CH420192RO
                                  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.:
                                                       CH420192RO
                    M. James Spitzer, Jr.,
                                                       RENT ADMINISTRATOR'S
                                                       DOCKET NO.:
                                                       CA420033OR
                                   PETITIONER
          ------------------------------------x

            ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW

          On August 16, 1988, the above-named petitioner-owner filed a 
          petition for administrative review (PAR) of an order issued on July 
          11, 1988, by the Rent Administrator, concerning the housing 
          accommodation known as 15 Saint Lukes Place, New York, New York, 
          garden apartment, wherein the Administrator determined that the 
          owner's application to restore the rent should be partially granted 
          based upon an inspection held on April 22, 1988.  The order 
          provided that the owner may refile for the balance of the maximum 
          legal rent plus $13.00, when the closets are painted, repairs to 
          the bedroom screens are completed, hallway light fixtures are 
          installed and when extermination services are restored.

          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 administrative appeal.

          The issue herein is whether the Rent Administrator properly granted 
          the owner's application in part.

          On January 20, 1988, the owner filed an application alleging that 
          most repairs and services which were the subject of the December 
          15, 1987, rent reduction order, issued under Docket No. BE420123S, 
          were restored.  The owner stated that other services were not 
          specified in the tenant's complaint or were not otherwise raised.




          The tenant filed an answer to the complaint alleging that the owner 
          failed to restore all services in a workmanlike manner and failed 












          CH420192RO

          to comply with the terms of a Civil Court settlement stipulation, 
          in which he promised to make all repairs.

          A DHCR inspection conducted on April 22, 1988, revealed that the 
          owner failed to fully restore services in the subject apartment.  
          The inspection showed, however, that the owner painted the 
          apartment, fixed the floor boards in the living room and that there 
          was no hole in the bathroom floor and no defective windows. 
             
          On appeal, the petitioner-owner asserted, in pertinent part, that 
          the Rent Administrator should have granted full rent restoration 
          because all work was either completed in workmanlike manner or was 
          in progress.  The owner also alleged that the tenant's opposition 
          to a full rent restoration grant is contrary to the court-ordered 
          stipulation of settlement filed in Civil Court in October, 1988, 
          and that the tenant agreed to perform much of the repair work for 
          other considerations.

          The petition was served on the tenant on October 11, 1988 and on 
          November 4, 1988, the tenant filed an answer to the petition 
          stating that all repairs were not completed by the owner and that 
          those repairs that were completed by the tenant were done out of 
          necessity.

          After a careful consideration of the entire evidence of record the 
          Commissioner is of the opinion that the administrative appeal 
          should be denied.

          The owner, on proof of restoration of those services which were the 
          subject of the Rent Administrator's reduction order is, by law, 
          entitled to apply for an order of restoration.

          The Commissioner notes that the stipulation of settlement relied 
          upon by the petitioner-owner, on appeal, is dated October, 1988 and 
          it, therefore, post-dates the July 11, 1988, issuance date of the 
          appealed order.

          Accordingly, the Commissioner finds that the Commissioner can not 
          consider the contents of this stipulation.

          The record shows that an earlier Civil Court stipulation was 
          entered into by the parties, on October 1, 1987, under Index No. 
          5468/87, which antedates the appealed order and which, in pertinent 
          part, provided that the owner would perform certain repair-work in 
          a workmanlike manner.



          The DHCR inspection conducted on April 22, 1988, revealed that the 
          owner failed to fully restore services.

          Accordingly, the owner did not comply with the provisions of the 






          CH420192RO

          stipulation dated October 1, 1987.

          As to the owner's claim on appeal that the tenant agreed to do much 
          of the repair work, it is fundamental that a rent regulated tenant 
          can not waive rights under the Rent Control Law and that any 
          subsequent agreement entered into by the parties in which the  
          tenant's services are waived is unenforceable.  The mere fact that 
          a tenant might replace certain services with the owner's 
          permission, does not relieve the owner of the obligation to provide 
          those services.

          The Commissioner finds, therefore, that the Rent Administrator 
          correctly issued the order below which partially granted the 
          owner's application.

          THEREFORE, in accordance with the provisions of the Rent and 
          Eviction Regulations for New York City, it is

          ORDERED, that this petition be, and the same hereby is, denied, and 
          the Administrator's order be, and the same hereby is, affirmed.
               


          ISSUED:






                                                                     
                                             JOSEPH A. D'AGOSTA
                                             Deputy Commissioner  






    

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