FI130494RT
                                  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.: FI130494RT
                                                  
          SUSAN RODRIGUEZ                         RENT
          JOHN SZEWCZUK                           ADMINISTRATOR'S DOCKET    
                                                  NO.: EH130020RP
                                 PETITIONERS            
          ----------------------------------x


            ORDER AND OPINION GRANTING PETITION FOR ADMINISTRATIVE REVIEW
          IN PART AND MODIFYING RENT ADMINISTRATOR'S ORDER AFTER REOPENING

               On September 16, 1991 the above named petitioners-tenants 
          timely refiled a Petition for Administrative Review (PAR) against 
          an order of the Rent Administrator issued March 14, 1991 concerning 
          the housing accommodations located at 82-15 35th Ave., Jackson 
          Heights, N.Y., wherein the Administrator revoked a prior rent 
          reduction order issued under Docket No. CJ130109B.

               The Commissioner issued an order and opinion on September 14, 
          1992 granting in part the tenants' petition by reinstating the rent 
          reduction for all tenants affected by the order issued in CJ130109B 
          but restoring the rent as of April 1, 1990, based on evidence in 
          the record that all conditions were corrected by that date.  On 
          October 15, 1992 the owner, represented by counsel, requested 
          reopening and reconsideration of the Commissioner's September 14, 
          1992 order and opinion. On November 13, 1992 the Commissioner 
          granted the owner's request for reconsideration and reopened this 
          administrative appeal proceeding.

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

               The order appealed herein revoked a previously issued 
          building-wide rent reduction order.  The rent had been reduced by 
          $4.00 per month for rent controlled tenants and by a guideline for 
          rent stabilized tenants based on a finding of peeling paint and 
          plaster in the basement and bulkhead areas.  The owner appealed 
          that order, arguing that the conditions found were minimal and did 
          not warrant a rent reduction.  The tenants appealed and argued that 
          the Administrator did not properly investigate their complaints 
          regarding garbage accumulation, foul odors, vermin infestation, 
          dirty public areas and a failure to paint the exterior as well as 












          FI130494RT

          interior public areas.  A Commissioner's order (DI130210RT and 
          DJ130388RO) was issued on August 3, 1990 remanding the proceeding 
          to the Administrator to investigate the various conditions 
          complained of by the tenants and stating that a rent reduction 
          would not have been warranted if the only defective condition was 
          peeling paint and plaster in the basement area and on the bulkhead, 
          which are areas which tenants do not normally either occupy or have 
          reason to use.

               On remand, the Administrator revoked the rent reduction 
          finding that no inspection was required because the earlier 
          inspection had investigated the various items in the tenants' 
          complaint and found no evidence of defective conditions.  A rent 
          reduction for peeling paint and plaster on the bulkhead and 
          basement walls was found not to be warranted.

               The two petitioner-tenants filed a PAR (Docket No. FD130387RT) 
          on September 19, 1987 in which they indicated that they were 
          "Authorized Tenant Representatives".  The PAR was rejected by order 
          and opinion issued on August 8, 1991 for failure to submit written 
          evidence of authorization to file a PAR as required by Section 
          2529.1(b)(2) of the Rent Stabilization Code.  The tenants were 
          given 35 days to refile the PAR, correcting the procedural defect.  
          When the PAR was refiled, the tenants indicated that they were 
          filing as individual tenants and not as tenant representatives.  No 
          evidence of any authorization to act on behalf of any other tenants 
          was submitted.
           
               In the petition, the tenants assert the following:

                    1.   The order here under review was arbitrary and 
                         capricious in that the Administrator issued said 
                         order without benefit of an additional inspection.  
                         The rent reduction should not have been revoked 
                         because the peeling paint and plaster was located 
                         in a the laundry room area.  Said laundry room was 
                         found to be a required service pursuant to a DHCR 
                         order issued in September, 1986.  The tenants argue 
                         that if the laundry room was found to be a required 
                         service, then the area outside it in the basement 
                         is an area frequented by the tenants and peeling 
                         paint and plaster in that area cannot be said to 
                         exist in a non-public area.

                    2.   No inspection has been performed of the interior 
                         hallways, ceilings or stairs despite the 
                         photographic evidence submitted showing unclean and 
                         unsanitary conditions existing.

                    3.   The stripping and cleaning of the floors did not 
                         occur until August, 1990 and the owner did not 
                         offer any evidence of restoration of floor 






          FI130494RT

                    maintenance service prior to that date.  The 
                         photographic evidence again demonstrates that the 
                         floor areas were not being maintained.

                    4.   The Order and Opinion of the Commissioner which 
                         remanded this proceeding for further investigation 
                         states that the tenants' photographic evidence 
                         "casts doubt on the general correctness of the 
                         instant order."  The petitioners state that, based 
                         on this statement of the Commissioner, the 
                         Administrator should have at least ordered an 
                         inspection or required the owner to certify that 
                         services were restored.

               The owner filed a response on May 17, 1991.  It stated that
          the Commissioner's remand order did not command the Administrator 
          to order an additional inspection but, rather, to reconsider this 
          matter "by whatever means are found useful".  The owner states that 
          an additional inspection would have been irrelevant, since it would 
          have been conducted 2 years after the issuance of the original rent 
          reduction order and 3 years after the filing of the complaint.  The 
          owner stands on the report of the inspector, which was filed after 
          the May 9, 1989 inspection, with regard to the services found to 
          have been maintained.  Finally, the owner states that any 
          complaints about the exterior of the building fall outside of the 
          scope of the complaint and that there have been no building 
          violations issued by the New York City Departments of Health or 
          Buildings for foul odors, vermin infestation or lack of 
          maintenance.   
           
