GH610125RO  et al.                                  

                          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     S.J.R. NO.:  6836 Mandamus
          IN THE MATTER OF THE ADMINISTRATIVE     ADMINISTRATIVE REVIEW
          APPEALS OF                              DOCKET NOS.:              
GH610125RO;  GK610068RO;
                                                  GI610124RO;  GI610151RO
             MULTIVERSE REAL ESTATE INC.,                       
                                                  RENT ADMINISTRATOR'S
                                                  DOCKET NOS.:
                                                  FH610005S;   GA610355S;
                                                  FG610948S;   FC610957S
                                     PREMISES     
          ----------------------------------x



            ORDER AND OPINION DENYING PETITIONS FOR ADMINISTRATIVE REVIEW
                                          

          On August 20, 1992, November 6, 1992, September 23, 1992 and 
          September 15,1992, the above-named petitioner-owner filed petitions 
          for administrative review (PAR) of orders issued respectively on 
          July 20, 1992, October 9, 1992, September 22, 1992 and September 1, 
          1992, by the Rent Administrator, concerning the housing accommo- 
          dation known as 1064 Carroll Place, Bronx, New York, various 
          apartments, wherein the Administrator determined that the rent for 
          the subject apartments should be reduced to the level in effect 
          prior to the last rent guideline increase which commenced before 
          the effective date of the orders based upon a diminution of various 
          services.  The Rent Administrator's orders were based upon the 
          findings of inspections respectively held on July 9, 1992, August 
          27, 1992, and August 7, 1992.

          Subsequent thereto, the petitioner filed a petition in the Supreme 
          Court in the nature of mandamus pursuant to Article 78 of the Civil 
          Practice Law and Rules. The Court directed the Division to expedi- 
          tiously issue a determination of the petitioner's administrative 
          appeals.

          The Commissioner has consolidated these four petitions as they 
          involve common questions of law and fact.

          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 administrative appeals.  


          The issue herein is whether the Rent Administrator properly reduced 
          the rent of apartments 3-C, 2-F, 5-A and 2-J in the subject 








          GH610125RO  et al.                                  

          building based upon a diminution in services.

          On appeal, the petitioner-owner essentially alleged in PAR Docket 
          No. GH610125RO that exterminating service is under a monthly 
          service contract; that a sign is posted in the lobby advising all 
          tenants that the service is provided on the last Tuesday of each 
          month; that the tenant of Apartment 3-C signed off that the service 
          was performed and that the tenant was provided with a replacement 
          refrigerator (also signed-off by the tenant) which obviates the 
          tenant's complaint about defective refrigerator shelves.

          As to PAR Docket No. GK610068RO, the owner averred in substance 
          that all necessary repairs were completed for the tenant of 
          Apartment 2-F.

          In PAR Docket NO. GI610124RO, the owner contended among other 
          things that a court stipulation, dated June 17, 1991, before Hon. 
          Gilbert Badillo, Civil Court, Bronx County, New York, Index No. HP 
          877/91 is proof that all relevant violations have been corrected 
          and that sign-offs by the tenant of Apartment 5-A establish that 
          exterminator and other services were provided.

          In the last PAR, under Docket No. GI610151RO, the owner claimed 
          that numerous repairs were made but that the tenant of Apartment 
          2-J refused to sign off on the work order and refused access for 
          the remaining repairs.  It was also alleged that a court stipu- 
          lation, dated June 4, 1991, before Hon. Judge Sherman, Civil Court, 
          Bronx County, Index Number 68623/91 is proof that all relevant 
          violations have been corrected.

          The petitions were respectively served on the tenants on September 
          1, 1992, December 4, 1992, October 8, 1992 and October 9, 1992.

          After a careful consideration of the entire evidence of record the 
          Commissioner is of the opinion that the administrative appeals 
          should be denied.

          Section 2523.4 of the Rent Stabilization Code requires the 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 
          repairs and maintenance.

          Referring to PAR Docket No. GH610125RO, the Commissioner notes that 
          the owner's claim that exterminator and refrigerator shelf services 
          were  provided and that the subject tenant signed-off on same does 
          not address the main issue:  whether these services were provided 
          before the issuance of the Rent Administrator's order




          A review of the file shows that although the owner subsequently 
          provided these two services; at the time of the inspection held on 
          July 9, 1992, the aforesaid services had not been provided by the 
          owner.  The sign-off receipt from the Best-Way Exterminating 




          GH610125RO  et al.                                  

