DOCKET NO.:  EE710104RT
                             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 APPEAL
     APPEAL OF                                 DOCKET NO. EE710104RT
                                           :   DRO DOCKET NO. DK710007OR
           DAVID G. McCORD - TENANT            
                                           :   222 BUTTERCUP ASSOCIATES -
                            PETITIONER         OWNER
     --------------------------------------X   

          
           ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW


     On May 15, 1990, the above-named petitioner filed a Petition for 
     Administrative Review against an order issued on April 10, 1990 by the 
     Rent Administrator, 50 Clinton Street, Hempstead, New York concerning the 
     housing accommodations known as 73 Carlton Avenue, Port Washington, New 
     York, wherein the Administrator ordered a rent restoration.

     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 in the administrative appeal.

     The owner commenced this proceeding by filing an application for a 
     restoration of the rent which had been reduced under Docket number 
     NNH86S448/486B.  The owner alleged that it had corrected all defective 
     conditions whose decrease had been the basis of the order reducing the 
     rent.  The owner stated that the premises were serviced by a 
     superintendent; garage and storage room were secured with locks; all 
     gutters had been repaired; and all roofs had been replaced.

     Copies of the application were sent to the tenants.

     Various tenants responded, protesting any restoration of rent.  They 
     asserted that not all services, in particular, the provision of an on-site 
     superintendent, had been restored.

     In reply, the owner reaffirmed that all services found deficient in the 
     reduction order had been restored.

     On March 28, 1990, an on-site physical inspection without notice to the 
     owner was conducted by a staff member of the DHCR.  The inspection report 
     showed that the superintendent was on-site at the time of the inspection.

     In the order here under review, the Administrator restored the rent to the 
     level in effect prior to the date of the Order which reduced such rent, 
     plus applicable renewal lease guidelines, effective December 1, 1989.

     In the appeal, the tenant contends:  1) all services have not been 







          DOCKET NO.:  EE710104RT

     restored; 2) the owner has submitted no documentary evidence to show that 
     repairs have been made; 3) the rent restoration order conflicts with the 
     Commissioner's order (BE730295RO) denying in part the owner's appeal of 
     the original order; 4) the issue of whether the provision of an on-site 
     superintendent was a base date service had not been resolved having been 
     remanded in the just cited Commissioner's order for a determinative 
     hearing.  Since the issue had not been resolved, the petitioner questions 
     the legitimacy of restoring the rent before all the issues of the original 
     docket had been resolved.

     In reply to the petition, the owner states that all repairs have been 
     effectuated and that the afore-mentioned hearing has been held, but no 
     decision had been reached.

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

     The Tenant Protection Regulations provide that where there has been a 
     reduction of the legal regulated rent based upon failure to maintain 
     services, an owner may apply for a restoration of rent based upon the 
     restoration of such services.

     The Regulations do not require that the manner of evidencing restoration 
     of services be limited to the production of documentation.  In the instant 
     case, the tenants confirmed that repairs for two (roof and gutter) of the 
     four items for which the rents had been restored had been made but 
     challenged the owner's application regarding the other two items, i.e., on 
     the question of an on-site superintendent and on whether a garage door 
     worked properly.  An inspection by the Division found the superintendent 
     to be on-site at the time of the inspection and that the door was working 
     properly.  Therefore, the rent was ordered restored.

     Review of the Division's records reveals that the owner's appeal with 
     respect to the issue of whether an on-site superintendent is a base-date 
     service was granted after the hearing was held.  In order no. EB710001RP, 
     it was determined that the provision of a residential superintendent was 
     not a base date service.

     The fact that residential superintendent was found in the July 23, 1990 
     order number EB710001RP not to have been a base date service is obviously 
     no reason to reverse the rent restoration order.

     Nor does that fact that the Commissioner's order number BE730295RO, issued 
     January 26, 1990, affirmed the rent reduction for the three services other 
     than superintendent in any way contradict the rent restoration ordered on 
     April 10, 1989.  The January 26, 1990 order merely affirmed that the 
     reduction ordered on April 23, 1987 had been proper.  The subsequent 
     restoration of rent based on the restoration of services, in no way 
     contradicts the validity of the original rent reduction in 1987 or the 
     affirmance thereof in 1990.

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



          DOCKET NO.:  EE710104RT


     ORDERED, that this petition be, and the same hereby is, denied and the 
     order of the Rent Administrator be, and the same hereby is, affirmed.

     ISSUED:


                                                                               
                                                     JOSEPH A. D'AGOSTA
                                                 Acting Deputy Commissioner 





    

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