CL110180RO
                                  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.:
                                                       CL110180RO
                    RICHARD ALBERT,
                                                       RENT ADMINISTRATOR'S
                                                       DOCKET NO.:
                                                       BL110747S
                                   PETITIONER                            
          ----------------------------------x     



            ORDER AND OPINION GRANTING PETITION FOR ADMINISTRATIVE REVIEW
                     IN PART AND MODIFYING ADMINISTRATOR'S ORDER


          On December 6, 1988, the above-named petitioner-owner filed a Peti- 
          tion for Administrative Review (PAR) of an order issued on November 
          10, 1988, by the Rent Administrator, concerning the housing 
          accommodation known as 93-49 222nd Street, Apartment 2-U, Queens 
          Village, New York, wherein the Administrator determined that the 
          owner had failed to maintain certain enumerated services, reduced 
          the rent, and directed the restoration of services.

          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.

          This proceeding was commenced by the filing by the tenant of 
          various complaints of decrease in services alleging various 
          conditions.

          An inspection conducted by a Division of Housing and Community 
          Renewal (DHCR) staff inspector on October 3, 1988, confirmed some 
          of the complained of conditions resulting in the issuance of the 
          Administrator's order herein appealed.

          In the PAR, the owner states that he has had a longstanding 
          continued problem of obtaining access to the apartment; that, in 
          connection with a Civil Court action, the owner, responding to a 
          direction from the Court, remedied all maintenance items; that 













          CL110180RO




          defective bedroom window sashes were not complained of; that window 
          screens are not a required service and any rent reduction based 
          thereon should be denied; and that the provision of an intercom has 
          previously been held not to be a required service.  In addition, 
          the owner states that the Agency did not follow established Federal 
          procedures regarding hearing and due process, that this case was 
          brought by a tenant representative in violation of a Court 
          stipulation, and that the tenants have harassed the owner in every 
          aspect of building management and have filed duplicate complaints 
          for rent reductions.

          After careful consideration the Commissioner is of the opinion that 
          the petition should be granted in part.

          The Petitioner is correct that the finding by the Administrator of 
          defective window sashes relates to a condition which was not 
          complained of.  The tenant's complaint cited failure of the owner 
          to paint exterior frames and sashes.  This condition, therefore, is 
          eliminated as a condition in the Administrator's order.

          Petitioner's claim of no access is raised for the first time in 
          this administrative appeal.  Pursuant to Section 2529.6 of the Rent 
          Stabilization Code, review is limited to facts or evidence which 
          was offered before the Administrator.

          In addition, the Division's records show that by a previous order 
          of the Commissioner, the provision of an intercom was determined 
          not to be a required service, and also is hereby eliminated as a 
          condition in the Administrator's order.

          The apartment conditions which were the subject of the Court's 
          direction are separate and distinct from those raised in this 
          proceeding, and repair of the items on the Court's list cannot be 
          construed as a remedy of the conditions herein.  Furthermore, the 
          owner's assertion that all conditions have been remedied is belied 
          by the results of the Division's inspection.

          The owner offers no evidence in support of his contention that 
          window screens are not a required service.  In addition, this 
          assertion was not raised in the proceeding below where the owner 
          merely denied that the tenant's screens were taken off by the 
          owner's employees and were not returned.

          The Commissioner finds there is no requirement in applicable law 
          which requires that a hearing be conducted before an order of this 
          type can be issued.  Affording an opportunity to present oral 









          CL110180RO


          testimony at hearing is discretionary and it was not an abuse of 
          discretion to decline to conduct a hearing where the results of a 
          physical inspection confirmed the tenant's allegation of a failure 
          to maintain services.

          Although the owner alleges that the complaint was prepared by some- 
          one other than the tenant, in an attempt to harass the owner, he 
          has offered no evidence to substantiate this allegation and 
          although the owner cites Court stipulations and judicial determi- 
          nations in support of his contention that such preparation of 
          complaints was prohibited activity, the Commissioner notes that the 
          owner has not offered in evidence copies of said stipulations and 
          determinations, either before the Administrator or by attachment to 
          the petition.

          While Section 2525.5 of the Code gives tenants the right to 
          commence proceedings against an owner based on harassment, no such 
          right is available to owners.  The owner's allegations of tenant 
          harassment may not be entertained herein.  This Order and Opinion, 
          however, is issued without prejudice to the owner's right to pursue 
          an appropriate remedy in an appropriate forum if the facts so 
          warrant.

          Although the owner contends that duplicate complaints have been 
          filed, there is no assertion or proof that more than one rent 
          reduction has been granted by the Administrator for identical 
          service deficiencies.


          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, granted in 
          part, and that the Administrator's order be, and the same hereby 
          is, modified to revoke condition No. 2 as to defective window 
          sashes and condition No. 5 relating to intercom, and affirmed in 
          all other respects.
           

          ISSUED:



                                                                                                                         
                                                       LULA M. ANDERSON   
                                                       Deputy Commissioner







    

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