EG 130378 RO
                                  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.: EG 130378 RO
                                                  
               SUNPLACE REALTY                    DISTRICT RENT
                                                  ADMINISTRATOR'S DOCKET 
                                                  NO.: DD 130024 B
                                  PETITIONER            
          ----------------------------------x


            ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW
                      BUT MODIFYING RENT ADMINISTRATOR'S ORDER

                    On July 25, 1990 the above named petitioner-owner filed 
          a Petition for Administrative Review against an order of the Rent 
          Administrator issued June 20, 1990. The order concerned housing 
          accommodations located at 41-43 39th Place, Sunnyside, N.Y.  The 
          Administrator ordered a building-wide rent reduction 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.

               This proceeding was commenced on April 11, 1989 when four 
          tenants joined in the filing of a Statement of Complaint of 
          Decrease in Building-Wide Services wherein they alleged the 
          following services deficiencies:

                    1.   Laundry facilities taken away 10 years ago, 

                    2.   Storage space taken away 10 years ago,

                    3.   Tenants no longer provided doorman/porter,

                    4.   Inconsistent heat/hot water,

                    5.   Garbage accumulating in public areas; public areas 
                         need plaster and painting,

                    6.   Mice and roach infestation,

                    7.   Broken intercoms and tenants' names not properly 
                         listed on panel,













          EG 130378 RO

                    8.   Front entrance door lock broken and frame bent,

                    9.   Defective windows building-wide,

                   10.   Rotted plumbing; poor water pressure.   

               The owner was served with a copy of the complaint and afforded 
          an opportunity to respond. The owner filed a response on May 9, 
          1989 and enclosed a copy of the 1984 building services registration 
          statement in an attempt to show that the tenants were never 
          provided laundry facilities, storage space or a doorman/porter.  
          The owner also stated that a new boiler system was installed and 
          was periodically serviced, that all garbage had been removed and 
          the hallways were recently painted, that exterminator service is 
          available on a monthly basis for tenants who request service, that 
          the intercom system is serviced as needed, that the front entrance 
          door was repaired and that any problems with the plumbing are 
          repaired when necessary.

               On October 17, 1989 the Administrator sent a notice to the 
          tenants requesting submission of statements supporting the claim 
          that laundry facilities, storage space and a porter/doorman were 
          required services and also requesting information regarding the 
          doorman's work schedule.

               On November 2, 1989 11 tenants, none of whom were signatories 
          to the complaint, submitted statements wherein they stated that 
          laundry facilities, storage space and a porter had previously been 
          provided.  The statements were served on the owner.

               On January 16, 1990 the Administrator sent another notice to 
          the tenants requesting statements and documentation in answer to 
          the following questions:

                    1.   Whether laundry facilities were provided by an 
                         owner or an independent contractor,

                    2.   How many and what type of machines were provided,

                    3.   Whether tenants presently have keys to the storage 
                         room or whether they were taken away by the present 
                         or former owner,

                    4.   What duties and schedule the doorman had,

                    5.   Whether any DHCR, CAB or HPD orders existed 
                         supporting the tenants' position.

               Two tenants filed responses to this notice.  One tenant stated 
          that he was the building superintendent in 1974 and at that time 
          there was a porter on staff 5 days per week for 4 hours a day.  He 
          also stated that there was a storage room to which he would provide 






          EG 130378 RO

          the tenants access on request.  This room was half the size of the 
          building and there was an additional room for bikes and carriages.  
          The second tenant stated that she has been a tenant for 48 years 
          and that the owner formerly provided washing machines that were not 
          coin operated and that each tenant had a clothesline.  The tenant 
          also stated that the superintendent had a key to the storage rooms, 
          that there was a separate storage room for carriages and bicycles 
          and that a porter was on duty 5 days per week for 4 hours a day.  
          Attached to her response was a copy of a 1974 order of maximum base 
          rent, stating that the building had 2 employees.
           
               The Administrator ordered a physical inspection of the 
          building.  The inspection was conducted on January 3, 1990 and 
          revealed the following:

                    1.   Evidence of peeling paint and plaster on sixth 
                         floor walls and ceilings as well as on bulkhead 
                         wall and ceilings,

                    2.   Main entrance door lock broken,

                    3.   All floors have cracked window panes,

                    4.   Evidence indicates that laundry facilities had been 
                         removed based on visible evidence of electrical 
                         connections and plumbing in room on north side of 
                         premises.

          The following services were found to have been maintained:

                    1.   Janitorial services, no evidence of garbage 
                         accumulation in public areas,

                    2.   No evidence of vermin infestation,

                    3.   Intercom functioning adequately with names listed 
                         on panel,

                    4.   No evidence of defective plumbing throughout 
                         building.

          The tenants were advised to file individual complaints regarding 
          apartment issues.


               The Administrator issued the order here under review on June 
          20, 1990 and ordered a rent reduction of $91.00 per month for rent 
          controlled tenants and an amount equal to the most recent guideline 
          adjustment for rent stabilized tenants, based on the defective 
          conditions cited in the inspector's report and on a finding that 
          storage space is a required service that is no longer being 
          provided.












