ADM. REVIEW DOCKET NO.: FA 230013 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

          ------------------------------------X 
          IN THE MATTER OF THE ADMINISTRATIVE :  ADMINISTRATIVE REVIEW
          APPEAL OF                              DOCKET NO.:              
                                                 FA 230013 RO                
                                  
                                              :  
                                                 
                                                 RENT ADMINISTRATOR'S    
                                                 DOCKET NO.:                 
                                                 EC 230114 OR
                                             
               MONARCH PROPERTIES                                   

                              PETITIONER      : 
          ------------------------------------X                             

           ORDER AND OPINION GRANTING PETITION FOR ADMINISTRATIVE REVIEW,
            IN PART TO THE EXTENT OF GRANTING A PARTIAL RENT RESTORATION
                           FOR ONE RENT CONTROLLED TENANT

               On January 3, 1991, the above-named petitioner-owner filed a 
          petition for administrative review of an order issued on December 
          18, 1990, by the Rent Administrator, concerning the housing 
          accommodation known as 985 Ocean Avenue, Brooklyn, New York, 
          wherein the Administrator determined the owner's application to 
          restore rents previously reduced per Docket No. TC 75626 B.

               For rent stabilized apartments rent reductions are imposed 
          for any service decrease and the owner may not collect any 
          increase in rent or have rents restored to pre-reduction levels, 
          plus any applicable increases, until the Administrator issues an 
          order restoring rents, predicated on the restoration of all 
          services.  The owner filed for rent restoration stating that all 
          of the service decreases cited had been corrected.   

               Contrary to the owner's claims, inspections conducted on 
          October 9 and 30, 1990 disclosed that twelve (12) of the forty 
          five (45+) decreased services that gave rise to the rent 
          reductions had not been corrected.  The inspector reported that 
          there was no functioning elevator fan switch, that hallway vents  


















          ADM. REVIEW DOCKET NO.: FA 230013 RO

          were not functioning, that the bulkhead walls and the stairway 
          halls for the first, third and fourth floors had peeling paint 
          and plaster, that the building front light pole had no socket, 
          that repairs to the chain link fence had not been done, that
          there were no window screens throughout the public areas, that 
          fire escapes were rusted and had peeling paint, that the sidewalk 
          oil cap was not recessed, that tenants do not have access to the 
          rear exit door, that the borders of the lantern pole had not been 
          painted, and that the hot water in one apartment was not 
          adequate.  The remaining conditions were found to have been 
          corrected and that services were maintained.         

               On appeal, the owner requests that the Deputy Commissioner 
          reverse the Administrator's determination alleging that repairs 
          had been completed, and asserts errors in the Administrator's 
          determination.  A few tenants filed answers disputing each of the 
          owner's claims.  

               The Deputy Commissioner notes that the Administrator 
          rendered his determination based on observations in the reports 
          filed by the Division's inspectors.  As rent agency employees, 
          the inspectors are not parties to the proceedings, and are not 
          adversaries to either the owner or the tenant.  Their impartial 
          observations are properly placed in the record for the 
          Administrator's consideration, and are entitled to and are 
          afforded great weight.   

               The Commissioner also notes that this administrative appeal 
          is strictly limited to a review of whether the services for which 
          the rent was reduced has been restored, and not to consider new 
          claims or evidence, such as photographs, attacking the validity 
          of the rent reduction.   

               The owner's claim that the elevator fan switch and front 
          light pole socket are operative and that hallway ventilation is 
          adequate are belied by the inspector's report.  Neither the 
          owner's claim nor the photographs submitted on appeal establish 
          otherwise.  Additionally, the owner's statement that the fan on 
          the roof is being repaired suggests that hallway ventilation is 
          not adequate. 

               The owner's claim that the chain level fence is not part of 
          the 985 Ocean Avenue property is raised for the first time on 
          appeal.  The issue was not presented either in the proceedings 
          below nor in the rent reduction proceedings.  Nor did the owner 
          file a petition for administrative review of the rent reduction 
          order.  In addition, one tenant states the fence in the 
          photograph is not the fence that required repairs.  


               The owner asserts that screens are not needed for public 
          area windows as they are permanently shut and states that access 






          ADM. REVIEW DOCKET NO.: FA 230013 RO

          to the rear exit door can still be obtained if tenants ask the 
          superintendent.  The owner's statements suggest that these 
          services were not provided on the base date or thereafter, which 
          is not a relevant inquiry in this restoration proceeding, limited 
          to a review of whether services found to be required in an 
          underlying final order have been restored.  Moreover, it suggests 
          an admission by the owner that the conditions cited in the rent 
          reduction order, i.e., missing screens and locked rear exit door, 
          have not been corrected.  Sealed public area windows and  
          access to the rear exit door upon request are not adequate 
          substitutes if the services and equipment were previously 
          provided.  The owner also asserts that the rear exit door is 
          locked to prevent trespassers access to the boiler room.  
          However, the owner is cautioned to comply with applicable 
          provisions of the City Building Code and Housing Maintenance Code 
          pertaining to exit doors, as well as to public area windows.

               The owner claims that the painting repairs were not 
          completed as the building was managed by a Court appointed 
          receiver from April 1990 through September 1990.  This fact did 
          not check, postpone or suspend the owner's obligation to restore 
          services curtailed since 1985.  The owner's statement that 
          painting in the building has not been finished also establishes 
          that the peeling paint and plaster conditions remain uncorrected.

               The owner's statement that the "oil cap" at the sidewalk was 
          stolen does not address the condition found that the oil cap is 
          not recessed, and, therefore, still poses a tripping hazard.  

               Concerning the owner's challenge to the finding of 
          inadequate hot water in one apartment, while hot water in another 
          apartment in the same line was reported to be adequate, it is 
          noted that the inspection report reflected that the inspector was 
          not allowed to physically inspect the second unit, but was merely 
          advised by the occupant that the hot water was adequate.  One 
          tenant states that the occupant of that apartment is an employee 
          of the owner.  It is also noted that the condition is limited to 
          the one apartment cited, and did not have building-wide 
          application as a basis for  denying rent restoration.

               The owner's appeal was silent as to the issues of fire 
          escapes and the front lantern pole in need of painting and 
          repairs.





               The Deputy Commissioner further notes that an order was 
          issued on January 22, 1992 by Rent Administrator amending and 
          superseding the underlying rent reduction order per Docket No. TC 
          75626 B to reflect and correct the status of Apartment 1F only as 












          ADM. REVIEW DOCKET NO.: FA 230013 RO

          rent controlled rather than rent stabilized, and to state a 
          dollar rent reduction amount of $47.00 plus 7 1/2% MLR effective 
          the first rent payment date following June 24, 1985. 

               As a substantial number of the services were found to have 
          been restored in the proceedings herein under review, the owner 
          is entitled to partial rent restoration for Apartment 1F in the 
          amount of $30.50, effective January 1, 1991.  Any arrears due the 
          owner from the tenant as a result of this order may be paid over 
          the course of  the next twelve (12) months.

               THEREFORE, in accordance with the Rent Stabilization Law and 
          Code, the City Rent Control Law and the Rent and Eviction 
          Regulations, it is

               ORDERED, that the owner's petition be, and the same hereby 
          is, granted, in part, to the extent of granting a partial rent 
          restoration for one rent controlled apartment as provided above.  
          Concerning the rent stabilized tenants, the Rent Administrator's 
          order hereby is, affirmed.

          ISSUED:


                                                                        
                                          JOSEPH A. D'AGOSTA
                                          Acting Deputy Commissioner




                                                    

    

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