DK130150RO/DK110179RT/DK110180RT
               
                                  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.: DK130150RO
                                                               DK110179RT
          DAVID SPIELBERG                                      DK110180RT
          JEFFREY S. BLAUGRUND                    
          KRAUS REALTY MANAGERS LTD. FOR          RENT
          HAMPTON COURT ASSOCIATES                                        ADMINISTRATOR'S DOCKET 
                                                  NO.: DF130060HW
                                 PETITIONERS            
          ----------------------------------x


             ORDER AND OPINION GRANTING OWNER'S PETITION FOR ADMINISTRATIVE  
             REVIEW, DENYING TENANTS' PETITIONS FOR ADMINISTRATIVE REVIEW 
                      AND REVOKING RENT ADMINISTRATOR'S ORDER

               The above referenced administrative appeals have been 
          consolidated as all contain common issues of law and fact.

               The above named petitioner-owner and petitioner-tenants filed 
          Petitions for Administrative Review against an order of the Rent 
          Administrator issued October 20, 1989. The order concerned various 
          housing accommodations located at 117-01A Park Lane South.  The 
          Administrator ordered a rent reduction for failure to maintain 
          adequate heat and hot water.  

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

               This proceeding was commenced on May 1, 1989 when 27 of the 60 
          tenants, including the two petitioner-tenants herein, filed a 
          Statement of Complaint of Decrease in Building-Wide Services 
          wherein they alleged that there was fluctuation in the building 
          water pressure and temperature causing alternative scalding and 
          chilling.
                                           
               The owner was served with a copy of the complaint and afforded 
          an opportunity to respond. The owner filed a response on August 10, 
          1989 and stated that repiping of the building was completed in 
          1986, that the boiler has been completely overhauled, and that 
          other systems related to water temperature and pressure had been 
          repaired or replaced.
           












          DK130150RO/DK110179RT/DK110180RT

               The Administrator ordered a physical inspection of the subject 
          building.  Inspections were conducted on September 22, 1989, 
          October 3, 1989 and October 4, 1989.  The tenants who were not 
          present for the September 22, 1989 inspection were advised that the 
          inspector would return during certain specified hours on October 3, 
          1989 or, if they could not be present on that date, on October 4, 
          1989. 

               The inspector reported that 11 tenants including the two 
          petitioner-tenants herein failed to provide access to their 
          apartments.  Five apartments were found to have adequate heat and 
          hot water. Finally, eleven apartments were reported to have 
          inadequate hot water temperature.  These eleven apartments were 
          also reported to have adequate hot water pressure.
          The Commissioner notes that Apt. A6A was cited on both the list of 
          apartments that had adequate hot water and inadequate hot water.  
          A review of the inspector's report, however, clearly shows that 
          this inspector reported that this apartment had inadequate hot 
          water temperature.  

               The Administrator issued three different orders in this 
          proceeding on October 20, 1989.  With regard to the tenants who 
          failed to allow access to the inspector, the Administrator denied 
          the application and terminated the proceeding.  The Administrator 
          issued a second order denying the application for the apartments 
          where the inspector found adequate hot water.  Finally, the 
          Administrator issued an order granting a rent reduction for the  
          apartments where the inspector found inadequate hot water 
          temperature.

               On appeal the owner states, among other things, that the 
          tenants did not complain about a lack of hot water, but rather 
          fluctuations in the water pressure and temperature causing 
          alternative scalding or chilling.  The petition was served on the 
          tenants on March 19, 1990.

               Ten tenants filed responses wherein they stated, in sum, that
          the hot water system remains erratic with extreme changes in 
          pressure and temperature.
           
               The two tenants who have filed appeals both were denied a rent 
          reduction based on failure to afford access to the inspector.  The 
          tenant of Apt. 6F states that he was unable to be home due the 
          priorities of his job.  The tenant of Apt. 4D states that someone 
          was home on October 3 and 4 but that the inspector never appeared.  
          The petitions were served on the owner.

               The owner filed a response to the petition in Docket No. 
          DK110180RT and stated that the tenant had failed to provide access 
          on three different dates and that the order denying the complaint 
          with regard to him should be affirmed.







          DK130150RO/DK110179RT/DK110180RT

               After careful review of the evidence in the record, the 
          Commissioner is of the opinion that the owner's petition should be 
          granted, that the tenants' petitions should be denied and the order 
          here under review which granted a rent reduction based on the 
          report of the inspector should be revoked.  The orders denying the 
          complaint or terminating the proceeding based on failure to allow 
          access are affirmed.

               The owner is correct in stating that the tenants' complaint 
          listed fluctuating water temperature, and not inadequate hot water 
          temperature, as the condition in need of correction.  The 
          Administrator directed the inspector to investigate whether the 
          owner was providing hot water, whether the hot water temperature 
          was adequate and whether there was adequate hot water pressure.  
          The inspector reported that the hot water temperature was 
          inadequate in eleven apartments.

               The Administrator's order cited a condition as the basis for 
          the rent reduction that was not set forth in the complaint. To 
          order a rent reduction for a condition not complained of is a 
          violation of the owner's due process rights.  Accordingly, the 
          Commissioner is of the opinion that the petition must be granted 
          and that the Administrator's order granting the rent reduction 
          based on the report of the inspector must be revoked. The order 
          denying the complaint for the tenants for whom the inspector 
          reported adequate hot water is modified to delete Apt. A6A from the 
          list of apartments and affirmed as modified. The tenants may refile 
          for a rent reduction based on either fluctuating water pressure and 
          temperature or inadequate heat and hot water if the facts so 
          warrant.

               With regard to the 11 tenants, for whom the application was 
          denied based on failure to provide access, including both 
          petitioner tenants herein, the Commissioner is of the opinion that 
          the Administrator correctly dismissed the complaint.  The tenants 
          in question were given proper notice of the scheduled inspections 
          but did not give the required access.  The petition of the tenant 
          in Apt. 4D does not offer any acceptable explanation to excuse his 
          failure to either be present on the inspection dates or to insure 
          that someone would be in the apartment to allow access.  With 
          regard to the tenant of Apt. 4D, the report of the inspector 
          clearly states that the tenant was not at home on the three dates 
          in question.  This report is entitled to more probative weight than 
          the unsupported allegations of the tenant. The order denying the 
          application for these 11 tenants is, therefore, affirmed.

               The Commissioner notes that the owner's application for rent 
          restoration (Docket No. DL130072OR) was granted on August 29, 1990.
           
               THEREFORE, pursuant to the Rent Stabilization Law and Code and 
          Rent and Eviction Regulations it is 













          DK130150RO/DK110179RT/DK110180RT

               ORDERED, that the owner's petition be, and the same hereby is, 
          granted, and that the Rent Administrator's order be, and the same 
          hereby is, revoked with regard to the tenants of Apts. A5A, A5B, 
          A6B, A3G, A5G, A5D, A4N, A3N, A6A, A6G AND A3E and it is further 

               ORDERED, that the tenants' petitions be, and the same hereby 
          are denied,  and that the Rent Administrator's order be, and the 
          same hereby is, affirmed with regard to the tenants of Apts. A4B, 
          A2K, A5L, A4C, A3B, A2B, A1E, A4G, A6F, A4D, A5F, A3C, A4E, A1A AND 
          A1J.  Any of the tenants who were granted a rent reduction and now 
          owe arrears by reason of the Commissioner's determination herein 
          may pay off said arrears in twelve equal monthly installments or 
          immediately if they have vacated.

          ISSUED:


                                                                             
                                             JOSEPH A. D'AGOSTA
                                             Deputy Commissioner
                                   
    

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