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. FE810342RO (reopening)
               DAVID ASSOCIATES,              DISTRICT RENT ADMINISTRATOR'S 
                                           :  DOCKET NO. FB910491S
                            PETITIONER        
     --------------------------------------X            


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


     On May 21, 1991, the above-named owner filed a petition for administrative 
     review of an order issued on May 17, 1991 by a Rent Administrator 
     concerning the housing accommodation known as Apartment 8-K, 185 Bronx 
     River Road, Yonkers, New York. 

     On June 2, 1992 the Commissioner issued an order, under the above- 
     mentioned docket number, dismissing the owner's petition for not being 
     filed timely, as the Administrator's order under review was stamped as 
     being issued on March 17, 1991.

     In a letter to the Division of Housing and Community Renewal (DHCR), dated 
     June 5, 1992, the subject owner requested reconsideration of the order and 
     opinion issued by the Commissioner on June 2, 1992, based upon an 
     "irregularity in a vital matter."  The landlord pointed out that the 
     Administrator's order was issued on May 17, 1991.

     On June 26, 1992 the Commissioner issued an order granting the owner's 
     request for reconsideration and reopening of the Administrative Review 
     Docket No. FE810342RO, as the DHCR's records show that the Administrator's 
     order (Docket No. FB910491S) was in fact issued on May 17, 1991.

     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 February 20, 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 March 14, 1991, DHCR mailed a copy of the tenant's complaint to the 
     owner.









          DOCKET NO.:  FE810342RO


     On April 2, 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 building'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 May 17, 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 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 were as a 
     result of an emergency situation, and the owner states that even if a rent 
     reduction were to be determined to have been warranted, "the rent 
     reduction should not have been effective until the first of the month 
     following the landlord's receipt of the tenant's complaint, or as of April 
     1, 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 Division of Housing and 
     Community Renewal 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 DHCR policy.  The Commissioner finds 
     that the aforementioned DHCR policy is not applicable to this proceeding.

     The Commissioner notes that the owner was served with a copy of the 
     tenant's complaint on March 14, 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.



     It is established policy of the rent agency to ensure due process, that 
     rent reduction orders issued by the rent agency, pertaining to premises 


          DOCKET NO.:  FE810342RO
     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 April 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 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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