               After careful review of the evidence in the record, the 
          Commissioner is of the opinion that the petition should be granted 
          in part and the order and opinion issued on September 14, 1992 
          granting the tenants' petition in part should be modified to order 
          a rent reduction of an amount equal to the most recent guideline 
          adjustment solely for the two tenants who filed the petition for 
          administrative review,  The rent reduction is to be effective 
          December 1, 1988 and is restored effective April 1, 1990.

               The Commissioner rejects those parts of the tenants' petition 
          which challenge the order here under review based on the inadequacy 
          of the physical inspection.  The Commissioner's August 3, 1990 
          order of remand required the Administrator to further investigate 
          the complaint.  It was left to the Administrator to determine this 
          matter, based on the reasonable exercise of discretion.  The 
          Commissioner finds the Administrator carefully compared the 
          complaint with the inspector's findings based on those areas of the 
          building complained of and those inspected.  While the tenants 
          allege that their complaint was intended to include painting of 
          exterior portions of the building it was not so interpreted by 
          either the owner or the Administrator.  Given the time elapsed it 
          was a reasonable exercise of discretion not to apply an expansive 












          FI130494RT

          interpretation of the tenants' complaint on remand.  

               The Commissioner further finds, however, that the 
          Administrator erred in revoking the order here under review as it 
          relates to the peeling paint and plaster in the basement area.  In 
          an Order and Opinion issued November 15, 1991 (see Docket No. 
          AL110439RO et al.) the Commissioner found, among other things, that 
          the basement laundry room in the subject building is a required 
          service which the owner must maintain.  Therefore, the tenants are 
          correct in that the area surrounding said laundry room is a public 
          area which is also required to be maintained.  Peeling paint and 
          plaster in this public area is a reduction in services for which a 
          rent reduction is warranted.

               Moreover, a review of the tenants' original complaint filed on 
          October 31, 1988 reveals that they alleged that the walls and 
          ceilings in the common areas required painting.  The inspector's 
          report of peeling paint and plaster in the basement confirmed the 
          need for interior painting of that area for which a rent reduction 
          is warranted.

               In requesting reconsideration of the Commissioner's order, the 
          owner asserted for the first time that the peeling paint and 
          plaster in the basement was in an area where the machinery rooms, 
          utility rooms, and other locked areas which are off limits to the 
          tenants are located.  The owner also argued that a rent reduction 
          for this condition is contrary to the Commissioner's prior order 
          (DI130210RT and DJ130338RO) which remanded the proceedings and 
          which stated in substance that defective conditions in areas not 
          used by the tenants do not warrant a rent reduction.

               However the subsequent search of the Division's records to 
          verify the tenants' allegations in the petition that a finding had 
          previously been made finding a basement laundry room to be a 
          required service effectively contradicts the owner's position that 
          the tenants might not have occasion to use the basement.  Based on 
          this finding, a rent reduction was warranted despite the language 
          in the prior Commissioner's order which did not take notice of this 
          required service.

               While it is true that the inspector did not specifically 
          identify the location of the peeling paint and plaster, the owner's 
          assertion for the first time in the reconsideration request that it 
          was in a nonpublic area is beyond the scope of review of this 
          administrative appeal.  In view of the owner's prior position 
          rejected by the Commissioner that the basement area was not a 
          public place, there being no basis for tenant access thereto, the 
          owner's belated assertion of this position and the improbability 
          that the inspector would have been able to detect peeling paint and 
          plaster in a locked area of the basement without specifying it as 
          such, the Commissioner finds that the peeling paint and plaster 
          condition existed in public areas of the basement.  Moreover, 






          FI130494RT

          evidence submitted by the owner in its appeal of the rent reduction 
          order established that the entire basement was scraped and painted 
          in February, 1990.

               In an effort to impose an equitable remedy because of the 
          prejudice to the owner in not having had an opportunity to file a 
          rent restoration application, the Commissioner sent a Notice of 
          Opportunity to Present Information to the tenants on July 2, 1992 
          requesting information as to when the owner had repaired the 
          basement and area.  The Commissioner notes, as stated above, that 
          the owner alleged that repairs were completed in February, 1990.  
          The petitioner-tenants filed a response on July 20, 1992, wherein 
          they stated that the repairs were completed in "the spring of 
          1990."  Therefore, the Commissioner finds that the facts presented 
          warrant restoration of the rent as of April 1, 1990.

               As no other tenants appealed the Administrator's order 
          revoking the rent reduction, either as individual tenants or as 
          represented by the petitioners herein and thereby preserving a 
          right to the remedy awarded in this appeal and based upon all the 
          facts of this case, including consideration of the equities 
          involved the Commissioner finds that the rent reduction ordered 
          herein reduces the rent of only the two petitioners (Rodriguez Apt. 
          4A and Szewchuk Apt. 3F) by a guideline effective December 1, 1988 
          and restores the rent effective April 1, 1990.  

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

               ORDERED, that the Commissioner's prior order and opinion 
          issued on September 14, 1992 be, and the same hereby is superseded 
          by this order and opinion, 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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