          Company submitted by the owner on appeal is dated July 28, 1992, 
          eight days after the issuance of the appealed order.  Also, the 
          receipt for the refrigerator is dated August 18, 1992 which is 
          subsequent to the order.

          The Commissioner has also considered the owner's claim on appeal, 
          under Docket No. GK610068RO, that all necessary repairs were com- 
          pleted and rejects same.

          The record indisputably shows that at the time of inspection, held 
          on August 27, 1992, necessary repairs were wanting.  Although 
          several services were found to be maintained; others such as the 
          lower window sash in the kitchen, the living room right window 
          lower sash and the shower regulator were found to be defective.

          As to the appeals filed under Docket Nos. GI610124RO and 
          GI610151RO, the Commissioner has carefully considered the owner's 
          claim that many repairs had been corrected and that stipulations 
          entered into by the parties in separate Civil Court actions prove 
          that all relevant violations have been removed and rejects this 
          argument.

          The fact that the court stipulations referred to in the owner's 
          appeals indicate that numerous violations had been removed in 
          earlier proceedings does not establish that the Rent Administrator 
          erred in determining that the rent for the subject apartments 
          should be reduced based on the owner's failure to provide various 
          services.  Inspections separately held on August 7, 1992 in apart- 
          ments 5-A and 2-J determined that apartment 5-A had deficient 
          plumbing in the kitchen sink; that the oven was working improperly; 
          that the refrigerator freezer temperature was deficient; that the 
          refrigerator's general condition was inadequate; that the apartment 
          entry  door lock was loose and that there was evidence of vermin in 
          several areas of the apartment.

          The inspection held on August 7, 1992, in apartment 2-J established 
          that the kitchen area had leaks and stains; that the ceiling over 
          the kitchen sink was cracked; that the tub faucet plumbing was 
          defective; that the floor tile was cracked in the bathroom; that 
          the wall tiles in the bathroom were loose; that the plumbing in the 
          bathroom tub was defective and that the paint and plaster in the 
          dining room was stained due to a leak.

          There is no indication that the violations referred to in the Court 
          proceedings pertained to the same conditions that are the subject 
          of the complaints filed with the Division.  The Commissioner also 




          finds that the foregoing services and repairs are services and 
          repairs that must be provided on an on-going basis and may 
          deteriorate at anytime which, if confirmed by an agency inspection, 
          would warrant a rent reduction, despite an earlier determination 
          that the service was being provided.









          BI 230194-RO

          Lastly, the Commissioner has reviewed the owner's claim on appeal 
          that the tenant of apartment 2-J has refused access for follow-up 
          repairs and can not find any support for this contention in the 
          file.  Although the access issue was raised in the separate Civil 
          Court action, the file contains ample evidence that the owner had 
          gained access to the subject apartment to make repairs and that, in 
          fact, many repairs were made.  The owner failed to adduce any 
          evidence that the tenant refused access to the owner to complete 
          the repair work; nor did it raise the "no access" issue below in 
          the subject administrative proceeding.

          The Commissioner notes that even if the owner could produce 
          evidence of the tenant's refusal to provide access, it would be 
          precluded, under the "scope of review" doctrine from offering this 
          evidence for the first time on appeal, having failed to raise the 
          issue below.

          The owner's answer to the complaint, dated June 6, 1991, made no 
          mention of an access issue and in fact alleged that all repairs 
          were done.

          The Commissioner finds that based on the on-site physical inspec- 
          tions which confirmed the tenants' service complaints, the 
          Administrator was mandated pursuant to Section 2523.4(a) to reduce 
          the rent upon determining that the owner had failed to maintain 
          services.


          THEREFORE, in accordance with the Rent Stabilization Law and Code, 
          it is

          ORDERED, that these petitions be, and the same hereby are, denied 
          and the Rent Administrator's orders be, and the same hereby are, 
          affirmed.

          Upon a restoration of services, the owner may separately apply for 
          rent restorations.


          ISSUED:



                                                                           
                                                JOSEPH A. D'AGOSTA
                                                Deputy Commissioner

                                          

    

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