DOC. NO.: DA 210137-RT
                                 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.: DA 210137-RT
                   MILAN CHONG and           :   DRO DOCKET NO. CE 210207 OR/
                   SAMUEL TYLER,                                KS -003054-S
                                 PETITIONERS :
         ------------------------------------X

            ORDER AND OPINION GRANTING PETITION FOR ADMINISTRATIVE REVIEW

         On January 23, 1989, the above-named petitioner-tenants filed a 
         Petition for Administrative Review against an order issued on January 
         4, 1989, by a Rent Administrator concerning housing accommodations 
         known as Apartment D-5 located at 320 Ocean Parkway, Brooklyn, New 
         York, wherein the Rent Administrator determined that the owner had 
         corrected the conditions necessitating the July 28, 1986 order 
         reducing the lawful stabilized rent of the subject accommodation, and 
         restored the rent effective August 1, 1988.

         The issue in this appeal is whether such restoration was warranted, 
         since certain deficiencies are alleged to continue, and others, to 
         have recurred.

         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.

         This proceeding was commenced by the filing of an Individual Tenant 
         Statement of Complaint in which the tenants stated that the entire 
         apartment required painting; that there was peeling paint from the 
         hallway and bedroom ceiling; that the oven does not work properly; 
         that a kitchen light fixture is missing; that the pipe behind the 
         bathroom toilet is leaking; that the toilet is not stable; that 
         windows do not open and close properly, and the living room window is 
         cracked; that there were roaches and mice; and that there was 
         insufficient hot water, especially on weekends.

         In answer to the tenants' complaint, the owner advised that all 
         defects had been corrected, with the exception of the painting of the 
         apartment which was not yet due.  Additionally, the owner stated that 
         the exterminator is in the building once each month.


















         DOC. NO.: DA 210137-RT

         On June 2, 1986 the Division of Housing and Community Renewal 
         inspector found that the kitchen had a loose light fixture with 
         exposed wires and a missing globe; that the flushometer leaks; that 
         there was peeling paint and plaster on the hallway ceiling and walls; 
         that interior moldings had not been caulked or painted; that there was 
         evidence of vermin.  Based upon this physical inspection, the Rent 
         Administrator determined that service decreases had occurred in the 
         subject apartment, and reduced the rent to the level in effect prior 
         to the last rent guidelines increase that commenced before October 1, 
         1985, the effective date of the order.

         By letter dated August 8, 1988 the tenant advised that the owner had 
         corrected all problems except extermination.  During a telephone 
         conversation with a DHCR staff member on August 30, 1988, the tenant 
         confirmed that the owner had complied with all directives of the order 
         reducing rent, and an application for restoration of rent was sent to 
         the owner on August 31, 1988.

         On September 7, 1988 the owner filed an application with the Division 
         to restore the rent.  A physical inspection, conducted on November 18, 
         1988, found evidence of roach infestation in the kitchen.  By notice 
         dated November 29, 1988, the Rent Administrator requested a statement 
         from a licensed exterminator to substantiate the correction of the 
         condition.  The owner on December 12, 1988, submitted a letter from a 
         licensed exterminator which stated that, according to the his service 
         representative, the apartment is relatively vermin and rodent free.

         On January 4, 1989, the Administrator issued the order here under 
         review, granting the application to restore the rent effective August 
         1, 1988.

         In their petition for administrative review, the tenants allege that 
         the statement that there was no evidence of roaches in the kitchen and 
         that extermination is being provided is false; that there are also 
         roaches in other areas of the house; that the plaster on the ceiling 
         is peeling in the bedroom, and is getting worse since the radiator 
         above them is leaking again.  The tenants additionally question the 
         effective date of the restoration, August 1, 1988, since the 
         Division's letter stating that the owner had complied with the 
         directive to restore services was dated August 31, 1988.  The tenants 
         further allege lack of notice that the owner had filed the application 
         to restore the rent.

         In answer to this petition, the owner asserts, in substance, that the 
         Administrator's order is correct and should be affirmed.





         The Commissioner is of the opinion that this petition should be 
         granted.




         DOC. NO.: DA 210137-RT


         Pursuant to Section 2523.4(a) of the Rent Stabilization Code:

              A tenant may apply to the DHCR for a restoration of the 
              legal regulated rent to the level in effect prior to the 
              most recent guidelines adjustment, and the DHCR shall so 
              reduce the rent for the period for which it is found that 
              the owner has failed to maintain required services.

         Required services are defined in Section 2520.6(r) to include repairs 
         and maintenance.

         The Commissioner finds that the Administrator misstated the findings 
         of the DHCR inspector in stating that there was no evidence of roaches 
         in the kitchen.  The Commissioner further finds that the 
         exterminator's statement submitted by the owner was inadequate to 
         outweigh the findings of the physical inspection.  Accordingly, the 
         Commissioner finds that the Administrator erred in its finding that 
         the rent should be restored, and further finds that the order of 
         restoration should be revoked and that the owner's application should 
         be denied.

         The owner is directed to reduce the rent in accordance with the rent 
         reduction order, and to refund amounts collected in excess of the 
         adjusted rent.

         This order is issued without prejudice to the filing by the owner of 
         another application for a restoration of rent, when the condition has 
         been corrected.

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

         ORDERED, that this petition be, and the same hereby is, granted, and 
         that the Rent Administrator's order be, and the same hereby is, 
         revoked, and that the owner's application be, and the same hereby is, 
         denied.

         ISSUED:

                                                                              
                                                 ELLIOT SANDER
                                                 Deputy Commissioner
           








    

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