DB410165RO

                                  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     SJR 6788 DEEMED DENIAL
                                
          IN THE MATTER OF THE ADMINISTRATIVE     ADMINISTRATIVE REVIEW
          APPEAL OF                               DOCKET NO.:  DB410165RO
                                                  
          DWELLING MANAGERS, INC.                 RENT
          C/O F.B.S.A. & G., P.C.                                        ADMINISTRATOR'S DOCKET 
                                                  NO.: CG410079RP
                                  PETITIONER           AF410755S
          ----------------------------------x          AF410467S


            ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW
                                          
               On February 8, 1989 the above named petitioner-owner filed a 
          Petition for Administrative Review against an order of the Rent 
          Administrator issued January 13, 1989. The order concerned housing 
          accommodations known as Apt 33F located at 60 East 8th Street, New 
          York, N.Y.  The Administrator issued an order pursuant to remand 
          from the Commissioner wherein a prior rent reduction order was 
          affirmed.

               Subsequently the owner filed a petition pursuant to Article 78 
          of the Civil Practice Law and Rules in Supreme Court wherein it 
          deemed its petition for administrative review denied.  The court 
          remitted the proceeding to the DHCR based on its agreement to issue 
          an order in this matter no later than June 11, 1993.

               The Commissioner has reviewed the record and carefully 
          considered that portion relevant to the issues raised by this 
          appeal.

               The tenant commenced this proceeding on June 19, 1986 by 
          refiling a Statement of Complaint of Decrease in Services dated 
          July 24, 1984 wherein she  alleged various services deficiencies in 
          her apartment and further alleged that the owner had failed to make 
          repairs upon request.  The complaint was assigned Docket No. 
          AF410755S.

               The owner was served with a copy of the complaint and afforded 
          an opportunity to respond. The owner filed a response on August 15, 
          1986 claiming that the tenant's complaint had been terminated by an 
          order issued on December 7, 1984 (Docket No. LS000420S).
           
               The Administrator ordered a physical inspection of the subject 












          DB410165RO

          apartment.  The inspection was conducted on October 16, 1986 and 
          revealed the following:

                    1.   Defective oven door,

                    2.   Foyer bathroom sink stopper does not work and 
                         faucet handle drips,

                    3.   Bedroom bathroom stopper does not work, sink does 
                         not hold water and cold water faucet drips,

                    4.   Bedroom window frame and wall area are leak damaged 
                         and peeling plaster,

                    5.   Peeling paint and plaster from living room window 
                         sill,

                    6.   Wall by window in den and window sill are leak 
                         damaged.

               The Administrator issued an order on February 17, 1987 and 
          ordered a rent reduction of an amount equal to one guideline 
          adjustment based on the report of the inspector.

               The owner filed an administrative appeal of the above 
          described order.  On July 20, 1988 the Commissioner issued an order 
          wherein the petition was granted and the proceeding was remanded to 
          the Administrator (Docket No. BC410345RO).  The Commissioner ruled 
          that a number of complaints regarding this apartment had been filed 
          by the tenant and the resulting orders of the Administrator had 
          created confusion regarding the status of this proceeding.  The 
          Commissioner instructed the Administrator to allow the owner 20 
          days to submit a response to the complaint herein.

               The Administrator sent a notice to the parties on November 17, 
          1988 informing them that the rent reduction order described above 
          was being reconsidered pursuant to the Commissioner's order of 
          remand.  The proceeding was now assigned Docket No. CG410079RP and 
          the Administrator noted that the tenant's complaints bearing Docket 
          Nos. AF410755S and AF410467S were being reconsidered.  The 
          Commissioner notes that the Administrator's order issued in Docket 
          No. AF410467S found that two windows in the living room, one in the  
          bedroom and one in the den are defective with leak damaged and 
          crumbling plaster, that the oven door gasket is missing, the spring
          is defective and the door slams shut and that the bathroom wash 
          basin faucets leak at the base.  The Administrator ordered 
          restoration of services but did not order a rent reduction.

