FF 630188-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     SJR 6619 Deemed Denial 
          IN THE MATTER OF THE ADMINISTRATIVE     ADMINISTRATIVE REVIEW
          APPEAL OF                               DOCKET NO.:   
                                                  FF 630188-RO               
                 HILL TOP HOUSE INC.,             
                                                  RENT ADMINISTRATOR'S      
                                                  DOCKET NO.: 
                                  PETITIONER      ED 630123-B
          ----------------------------------x




            ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW


          On June 11, 1991, the above-named petitioner-owner filed a peti- 
          tion for administrative review of an order issued on May 8, 1991, 
          by the Rent Administrator, concerning the housing accommodation 
          known as Various apartments at 500 Kappock Street, Bronx, New York, 
          wherein the Administrator determined that certain services have not 
          been provided or maintained, directed restoration of such services, 
          and ordered a rent reduction for all rent stabilized tenants who 
          joined in the complaint.

          Subsequent thereto, the owner deemed its petition denied and filed 
          a petition for judicial review pursuant to Article 78 of the Civil 
          Practice Law and Rules.  In an order dated December 14, 1992, the 
          proceeding was remitted to the Division pursuant to a stipulation 
          in which it was agreed that a final determination would be issued 
          within 90 days.

          The Commissioner has reviewed all of the evidence in the record and 
          has carefully considered that portion of the record relevant to the 
          issue raised by the administrative appeal.

          This proceeding was commenced on April 19 and July 20, 1990 when 
          the tenants of 41 apartments in this 80 unit building filed two 
          complaints alleging a decrease in numerous building-wide services.  
          The two complaints were consolidated into one proceeding and copies 
          were sent to the owner on June 13, 1990 and July 31, 1990.














          FF 630188-RO



          In answers dated July 2, 1990, and August 17, 1990, the owner 
          contended that all conditions complained of had been repaired or 
          did not require repair.  The owner also stated that several tenants 
          had advised that they signed the complaint without knowing what 
          they were signing and now wish to withdraw their complaint.

          A physical inspection by DHCR of the subject premises revealed that 
          of the conditions complained of by the tenants 18 were confirmed 
          and 37 were not.

          Based on the results of the physical inspection, the Administrator 
          issued the order appealed herein.

          In the petition for administrative review, the owner asserts that 
          the issuance of the rent reduction order violated DHCR policy to 
          hold in abeyance the determination of a service complaint pending 
          the outcome of a harassment complaint.  The owner contends that the 
          Division's Enforcement Unit granted the owner time to correct 
          building-wide deficient conditions, and that that time had not 
          expired before the rent reduction order was issued.  The owner also 
          alleges that the rent was improperly reduced for some tenants who 
          did not join in the complaint, and that the owner was denied due 
          process by not being notified of the inspection and given an 
          opportunity to be present and by not being sent a copy of the 
          inspection report.

          Of the conditions found to be in need of repair, the owner alleges 
          that all were either de minimis, or in the process of being 
          repaired.  Regarding each item, the owner stated that the public 
          area windows were to be replaced in May 1991 during warmer weather, 
          the concrete driveway was repaired in spring or Fall 1990 and any 
          cracks reported by the inspector are de minimis, all garage items 
          were the subject of an agreement with the Enforcement Unit in which 
          extensions of time to make repairs were granted, the steel floor 
          plate on the garage floor was repaired on March 14, 1991, an 
          estimate for repair of the outside parking deck has been obtained 
          and work will be commenced when weather permits, a master TV 
          antenna was installed in July 1990 and is operational, the roof 
          bulkheads were repaired by the owner's own workers, the ceiling 
          escutcheon plate for the steam pipe was replaced, the garage 
          sprinkler head was inspected by the Fire Department and no 
          violation was cited, the garage exhaust fan was repaired on 
          September 4, 1990, the bricks around the garage door were repaired 
          on August 20, 1990, and the sunken court pavement would be repaired 
          in the springtime.  Supporting documents such as estimates, 
          invoices, contracts and paid bills were included with the petition 
          to substantiate some of the allegations in the petition.









          FF 630188-RO

          In answer to the petition, the tenants dispute the owner's state- 
          ment that the pending enforcement proceeding precluded issuance of 
          a rent reduction order.  The tenants assert that a harassment 
          complaint and a failure to maintain services complaint are entirely 
          different proceedings for which different considerations and 
          penalties apply.  The tenants further note that 41 tenants signed 
          the services complaint while only 4 tenants joined in the harass- 
          ment complaint.  To hold the services complaint in abeyance while 
          the harassment proceeding was pending would violate the rights of 
          the other 37 tenants.

          As for the agreement between the owner and the Enforcement Unit 
          regarding a timetable for repairs, the tenants assert that this 
          agreement is not relevant to the rent reduction proceeding and, in 
          any case, the owner repeatedly missed every deadline.

