ADM. REVIEW DOCKET NO. FH810196RO


                                 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     ADMINISTRATIVE REVIEW
          APPEAL OF                               DOCKET NO. FH810196RO

                                                  DISTRICT RENT
                                                  ADMINISTRATOR'S DOCKET
                                                  NO. FC910586S 
            DAVID ASSOCIATES, 
                                   PETITIONER
          ------------------------------------X

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

               On August 9, 1991, the above-named owner filed a petition for 
          administrative review of an order issued on August 6, 1991 by a 
          Rent Administrator concerning the housing accommodation known as 
          Apartment 6-A, 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 March 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 April 3, 1991, the Division of Housing and Community 
          Renewal (D.H.C.R.) mailed a copy of the tenant's complaint to the 
          subject owner.

               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.

















          ADM. REVIEW DOCKET NO. FH810196RO

               On August 6, 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 was 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 would 
          be limited to the period after the landlord had received the 
          tenant's complaint until such time as the landlord had restored 
          services."

               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 3, 1991.  The Commissioner 






          ADM. REVIEW DOCKET NO. FH810196RO

          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 D.H.C.R. 
          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 that the tenant's complaint for a rent reduction due 
          to a diminution 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 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 












          ADM. REVIEW DOCKET NO. FH810196RO

          and opinion.

          ISSUED:



                                                                            
                                             JOSEPH A. D'AGOSTA
                                             Deputy Commissioner       
    

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