DOCKET NO.  FJ810040RO
                              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   :   
     APPEAL OF                                ADMINISTRATIVE REVIEW
                                           :  DOCKET NO. FJ810040RO
            DAVID ASSOCIATES,                 DISTRICT RENT ADMINISTRATOR'S 
                                           :  DOCKET NO. FD910012S
                            PETITIONER        
     --------------------------------------X            


        ORDER AND OPINION GRANTING PETITION FOR ADMINISTRATIVE REVIEW IN PART
                    AND REMANDING PROCEEDING TO THE ADMINISTRATOR

     On October 4, 1991, the above-named owner filed a petition for administrative 
     review of an order issued on October 2, 1991 by a Rent Administrator 
     concerning the housing accommodation known as Apartment 6-T, 185 Bronx River 
     Road, Yonkers, New York.

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

     On  April 3, 1991 the subject tenant filed an application for a rent 
     reduction based on the owner's alleged failure to maintain services, alleging 
     that since December 3, 1990 the subject building has been without elevator 
     service..

     On April 16, 1991, the Division of Housing and Community Renewal (D.H.C.R.) 
     mailed a copy of the tenant's complaint to the owner.

     On April 23, 1991 the owner interposed an answer to the tenant's complaint 
     wherein it alleged, among other things, that the building's two elevators 
     were inoperative as a result of a fire; that service to the buildings's south 
     elevator was restored on March 21, 1991; that work is proceeding on the other 
     elevator; and that no rent reduction is warranted as the interruption of 
     services resulted from a fire, which constituted a major emergency.

     On October 2, 1991 the Administrator issued the order under review herein 
     finding that a diminution of services had occurred and reduced the tenant's 
     rent from December 1, 1990 through March 31, 1991, and the Administrator 
     ordered the restoration of the tenant's rent on April 1, 1991.

     In its petition the subject owner asserts, among other things, that prior 
     orders of the rent agency have determined that rent reductions are not 
     warranted for a temporary reduction in services resulting from an emergency 
     situation where the owner has made a good faith effort to restore services; 
     that the reduction of services in this proceeding was as a result of an 
     emergency situation; that one elevator was restored to service on March 21, 
     1991, and that the subject tenant filed her complaint in April, 1991; that, 
     "The tenant's complaint was filed almost one month after services were 






          DOCKET NO.  FJ810040RO

     restored, such that no rent reduction is warranted," and that the owner 
     states that, "if any rent reduction were to have been warranted, the rent 
     reduction should be limited to the period commencing the first of the month 
     after the landlord received the transmittal of the tenant's complaint from 
     the rent agency until the date that services were restored, March 21, 1991." 

     After careful consideration, the Commissioner is of the opinion that the 
     owner's petition should be granted in part and that this proceeding should be 
     remanded to the Administrator.

     The Commissioner notes that it is a long established policy followed by the 
     rent agency and the predecessor agency of the D.H.C.R. in administrating the 
     various statutes providing for the regulation of housing , that a temporary 
     service reduction resulting from an emergency situation, where an owner has 
     made a prompt good faith effort to restore services, will not result in a 
     rent reduction.

     The Commissioner further notes that the owner's answer to the tenant's 
     complaint stated that work was still proceeding on one of the building's 
     elevators.  As the owner admits that work was still proceeding on one of the 
     building's elevators, the Commissioner finds that at the time the owner was 
     served with the tenant's complaint building services were not fully restored.

     As building services were not fully restored at the time the owner was served 
     with the tenant's complaint, the Commissioner is of the opinion that the 
     building's service reduction is not a temporary service reduction as 
     mentioned in the aforementioned D.H.C.R. policy.  The Commissioner finds that 
     the aforementioned D.H.C.R. policy is not applicable to this proceeding.

     The Commissioner notes that the owner  was served with a copy of the tenant's 
     complaint on April 16, 1991.  The Commissioner further notes that the order 
     under review herein ordered the subject apartment's rent reduced from 
     December 1, 1990 through March 31, 1991.

     To ensure due process, it is established policy of the rent agency that rent 
     reduction orders, pertaining to premises subject to the State Tenant 
     Protection Regulations are to be effective the first day of the month 
     following the date when the owner was served with the tenant's complaint.

     Accordingly, the Commissioner finds that the Administrator's order 
     incorrectly reduced the tenant's rent effective from a period prior to the 
     serving of the tenant's complaint on the owner.  The Commissioner further 
     finds that the Administrator's order should be revoked, and the tenant's 
     complaint for a rent reduction due to a reduction of services should be 
     remanded to the Administrator for reconsideration.

     On remand the Administrator should allow the owner an opportunity to submit 
     evidence showing that repairs to the elevators have been completed, and that 
     there is no service reduction due to lack of elevator service.

     If the Administrator should determine that a rent reduction is warranted in 
     this proceeding, the Commissioner is of the opinion that the order reducing 
     the tenant's rent should be effective no earlier than May 1, 1991.



     If the owner has already complied with the Administrator's order under review 
     herein and, as a result of the instant determination, there are arrears due 
     to the owner from the tenant, the tenant may pay off the arrears in three 


          DOCKET NO.  FJ810040RO

     equal monthly installments during the next three months.  Should the tenant 
     vacate after the issuance of this Order, all arrears are due immediately.

     THEREFORE, in accordance with the Emergency Tenant Protection Act of 1974, 
     and the State Tenant Protection Regulations, it is 

     ORDERED, that the owner's petition be, and the same hereby is, granted in 
     part, and that the Administrator's order be, and the same hereby is, revoked, 
     and it is 

     FURTHER ORDERED, that this proceeding be, and the same hereby is, remanded to 
     the Administrator for the purpose of reconsidering the tenant's application 
     for a rent reduction based on the owner's alleged failure to maintain 
     services, in accordance with this order and opinion.

     ISSUED:


                                                                              
                                                     JOSEPH A. D'AGOSTA
                                                     Deputy Commissioner




    

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