EH-830129-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
                                
                                
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IN THE MATTER OF THE ADMINISTRATIVE     ADMINISTRATIVE REVIEW
APPEAL OF                               DOCKET NO.:
                                        EH-830129-RO
       J. DE BENEDICTIS & SONS
       BUILDING CORPORATION,            DRO DOCKET NO.:
                                        MED 910052-B
                        PETITIONER
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  ORDER AND OPINION GRANTING PETITION FOR ADMINISTRATIVE REVIEW
         AND REMANDING PROCEEDING TO RENT ADMINISTRATOR
                                
                                
On  August  14,  1990  the above named petitioner-owner  filed  a
Petition  for Administrative Review against an order of the  Rent
Administrator,  55 Church Street, White Plains, New  York  issued
July  12,  1990.   The  order  concerned  housing  accommodations
located  at  56  Sheridan Avenue, Mount Vernon,  New  York.   The
Administrator ordered a building-wide rent reduction for a  three
month period for failure to maintain services.

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

This  proceeding was commenced on April 17, 1990 when thirty-five
tenants  joined  in filing a complaint of decreased  services  in
which they alleged that there was inadequate hot water during the
month of March 1990, there was no heat for the last five days  of
March  to  the  present,  the  exterior  electrical  lights  were
disconnected for each side of the building, there are broken  and
unsafe  steps on ground landing and front entrance stairs,  there
is  a  broken  back entrance door and a malfunctioning  elevator.
The owner answered the complaint and stated that the heat and hot
water  services  were interrupted for periods of the  day  during
March  1990  while necessary repairs were being  made,  that  the
elevator is serviced pursuant to a maintenance contract, that the
steps  would  be  repaired when the weather permitted,  that  the
lights were working as confirmed by the Mt. Vernon Building Dept.
and  that  the  back entrance door is always locked  except  when
repairs are being made to the building.  One tenant filed a

reply  and  stated that there was no heat and hot water  for  the
period  March  5-31, April 8-21, and May 2-4, 8-22,  28  and  29,
1990.   The  tenant requested a copy of the Mt.  Vernon  Building
Dept. inspector's report to confirm that the exterior lights were
inspected as well as a copy of the elevator maintenance contract.
The  tenant  questioned  why the owner had  to  wait  for  better
weather  to  repair  the  steps when the  steps  are  inside  and
requested  a  stronger and more secure back door.   Finally,  the
tenant  requested a rent reduction "for the periods that  we  did
not have and do not have the services that we are paying for."

The  Administrator  determined that the landlord  had  failed  to
maintain  required  services  and ordered  a  building-wide  rent
reduction for the period from May 1, 1990 through July 31,  1990.
The rents were to revert to the then current amounts on August 1,
1990.

In  its petition, the owner argues that the rent reduction  order
should  be  revoked because it is arbitrary, capricious  and  not
based on fact.  The owner asserts that there was no inspection or
hearing,  no  reply by the tenants was served on the  owner,  and
there  was  no communication with the owner after the answer  was
filed.   The  owner states that the boiler developed problems  in
March  1990 which the owner had repaired in a manner designed  to
cause  the least inconvenience to the tenants.  This resulted  in
no heat and hot water from 8:30 a.m. to 4:30 p.m. on March 30 and
31,  and  April 2, 3, and 4, 1990.  As for the other  conditions,
the  owner  asserts that the exterior lights were  never  discon-
nected, the entrance steps were not found to be hazardous by  the
Department of Buildings, in a report dated February 18, 1987, the
back  entrance  door is and was locked except when  repairs  were
being  made to the boiler, and the elevator does sometimes  break
down but is promptly repaired pursuant to a service contract.

One   tenant  responded  to  the  petition  and  urged  that  the
Administrator's  order be affirmed.  She stated that  the  boiler
had  broken  down  in 1988 and 1989 during the winter  and  early
fall,  that  she  had  fallen from the entrance  step,  that  the
elevator  breaks  down and the elevator alarm is  not  operating.
She  expressed  no opinion regarding the back door  and  exterior
lights. Twenty seven tenants filed a joint response stating  that
they  were  without heat and hot water for the periods stated  in
the  complaint,  that  the  owner  was  using  outdated  Building
Department  reports in stating that the lights were  working  and
the  steps  were  repaired, and that the back entrance  door  was
still unsafe as was the elevator.

After  a  careful  review  of the evidence  in  the  record,  the
Commissioner  is  of  the  opinion that the  petition  should  be
granted and the proceeding remanded to the Administrator.

The Commissioner has reviewed the record then existing before the
Administrator.   Based  on  the  conflicting  statements  of  the
parties,  there was no independent corroboration of  the  claimed
services deficiencies.

Section 2503.4 of the Tenant Protection Regulations states:

         "A tenant may apply to the Division for a re-
          duction  of the legal regulated rent  to  the
          level  in  effect  prior to the  most  recent
          adjustment  under  Section  2502.5(c)(1)  and
          (2),  and the Division may so reduce the rent
          where  it is found that the owner has  failed
          to maintain the services."
          
The owner is correct in stating that there was insufficient proof
of  the  period of the alleged reduction to warrant the  Adminis-
trator's  conclusion that the period involved was May 1,  -  June
31,  1990.   Indeed, one tenant stated that she was without  heat
for  periods in March and April and well as May.  The Administra-
tor's failure to investigate before issuing this order was error.
Based  on  this  error,  the  Commissioner  hereby  revokes  that
Administrator's   order  and  remands  the  proceeding   to   the
Administrator  for the purpose of conducting an on-site  physical
inspection to determine if the conditions complained  of  by  the
tenants continue to exist.


THEREFORE,  pursuant to the Emergency Protection Act  and  Tenant
Protection Regulations, it is

ORDERED, that this petition be, and the same hereby is granted,
and that the Rent Administrator's order be, and the same hereby
is revoked, and the matter be and the same hereby is remanded to
the Administrator for further processing in accordance with this
order and opinion.


ISSUED:




ELLIOT SANDER
                                         Deputy Commissioner
    

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