FJ 430245 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
                                
                                
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IN THE MATTER OF THE ADMINISTRATIVE     ADMINISTRATIVE REVIEW
APPEAL OF                               DOCKET NO.: FJ 430245 RO

         H & I ASSOCIATES               DISTRICT RENT
                                        ADMINISTRATOR'S DOCKET
                                        NO.: FA 530100 B
                        PETITIONER
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ORDER AND OPINION GRANTING PETITION FOR ADMINISTRATIVE REVIEW IN
            PART AND MODIFYING ADMINISTRATOR'S ORDER
                                
     On October 17, 1991 the above named petitioner owner filed a
Petition  for Administrative Review against an order of the  Rent
Administrator  issued September 12, 1991.   The  order  concerned
housing  accommodations located at 23 East 81st Street New  York,
N.Y.   The  Administrator ordered a building-wide rent  reduction
due  to  the  owner's failure to maintain required  or  essential
services.

      The  Commissioner  has reviewed the  record  and  carefully
considered  that portion relevant to the issues  raised  by  this
appeal.

      The tenants, by their representative, commenced this action
on  January  14,  1991  by  filing a Statement  of  Complaint  of
Decrease  in  Building Wide Services.  The tenants complained  of
the following services deficiencies:

          1.  Faulty locks on outer building door; security
              bars and jimmy bar removed from inner door.

          2.  Basement door improperly locked.
          
          3.  No access to basement or courtyard.
          
          4.  Basement storage space improperly taken away
              by new owner.

          5.  Inadequate hot water.
          
          6.  Limited access to roof.
          
          7.  Fire extinguishers removed and never replaced.
          
          8.  Outside railing of stairs removed and never
              replaced.

          9.  Erratic garbage pickup.
          
         10.  Inadequate cleaning and repairs of building.
     
         11.  Radiator removed from vestibule.
     
         12.  No sign posted with name and contact number for
              off premises superintendent.

         13.  Failure to provide exterminator services.
     
      An  addendum to the complaint contained allegations by four
tenants.   These  allegations were to the effect that  the  owner
failed to maintain and clean roof drains, that one apartment  was
suffering from water damage, that the owner reneged on a  promise
to  install a washer and dryer in the building, that the elevator
was  constantly  breaking and that the owner  failed  to  replace
broken  light  bulbs.  The owner was served with a  copy  of  the
complaint and afforded an opportunity to respond.

      The  owner filed a response on February 21, 1991.  In  that
response, the owner stated:

          1.  A new door and lock on the front door had been
              installed, as well as an intercom.  There
              was no need for a jimmy bar.

          2.  Basement door remains locked in owner's
              discretion.

          3.  Access to basement not required by
              tenants.

          4.  Tenants never permitted to store things in
              basement.

          5.  Hot water problem corrected with installation of
              new tank.

          6.  Tenant's never had access to courtyard or roof.
          
          7.  Building does not require extinguishers since
              sprinkler system and emergency lights installed.

          8.  New steps installed in place of older deteriorating
              ones.

          9.  Garbage picked up every day.
          
         10.  Building properly maintained.
     
         11.  Radiator not removed from vestibule.
     
         12.  Superintendent sign properly displayed.
     
      On April 6, 1991 the Administrator received a letter from a
tenant  of  the building. The tenant stated that a new owner  had
taken  over  the  building in 1990 and locked the basement  door.
Prior to that time, the tenant stated that the door had been open
and  the  basement  accessible to the tenants for  storage.   The
tenant  also stated that the new owner had locked the roof  door,
which had also been open to the tenants.

      On  April  23,  1991 the Administrator sent the  owner  and
tenants a notice requesting documentation regarding the following
issues:

          1.  Basement -- Services requiring use; whether storage
              space ever provided; date that change in services
              occurred.

          2.  Courtyard, roof and basement access -- whether
              services ever provided; what roof was used for;
              dates that change in services occurred.

          3.  Vestibule radiator and exterior handrail --
              where items were located; dates items removed.

          4.  Laundry service -- whether service ever pro-
              vided; location and date of discontinuance.

          5.  Fire extinguishers -- number and locations;
              date of discontinuance.

          6.  Garbage collection -- schedule; whether door
              to door service provided; dates changes in services
              occurred.


     Three tenants responded to the Administrator's documentation
request.   Tenant  Lack provided a letter from the  prior  owner,
dated May 1, 1984, wherein the owner stated, inter alia, that any
storage  items  in  the  basement not properly  tagged  would  be
removed  or disposed of.  She also provided two notices from  the
current  owner.   The first, dated October 27,  1989,  requested,
inter  alia, that all items stored in the basement be removed  so
that  renovation could take place.  The second,  dated  July  25,
1991,  stated  that the owner would create storage space  in  the
basement.

      Tenant Foster submitted a response on May 9, 1991.  In that
response, the tenant presented a letter from the attorney of  the
former owner, dated November 20, 1987.  That letter addressed the
issue  of  the tenant's keeping a bicycle chained on  the  ground
floor  of  the  building.  While objecting to this, the  attorney
clearly  stated, "We would be willing to allow you to  store  the
bicycle, with its component parts, in the basement."

