CK210164RO

                                  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.: CK210164RO

                    Jake La Manna,
                                                       RENT ADMINISTRATOR'S
                                                       DOCKET NO.: CB210103OR
                                   PETITIONER
          ------------------------------------x

                      ORDER AND OPINION GRANTING PETITION FOR 
                            ADMINISTRATIVE REVIEW IN PART

          On November 30, 1988, the above-named petitioner-owner filed a 
          petition for administrative review (PAR) of an order issued on 
          November 7, 1988, by the Rent Administrator, concerning the housing 
          accommodation known as 160 Ocean Parkway, Apt. 4-C, Brooklyn, 
          New York, wherein the Administrator denied the owner's application 
          for rent restoration, based upon an inspection of the premises, on 
          September 22, 1988, which disclosed that the owner failed to 
          restore all services specified in the rent reduction order of 
          November 26, 1986, under Docket No. AE210400S.  The rent had been 
          reduced for peeling paint and plaster throughout the apartment and 
          defective windows with cracked panes and warped and broken sashes 
          in all rooms except the living room.

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

          The issue herein is whether the Rent Administrator properly denied 
          the owner's application for rent restoration based upon a finding 
          that services were not fully restored.  

          On February 9, 1988, the owner filed an application for rent 
          restoration, alleging that all service deficiencies noted in the 
          Rent Administrator's rent reduction order of November 26, 1986, had 
          been restored.
















          CK210164RO

          The application included a signed statement by the tenant 
          confirming the restoration of services and consenting to the rent 
          increase.  The owner also included copies of receipts for 
          plastering and painting the apartment and for the installation of 
          window glass.

          The tenant filed an answer to the application on April 3, 1988, 
          stating that most services had been restored but the window sashes 
          were still warped and that although the owner promised to repair 
          the sashes, the windows were still in bad shape.

          A DHCR inspection conducted on September 22, 1988, revealed that:

          1.   Kitchen bottom window sash does not stay open.
          2.   Both master bedroom windows are warped, but there was no 
               evidence of cracked panes.

          On appeal, the petitioner-owner asserted, in pertinent part, that 
          the DHCR inspection occurred approximately one (1) year after the 
          tenant signed a consent form indicating that all work was performed 
          to his satisfaction and that the deficiencies found by the 
          inspector are ordinary maintenance, minor in nature and not rent- 
          reducing items.

          The petition was served on the tenant on January 24, 1989, and on 
          January 28, 1989, the tenant filed an answer to the petition 
          stating that the promised repairs were not made by the owner and 
          that the only reason he signed the consent form on the owner's rent 
          restoration application in advance was because of his friendship 
          with the owner's attorney.

          After a careful consideration of the entire evidence of record the 
          Commissioner is of the opinion that the administrative appeal 
          should be granted, in part.

          A review of the file indicates that the tenant's answer to the 
          application dated April 3, 1988 was not served on the owner.

          The Commissioner notes that a remand to the Rent Administrator for 
          the purpose of serving the tenant's answer on the owner to afford 
          him an opportunity to reply would be nugatory at this point in 
          time, because the owner subsequently filed another rent restoration 
          application which was granted based on the tenant's failure to 
          grant access to the inspector and the rent was restored effective 
          January 1, 1989 (CL210056OR).

          Upon the facts found herein, the Commissioner finds that the owner 
          had been deprived of its right to due process insofar as it was not 
          notified of the tenant's answer in which withdrawal of consent to 
          the rent restoration was expressed.
          Had the tenant not repudiated the consent, there would have been no 
          need for the Division to send an inspector.  Based on equitable 






          CK210164RO

          considerations, as permitted by Section 2522.7 of the Rent 
          Stabilization Code, the Commissioner deems it appropriate to grant 
          rent restoration, effective October 1, 1988, the first of the month 
          following the physical inspection by the Division which confirmed 
          that the window sashes had not been fixed and which is the earliest 
          date that the owner could have effectuated the necessary repairs. 

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

          ORDERED, that this petition be, and the same hereby is, granted in 
          part and that the Rent Administrator's order be, and the same 
          hereby is revoked, and the rent be and the same hereby is restored 
          to the level in effect prior to the rent reduction plus subsequent 
          lawful increases, effective October 1, 1988.
              


          ISSUED:






                                                                     
                                             JOSEPH A. D'AGOSTA
                                             Deputy Commissioner  






    

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