               The owner filed a response to the notice on November 29, 1988.  
          The owner stated, in sum, that the tenant had denied access to the 
          apartment on several occasions and that when the tenant did afford 
          access repairs were made.  The owner attached copies of prior 






          DB410165RO

          responses filed in response to the complaints described above.  The 
          owner also attached copies of seven letters sent to the tenant by 
          certified mail for the period between July and November, 1986 
          wherein access to the apartment was demanded.  Finally, the owner 
          attached copies of bills showing that repairs were made in the 
          subject apartment in December, 1987 and January and February, 1988.

               The Administrator ordered a physical inspection of the subject 
          apartment.  The inspection was conducted on December 30, 1988 and 
          revealed the following:

                    1.   Foyer bathroom stopper stuck in open position,

                    2.   Bedroom window frame wall area leak damaged with 
                         peeling plaster,

                    3.   Living room window sill plaster and paint peeling,

                    4.   Den wall by window leak damaged as well as den 
                         window sill.

               The Administrator issued the order here under review on 
          January 13, 1989.  The Administrator noted that the owner had filed 
          for rent restoration (Docket No. CC410166OR) and that an inspection 
          conducted in conjunction with that proceeding revealed that 
          services had not been restored.  The Administrator further noted 
          that the physical inspection described above revealed that services 
          had not been restored.  Therefore, the Administrator ordered that 
          the order bearing Docket No AF410467S, which ordered restoration of 
          services but did not order a rent reduction, was revoked and that 
          the order bearing Docket No. AF410755S, which ordered the rent 
          reduction described above, was affirmed.
           
               On appeal the owner states that the four conditions reported 
          in the December 30, 1988 inspection were corrected and that the 
          tenant has failed to provide access.  Specifically, the owner 
          attached copies of letters sent to the tenant on October 20, 1988 
          and November 2, 1988 wherein it inquired if the conditions cited 
          above still existed.  The owner attached copies of submissions 
          heretofore filed with the Administrator.  The owner stated that no 
          response was ever received.  The petition was served on the tenant 
          on May 5, 1989.

               The tenant filed a response on June 5, 1989 wherein she stated 
          that she had not denied access to the owner, that the owner had not 
          made repairs and that the order here under review should be 
          affirmed.  The owner filed a reply on June 28, 1989 wherein it 
          stated, in sum, that the tenant failed to properly inform the owner 
          of the apartment conditions and allow repairs to be made.

               After careful review of the evidence in the record, the 
          Commissioner is of the opinion that the petition should be denied.












          DB410165RO


               The submissions by the owner before the Administrator and in 
          this administrative appeal proceeding contain mere conclusory 
          statements that repairs have been made and that the tenant has 
          denied access.  However, by the owner's admission, it had obtained 
          access to the apartment on some occasions and had the opportunity 
          to make complete and workmanlike repairs but failed to do so.  The 
          owner cannot succeed on a claim of failure to make repairs due to 
          denial of access when it admits it has been granted access to the 
          apartment.  With regard to the owner's statements that it had made 
          the required repairs, the physical inspection described above, as 
          well as the inspection conducted in the rent restoration 
          proceeding, reported that services had not been restored.  The 
          Commissioner has consistently ruled that the results of DHCR 
          physical inspections are entitled to more probative weight than the 
          unsupported allegations of a party to the proceeding.  The order 
          here under review is affirmed.

               The Commissioner notes that, pursuant to Section 2523.4 of the 
          Rent Stabilization Code, a tenant may apply to the DHCR for a rent 
          reduction based on the owner's failure to maintain services and the 
          Administrator shall reduce the rent upon a finding that these 
          services have not been maintained.  Pursuant to Section 2520.6 (r) 
          repairs and maintenance are included the within the definition of 
          required services.  The Commissioner finds that the Administrator 
          based this determination on the entire record including the results 
          of the on-site physical inspections described above.  The order 
          here under review is affirmed.

               THEREFORE, pursuant to the Rent Stabilization Law and Code it 
          is 

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

          ISSUED:



                                                                             
                                             JOSEPH A. D'AGOSTA
                                             Deputy Commissioner
                                   
    

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