          Responding to other matters raised in the petition, the tenants 
          state that they are not aware of the erroneous inclusion of any 
          tenants as affected parties, that there is no DHCR policy requiring 
          advance notification of an inspection or notice to an owner of the 
          results of an inspection with an opportunity to repair before a 
          rent reduction is issued, that the fact that many items were 
          repaired does not mean that a rent reduction is not warranted for 
          the remaining items, that the evidence submitted by the owner 
          establishes that many conditions were not in fact under repair, 
          that there is no exception for de minimis conditions, that many of 
          the conditions cited in the rent reduction order were not the 
          subject of the harassment proceeding and that ongoing repairs do 
          not bar a rent reduction.

          As for the individual items, the tenants assert that:

               1.   The owner has submitted only a nonbinding 
                    letter of intent regarding the hallway windows 
                    which were not finally installed until July 
                    1991,

               2.   The north yard driveway was found by the 
                    inspector to have not been repaired on August 
                    3, 1990, 

               3.   The garage items warrant a rent reduction even 
                    if they were the subject of an agreement with 
                    Enforcement,

               4.   The date for repairing the outside parking 
                    deck is three months after the inspection 
                    date.


               5.   A new master antenna was installed in July 
                    1990 but has not been connected because the 












                    FF 630188-RO

          owner wants to charge each tenant $55.00.

               6.   The roof bulkheads and ceiling escutcheon 
                    plate were repaired after the August 31, 1990 
                    inspection,

               7.   The garage sprinkler head was found to be 
                    defective by two different DHCR inspectors.

               8.   The garage exhaust fan was not repaired by the 
                    owner's own admission until September 4, 1990 
                    and was again found to be inoperative in an 
                    inspection by the Enforcement Unit on October 
                    22, 1990.

               9.   The bricks at the garage door were found to be 
                    unrepaired on the October 22, 1990 enforcement 
                    inspection.

              10.   Owner admits that sunken court pavement was 
                    not repaired when order was issued.


          On December 8, 1992, the tenant representative submitted 24 
          identical affidavits by tenants stating that each apartment had an 
          antenna jack from the time of initial occupancy until it was 
          recently disrupted by the owner, forcing the tenants to pay for 
          cable television at a cost of $150.00 per year.

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

          Section 2523.4 of the Rent Stabilization Code requires DHCR to 
          order a rent reduction, upon application by a tenant, where it is 
          found that the owner has failed to maintain required services.  
          Required services are defined by Section 2520.6(r) to include that 
          space and those services which the owner was maintaining or was 
          required to maintain on the applicable base date, plus any addi- 
          tional space or services provided or required to be provided 
          thereafter by applicable law.

          The record in the instant case adequately supports the Adminis- 
          trator's determination that there has been a failure to maintain 
          required services for which a rent reduction is warranted.




          The owner's argument that it was improper for the Administrator to 
          issue a rent reduction order while a harassment  proceeding was 
          pending is without merit.  There is no such policy mandating a 
          moratorium of the processing of services complaint until a harass- 






          FF 630188-RO

          ment proceeding is resolved.  In fact, the determinations made in 
          services proceedings are often relevant to the processing of a 
          harassment complaint.  Any agreement between the Enforcement Unit 
          and the owner regarding a schedule for repairs does not preclude 
          issuance of a rent reduction order before the agreed upon deadline 
          has expired.  The tenants were not parties to such an agreement and 
          indeed many who joined in the services complaints did not join in 
          the harassment complaint.  Those who did not join cannot have their 
          entitlement to a rent reduction denied or delayed by the few who 
          did.  The considerations and penalties concerning the two proceed- 
          ings are entirely different and are unrelated.

          The owner's other arguments are also without merit.  There is no 
          due process requirement mandating notification of a scheduled 
          inspection or of the results of such inspection.  Service of the 
          complaint on the owner affords sufficient notice of the conditions 
          requiring repair.

          As for the individual items, the owner's assertions that some are 
          de minimus or that repairs were in progress, even if true, do not 
          establish that the rent reduction order should be either modified 
          or revoked.  None of the conditions cited in the order were 
          described as minor in the inspection report.  If any were minor, 
          they should have lent themselves to prompt repair.  Moreover, there 
          are so many other items that are most certainly not de minimis such 
          that a rent reduction would be warranted anyway.  The inspector did 
          not report any repairs in progress.  The owner's statement that 
          certain repairs could not be undertaken until warmer weather 
          arrived is not convincing given the fact that the complaints were 
          filed in April and July 1990 when any repairs to outside areas 
          could have been completed before cold weather arrived and well 
          before the order was issued.  It is also noted that the owner did 
          not submit any evidence to the Administrator regarding repairs that 
          actually were made and such evidence submitted for the first time 
          with the petition is beyond the scope of review of this adminis- 
          trative appeal.  The owner had ample time from the filing of the 
          complaints until the order was issued almost a year later to 
          complete all repairs and to so notify the Administrator.

          The rent reduction order appealed herein is adequately supported by 
          the evidence of record including the inspection report which 
          confirmed the existence of numerous conditions listed by the 
          tenants in their complaints.




          THEREFORE, in accordance with the Rent Stabilization 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.












          FF 630188-RO



          ISSUED:




                                                                       
                                             JOSEPH A. D'AGOSTA
                                             Acting Deputy Commissioner






    

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