FJ 130178 RO
                                    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.:   
                                                                                          FJ 130178-RO
                                                  RENT ADMINISTRATOR'S      
                   ALIZIO MANAGEMENT,             DOCKET NO.: 
                                                  EE 130059-B 
                                                  PREMISES:                
                                                                                     83-36 Beverly Road
                                   PETITIONER     Kew Gardens, NY
          ----------------------------------x                                

                          
                                                            
            ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW


          The above-named owner filed a timely petition for administrative 
          review of an order issued on September 16, 1991 concerning the 
          housing accommodation relating to the above-described docket 
          number.

          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. 

          Various tenants commenced this proceeding on May 14, 1990 by filing 
          a complaint asserting that there is a "gaping hole in front of main 
          door covered by rotting wooden boards"; that there is "poor water 
          pressure all day in kitchen and bathroom"; that there is "no super 
          or porter employed"; that heat and hot water are not provided on a 
          regular basis; that there is "leakage from windows, walls and 
          plumbing"; that the plumbing leaks and is noisy; that in the public 
          areas, carpets are torn and filthy and walls need painting; that 
          the intercom does not work "regularly"; that the lock on front door 
          is broken; and that in the garage, the pipes are covered with 
          asbestos and leak and the ceiling is falling; that the garage door 
          is broken and cars are being vandalized.

          The tenants' complaint was mailed to Alizio Management ("Alizio") 
          on May 30, 1990.  The Administrator's file does not indicate any 
          response from Alizio.  















          FJ 130178 RO



          Thereafter, on August 27, 1991, an on-site inspection of the 
          subject building was conducted by a DHCR staff member who reported 
          that the sidewalk at the main entrance door is uneven and cracked; 
          that the janitorial service needs improvement; that there is 
          evidence of leaks from the windows of the public areas on the 6th, 
          5th, 4th and lobby floors; that the carpeting in the public areas 
          on all floors is dirty and stained; that the bulkhead walls around 
          the windows and the 6th floor walls near Apartment 6-E and 
          Apartment 6-G have peeling paint and plaster; that the door lock on 
          the main entrance is defective; that the garage walls and ceiling 
          need painting; and that the garage floor near the left side is wet.

          Based on this inspection, the Administrator directed the restora- 
          tion of services and further ordered a reduction of the stabilized 
          rents effective June 1, 1990.

          In this petition, Alonzio Management alleges that it is the owner 
          of the shares of stock allocated to the rent stabilized apartments 
          covered by the Administrator's order.  It asserts that the order 
          should not apply to the occupants of Apartments 2-C, 4-C, 4-G and 
          5-F because they are co-op owners, not tenants; that Apartments 2-G 
          and 6-A have been vacated and are no longer subject to the Rent 
          Stabilization Law and Code; that Alizio Management is not the owner 
          and only the managing agent without control over building-wide 
          services; that at the time of the complaint, 82-02 Lefferts Tenants 
          Corp. owned the building; that it answered the complaint below, 
          stating that it is not responsible for the building operation; that 
          the tenants did not complain of window defects, "water leaks lobby" 
          and "walls bulkhead"; that the owner was not made aware of the 
          inspection and the inspection report; that the tenants have no 
          right to complain about the garage because the complainants herein 
          are not entitled to use the garage; and that all services were 
          restored before the issuance of the order.  The only proof 
          submitted by the owner for its contentions is an affidavit from one 
          of its managers basically repeating the assertions of the petition.  

          After careful consideration, the Commissioner is of the opinion 
          that the petition should be denied.

          Initially the Commissioner notes that the scope of review in admin- 
          istrative appeals is limited, pursuant to Section 2529.6 of the 
          Code, to a review of the facts or evidence that were before the 
          Administrator.  

