DH430024RO

                                  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.: DH430024RO
                                                  
          FRANK & WALTER EBERHARDT                RENT
                                                  ADMINISTRATOR'S DOCKET 
                                                  NOS.: BG430040B BF410586S
                                  PETITIONER            BG420459S BF430580S
          ----------------------------------x           BF410587S BF430588S
                                                        BF410582S


            ORDER AND OPINION GRANTING PETITION FOR ADMINISTRATIVE REVIEW
               IN PART AND REMANDING PROCEEDING TO RENT ADMINISTRATOR

               On August 8, 1989 the above named petitioner-owner filed a 
          Petition for Administrative Review against orders of the Rent 
          Administrator concerning various housing accommodations located at 
          235 East 81st Street, New York, N.Y.  The Administrator directed 
          restoration of services and ordered rent reductions 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 petitioner is appealing orders of the Administrator issued 
          as a result of one building-wide and six individual apartment 
          complaints wherein the tenants alleged that the owner was not 
          maintaining certain required or essential services.

               The building-wide proceeding was commenced on July 6, 1987 
          when tenants of 15 of the 22 apartments joined in filing a 
          Statement of Complaint of Decrease in Building-Wide Services 
          wherein they alleged that the owner was not maintaining certain 
          required services.  Specifically, the tenants stated that the 
          public area windows were hard to open and close and the owner had 
          removed certain storage bins from the basement.   The individual 
          apartment complaints were filed by 1 rent controlled and five rent 
          stabilized tenants who alleged, in sum, that window screens were 
          not being provided.
              
               The owner was served with copies of the complaints and 
          afforded an opportunity to respond. The owner filed a response on 
          January 20, 1988.  This response was a consolidated response to 24 












          DH430024RO

          different proceedings including the seven appealed herein.  The 
          owner raised a common defense to each.  This defense consisted of 
          an objection to the agency exercising jurisdiction over these  
          proceedings because the subject building had been "substantially 
          rehabilitated"  within the meaning of Section 5(a)(5) of the 
          Emergency Tenant Protection Act (ETPA).  The owner provided 
          documentation, consisting of lists of amounts expended on building 
          renovation, in support of the "substantial rehabilitation" claim.
            
               The Administrator ordered a physical inspection of the subject 
          building.  The inspection in the building-wide proceeding was 
          conducted on April 28, 1988.  The building was reinspected on June 
          1, 1988.  The inspector reported that the public area windows were 
          painted closed and that the storage bins were removed from the 
          basement.  All other services were found to have been maintained.
          The inspections conducted in the individual apartment proceedings 
          confirmed the tenants' assertions of missing window screens.

               On May 3, 1988 the Administrator sent a notice to the parties 
          in Docket No. BG430040B (the building-wide proceeding), wherein the 
          tenants were requested to submit sworn and notarized affidavits 
          regarding the issue of the basement storage space.  The tenants 
          submitted the required response on May 18, 1988.  The owner also 
          filed a response to the notice on March 10, 1989 wherein it stated 
          that the tenants were never given permission to store anything in 
          the basement and any such storage was done without consent.

               The Administrator issued the rent reduction order in Docket 
          No. BG430040B on July 6, 1989.  Rent controlled tenants were 
          granted a $6.00 per month rent reduction.  The Administrator did 
          not order a rent reduction for rent stabilized tenants but did 
          direct restoration of services.

               The order in Docket No. BG420459S was issued on February 5, 
          1988 and ordered a $6.00 per month rent reduction based on the 
          inspector's report of six missing apartment screens.  The remaining 
          orders were directives to restore missing screens of five 
          individual rent stabilized tenants.

               On appeal the owner, as represented by counsel, restates the 
          jurisdictional objection contained in the consolidated response 
          described above with regard to each of the seven proceedings.  The 
          petitioner also states, with regard to Docket No. BG430040B,  that 
          it was not required to provide the storage space and further states 
          that the tenants did not complaint about the public area windows 
          being painted closed.  The petition was served on the tenants on 
          November 22, 1989.

               The tenants, also represented by counsel, filed a response on 
          February 13, 1990 and stated, in relevant part, that the owner's 
          jurisdictional objection was without merit because the work done to 
          the building did not meet the "substantial rehabilitation" 






          DH430024RO

          criteria.
           
               After careful review of the evidence in the record, the 
          Commissioner is of the opinion that the petition should be granted 
          in part, that the order issued with regard to rent controlled 
          tenants in Docket No. BG430040B be affirmed, that the order issued 
          with regard to rent stabilized tenants in Docket Nos. BG430040B 
          should be remanded to an Administrator for further processing and 
          that the appeals of the remaining proceedings should be dismissed 
          as untimely.

               The Commissioner initially notes that, pursuant to Section 
          2529.2 of the Rent Stabilization Code, an administrative appeal of 
          an order of the Rent Administrator must be filed no later than 35 
          days after the date of issuance of the order.  Pursuant to Section 
          2208.2 of the Rent and Eviction Regulations for New York City the 
          time for filing an administrative appeal is within 35 days from the 
          issuance of the order.  This administrative appeal is timely only 
          with regard to the Docket No. BG430040B.  The appeal is dismissed 
          with regard to the other proceedings.

               With regard to rent stabilized tenants who joined in the 
          filing of Docket No. BG430040B, the Commissioner's review of the 
          record reveals that the Administrator did not investigate the 
          owner's jurisdictional objection.  Before a proceeding can be 
          processed on the merits, the Administrator must determine any valid 
          jurisdictional objections.  The owner's defense, as raised in the 
          consolidated response, was such an objection.  Therefore, with 
          regard to rent stabilized tenants only, the Commissioner remands 
          this proceeding to the Administrator for determination of the 
          owner's jurisdictional objection by all appropriate means including 
          the holding of a hearing if the facts so warrant.

               Pursuant to Section 2200.9 of the Rent and Eviction 
          Regulations for New York City, the DHCR has jurisdiction over the 
          rent controlled apartments herein.  The Commissioner notes that no 
          order of decontrol was issued for any of the rent controlled 
          apartments in the building nor did any of the rent controlled 
          tenants vacate during the alleged "rehabilitation".  

               The order is affirmed with regard to the rent controlled 
          tenants. The Commissioner finds that the Administrator based this 
          determination on the entire record, including the complaint, the 
          inspector's report and the responses to the Administrator's notice.  
          The facts contained in the record support a finding that the public 
          area windows are in need of repair and the storage space has been 
          removed.  The owner may file for rent restoration for rent 
          controlled tenants when services have been completely restored.
           
               THEREFORE, pursuant to the Rent Stabilization Law and Code and 
          Rent and Eviction Regulations it is 













          DH430024RO

               ORDERED, that this petition be, and the same hereby is, 
          granted in part, that the proceedings bearing Docket Nos. 
          BG420459S, BF410587S, BF410582S, BF410586S, BF430580S and BF430588S 
          be, and the same hereby are, dismissed as untimely, that the 
          proceeding bearing Docket No. BG430040B, be and the same hereby is, 
          affirmed with regard to rent controlled tenants and that, with 
          regard to rent stabilized tenants who joined in the filing of the 
          proceeding, Docket No. BG430040B is remanded to a Rent 
          Administrator for further processing consistent with this order and 
          opinion.  The Administrator's order remains in full force and 
          effect until a new order is issued on remand.

          ISSUED:
                                                                             
                                             JOSEPH A. D'AGOSTA
                                             Deputy Commissioner
                                    
    

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