      The  third  tenant, Hibbs, also stated,  inter  alia,  that
access  to  the  basement  had been  provided,  but  supplied  no
documentation.   The  owner's  response  to  the  Administrator's
request was submitted on May 14, 1991.  The owner admitted, inter
alia,  that the exterior building handrails were removed  because
of deterioration and corrosion.

      The  Administrator  ordered a physical  inspection  of  the
premises,  which  was  conducted June 6, 1991.   That  inspection
revealed the following:

          1.  No access to basement space and courtyard.
          
          2.  Handrails of entrance steps removed.
          
The following services were found to have been maintained:

          1.  Building entrance and vestibule door locks op-
              erative and knobs not loose.

          2.  No evidence of garbage accumulation in public
              areas.

          3.  Public areas clean.
          
          4.  No evidence of vermin infestation in public areas.
          
          5.  Elevator operative.
          
          6.  Public areas adequately lit.
          
          7.  Vestibule radiator in place.
      The  Administrator directed the tenants to file  individual
complaints regarding decreases in apartment services.  The  issue
of laundry services was dismissed because the Administrator found
that  the  evidence  indicated  that  such  services  were  never
provided  to the subject premises.  With regard to the  issue  of
the  use of the roof for recreational purposes, the Administrator
found  that  the evidence did not indicate that this service  was
ever provided by the owner.  The Administrator ordered a building-
wide rent reduction, based on the inspectors report.

      On  appeal,  the owner states that there is access  to  the
basement  through the superintendent.  The owner points out  that
tenant  Lack  retains a key to the basement, should an  emergency
arise.  Petitioner again states that basement storage was never a
provided  service and any items stored in the basement were  done
without  the  owner's knowledge or consent.   A  letter  to  that
effect,  sent to tenant Foster by the petitioner, is  annexed  to
the  petition.   With regard to the courtyard access  issue,  the
owner  annexes a letter from the  previous owner,  dated  May  9,
1991,  wherein  it  is  stated that  the  tenants  did  not  have
authorized  access to the courtyard and that access was  never  a
provided  service.   The former owner states that  the  courtyard
leads  to  nowhere  and was always locked.   Finally,  the  owner
states  that the decorative exterior handrail was removed because
it  was  corroded and non-functional.  The owner points out  that
the  handrail  was  ornamental  and  "became  detractive  to  the
building appearance since the facade, entrance and entrance steps
were completely redone."

     One tenant filed a response to the petition and stated that,
prior  to  the new owner, all tenants had access to the  basement
for storage, courtyard, roof deck and garden.

      After  a  careful review of the evidence in the record  the
Commissioner  is  of  the  opinion that the  petition  should  be
granted in part, and the Administrator's order modified to delete
the courtyard from the list of services not being maintained.

      Pursuant  to  9  NYCRR 2520.6(r)(1) required  services  are
defined as "those services which the owner was maintaining or was
required  to  maintain on the applicable base  date...,  and  any
additional space or services provided or required to be  provided
thereafter  by  applicable  law."   The  tenants  have   provided
sufficient  documentation, in the form of the  letters  mentioned
above,  to establish that basement storage was a required service
within  the meaning of the Rent Stabilization Code.  It is  clear
that  the  new owner, the petitioner herein, sought to deny  this
access and then argue that such access was never provided by  the
former owner.

      With regard to the issue of the handrail, the owner plainly
admits  that  the old rail was removed after it had  deteriorated
due  to  corroding.  The owner's attempt to explain this  action,
i.e. that the rail was ornamental and detracted from the building
appearance, is wholly inadequate to negate the statutory duty  to
maintain  the  service.  Based on the owners  own  statements  as
contained in the record, the Administrator was correct in finding
that  the  railing  was a required service which  was  not  being
provided.

      Finally,  with  respect  to the  issue  of  access  to  the
courtyard,  the  Commissioner finds that  there  is  insufficient
evidence  to support the finding that the prior owner  sanctioned
access  and use of the courtyard for the purposes stated  by  the
tenants.   A  careful search of the record reveals no  documenta-
tion  of the kind that exists with regard to the basement storage
space.  The owner, on the other hand, has supplied a letter  from
the  former owner, attesting to the fact that access and  use  of
the  courtyard  was  never authorized  and  was  not  a  required
service.   It  was  error  for  the  Administrator  to   base   a
building-wide   rent   reduction,  in  part,   on   this   basis.
Accordingly, the Administrator's order is modified to delete  the
courtyard as a basis for the rent  reduction.  In order to obtain
rent restoration, the owner need not demonstrate that the tenants
now have access to the courtyard, however all other services must
be fully restored.

      THEREFORE, pursuant to the Rent Stabilization Law and  Code
it is,

      ORDERED,  that  this petition be, and the same  hereby  is,
granted in part, and that the Rent Administrator's order be,  and
the  same  hereby is, modified in accordance with this order  and
opinion.



ISSUED:



JOSEPH A. D'AGOSTA
                                        Deputy Commissioner
    

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