Docket No. EB820215RO
                                 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.: EB820215RO

                                                  DRO DOCKET NO.: 
                                                  DG820214S
          Jonathan Woodner Co.                                               
                                   PETITIONER
          ------------------------------------X


            ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW


              The above-named owner filed a timely petition for 
          administrative review of an order concerning the housing 
          accommodations known as 2 Roxbury Drive, Apartment #2, Yonkers, New 
          York.

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

              The tenant commenced this proceeding by filing a complaint 
          asserting that the owner had failed to maintain certain services in 
          the subject premises, namely, that the owner had removed the 
          tenant's roof TV antenna.  The tenant alleged he had had the 
          antenna on the roof since taking occupancy in 1965 and that the 
          owner had removed the antenna due to the installation of a new 
          roof.

              In its answer, the owner stated that when the tenant moved in 
          he was informed that there was no master TV antenna in the subject 
          portion of the complex.  However, the owner did not deny removing 
          the tenant's TV antenna from the roof, but rather stated that the 
          tenant had no written permission to install the antenna.  The owner 
          also alleged that to have granted such permission would have 
          violated the lease.  Finally, the owner referred to a letter from 
          a roofing company which allegedly stated that all antennas must be 
          removed from the roof "in order to receive the proper warranties."

              The Administrator ordered a reduction of the regulated rent, 
          finding that "a review of the records of this agency shows that a 
          roof top television antenna was a base date service," and that the 
          owner's removal of same amounted to a decrease in service. 













          Docket No. EB820215RO

              With its petition for administrative review, the owner encloses 
          a copy of a previous Administrator's Order concerning the subject 
          premises.  The prior proceeding (DRO #44250) had been originated by 
          the tenant's objection to the 1984 Registration, in which objection 
          tenant stated inter alia that a master TV antenna service for which 
          the tenant paid an additional fee had been incorrectly omitted from 
          the owner's registration of services.  The Administrator noted in 
          that prior order that the owner had answered that master TV antenna 
          service "was never included in the rent," to which the tenant had 
          replied "that an additional fee was paid for the use of the master 
          TV antenna."  The Administrator found that "The owner does not 
          provide master TV antenna services for this apartment."

              The owner argues in this appeal that since the tenant had 
          failed to appeal that prior order, the order became final and could 
          not be challenged by merely refiling "the same complaint."  The 
          owner contends that the fact that the prior order referred to a 
          master TV antenna whereas the order herein under review refers to 
          a roof top television antenna does not contradict the owner's claim 
          that the present proceeding is merely a refiling of a prior 
          complaint.  Furthermore, the owner cites a Court of Appeals 
          decision for the proposition that "a decision of an administrative 
          agency which neither adheres to its own prior precedent nor 
          indicates its reason for reaching a different result on essentially 
          the same facts is arbitrary and capricious."

              As a second basis for its appeal, the owner notes that the 
          Administrator had stated in the order herein under appeal: "a 
          review of the records of this agency shows that a roof top 
          television antenna was a base date service."  The owner contends 
          these records were never provided to the owner and therefore the 
          owner had no opportunity to refute them.  The owner suggests that 
          since such service is provided in another part of the complex, the 
          Administrator mistakenly assumed it was also provided in the 
          complaining tenant's portion of the complex.

              Finally the owner emphasizes that the "gravamen of this 
          complaint was that the owner removed an antenna which cost him [the 
          tenant] $120.00 to install.   The tenant does not even suggest that 
          the owner provides this service, as well he shouldn't in light of 
          the decision in the prior proceeding [DRO #44250]." (Emphasis in 
          the original.)  Therefore, the owner argues, the complaint should 
          have been dismissed since it states on its face that the tenant, 
          not the owner, installed the TV antenna in question.

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

              It is undisputed that the tenant had installed his own roof top 
          TV antenna at about the time he took occupancy in 1965, i.e., long 
          before the base date for the Emergency Tenant Protection Act of 
          1974(ETPA).  Although the owner argued before the Administrator 






          Docket No. EB820215RO

          that the installation was without the "written" (emphasis added) 
          permission of the owner, it is also undisputed that the tenant was 
          allowed keep the antenna on the roof until sometime in 1989 when 
          the owner removed the antenna because a new roof was installed and 
          the roofer allegedly would not give a full warranty if the TV 
          antenna were to be reinstalled.

              Nothing in the Administrator's order implies that the owner had 
          provided the antenna for the tenant.  Indeed, the order states that 
          the tenant complained of "the removal by the landlord of her (sic) 
          roof top television antenna."  The Administrator correctly found 
          that "the removal of the roof top television antenna by the 
          landlord" was a decrease in services.

              The owner's entire petition seems to be based on the  
          misconception that the tenant's complaint had been that the owner 
          had removed a master TV antenna which had been installed by the 
          owner itself.

              Instead, the service of which the tenant had complained and 
          which was found to be decreased was the service of allowing the 
          tenant to have a privately owned TV antenna on the roof.  (In a 
          similar proceeding involving the same complex the Administrator had 
          suggested that the installation of a master TV antenna would be a 
          permissible substitute service which would perhaps be less 
          problematic with respect to the roof.)

              Based on the above, the owner's three arguments on appeal are 
          clearly without merit.  DRO #44250 merely stated that the "owner 
          does not provide master TV antenna services for this apartment" 
          (emphasis added).  Accordingly, that order in no way contradicts 
          the order herein under review.  [The Commissioner notes that that 
          order read as a whole seems to stand for the proposition that 
          master TV service was available but was not included in the rent, 
          a separate fee being required.]  Therefore, it is irrelevant that 
          the tenant did not appeal that order.  [The tenant in that 
          proceeding admitted he paid a separate fee.]

              Secondly, while it is true that in the order herein under 
          appeal the administrator referred to a "review of the records of 
          this agency" the reference was apparently to the undisputed facts 
          in the record of this very proceeding.  Certainly the owner was not 
          deprived of any due process right in not being provided a second 
          time with the allegations and admissions of the parties in their 
          complaint and answer.  Furthermore, the Administrator did not find 
          that these records showed that the owner had installed an antenna 
          for the tenant's benefit, but merely that the owner had removed the 
          antenna which had been installed by the tenant.  Of this there is 
          no dispute.

              Finally, the owner is correct that the tenant's complaint did 
          not allege that the owner had provided the antenna in question.  












          Docket No. EB820215RO

          However, for the reasons stated above, this contention in no way 
          indicates any error of fact or law in the Administrator's order.   


              The Commissioner notes than on March 10, 1992, the owner filed 
          an Application for Rent Restoration with the Administrator under 
          docket # GC 910010-OR, and that the rent restoration was granted by 
          the Administrator on April 16, 1992.                         
             
              THEREFORE, in accordance with the provisions of the Tenant 
          Protection Regulations, it is

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





                                                                     
                                          Joseph A. D'Agosta
                                          Deputy Commissioner
                                          
    

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