ADM. REVIEW DOCKET NO. FH830195RO




                                 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. FH830195RO

                                                  DISTRICT RENT
                                                  ADMINISTRATOR'S DOCKET
                                                  NO. FB930003B 
            DAVID ASSOCIATES,
                                   PETITIONER
          ------------------------------------X

                   ORDER AND OPINION TERMINATING PROCEEDING AS TO
                        APARTMENTS 8F AND 8N; AS TO THE OTHER
                  APARTMENTS IN THIS PROCEEDING, 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 5, 1991 by a 
          Rent Administrator concerning various housing accommodations in the 
          premises known as 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.

               In January, 1991, various tenants filed an application for a 
          rent reduction based on the owner's alleged failure to maintain 
          services.  In their application the tenants alleged that since 
          December, 1990 the subject building had been without elevator 
          service.

               On February 21, 1991, the Division of Housing and Community 
          Renewal (D.H.C.R.) mailed a copy of the tenants' complaints to the 
          owner.


















          ADM. REVIEW DOCKET NO. FH830195RO

               On March 13, 1991, the owner interposed an answer to the 
          tenants' complaints wherein it alleged, among other things, that 
          the building's two elevators were inoperative as a result of a 
          fire; that elevator service is expected to be restored within one 
          week of the above-mentioned date, and that no rent reduction is 
          warranted as the interruption of services resulted from a fire 
          which constituted a major emergency.

               On August 5, 1991, the Administrator issued the order under 
          review herein finding that a diminution of service had occurred and 
          reduced the subject tenants' rents from December 1, 1990 through 
          March 31, 1991.  In addition, the Administrator ordered the 
          restoration of the subject tenants' rents on April 1, 1991.

               In its petition the subject 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; that one elevator was restored to service on March 21, 
          1991, and that the owner states that:  "if any rent reduction were 
          to have been warranted, the rent reduction should be limited to the 
          period commencing the first of the month after the landlord 
          received the transmittal of the tenant's complaint from the rent 
          agency until the date that services were restored, March 21, 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; 
          except, the Commissioner is also of the opinion that the 
          proceedings involving Apartments 8F and 8N should be terminated.

               It should be noted that the Commissioner issued an order on 
          January 31, 1992, under Docket No. FF910151RO, pertaining to the 
          issue of whether the subject tenant who is residing at Apartment 8N 
          was entitled to a rent reduction as a result of the alleged lack of 
          elevator service.

               As to Apartment 8N, the Commissioner finds that the issues 
          raised in the owner's petition, in this proceeding, were already 
          addressed in the aforementioned Commissioner's order issued under 
          Docket No. FF910151RO.

               Accordingly, the Commissioner is of the opinion that the 
          instant proceeding, as to Apartment 8N, should be terminated as 
          moot.



               It should be further noted that the Commissioner issued an 
          order on July 12, 1993, under Docket No. FE910286RO, pertaining to 






          ADM. REVIEW DOCKET NO. FH830195RO

          the issue of whether the subject tenant who is residing at 
          Apartment 8F was entitled to a rent reduction as a result of the 
          alleged lack of elevator service.

               As to Apartment 8F, the Commissioner finds that the issues 
          raised in the owner's petition, in this proceeding, were already 
          addressed in the aforementioned Commissioner's order issued under 
          Docket No. FE910286RO.

               Accordingly, the Commissioner is of the opinion that the 
          instant proceeding, as to Apartment 8F, should be terminated as 
          moot.  

               As to the other apartments in this proceeding, 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 the 
          building's elevators.  As the owner admits that work was still 
          proceeding on the building's elevators, the Commissioner finds that 
          at the time the owner was served with the tenants' complaints, the 
          building services were not fully restored.

               As building services were not fully restored at the time the 
          owner was served with the tenants' complaints, 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 copies 
          of the tenants' complaints on February 21, 1991.  The Commissioner 
          further notes that the order under review herein ordered the 
          subject apartments' rents reduced from December 1, 1990 through 
          March 31, 1991.

               To ensure due process, it is established policy of the rent 
          agency 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 tenants' rents effective from a 
          period prior to the serving of the tenants' complaints on the 
          owner.  The record shows the owner was served with the tenants' 












          ADM. REVIEW DOCKET NO. FH830195RO

          complaint before March 1, 1991.  Therefore, the rent reduction from 
          March 1, 1991 through March 31, 1991 was warranted and is 
          unaffected by this Order.  However, the Administrator's order must 
          be revoked insofar as it imposed a rent reduction prior to March 1, 
          1991, and the matter 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 tenants' rents should be effective no 
          earlier than March 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 tenants, 
          the tenants may pay off the arrears in three equal monthly 
          installments during the next three months.  Should any of the 
          tenants vacate after the issuance of this order, all arrears are 
          due immediately.

               THEREFORE, in accordance with Emergency Tenant Protection Act 
          of 1974, and the State Tenant Protection Regulations, it is

               ORDERED, that, as to Apartments 8F and 8N, this proceeding be, 
          and the same hereby is, terminated; and it is 

               FURTHER ORDERED, that, as to the other apartments in this 
          proceeding, 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 insofar as it ordered a rent reduction 
          prior to March 1, 1991, and it is 










               FURTHER ORDERED, that, except for Apartments 8F and 8N, this 
          proceeding be, and the same hereby is, remanded to the 
          Administrator for the purpose of reconsidering the tenants' 
          application for a rent reduction based on the owner's alleged 
          failure to maintain services in accordance with this order and 
          opinion.






          ADM. REVIEW DOCKET NO. FH830195RO


          ISSUED:




                                                                             
                                             JOSEPH A. D'AGOSTA
                                             Deputy Commissioner






    

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