EE410448RO
                                  STATE OF NEW YORK
                      DIVISION OF HOUSING AND COMMUNITY RENEWAL
                            OFFICE OR 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.: EE410448RO

              SOLOW MANAGEMENT CORP.,             RENT ADMINISTRATOR'S
                                                  DOCKET NO.: DE410322S
                                 PETITIONER
          ___________________________________x


             ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW

          On May 28, 1990, the above-named petitioner-owner filed a petition 
          for administrative review (PAR) of an order issued on April 17, 
          1990, by the Rent Administrator, concerning the housing 
          accommodation known as 265 East 66th Street, New York, N.Y., Apt. 
          17-E, wherein the Administrator determined that the rent of the 
          subject apartment should be reduced to the level in effect prior to 
          the last guideline increase based upon the owner's failure to 
          provide painting services to the subject tenant.  The order was 
          based on an inspection held on April 3, 1990, which showed that the 
          subject apartment is in need of painting throughout, except where 
          wall paper is in evidence.

          The Rent Administrator also directed full restoration of services.

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

          The issue herein is whether the Rent Administrator properly reduced 
          the rent of the subject apartment.

          On appeal, the petitioner-owner asserted, in substance, that the 
          Rent Administrator erred by reducing the rent because the subject 
          tenancy was terminated legally prior to the owner's receipt of the 
          notice of complaint; that its right to due process was denied 
          because it had a pending extension to file an answer to the 
          tenant's complaint and further that the DHCR failed to give it 
          notice of the inspection or the results thereof.





          The petition was served on the tenant on July 6, 1990 and on July 












          EE410448RO

          26, 1990, the tenant filed an answer to the petition stating, in 
          substance, that the owner failed to paint the apartment; that the 
          owner had actual notice of the complaint; that the owner's filing 
          of the petition is one part of a series of attempts to harass him 
          out of the apartment; that he had filed the complaint before the 
          owner had filed the Notice of Termination and that the Notice of 
          Termination was dated May 4, 1989; not March 4, 1989, as alleged by 
          the owner in the PAR.

          After a careful consideration of the entire evidence of record the 
          Commissioner is of the opinion that the administrative appeal 
          should be denied.

          Pursuant to Section 2523.4 (a) of the Rent Stabilization Code, a 
          tenant may apply to the Division of Housing and Community Renewal 
          (DHCR) for reduction of the legal regulated rent to the level in 
          effect prior to the most recent guidelines adjustment, and the DHCR 
          shall so reduce the rent for the period for which it is found that 
          the owner has failed to maintain required services.

          Required services are defined in Section 2520.6 (r) to include 
          repairs and maintenance.

          Section 2520.6 (r) (5) of the current Rent Stabilization Code 
          provides:
                     Each housing accommodation must be painted at least once 
                     every three year in compliance with title 27 of the Ad-
                     ministrative Code of the City of New York (the "Housing
                     Maintenance Code").
                
          A review of the record discloses that the owner requested and the 
          DHCR granted nine separate extensions to answer the tenant's 
          complaint, ranging from June 16, 1989 to February 26, 1990, but 
          that it had failed to answer the complaint.

          The Commissioner finds, therefore, that the petitioner having 
          failed to raise any issue whatsoever while the proceeding was 
          pending before the Rent Administrator it may not now raise issues 
          for the first time on administrative appeal.

          Moreover, administrative policy and precedent do not require that 
          an owner be given notice of the inspection or the actual inspection 
          results and the courts have upheld this procedure (Empress Manor 
          Apartments v. NYS DHCR, 538 N.Y.S. 2d 49, 147 A.D. 2d 642, February 
          21, 1989).





          A review of the record indicates that the Administrator based his 
          determination on the entire evidence of record, including the April 






          EE410448RO

          3, 1990 inspection which disclosed that the apartment is in need of 
          painting.  Therefore, the Commissioner finds that the Administrator 
          properly determined that the owner had failed to maintain services 
          and correctly reduced the tenant's rent.

          The Commissioner notes that the owner has failed to produce 
          credible evidence that the subject tenancy was terminated prior to 
          the filing of the complaint below.

          The Commissioner further notes that the Rent Administrator granted 
          the owner's application to restore the rent of the subject 
          apartment on March 27, 1991 and that the tenant filed an appeal of 
          that order, under Docket No.: EH410055OR, which is pending.

          The automatic stay of the retroactive rent abatement that resulted 
          by the filing of this petition is vacated upon issuance of this 
          order and opinion.

          THEREFORE, in accordance with 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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