EK430096RO; et al.
                                    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
          APPEALS OF                              DOCKET NOS.:   
                                                  EK430096RO;  FG410446RT;
             25 WEST 86TH OPERATING CORP.,        FG410447RT;  FG430504RT;
                                                  FI410163RT;  FK410488RT
                             Petitioner-Owner

                          AND

                    VARIOUS TENANTS               RENT ADMINISTRATOR'S
                                                  DOCKET NOS.:
                           Petitioner-Tenants     EC430139OR;  EK430245OR
          ----------------------------------x



            ORDER AND OPINION DENYING OWNER'S AND TENANTS' PETITIONS FOR
                                ADMINISTRATIVE REVIEW


          These proceedings concern the housing accommodations known as 21 
          West 86th Street, New York, New York, various apartments.

          The Rent Administrator's order per Docket No. OL002060BH, dated 
          January 31, 1986, amended March 10, 1986, reduced the rents for 
          rent controlled and rent stabilized apartments based on the then 
          owner's failure to maintain a roof garden and directed the owner to 
          restore the roof garden eliminated in 1985.  A subsequent PAR order 
          per Docket No. ARL08679L, dated August 31, 1988, affirmed the  
          Administrator's order and specified parenthetically that the ser- 
          vice required to be maintained was the tenants' right to maintain 
          roof garden without interference from the owner.  There is no 
          record of a petition for judicial review of the Commissioner's 
          order by either the owner or the tenants.  Consequently, the 
          Commissioner's determination was final.

          On March 30, 1990, the current owner filed an application to 
          restore rent, asserting that the services had been fully restored 
          by the replacement in February 1987 of astroturf, plants, a wooden 
          picnic table and benches, and a metal outdoor table with chairs and 
          benches.














          EK430096RO; et al.

          An inspection conducted on September 9, 1990, revealed that a 
          brickwork and rebuilding of a parapet wall was in progress at the 
          time of inspection, and debris and material around the area.  Based 
          on the results of the inspection, the Administrator determined that 
          services had not been restored, and on October 17, 1990, issued an 
          order that denied the owner's rent restoration application.

          On November 13, 1990, the owner filed a petition for administrative 
          review (PAR) of the Administrator's order.

          On appeal, the owner reiterates assertions below, to the effect 
          that the services, i.e., tenants' right to maintain a roof garden 
          without interference from the owner, had been restored previously, 
          but that it had been interrupted during the course of roof, parapet 
          and pointing repairs.

          The PAR was served on the tenants on January 12, 1991.  Various 
          tenants responded individually or by their attorneys, asserting 
          that service of the roof garden had not been restored.  In fact, 
          some tenants, by their attorneys, had responded below that a 
          restoration had taken place in 1988.  However, the owner's appli- 
          cation was not filed until March 29, 1990.  For rent stabilized 
          accommodations, the effective date of a rent restoration order is 
          the first month after service of the application on the tenants.  
          For rent controlled accommodations, the effective date is the first 
          day of the month following issuance of the order.  The inspection 
          that followed the filing of the owner's application showed that the 
          services were not being provided at that time.  Based on the 
          record, the Administrator's order was correct, and should be 
          affirmed.

          The owner filed a subsequent rent restoration application on 
          November 20, 1990, which was processed per Docket No. EK430245OR.
          The owner's application consisted of separate individual applica- 
          tions for each tenant as well as a master application to which the 
          owner attached a rider and copies of a Stipulation of Settlement, 
          so ordered by the Court, dated, February 11, 1987, between the then 
          owner and the tenants' association together with various tenants, 
          to resolve disputes between the parties not arising in connection 
          with the proceedings herein.  

          A provision of the Stipulation specified the owner was " . . . to 
          replace the roof garden . . . to replace the green astroturf 
          previously removed, the wooden picnic table with benches, the 
          metal outdoor table with four chairs, and the two matching benches 
          . . . to provide lightweight plants to replace the heavier plants 
          previously removed . . . . "



          On June 25, 1991, the Administrator granted the owner's application 
          and restored the rents, effective February 1, 1991 for rent sta- 






          EK430096RO; et al.

          bilized and July 1, 1991 for rent controlled tenants, based on an 
          inspection held on March 1, 1991 that revealed that the service of 
          the roof garden, including outdoor carpeting, plants, planters and 
          outdoor furniture, had been restored.

          Various tenants, individually or by their attorneys, filed peti- 
          tions requesting that the Administrator's order be reversed on 
          procedural or substantive grounds, or both.

          Substantively, the tenants claim that the items replaced by the 
          owner are not as extensive as the items that were removed.

          Various tenants also assert, among other things, that they were 
          denied due process, in that they were not served the owner's 
          attachments and exhibits to the application, although requested 
          twice by the tenants' attorneys.

          An examination of the record below shows that the owner submitted 
          separate applications for each tenant, as well as a master appli- 
          cation to which the owner attached a rider, and copies of the 
          Stipulation of Settlement that reflected the parties' agreement to 
          resolve Court proceedings.  The record does show the Administrator 
          served the individual applications on the tenants, but does not 
          establish that the tenants or their representative were furnished 
          the attachments to the master application.

          The tenants' statements below and on appeal acknowledge that, in 
          fact, the owner permits the tenants access to the roof to main- 
          tain a garden, which is the service the Commissioner specified in 
          the August 31, 1988 order per Docket No. ARL08679L that the tenants 
          were entitled to.  Since the tenants have acknowledged the owner 
          allows the tenants access to the roof, the fact that the tenants 
          were not served all attachments below was harmless error, and is 
          insufficient to warrant further consideration or a different 
          result.  The question of whether the items replaced by the owner 
          were as extensive as the items removed is not properly before the 
          Commissioner.  Rather, it is a matter between the parties subject 
          to their Stipulation of Settlement, which the parties may pursue in 
          a forum of competent jurisdiction.

          As to those tenants that assert, in the proceedings below, in 
          response to the owner's administrative appeal, or in their own 
          appeals, that the owner has not afforded them the rent abatements 
          granted in the Administrator's rent reduction order, the Commis-




          sioner notes that these proceedings are not the proper vehicle to 
          obtain relief for any overcharges.  The tenants may file over- 
          charge complaints with the Administrator, if they have not done so 
          already, and if the facts so warrant.












          EK430096RO; et al.



          THEREFORE, in accordance with the Rent and Eviction Regulations for 
          New York City, the City Rent Control Law, and the Rent Stabiliza- 
          tion Law and Code, it is,

          ORDERED, that the owner's petition be, denied, and the Rent Admin- 
          istrator's order per Docket No. EC430139OR be, affirmed.  It is 
          further 

          ORDERED, that the tenants' petitions be, denied, and the Rent     
          Administrator's order per Docket No. EK430245OR be affirmed.


          ISSUED:




                                                                         
                                                JOSEPH A. D'AGOSTA
                                                Deputy Commissioner

    

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