CI130208RO;  FJ110425RT


                                    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
          APPEALS OF                              DOCKET NOS.:             
                                                  CI130208RO;  FJ110425RT
              KINGSWOOD MANAGEMENT CORP.,
                          and          
                  CHARLES S. FOWLER,              RENT ADMINISTRATOR'S
                                                  DOCKET NOS.:
                                  PETITIONERS     CC110029OR;  EI130172OR
          ----------------------------------x



            ORDER AND OPINION DENYING PETITIONS FOR ADMINISTRATIVE REVIEW


          On September 29, 1988 and October 29, 1991, the above-named 
          petitioner-owner and tenant respectively filed petitions for 
          administrative review (PAR) of orders issued on August 23, 1988 and 
          September 24, 1991, by the Rent Administrator, concerning the 
          housing accommodations known as 144-22 78th Avenue, Flushing, 
          New York, various apartments, wherein the Rent Administrator 
          determined in Docket No. CC110029OR, that the owner's application 
          for rent restoration should be denied based on evidence in the 
          record that showed that not all of those services which were the 
          subject of the rent reduction order of October 14, 1987, under 
          Docket No. BB130115B, had been restored.  With regard to Docket No. 
          EI130172OR, the Rent Administrator determined that the owner's 
          second application for rent restoration should be granted, based on 
          the following findings:

               Physical inspection held on May 1, 1991, revealed that 
               the repairs were made.  However, the inspector revealed 
               that public hallway carpeting was dirty.

               Owner was notified on May 6, 1991 of same and afforded an 
               opportunity to correct the condition.  Subsequently the 
               owner submitted an invoice to indicate that the public 
               hallway carpeting was cleaned.

          The Commissioner has reviewed all the evidence in the record and 
          has carefully considered that portion of the record relevant to the 
          issue raised by the administrative appeals.        












          CI130208RO;  FJ110425RT






          The issue herein is whether the Rent Administrator properly denied 
          the owner's application for rent restoration in Docket No. 
          CC110029OR and granted the owner's second application for rent 
          restoration in Docket No. EI130172OR.  

          On August 23, 1988, the owner filed an application for rent 
          restoration alleging that the services which were the subject of 
          the Administrator's rent reduction order of October 14, 1987, under 
          Docket No. BB130115B were fully restored.  After the Administrator 
          denied this application, the owner filed a second rent restoration 
          application alleging full restoration of services.

          With regard to Docket No. CC110029OR, the tenants filed an answer 
          to the application alleging that the owner failed to correct those 
          service deficiencies specified in the rent reduction order of 
          October 14, 1987.

          With regard to Docket No. EI130172OR, the tenants essentially 
          reiterated their allegations contained in their initial answer to 
          the first application.

          Pertaining to Docket No. CC110029OR, a Division of Housing and 
          Community Renewal (DHCR) inspection conducted on July 18, 1988, 
          revealed that the public hallway walls and carpeting required 
          cleaning.  The DHCR conducted an inspection, under Docket No. 
          EI130172OR on May 1, 1991, which revealed that all repairs were 
          made with the exception of public hallway carpeting which was found 
          to be dirty.  However, a follow-up inspection held on July 23, 
          1991, determined that the service was restored and the carpet was 
          clean.

          On appeal, the petitioner-owner asserted, in Docket No. CI130208RO, 
          in pertinent part, that dirty public hallway walls and carpeting 
          are conditions which are considered ordinary maintenance; that 
          these same conditions were minor in nature and not worthy of a rent 
          reduction in the first place and that the Rent Administrator erred 
          by failing to give it notice of the inspection.

          On appeal, the petitioner-tenant asserted, in Docket No. FJ110425RT 
          pertinent part, that any repairs made by the owner were completed 
          in an unworkmanlike manner and were not up to professional stand- 
          ards.











          CI130208RO;  FJ110425RT




          With regard to Docket No. CI130208RO, the petition was served on 
          the tenant on November 21, 1988, and on December 4, 1988, the 
          tenants filed an answer to the petition stating that the hallway 
          wallpaper is still ripped and both the walls and the rugs are 
          filthy.  With regard to Docket No. FJ110425RT, the petition was 
          served on the owner on December 9, 1991, and the owner filed an 
          answer to the petition stating that all services which were the 
          subject of the Administrator's rent reduction order of October 14, 
          1987, have been restored.

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

          With regard to Docket No. CI130208RO, the Commissioner notes that 
          although the owner has characterized the cited condition as normal 
          maintenance and something which is "promptly attended to", the 
          record reveals that "normal maintenance" did not, in this case, 
          include prompt attention to the cited condition from the date of 
          the inspection held in the reduction proceeding under Docket No. 
          BB130115B prior to October 14, 1987 and the date of the inspection 
          held in this proceeding on July 18, 1988.  The inspections were 
          conducted more than nine months apart.  In the opinion of the 
          Commissioner, an item of normal maintenance would have been cor- 
          rected within this time span and, if corrected properly, would not 
          have reappeared.  The Commissioner further notes that the peti- 
          tioner's contention that the rent should not have been reduced is 
          in the nature of a challenge to the rent reduction order which 
          became a final order not subject to further review when an appeal 
          was not filed within the prescribed time period. 

          The Commissioner notes that dirty public hallway walls and 
          carpeting are not minor items that occur normally despite ongoing 
          maintenance and that they qualify for rent reduction when shown by 
          credible evidence.

          The Commissioner has considered and rejects the petitioner's 
          contention that its right of due process was violated by the Rent 
          Administrator's failure to notify it of the date and results of the 
          inspection.







          Due process does not require that an owner who has been served with 
          a complaint be given notice of the inspection or the actual 












                    




          inspection results and the courts have upheld this procedure 
          (Empress Manor Apartments v. NYS DHCR, 538 N.Y.S. 2d 49, 147 A.D. 
          2d 642, February 21, 1989).

          With regard to Docket No FJ110425RT, the only issue raised by the 
          tenant is whether the DHCR inspector properly issued the findings 
          contained in his report.

          The record, however, is absent any credible evidence which would 
          contradict the inspector's findings that the owner was properly 
          maintaining the public hallway walls and carpeting.

          Accordingly, the Commissioner finds that in Docket No. CC110029OR, 
          the Administrator properly determined that the owner had failed to 
          restore all services based on the evidence of the record, including 
          the results of the on-site inspection of the subject premises and 
          correctly denied the owner's rent restoration application.  Addi- 
          tionally, the Commissioner finds that in Docket No. EI130172OR, the 
          Administrator properly relied on the two inspections to grant the 
          owner's application for rent restoration to the level in effect 
          prior to the rent reduction plus subsequent lawful increases.


          THEREFORE, in accordance with the provisions of the Rent Stabiliza- 
          tion Law and Code, it is

          ORDERED, that these petitions be, and the same hereby are, denied, 
          and that the Administrator's orders be, and the same hereby are, 
          affirmed.


          ISSUED:




                                                                           
                                                JOSEPH A. D'AGOSTA
                                                Deputy Commissioner




    

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