ADM. REVIEW DOCKET NO.: EC810183RO

                                 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.: EC810183RO

                                                  DISTRICT RENT
                                                  ADMINISTRATOR'S DOCKET
                                                  NO.: YDG810213S
            JONATHAN WOODNER CO.
                                   PETITIONER
          ------------------------------------X

            ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW

               The above-named owner filed a timely petition for 
          administrative review of an order concerning the housing 
          accommodations known as 2 Roxbury Drive, Apartment #4, Yonkers, New 
          York.

               The Commissioner has reviewed all the evidence in the record 
          and has carefully considered that portion of the record relevant to 
          the issues raised by the petition.

               The tenant commenced this proceeding by filing a complaint 
          asserting that the owner had failed to maintain certain services in 
          the subject premises, namely, that the owner had removed the 
          tenant's roof TV antenna.  The tenant alleged he had had the 
          antenna on the roof since taking occupancy in 1958 and that the 
          owner had the antenna removed in July 1989.

               In its answer, the owner stated that when the tenant moved in 
          he was informed that there was no master TV antenna in the subject 
          portion of the complex.  However, the owner did not deny removing 
          the tenant's TV antenna from the roof, but rather stated that the 
          tenant had no written permission to install the antenna.  The owner 
          also alleged that to have granted such permission would have 
          violated the lease.  Finally, the owner referred to a letter from 
          a roofing company which allegedly stated that all antennas must be 
          removed from the roof "in order to receive the proper warranties."



















          ADM. REVIEW DOCKET NO.: EC810183RO

               The Administrator ordered a reduction of the regulated rent, 
          finding that the landlord's removal of the tenant's roof top 
          television antenna was a decrease of an essential service.

               The owner filed a Petition for Administrative Review (PAR) 
          appealing the Administrator's decision.

               The owner bases its appeal upon two contentions.

               With its PAR, the owner encloses a copy of a previous 
          Administrator's Order concerning a different apartment at the 
          subject premises.  The prior proceeding (DRO #44250) had been 
          originated by a different tenant's objection to the 1984 
          Registration, in which objection the tenant stated inter alia that 
          a master TV antenna service for which the tenant paid an additional 
          fee had been incorrectly omitted from the owner's registration of 
          services.  The Administrator noted in that prior order that the 
          owner had answered that master TV antenna service "was never 
          included in the rent," to which the tenant had replied "that an 
          additional fee was paid for the use of the master TV antenna."  The 
          Administrator found that "The owner does not provide master TV 
          antenna services for this apartment."  The owner argues that this 
          order #44250 is therefore determinative of the instant proceeding, 
          citing a Court of Appeals decision for the proposition that "a 
          decision of an administrative agency which neither adheres to its 
          own prior precedent nor indicates its reason for reaching a 
          different result on essentially the same facts is arbitrary and 
          capricious."   

               As a second basis for its appeal, the owner notes that the 
          Administrator had stated in the order herein under appeal:  "Based 
          on the evidence in the record it is determined that the landlord's 
          removal of the tenant's roof top television antenna is a decrease 
          of an essential service."  On appeal, the owner states that it had 
          never been provided with any of the "evidence" referred to in the 
          Administrator's finding, other than the tenant's complaint.  The 
          owner suggests that since such service is provided in another part 
          of the complex, the Administrator mistakenly assumed it was also 
          provided in the complaining tenant's portion of the complex.  The 
          owner refers to the tenant's contention in his complaint, that the 
          owner paid for repairs of the tenant's antenna, as "hearsay in its 
          purest form."

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





               It is undisputed that the tenant had installed his own roof 
          top TV antenna at about the time he took occupancy in 1958, i.e., 






          ADM. REVIEW DOCKET NO.: EC810183RO

          long before the base date for the Emergency Tenant Protection Act 
          of 1974(ETPA).  Although the owner argued before the Administrator 
          that the installation was without the "written" (emphasis added) 
          permission of the owner, it is also undisputed that the tenant was 
          allowed to keep the antenna on the roof until sometime in 1989 when 
          the owner removed the antenna, apparently because a new roof was 
          installed and the roofer allegedly would not give a full warranty 
          if the TV antenna were to be reinstalled.

               Nothing in the Administrator's order implies that the owner 
          had provided the antenna for the tenant.  Indeed, the order states 
          that the tenant alleged that "he [the tenant] had a rooftop 
          television antenna."  The Administrator correctly found that the 
          removal of the roof top television antenna by the landlord was a 
          decrease in services.

               The owner's entire petition seems to be based on the 
          misconception that the tenant's complaint had been that the owner 
          had removed a master TV antenna which had been installed by the 
          owner itself.

               Instead, the service of which the tenant had complained and 
          which was found to be decreased was the service of allowing the 
          tenant to have a privately owned TV antenna on the roof.  (In a 
          similar proceeding involving the same complex the Administrator had 
          suggested that the installation of a master TV antenna would be a 
          permissible substitute service which would perhaps be less 
          problematic with respect to the roof.)

               Based on the above, the owner's two arguments on appeal are 
          clearly without merit.  DRO #44250 stated that the "owner does not 
          provide master TV antenna services for this apartment", (emphasis 
          added).  Accordingly, that order in no way contradicts the order 
          herein under review.  The Commissioner notes that that order read 
          as a whole seems to stand for the proposition that master TV 
          service was available but was not included in the rent, a separate 
          fee being required.  The tenant in that proceeding admitted he paid 
          a separate fee.

               Secondly, while it is true that the order herein under appeal 
          was, according to the administrator based upon "The evidence in the 
          record", the reference was apparently to the undisputed facts in 
          the record of this very proceeding.  Certainly the owner was not 
          deprived of any due process right in not being provided a second 
          time with the allegations and admissions of the parties in their 
          complaint and answer.  Furthermore, the Administrator did not find 


          that these records showed that the owner had installed an antenna 
          for the tenant's benefit, but merely that the owner had removed the 
          antenna which had been installed by the tenant.  Of this there is 
          no dispute.












          ADM. REVIEW DOCKET NO.: EC810183RO


               Finally, the owner is correct that the tenant's complaint did 
          not allege that the owner had provided the antenna in question.  
          However, for the reasons stated above, this contention in no way 
          indicates any error of fact or law in the Administrator's order.

               The Commissioner notes that on March 10, 1992, in a similar 
          proceeding involving a different tenant in the same portion of the 
          complex, the owner filed an Application for Rent Restoration with 
          the Administrator under docket # GC910010OR, and that the rent 
          restoration was granted by the Administrator on April 16, 1992.

               THEREFORE, in accordance with the provisions of the Tenant 
          Protection Regulations, it is

               ORDERED, that this proceeding be, and the same hereby is, 
          denied and the Administrator's order be, and the same hereby is, 
          affirmed.

          ISSUED:





                                                                          
                                             JOSEPH A. D'AGOSTA
                                             Deputy Commissioner  


           
    

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