EL630038RO, EL610418RT

                                  STATE OF NEW YORK
                            OFFICE OF RENT ADMINISTRATION
                                     GERTZ PLAZA
                                  92-31 UNION HALL
                                  JAMAICA, NY 11433

          APPEALS OF                                   DOCKET NOS.:
                    and George King
                                                       RENT ADMINISTRATOR'S
                                                       DOCKET NO.:


          On December 6, 1990, the above-named petitioner-owner filed a 
          timely petition for administrative review (PAR) of an order issued 
          on November 15, 1990, by the Rent Administrator, concerning the 
          housing accommodations known as 1410 Metropolitan Avenue, Bronx, 
          New York, various apartments, wherein the Rent Administrator 
          determined that the owner's application for rent restoration should 
          be denied, based upon inspections of the premises, on May 24, 1990 
          and October 23, 1990, which disclosed the existence of peeling 
          paint and plaster on the bulkhead walls of section "A."

          The tenant of apartment 8-C also filed a timely petition for 
          administrative review (PAR) of an order issued on November 15, 
          1990, by the Rent Administrator, concerning the housing 
          accommodation known as 1439 East Avenue, Bronx, New York, wherein 
          the Rent Administrator granted the owner's application for rent 
          restoration, based upon an inspection held on May 29, 1990, which 
          revealed that the owner was maintaining all services which were the 
          subject of the reduction order issued on January 27, 1989, under 
          Docket No. BH610099B.

          The Commissioner has consolidated these two petitions as they 
          involve common questions of law and facts.

          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 appeals.

          EL630038RO, EL610418RT

          The issue herein is whether the Rent Administrator properly denied 
          the owner full rent restoration for rent controlled and rent 
          stabilized apartments at 1410 Metropolitan Avenue, Bronx, N.Y.
          under Docket No. EL630038RO, and whether the Rent Administrator 
          properly granted the owner rent restoration for rent controlled and 
          rent stabilized apartments at 1439 East Avenue, Bronx, N.Y.

          In the petition for administrative review, the owner requests 
          reversal of the Rent Administrator's order alleging, in pertinent 
          part, that the service in issue is normal maintenance; is promptly 
          attended to and that it is of a recurring nature.  The owner 
          further states that the work has been completed but recurs and is 
          done again and that there is not an identity of location between 
          the conditions cited in the inspection reports for the rent 
          reduction proceeding and those of the rent restoration proceeding.  
          In the tenant's petition for administrative review, the tenant 
          alleged that the owner failed to comply with the heating law 
          regardless of the outside temperature and that the owner's 
          application for rent restoration should have been denied.

          The owner's petition was served on the tenant's on December 18, 
          1990, and on December 26, 1990, the tenant of Apartment 3-C filed 
          an answer alleging that the walls in his apartment are peeling very 
          badly and that as a consequence thereof, the owner's application 
          for rent restoration should be denied.

          The tenant's petition was served on the owner and on October 18, 
          1991, the owner filed an answer to the petition stating that the 
          tenants appeal raised novel issues not relevant to this proceeding 
          and which were not raised below.

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

          With regard to Docket No. EL630033RO, the Commissioner notes that 
          although the owner has characterized the cited condition as normal 
          maintenance and something which is "promptly attended to," the 
          record reveals that "normal maintenance" did not, in this case, 
          include prompt attention to the cited condition form the date of 
          the inspection held in the reduction proceeding under Docket No. 
          BH610099B prior to January 27, 1989 and the date of the inspections 
          held in this proceeding on May 24, 1990 and October 23, 1990.  The 
          inspections were conducted more than twenty months apart.  In the 
          opinion of the Commissioner, an item of normal maintenance would 
          have been corrected within this time span and, if corrected 
          properly, would not have reappeared.  The Commissioner further 
          notes that the original rent reduction order and the corresponding 
          inspection reports in the restoration proceedings cite the same 
          defective condition at the identical location.
          The Commissioner also notes that the owner's application to restore 
          rent which was filed on April 28, 1989, contains a certification 

          EL630038RO, EL610418RT

          that the water stains on the walls of section "A" were removed on 
          February 7, 1989.

          The file reveals that the owner did not provide documentation to 
          support its contention that repairs were made.  On the contrary, 
          evidence in the file shows that the owner did not correct the 
          subject condition prior to the issuance of the appealed order.

          The Commissioner notes that while the owner questions the findings 
          of fact, the record clearly reflects those findings by virtue of 
          the DHCR inspections which occurred on May 24, 1990 and October 23, 

          With regard to the tenant's petition, under Docket No. EL610418RT, 
          the only issue raised is whether the owner is providing heat in 
          compliance with heating law requirements.

          A review of the record reveals that the tenant raised the heat 
          issue for the first time on appeal and that this issue was not 
          raised below.

          Since the scope of administrative review is limited to the facts or 
          evidence which were raised before the Rent Administrator and the 
          heat issue was not raised; it may not now be considered for the 
          first time on administrative appeal.

          According, with regard to Docket No. EL630038RO, the Commissioner 
          finds that the Administrator properly determined that the owner had 
          failed to restore all services based on the evidence of the record, 
          including the results of the on-site inspections of the subject 
          premises, correctly denied rent restoration applications for the 
          rent stabilized tenants and correctly granted in part rent 
          restoration applications for the rent controlled tenants.  
          Additionally, with regard to Docket No. EL610418RT, the 
          Commissioner finds that the Administrator properly granted the 
          owner's application for rent restoration in the amount of $3.00 per 
          month for rent controlled tenants based on the owner's maintenance 
          of the stairwell walls and floors of section "A."

          The owner may refile for rent restoration at 1410 Metropolitan 
          Avenue, Bronx, N.Y. when the remaining services are restored.

          THEREFORE, in accordance with the provisions of the Stabiliza-
          tion Law and Code and the Rent and Eviction regulations, it is,

          EL630038RO, EL610418RT

          ORDERED, that these petitions be, and the same hereby are, denied, 
          and that the Administrator's orders be, and the same hereby, are 



                                             JOSEPH A. D'AGOSTA
                                             Deputy Commissioner  

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