CH210247RO

                                  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
          APPEAL OF                                    DOCKET NO.: CH210247RO

               50 East 19th Street Associates,
                                                       RENT ADMINISTRATOR'S
                                                       DOCKET NO.: BK210205S
                                   PETITIONER
          ------------------------------------x

            ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW

          The above-named petitioner-owner filed a timely petition for 
          administrative review of an order issued concerning the housing 
          accommodation known as 50 East 19 Street, Apt. A2, Brooklyn, N.Y.

          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 14, 1987, asserting that the owner had failed to maintain 
          certain services in the subject apartment.

          The owner did not answer the complaint, although afforded an 
          opportunity to do so.

          Thereafter an inspection of the subject apartment was conducted by 
          a DHCR inspector on May 26, 1988, who confirmed the existence of 
          the following defective conditions:

          1.   Three stove burners were defective; oven can't be regulated.
          2.   Hole under the kitchen sink.
          3.   Evidence of water leak around kitchen sink.
          4.   Bathroom floor has been repaired; tiles are of a different 
               color.
          5.   Bathroom sink hot water faucet drips.
          6.   Hallway switch defective.
          7.   Peephole in need of adjustment.
          8.   Bedroom closet has a leak; walls are water-stained.
          9.   Living room left window doesn't lock; living room right window 
sash doesn't stay open.













          CH210247RO

          The Rent Administrator directed restoration of these services and 
          further ordered, a reduction of the stabilization rent.

          In its petition for administrative review, the owner states, in 
          substance, that the Enforcement Bureau outlined the repairs to be 
          made to the tenant's apartment and most of them were done if access 
          was not an issue.  The owner also stated that, the tenant refused 
          the replacement stove because it was not new, the bathroom floor 
          tiles were replaced with tiles that were not the same color because 
          the color is no longer available and the tenant agreed to the use 
          of those tiles, the sink was made operable, the leak is new, and 
          the peephole was replaced, but an adjustment is needed.  The owner 
          further states that a good portion of the work was done and the 
          Enforcement Bureau felt comfortable enough to close the case.  The 
          owner claims that access to complete the remaining repairs was not 
          given and that it is unfair to reduce the rent for these conditions 
          or for any that were not included in the directives by the 
          Enforcement Bureau.
            
          The DHCR served a copy of the petition on the tenant on October 17, 
          1988.  The tenant replied that the owner agreed during a conference 
          that he would replace the old flooring in the bathroom with a new 
          one, fix the peephole, and fix the kitchen sink and floor, but all 
          items were not repaired and the owner then claimed that he could 
          not gain access.  The tenant further states that an agreement was 
          made that access would be Monday through Friday between the hours 
          of 9 to 5 p.m. only and that she should be informed in advance of 
          repair dates.  She further states that the problems in her 
          apartment date back to 1985 and are far from being completed and 
          that is why the owner's petition should be denied.

          The Administrator's order was properly based on a May 26, 1988 on- 
          site inspection which confirmed that there are defective conditions 
          in the apartment.  Accordingly, the determination was in all 
          respects proper and is hereby sustained. 
            
          After careful consideration, the Commissioner is of the opinion 
          that the 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.  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  required services based on a 
          physical inspection confirming the existence of defective condi- 
          tions in the subject apartment for which a rent reduction is 
          warranted.  


          The scope of review in administrative appeals is limited to a 
          review of facts or evidence that were before the Administrator.  






          CH210247RO

          The failure of the owner to answer the complaint precludes 
          consideration of the issues for the first time in this appeal 
          proceeding.

          The Commissioner has also considered the owner's contention on 
          appeal that since the Enforcement Bureau closed the case and that 
          a good portion of the work was done, the rent reduction order 
          should be revoked.  The Commissioner rejects this argument.  
          Diminution in services is a separate proceeding from an enforcement 
          proceeding with different standards and procedures.  A copy of the 
          tenant's complaint seeking a rent reduction for failure to maintain 
          services was mailed to the owner, giving the owner notice of the 
          conditions requiring repair and the owner failed to respond.  

          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.

          The automatic stay of the retroactive rent abatement that resulted 
          by the filing of this petition is vacated upon issuance of the 
          order and opinion.

          THEREFORE, in accordance with the Rent Stabilization Law and Code 
          and the Emergency Tenant Protection Act of 1974, 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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