DC130297RO
                                  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.: DC130297RO
                                                  
          JOHN H. WINFREY                         RENT
                                                  ADMINISTRATOR'S DOCKET 
                                                  NO.: AK110374S
                                  PETITIONER            
          ----------------------------------x


            ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW
                                          
               The above named petitioner-owner timely refiled a Petition for 
          Administrative Review against an order of the Rent Administrator 
          issued June 18, 1987. The order concerned housing accommodations 
          known as Apt. 1L or 2B located at 155-01 90th Ave., New York, N.Y.  
          The Administrator directed restoration of services and ordered a 
          rent reduction for failure to maintain required services.  

               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 November 14, 1986 by 
          filing a Statement of Complaint of Decrease in Services wherein  he 
          alleged that the owner was not maintaining certain required 
          apartment services.  A review of the complaint form reveals that 
          the tenant listed Apt. 1L as his mailing address and that Apt. 2B 
          was listed as the subject of the proceeding in a different ink and 
          handwriting.

               The owner was served with a copy of the complaint and afforded 
          an opportunity to respond. The response form provided to the owner 
          listed Apt. 2B as the subject apartment of this proceeding.  The 
          owner filed a response and informed the Administrator of the fact 
          that the tenant had listed two different apartments on the 
          complaint but addressed the complaint for both apartments.  For 
          Apt. 1L, the owner stated that the exterminator services the 
          building on a regular basis but the tenant does not sign up, that 
          a service order for this tenant's refrigerator was issued to a 
          contractor on December 22, 1986 but the repair person has not been 
          able to obtain access, that the kitchen walls and ceilings were 
          sheetrocked on October 16, 1986 for which the tenant signed a work 
          order, that the paint job was redone on November 12, 1986 for which 
          the tenant again signed a work order, and that new windows have 












          DC130297RO

          been installed throughout the building for which the DHCR has 
          granted a rent increase.
           
               The Administrator ordered a physical inspection of Apt. 1L.  
          The inspection was conducted on March 5, 1987 and revealed that the 
          new windows in the kitchen, bathroom and living room are all very 
          drafty, the kitchen ceiling has leaks and cracks and was bulging, 
          the refrigerator was starting to peel, that the oven door was 
          defective and the side of the stove was rusted and had holes.

               The Administrator issued the order here under review on June 
          18, 1987 and ordered a rent reduction based on the inspector's 
          report.  The Commissioner notes that the order here under review 
          cited the tenant's mailing address as Apt. 1L and the subject 
          premises as Apt. 2B. An amended order was issued on July 10, 1987 
          correcting the subject premises to Apt. 1L.

               On appeal the owner states, in relevant part, that the 
          apartment designation on the complaint and order is incorrect and 
          that the owner brought this to the Administrator's attention in its 
          answer to the complaint.  The owner further argues that no rent 
          reduction is warranted because the tenant does not provide access 
          to the exterminator, that the windows were caulked, and the tenant 
          signed the work order for this on April 10, 1987, that the ceiling 
          was repaired on December 10, 1987 and the tenant signed off for 
          this as well, and that the refrigerator and stove work properly but 
          have minor aesthetic defects that do not warrant a rent reduction.
          The petition was served on the tenants of Apts. 1L and 2B.

               The tenant residing in Apt. 2B filed a response on August 15, 
          1989 and stated, in relevant part, that the subject apartment of 
          this proceeding is Apt. 1L and that the inclusion of Apt. 2B in the 
          complaint was an error made by this tenant when he assisted the 
          tenant of Apt. 1L in completing the complaint form.
           
               After careful review of the evidence in the record, the 
          Commissioner is of the opinion that the petition should be denied.

               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 required services and the Administrator 
          shall reduce the rent upon finding that such services are not being 
          maintained.  Required services are defined to be those services the 
          owner was required to maintain on the applicable base date, 
          including repairs and maintenance.

               With regard to the owner's argument that the tenant did not 
          permit access to the exterminator, the Commissioner notes that the 
          owner's answer does not establish that specific appointments were 
          scheduled for access which the tenant did not honor.  Absent such 
          specifics, the owner's claim of failure to permit access was 
          properly rejected by the Administrator.






          DC130297RO


               With regard to sign-offs the tenant allegedly executed, the 
          Commissioner notes that the sign-offs for the kitchen ceiling was 
          dated October 16, 1986 and November 11, 1986 and thereby pre-dated 
          the complaint. The sign-off for the window repairs was not 
          submitted to the Administrator.

               The Commissioner finds that the Administrator based this 
          determination on the entire record including the results of the on- 
          site physical inspection described above.  The owner has not 
          rebutted the inspector's report and has not demonstrated that it 
          was prejudiced by the error in listing two apartments on the 
          complaint form.  As noted above, the owner's answer to the 
          complaint addressed the conditions in Apt. 1L. The order here under 
          review is affirmed.

               The automatic stay of the retroactive rent abatement that 
          resulted from the issuance of the Administrator's order is vacated 
          upon issuance of this order and opinion.  The Commissioner notes 
          that the owner's application for rent restoration, which was 
          assigned Docket No. BK110115OR has been granted by the 
          Administrator.  

               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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