EI230098RO
                                  STATE OF NEW YORK
                      DIVISION OF HOUSING AND COMMUNITY RENEWAL
                            OFFICE OF RENT ADMINISTRATION
                                     GERTZ PLAZA
                               92-31 UNION HALL STREET
                                  JAMAICA, NY 11433





          ------------------------------------x
          IN THE MATTER OF THE ADMINISTRATIVE          ADMINISTRATIVE REVIEW
          APPEAL OF                                    DOCKET NO.: EI230098RO

                    Seashore Management Co.,
                                                       RENT ADMINISTRATOR'S
                                                       DOCKET NO.: DF230007B
                                   PETITIONER
          ------------------------------------x

           ORDER AND OPINION GRANTING PETITION FOR ADMINISTRATIVE REVIEW,
                REVOKING RENT ADMINISTRATOR'S ORDER AND REOPENING AND
                     REMANDING PROCEEDINGS TO RENT ADMINISTRATOR
                              FOR FURTHER CONSIDERATION

          The above-named owner filed a timely petition for administrative 
          review of an order issued on August 14, 1990, concerning the 
          housing accommodations known as 1177 East 98th Street, Brooklyn, 
          New York, wherein the Rent Administrator determined the tenants' 
          complaint of decreased building-wide services.

          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 tenants commenced this proceeding by filing a complaint 
          asserting that the owner had failed to maintain certain services in 
          the subject premises, in that the tenants were "entitled to a 
          community room as per 1964 building-wide Certificate of Occupancy 
          plans...."

          In an answer, the owner denied the allegations set forth in the 
          complaint, asserting that a community room was never provided, nor 
          registered.  In support, the owner submitted a statement signed by 
          six tenants alleging that they were original tenants of the subject 
          premises and that a community room for the tenants was never 
          provided.




          The owner's answer was served on the tenants.  Three of the 
          signatories retracted their prior statements made on the owner's 












          EI230098RO

          behalf, stating, in fact, that a community room had been available.  
          Additional tenants submitted statements to the effect that they 
          also were original tenants and that a community room was provided 
          when they took occupancy.  One tenant stated that he had occupied 
          the community room area as a residence "until it was found that it 
          was an illegal apartment...."

          Although the DHCR conducted an inspection of the subject premises, 
          the inspector's report that there was no evidence of a community 
          room ever being provided was inconclusive as to the question of 
          whether a community room was provided on the base date or 
          thereafter.  Nevertheless, the Rent Administrator directed 
          restoration of a community room and further, ordered a reduction of 
          the stabilization rent.

          In this petition for administrative review, the owner, in 
          substance, reiterates that a community room was never provided nor 
          registered by any owner.  The owner's petition was served on the 
          tenants.

          After careful consideration, the Commissioner is of the opinion 
          that the owner's petition should be granted as more fully set forth 
          below.

          Section 2520.6(r) of the Rent Stabilization Code defines required 
          services as those services which the owner was maintaining or was 
          required to maintain on the base date or thereafter.  The base date 
          for required building-wide services for the subject premises is May 
          31, 1968.

          The fact that the Certificate of Occupancy designated a community 
          room area, and that several tenants claiming to be original tenants 
          asserted that a community room area had been eliminated, was not 
          sufficient to conclude that a community room was provided.  The 
          Certificate of Occupancy does not establish that the community room 
          was ever created or was ever used for that purpose, the tenants' 
          statements were conflicting and the DHCR inspection report 
          confirmed only that no community room was provided at the time of 
          inspection.

          It is noted that the owner's reliance on the initial 1984 building 
          services registration and the tenants' reliance on the Certificate 
          of Occupancy, to determine whether a community room is a required 
          service, are both misplaced.  The fact that the owner did not list 
          a community room on the registration or that the tenants failed to 
          object does not act as a bar to subsequent complaints of decreased 
          services, which can be asserted at any time.  The fact that the 
          space was listed on the Certificate of Occupancy is also not 
          determinative of the question of whether the community room is a 
          base date service the owner must provide.  It is the actual service 
          provided on the base date or thereafter, not the registration or 
          the Certificate of Occupancy, that controls.






          EI230098RO


          However, the tenants are entitled to further investigation of their 
          allegations.  Consequently, the Rent Administrator's order must be 
          revoked, the legal rent restored and the proceedings reopened and 
          remanded to the Rent Administrator for further consideration.

          The repayment of any rent arrears which may be due the owner from 
          the tenants as a result of this order is stayed pending the 
          issuance of a new order by the Rent Administrator upon remand.  

          THEREFORE, in accordance with the Rent Stabilization Law and Code, 
          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 rent restored, and that the proceedings be reopened 
          and remanded to the Rent Administrator for further consideration in 
          accordance with the above.
                          
                    


          ISSUED:






                                                                     
                                             JOSEPH A. D'AGOSTA
                                             Deputy Commissioner  






    

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