STATE OF NEW YORK
                            OFFICE OF RENT ADMINISTRATION
                                     GERTZ PLAZA
                               92-31 UNION HALL STREET
                              JAMAICA, NEW YORK  11433

     APPEALS OF                                ADMINISTRATIVE REVIEW
                                           :   DOCKET NO. EA810279RT
                                           :   DOCKET NO. MBI810030S


     On January 29, 1990, the above named petitioner-tenant timely refiled a 
     Petition for Administrative Review against an order issued on November 9, 
     1989, by the Rent Administrator, 55 Church Street, White Plains, New York, 
     concerning housing accommodations known as Apartment 5B, 300 Hayward Avenue, 
     Mount Vernon, New York.

     The Commissioner has reviewed all of the evidence in the record and has 
     carefully considered that portion of the record relevant to the issues raised 
     by the administrative appeal.

     On August 18, 1987 the tenant filed a complaint of Rent Overcharge with the 
     Administrator, stating that the owner had failed to reduce the rent pursuant 
     to a prior order of the DHCR which had found a decrease in services and 
     ordered a rent reduction.

     In a letter dated August 19, 1987 the tenant complained to the Administrator 
     that the leak which the owner told the tenant had been repaired had either 
     recurred or had not been repaired in a workmanlike manner.  This letter 
     captioned the docket number of a prior rent reduction proceeding (MBA810022S) 
     but also referred to the overcharge complaint.  The Administrator docketed 
     the new proceeding as a service complaint and served both the complaint and 
     the letter on the owner. (The 1987 rent reduction ordered in MBA8100022S was 
     in effect until March 1, 1989 when the rent was restored under docket number 
     MDC810009OR issued May 19, 1989.)

     On November 5, 1987 the owner answered the tenant's complaint and the letter, 
     contending that the repairs had been made.  On March 7, 1988 the owner 
     submitted a letter to the Administrator, in which it claimed that the tenant 
     had denied access to repairmen.  The owner also enclosed a copy of a check by 
     which the tenant was reimbursed $4,309.00 for the excess rent of which the 
     tenant had complained.

          DOCKET NOS.:  EA810279RT

     On April 8, 1988 the tenant submitted a statement to the Administrator, in 
     which she stated that, as per instruction of the Compliance Bureau, she 
     personally paid for painting and plastering her apartment and was to seek 
     reimbursement from the owner.  The tenant claimed that the owner had not yet 
     reimbursed her.  However, the tenant enclosed a statement from her painter 
     stating that he had advised against painting because the outer leaks had not 
     been properly repaired.  Accordingly, the tenant stated that the owner should 
     not receive a rent restoration.

     On November 9, 1989 the Administrator issued the Order herein under appeal 
     advising the tenant that if she had not yet been reimbursed by the owner 
     "[s]he may pursue her claim in a court of competent jurisdiction."  The order 
     stated that the tenant had acknowledged that the apartment had been painted 
     and plastered.  However, the order did not address the tenant's claim that 
     the owner had failed to properly repair the exterior leaks.

     The tenant refiled this Petition for Administrative Review (PAR) on January 
     29, 1990, in which she states that "this was not my complaint."  That is, the 
     tenant contends that the complaint was not to seek reimbursement for the 
     painting and plastering which she had done at her own expense.  Instead, she 
     argues that after the restoration of her rent she saw that the leak was still 
     present.  In an addendum to the refiled petition the tenant states, in 
     substance, that she received a second rent reduction (apparently Docket 
     Number MDH810094S, issued December 11, 1989) for the services in question 
     subsequent to the first filing this petition on December 7, 1989, which had 
     been rejected under docket number DL810153RT, the present petition being the 
     timely refiling thereof.  However, she argues on appeal that this recent rent 
     reduction is inadequate because the Administrator therein rolled back her 
     rent to the rent in effect prior to the most recent Guidelines adjustment 
     which occurred before October 1, 1989, the effective date of the December 11, 
     1989 order.  The tenant contends the December 11, 1989 order should have 
     reduced her rent to the same level it had been reduced to in order number 
     MBA810022S, issued in 1987, for the same decrease in service.  The 1987 
     reduction was eliminated on May 19, 1989 under docket number MDC810009OR 
     wherein the owner was granted a rent restoration.  In effect, the tenant is 
     arguing that the December 11, 1989 rent reduction for the same service 
     demonstrates retroactively that the May 19, 1989 restoration was premature 
     because the leak had either not been fixed or had not been fixed properly. 
     Therefore this leak was and is a "continuing problem" and the rent should 
     return to the level set in the 1987 order.