          EG 130378 RO


               On appeal the owner takes issue with the Administrator's 
          finding that the storage space and laundry facilities are required 
          services that are not being maintained and objects to a rent 
          reduction based on this finding.  The owner states that the 
          tenants' failure to object within  90 days to the 1984 Building 
          Services Registration, which did not list these services as ones 
          required to be provided, bars them from raising this as a ground 
          for a rent reduction based on the failure to maintain services.  
          The owner repeats its prior statements that laundry facilities and 
          storage space were not services ever provided to the tenants and 
          claims that the tenants have not submitted any evidence to support 
          their claims contending that there own statements are inconsistent.  
          The owner's petition also objects to a finding that there is no 
          longer a porter at the premises but a review of the Administrator's 
          order reveals that no such finding was made and that, in fact, 
          janitorial services were found to be maintained in an adequate 
          manner.

               Two tenant filed answers and requested that the 
          Administrator's order be affirmed.
           
               After careful review of the evidence in the record, the 
          Commissioner is of the opinion that the petition should be denied. 

               The owner's argument is premised on the fact that the 1984 
          Building Services Registration Statement does not mention laundry 
          facilities or storage space and the tenants did not file timely 
          objections therefrom.  The Commissioner rejects the owner's 
          argument regarding the tenants failure to object to the 1984 
          Building Registration Statement.  The 90 day time limit on 
          objections to registration statements, contained in 9 NYCRR 2526.1 
          (a) (2) (ii), speaks only of a "complaint based upon overcharge" 
          and is not dispositive as to services an owner must provide.

                Required services are defined by 9 NYCRR 2520.6 (r)(1) as 
          "that space and those services which the owner was maintaining or 
          was required to maintain on the applicable base date..., and any 
          additional space or services provided or required to be provided 
          thereafter by applicable law."  The applicable base date for 
          building-wide services in housing accommodations subject to the 
          Rent Stabilization Law (RSL) on June 30, 1974 is May 31, 1968 
          pursuant to 9 NYCRR 2520.6 (r)(4)(i).

               The registration requirements cited in 9 NYCRR 2528.2 (a)(6) 
          directed the owner to include on the initial registration statement 
          "all services provided for in the last lease or rental agreement, 
          provided or required to be provided on the applicable base date, or 
          thereafter."  There is no provision in the Code for the owner's 
          proposition that a new base date for services results from a 
          tenant's failure to object within 90 days.






          EG 130378 RO

               Section 2523.4 of the Rent Stabilization Code required DHCR to 
          order a rent reduction for stabilized tenants who request a rent 
          reduction if it is found that the owner has failed to maintain 
          required services.  Accordingly, the relevant inquiry in this 
          proceeding involving building-wide services is whether laundry 
          facilities and storage space were provided on May 31, 1968 or 
          thereafter.

               The Commissioner finds that the tenants' submissions, as 
          described above, amply demonstrated that storage space and laundry 
          facilities were services required to be maintained.  The 
          Commissioner specifically notes the statement received from the 
          tenant who was the former building superintendent, who attested to 
          the fact that storage space had been previously provided.  That 
          former superintendent stated that it was his responsibility to give 
          access to the storage area to the tenants.  Additionally, the 
          tenant who has resided in the building for 48 years corroborated 
          the fact that the building superintendent had a key to the storage 
          area.  The Administrator was correct in ordering a rent reduction 
          based on the owner's failure to continue to provide the storage 
          space.  

               The finding regarding the laundry facility was premised on the 
          physical inspection of the building wherein the inspector visited 
          the alleged laundry room and found plumbing and electrical 
          connections consistent with such facilities.  The Administrator 
          relied on the report of the inspector, which report is entitled to 
          great probative weight. The owner has not submitted any evidence, 
          either before the Administrator or the Commissioner to rebut this 
          report.  Therefore, the Commissioner finds that the Administrator 
          correctly found that laundry facilities are a required building 
          service that must be restored.

               The Commissioner notes that, while the Administrator can order 
          a rent reduction for rent controlled tenants on his own initiative 
          or as the result of the tenant complaint, an owner must be afforded 
          due process.  In the absence of either a complaint or agency- 
          initiated proceeding the Commissioner is of the opinion that the 
          owner was not on notice that rent reductions would be ordered for 
          all rent controlled tenants in the building.  To invoke the 
          provisions of the Rent Control Law and Regulations to order such a 
          penalty in the absence of a complaint by even one rent controlled 
          tenant constitutes a due process denial.  (Accord: BD 410316 RO; DI 
          530195 RO).  Accordingly, the Commissioner finds that the $91.00 
          per month rent reduction for rent controlled tenants should be 
          revoked.

               In sum, the Commissioner affirms the Administrator's order to 
          the extent that it orders a rent reduction for all rent stabilized 
          tenants who joined in the complaint.  The rent reduction for rent 
          controlled tenants is revoked.  For rent controlled tenants only, 
          if arrears are due and owing the owner based on the Commissioner's 
          revocation of the order, the tenants may pay off said arrears in 
          twenty four (24) monthly installments.  If any tenant has vacated 
          the apartment the arrears are due and payable immediately.










          EG 130378 RO

               The Commissioner notes that the owner has filed an application 
          for rent restoration. Said application is currently pending before 
          the agency.  This order is issued without prejudice to the owner's 
          pending application.

               THEREFORE, pursuant to the Rent Stabilization Law and Code and 
          Rent and Eviction Regulations it is 

               ORDERED, that, with regard to rent stabilized tenants, this 
          petition be, and the same hereby is, denied, that the Rent 
          Administrator's order be, and the same hereby is affirmed, and it 
          is further

               ORDERED, that, for rent controlled tenants granted a rent 
          reduction by the order here under review the order be, and the same 
          hereby is, revoked.

          ISSUED:



                                                                             
                                             JOSEPH A. D'AGOSTA
                                             Acting Deputy Commissioner


    

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