CE210167RO
                                  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.: CE210167RO
                                                  
          K.M.W. REALTY CO                        RENT
                                                  ADMINISTRATOR'S DOCKET 
                                                  NO.: BK230095HW
                                  PETITIONER            
          ----------------------------------x


            ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW
                                          
               On May 4, 1988 the above named petitioner-owner filed a 
          Petition for Administrative Review against an order of the Rent 
          Administrator issued April 5, 1988. The order concerned various 
          housing accommodations located at 1770 East 14th Street, Brooklyn, 
          N.Y.  The Administrator directed restoration of services and 
          ordered a rent reduction for failure to maintain adequate heat and 
          hot water.

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

               This proceeding was commenced on November 17, 1987 when 43 of 
          the 76 tenants joined in filing a Statement of Complaint of 
          Decrease in Building-Wide Services wherein they alleged, in 
          relevant part, that the owner was not maintaining adequate heat and 
          hot water services.

               The owner was served with a copy of the complaint and afforded 
          an opportunity to respond. The owner filed a response on December 
          8, 1987 and stated, in sum, that adequate heat and hot water was 
          being maintained.
           
               The Administrator ordered a physical inspection of the subject 
          building.  The inspection was conducted on February 23, 1988 and 
          March 14, 1988.  The inspector reported inadequate hot water 
          temperature in Apts. 4F, 5E and 6H.  The hot water temperature was 
          found to be adequate in the following apartments: 2B, 2C, 2D, 2J, 
          2F, 3M, 3C, 3D, 4C, 5C, 5B, 6G, 6J, 6C, 6D, 7J, 7G, and 7M.  
          Finally, the inspector reported that the tenants of the following 
          apartments failed to provide access: 1G, 2L, 2K, 2H, 2M, 3F, 3J, 
          4D, 4E, 4K, 5H, 5G, 5M, 5D, 5L, 5F, 5A, 6M, 6E, 7A, 7E, and 7F.













          CE210167RO


               The Administrator issued three orders on April 5, 1988.  A 
          rent reduction was ordered for the three tenants in whose 
          apartments the inspector reported a failure to maintain adequate 
          hot water temperature.  The application was denied for all other 
          apartments listed above either because the hot water temperature 
          was reported to be adequate or because the tenants had not afforded 
          access to the inspector. 

               On appeal the owner, as represented by counsel, states that 
          the tenants filed a duplicate complaint, which was assigned Docket 
          No. BK210077HW and dismissed by the Administrator on February 25, 
          1988, and that two of the tenants who were granted a rent reduction 
          in the order here under review filed statements in Docket No. 
          BK210077HW wherein they withdrew their complaints and stated that 
          they were receiving adequate hot water. The owner submitted with 
          the petition copies of such statement. The owner also states that 
          it is impossible that some tenants were found to have inadequate 
          hot water while others in the same building and serviced by the 
          same boiler were found to have adequate hot water.  The petition 
          was served on the tenants on July 8, 1988.
           
               After careful review of the evidence in the record, the 
          Commissioner is of the opinion that the petition should be denied.

               The Commissioner's review of the record in this proceeding as 
          well as the record in Docket No. BK210077HW does not reveal the 
          existence of the signed statements provided by the owner in the 
          petition. In fact, the owner's answers in both proceedings postdate 
          the purported withdrawals but were not mentioned by the owner. The 
          Commissioner has consistently ruled that the scope of review in 
          administrative appeals is limited to facts or evidence submitted to 
          the Administrator unless it can be shown that such facts or 
          evidence could not be submitted.  Since the records of both this 
          proceeding and Docket No. BK210077HW do not contain copies of the 
          tenants' statements and the owner has not established that such 
          statements were submitted to the Division, the Commissioner will 
          not consider this evidence on appeal.

               The Commissioner also rejects the owner's defense to the 
          effect that it was impossible for only some of the building 
          apartments to be without adequate hot water when all apartments are 
          serviced by the same boiler.  The inspector did not report a 
          problem with the boiler, but rather, a problem with the hot water 
          service as it affects the three apartments. The kitchen hot water 
          temperature of Apt. 4F was reported to be 100 degrees, the kitchen 
          and bathroom hot water temperatures of Apt. 5E were also reported 
          to be 100 degrees and the bathroom hot water temperature was 
          reported to be 84 degrees.  The owner has not rebutted the 
          inspector's report, which is entitled to more probative weight than 
          the unsupported allegations of a party to the proceeding.  The 
          order here under review was correctly issued and is affirmed.






          CE210167RO


               With regard to rent stabilized tenants affected by the order 
          here under review, the automatic stay of the retroactive rent 
          abatement which resulted from the filing of this petition is 
          vacated upon issuance of this order and opinion.  The owner may 
          file for rent restoration when services have been restored.
           
               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, 
          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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