     In response the owner contends that the "tenant is wrong.  She does have a 
     rent reduction under Docket No. MDH810094S [the December 11, 1989 order]... 
     We are continuing to work in correcting this condition and filing for a rent 
     restoration."  However, the owner does not confront the tenant's contention 
     that the December 11, 1989 reduction was inadequate,

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

     At the outset, the Commissioner notes, as the above tortured procedural 
     history makes clear, the tenant's complaint in this proceeding was an 
     overcharge based on the owner's failure to reduce the rent to the level 
     required by a prior service order (MBA8100022S).  The owner's March 7, 1988 
     response contained documented and undisputed proof that the overcharge had 
     been refunded in full.  Accordingly, the complaint could and should have been 
     treated in an overcharge complaint and then been resolved based on the 
     owner's refund.  Instead, the Administrator docketed it as a service 
     complaint, based in part on the August 19, 1987 letter from the tenant 

          DOCKET NOS.:  EA810279RT

     referred to above.  That letter alleged that the leak which had been the 
     subject of the May 26, 1987 order reducing the rent (MBA810022S) had recurred 
     despite the owner's allegation to the tenant that it had been repaired.  
     Thus, the letter was a premature objection to restoring the rent which had 
     been reduced on May 26, 1987.  Accordingly, that letter could have simply 
     been filed in the MBA810022S file (whose rent reduction for the leak was then 
     still in effect).  No new service proceeding was necessary; nor was a 
     reopening necessary.

     On May 19, 1989, the rent reduced in 1987 (MBA810022S) was restored based in 
     part on an inspection and the tenant's statement that everything was then 
     satisfactory.  The tenant did not appeal that restoration.

     However, on September 21, 1989 the tenant filed another service complaint 
     based on the same leaks and received a rent reduction therefor on December 
     11, 1989 (MDH810094S) four days after filing the rejected petition herein.

     The tenant has essentially two contentions on appeal:  

               (1)  that subsequent to her rent being restored 
                    effective March of 1989 the leak has recurred.  
                    This amounts to a collateral attack on the 
                    rent restoration order MDC810009OR, issued May 
                    19, 1989, which could only have been 
                    challenged in a timely petition filed within 
                    35 days of its issuance.

               (2)  that the rent reduction she received on 
                    December 10, 1989 should have been to the same 
                    level as the first rent reduction order, 
                    MBA8100022S, issued May 26, 1987.  This 
                    constitutes a collateral attack on the second 
                    rent reduction order, MDH810094S, issued 
                    December 10, 1989, which could have only been 
                    appealed in a timely petition filed within 35 
                    days of its issuance date.  (The petition 
                    herein is dated January 24, 1990 and was 
                    received January 29, 1990.  The original 
                    petition herein was filed December 7, 1989, 
                    i.e., before the issuance of MDH810094S.)

     Therefore, this petition must be denied.

     The Commissioner notes that the rent reduced on December 10, 1989  was 
     restored on April 19, 1991 and the tenant did not appeal that restoration.   
     This order is without prejudice to the tenant's right to file a future 
     service complaint if the conditions so warrant.


          DOCKET NOS.:  EA810279RT

     THEREFORE, in accordance with the Tenant Protection Act and Regulations, it 

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


                                                  JOSEPH A. D'AGOSTA
                                                  Deputy Commissioner 

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