underlying rent 
          reduction order.  The inspector had also reported that the area in 
          the building near the rear door was filthy, although it was not 
          cited in the denial order.  There is no record of an administrative 
          appeal by either the owner or the tenants.

          The owner also filed a separate rent restoration application  
          pursuant to notice from DHCR's Compliance Unit that an inspection 
          had revealed that the owner had complied with the directive to 
          correct the conditions cited in the underlying rent reduction 
          order.  A new case docket was established under Docket No. 
          BG630050OR although the initial rent restoration proceeding 
          (AJ620073OR) was still pending at the time.  

          The owner filed yet another rent restoration application in October 
          1987 asserting that the courtyard exterior area litter, cited in 
          the September 25, 1987 order (AJ620073OR), had been cleaned.  The 
          application was assigned a separate case docket (BJ630002OR) 
          although the previous application (BG630050OR) was then pending. 

          The Rent Administrator issued an order on March 18, 1988, 
          (BJ630002OR) which again denied rent restoration, based on the 
          results of a January 28, 1988 inspection that found that the public 
          halls were littered with paper, that the exterior areas of the 
          building were littered with trash from uncovered garbage cans and 
          that the rear building door and lock were defective.  The order 
          also referred to a rent reduction order per Docket No. AL630023B. 
          (DHCR records show that a rent restoration order was issued on July 
          12, 1988 per Docket No. BJ630003OR restoring rent previously 
          reduced per Docket No. AL630023B).  The owner filed an 
          administrative appeal challenging the denial order.

          The Rent Administrator issued another order on April 19, 1988, 
          (BG630050OR) that granted a partial rent restoration of $9.00 per 
          month for rent controlled tenants based on findings that the front 
          and rear door locks had been repaired.  The Rent Administrator's 
          order again denied rent reduction for rent controlled and rent 
          stabilized tenants based on the results of an inspection conducted 
          on January 5, 1988 that found that the public hallway areas 
          required cleaning.  One tenant filed a timely administrative 
          appeal challenging the partial rent restoration, on grounds more 
          fully set forth below.
          In its petition, the owner asserts that the rent should have been 
          restored effective November 1, 1986, in the initial rent 






          CD630207RO

          restoration proceeding, as evidenced by the Compliance Bureau 
          inspection.  The owner also argues that the conditions pertaining 
          to the exterior of the building should not have been considered in 
          reviewing the owner's application for restoration of rent, as they 
          were not the basis of the rent reduction order.  The owner 
          continues that it should not be penalized for the (alleged) delay 
          in processing the owner's rent restoration applications, and that 
          in light of such delays, the conditions which did exist were new 
          conditions which did not relate back to the original complaint.  
          The owner further contends single inspections in individual 
          proceedings do not show a course of conduct in failing to maintain 
          janitorial services.

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

          In the rent restoration proceedings herein under appeal by the 
          owner (BJ630002OR), the tenants did not consent to have the rent 
          restored, and in fact, challenged the owner's application.  The 
          Rent Administrator processed the application in accordance with the 
          normal procedures for a challenged application.

          The owner's request to restore rent effective November 1, 1986 
          constitutes an impermissible collateral attack of the prior final 
          order (AJ620073OR).  While the Compliance Bureau's inspection 
          showing that the hallway areas were clean was conducted while the 
          initial rent restoration proceedings (AJ620073OR) were pending, the 
          owner did not seek administrative review of the Rent 
          Administrator's order.  Consequently, the determination 
          (AJ620073OR) became final and an appeal thereof is time barred.  It 
          is also noted that the Compliance letter that advised the owner to 
          file the (second) application was not an order and is not subject 
          to administrative appeal.

          Concerning the findings in BJ630002OR, the Commissioner notes that 
          the rear building door lock condition found constituted a new 
          condition since the prior determination (AJ620073OR) had found the 
          building's front and rear door locks to have been repaired and 
          restored the rent for these items.  The rear door lock defect, the 
          litter conditions found outside the building and in the courtyard, 
          and the rear door defects did not relate back to the underlying 
          rent reduction order, and could not be considered in processing the 
          owner's application for rent restoration.  Therefore, these 
          conditions are hereby revoked as grounds for denying rent 
          restoration.



          However, the findings cited in the underlying rent reduction order 
          that janitorial services were inadequate and the order denying rent 
          restoration, that the hallways required sweeping and mopping, are 
          not new conditions.  They are conditions that recur if janitorial 












          CD630207RO

          services are not sufficiently frequent and adequate to keep the 
          public areas clean.    The Rent Administrator properly relied on 
          the results of the inspection to deny rent restoration.  

          The owner also urges that a single inspection does not show a 
          course of conduct in failing to maintain janitorial services.  It 
          is noted, however, that a number of inspections found that the 
          public areas were in need of sweeping and mopping.

          The tenant's petition for administrative review challenges the Rent 
          Administrator's partial restoration order (BG630050OR) pointing out 
          the inconsistencies with the determination under BJ630002OR which 
          found additional defective conditions.  However, the tenant's 
          petition has been rendered moot by reason of the instant 
          determination, which amends the Rent Administrator's order 
          (BJ630002OR), but otherwise properly affirms the Rent 
          Administrator's order insofar as to deny further rent restoration, 
          on the grounds that an inspection found the building's interior 
          public areas in need of sweeping and mopping.

          DHCR records also reveal that title to the property has been 
          transferred to a new owner, who is to be served a copy of this 
          order.

          THEREFORE, in accordance with the Rent Stabilization Law and Code, 
          and the City Rent and Eviction Law and Regulations, it is

          ORDERED, that the owner's petition be, and the same hereby is, 
          granted, in part, and that the Rent Administrator's order 
          (BJ630002OR) be, and the same hereby is amended to revoke the rear 
          door and lock and litter conditions outside the building as bases 
          for denying rent restoration.  In other respects, the Rent 
          Administrator's order is affirmed.  It is further

          ORDERED, that the tenant's petition be, and the same, hereby is 
          terminated as moot, in accordance with the above.
                

          ISSUED:

                                                                     
                                             JOSEPH A. D'AGOSTA
                                             Deputy Commissioner  
    

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