          Petitioner has asserted that the tenants of Apartments 2-C, 4-C, 
          4-G and F-5 purchased their apartments and that Apartments 2-G and 
          6-A have become vacant and has argued that by virtue of these 









          FJ 130178 RO

          events the above-mentioned units are no longer subject to the Rent 
          Stabilization Law and Code.  Petitioner, however, submitted abso- 
          lutely no evidence in support of these factual allegations and, 
          thus, its claim of a lack of DHCR jurisdiction over the six apart- 
          ments must be denied.  Notwithstanding the above determination, as 
          petitioner correctly points out, in the event that a tenant in the 
          subject building purchases the shares allocated to his or her 
          apartment, or vacates his or her unit then at that point in time 
          the apartment in question will cease to be governed by the Rent 
          Stabilization Law and Code.

          Petitioner has further asserted that it is only the owner of the 
          shares allocated to the subject apartments and has no authority to 
          make repairs at issue herein, which are located in the public areas 
          of the building, and that the responsibility for repairs rests with 
          82-04 Tenants Corp., the cooperative cooperation that owns the 
          building.

          Firstly, it must be noted that as a proprietary lessee of rent 
          stabilized housing accommodations, Alizio Management is an owner of 
          such housing accommodations within the meaning of the Rent 
          Stabilization Code (See Section 2520.6(i)) and is clearly a proper 
          party to this proceeding.  As the owner of the subject apartments, 
          Alizio Management has ultimate responsibility for maintaining all 
          required services to these units, and the fact that this responsi- 
          bility may be shared with the cooperative corporation with regard 
          to "common" services does not relieve the proprietary lessee of its 
          basic obligation.

          The petitioner's contention that the tenants' allegations in the 
          complaint filed on May 14, 1990 did not put it on notice of window 
          defects, "water leaks lobby" and "walls bulkhead" is belied by the 
          record.  The tenants' complaint, as set forth above, states that 
          there is "leakage from windows, walls and plumbing"; that there is 
          a "gaping hole in front of main door covered by rotting wooden 
          boards"; that the plumbing leaks and is noisy; that in the public 
          areas, carpets are torn and filthy and walls need painting; and 
          that the lock on front door is broken.

          In view of the above-finding that the tenants' complaint provided 
          the owner with sufficient notice of the problems at issue, it is 
          further determined that the failure of the Rent Administrator to 
          apprise the owner of the results of the physical inspection 
          conducted during the proceedings below did not constitute a denial 
          of due process. (Empress Manor Apartments v. DHCR, 538 NYS 2d 49, 
          147 A.D. 2d 64).




          Although the petitioner has further specifically contended that the 
          hole in front of the main entrance door was repaired in April 1991;  












          FJ 130178 RO

          janitorial service is provided by the resident superintendent; the 
          hallway carpeting is cleaned twice a week; the bulkhead area was 
          plastered and painted in September 1991, prior to the issuance of 
          the Rent Administrator's order; and that the main entrance door has 
          also been in good working order these contentions are unsupported 
          by any evidence of repairs done prior to the issuance of the 
          Administrator's order and are belied by the agency inspector who 
          personally observed on August 27, 1991 that at that time certain 
          services were not being provided or maintained.  The finding of 
          decreased services, as corroborated by the on-site inspection, 
          warrants a rent reduction.

          As set forth above, the petitioner has failed to establish that the 
          complaining tenants are not subject to the Rent Stabilization Law 
          and Code.  Accordingly, these tenants are also entitled to 
          ancillary services, such as the garage and the petitioner has also 
          failed to establish that the garage is not available for use by 
          stabilized tenants.  Moreover, the petitioner's failure to raise 
          the issue of entitlement to garage use below precludes investiga- 
          tion of this matter for the first time on appeal.

          Thus, the Commissioner finds that the Administrator properly based 
          his determination on the entire record, including the results of 
          the on-site physical inspection conducted on August 27, 1991; that 
          pursuant to Section 2523.4(a) of the Code, the Administrator 
          properly determined that the owner had failed to maintain services; 
          and accordingly, the Administrator properly reduced the rent.


          THEREFORE, in accordance with the provisions of the Rent Stabili- 
          zation Law and Code, it is,

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


          ISSUED:




                                                                           
                                                   JOSEPH A. D'AGOSTA
                                                   Acting Deputy Commissioner
    

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