DOCKET NOS.:  FH930135RO, 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   
     IN THE MATTER OF THE ADMINISTRATIVE    :  
     APPEAL OF                                 ADMINISTRATIVE REVIEW  
                                            :  DOCKET NOS. FH930135RO
        17-21 CENTRE STREET REALTY CORP.,                  FK910100RT
             VARIOUS TENANTS, PETITIONERS   :              FK910101RT
     ---------------------------------------X              FK910102RT
                                                           FK910103RT
                                                           FK910104RT
                                                           FK910105RT
                                                           FK910106RT
                                                           FK910107RT
                                               DRO DOCKET NOS. MED910039B
                                                               MFH910169OR
                                             

            ORDER AND OPINION DENYING PETITIONS FOR ADMINISTRATIVE REVIEW

     These petition are being consolidated as they involve common issues of law 
     and fact.

     The above named petitioner-owner filed a timely Petition for Administrative 
     Review against order number MED910039B issued on July    15, 1991.  Eight 
     tenants filed timely petitions against order number MFH910169OR, issued 
     October 22, 1991.  Both orders were issued by the Rent Administrator, 55 
     Church Street, White Plains, New York, regarding housing accommodations known 
     as various apartments, 17-21 Centre Street, Mount Vernon, New York.  The Rent 
     Administrator determined in the first order that the rents should be reduced 
     because of certain reductions in service and in the second order the 
     Administrator restored the rents based on a restoration of services.

     The issues in this appeal are whether the rent reduction and subsequent 
     restoration were proper.

     The applicable sections of the Tenant Protection Regulations are Sections 
     2503.4 and 2505.2.

     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 these administrative appeals.

     The tenants commenced this proceeding on April 7, 1990 by filing a complaint 
     of reduced services alleging that a storage room, a garbage room and an 
     outdoor parking area which the tenants had previously been able to use were 
     no longer available to tenants.  In addition, they alleged that there was 
     inadequate hot water.

     In Order Number MED910039B, herein under appeal by the owner, the Rent 
     Administrator determined that the records of the Division indicated that a 








          DOCKET NOS.:  FH930135RO, et al.

     storage room was not a base date service.  In addition, based on a Notice 
     from the Mount Vernon Building Department which stated that outdoor parking 
     was not permitted at the rear of the subject building, the Administrator 
     implicitly found that the owner did not have to allow the tenants to park in 
     that area.  However, the Administrator reduced the rents, finding after an 
     inspection, that the water temperature was inadequate and that the owner was 
     not providing a suitable garbage room.

     In its petition, the owner contends that the Rent Administrator's Order is 
     incorrect and should be modified because the owner has always maintained 
     garbage collection areas both inside and outside the building and has always 
     provided a sufficient number of receptacles for the tenants.  In addition, 
     the owner alleges its has always maintained adequate hot water and that it 
     was arbitrary and capricious to reduce the rents based on a single inspec 
     tion.  The owner adds that it has spent considerable money to repair the hot 
     water system and that all the bills for these repairs have been submitted to 
     the DHCR in White Plains.

     Furthermore, the owner contends it was unfair to reduce the rent for parking 
     when the City of Mt. Vernon prohibited such parking.

     Finally, the owner alleges that the tenant complaints were "instigated" by a 
     disgruntled former employee.

     In answer to this petition, the tenants contend that the order reducing the 
     rent should be upheld because only one-third of the garbage area was 
     restored; the owner parks in the allegedly illegal parking area; and it took 
     the owner two years to correct the hot water problem.  One tenant submitted 
     a statement accusing the owner of acts of personal abuse and/or harassment.

     On August 1, 1991 the owner filed an Application to Restore Rent alleging 
     that there was a garbage room in the basement of building #21 with 9 trash 
     cans which are emptied daily, the trash being taken to the driveway on the 
     east side of the building, where an additional 12 - 13 trash cans are 
     maintained.  Regarding the hot water, the owner alleged that between March 
     1990 and December 1990 the hot water system was updated, including the 
     installation of an additional coil which gives 15 gallons per minute.  The 
     owner further alleged that from June 1990 through August 1991 a temperature 
     of 142o has been maintained.  In support of this contention the owner attaches 
     a letter from the Superintendent of Plumbing for the City of Mount Vernon 
     Department of Buildings stating that he had tested the water on August 1, 
     1991 and found it to be 142o fahrenheit.

     Also attached to the application were work orders and invoices and statements 
     from various tenants who did not participate in the complaint and one 
     statement from a tenant who had participated in the complaint but wished now 
     to be excluded therefrom.

     Eight tenants filed answers in opposition to this application, the substance 
     of each answer being contained in a two page letter written by the tenants' 
     representative, which was attached to each answer.  (One answering tenant 
     stated she had submitted a letter in favor of her landlords's application 
     under duress.)

     In their answers the tenants stated:  (1) the hot water has been restored, 
     but only after two years; (2) only half of the garbage room has been 
     restored, the other half being used to store the owner's paint and paint 



          DOCKET NOS.:  FH930135RO, et al.

     thinners, thus creating a fire hazard; (3) the storage room which was found 
     not to be a base date service was available to tenants from 1948 to 1988 when 
     the present owner took over the building; (4) the owner and his relatives, 
     friends, and employees park in the area which the City of Mount Vernon had 
     declared illegal; (5) other complaints, e.g., regarding doorbells had been 
     submitted as "a follow-up" to the underlying complaint herein; (6) the 
     present owner discontinued an extermination service that had been provided 
     for over 35 years; and (7) the tenants' representative's apartment has not 
     been painted in 8 years.

     On October 22, 1991, under docket number MFH910169OR, the Administrator found 
     that the conditions for which order number MED910039B had reduced the rent 
     had been corrected and that a rent restoration was warranted.  The order 
     noted that the tenants had acknowledged the hot water service was restored.  
     Furthermore, the Administrator determined that the garbage disposal method 
     provided by the owner was now suitable.

     In their petitions eight tenants contend that the Administrator's rent 
     restoration order is incorrect and should be modified because (1) the storage 
     area discontinued by the owner was mandated by lease (copies of eight leases 
     "which have just been found" are attached to the petitions); (2) only half 
     the garbage space was restored, the rest being used to store paint; (3) 
     several tenants went to the Mount Vernon Building Commissioner to ask why the 
     owner was able to park in the illegal parking area;  they were told that the 
     owner had just applied for a permit to make the parking legal; accordingly, 
     the parking service should be restored to the tenants who had enjoyed it for 
     many years; (4) although the hot water is now sufficient, the heat is 
     inadequate for cold weather.

     In answer to the tenants' eight petitions the owner contends the rent 
     restoration order should be upheld because (1) DHCR records showed a storage 
     area was not a base date service.  The owner admits clearing out a locked 
     room "filed with abandoned debris ad old broken furniture" and converting to 
     an office for the conversion of the tenants.  In addition, the owner contends 
     that a careful reading of the leases submitted by the tenants shows that they 
     did not indicate that storage space would be provided.  (2) The restored 
     garbage room in building 17 contains the same amount of receptacles as the 
     original room (five); the large garbage room in building 21 contains 12 or 
     more receptacles; the storage portion of building 17's garbage room never 
     contained functioning garbage receptacles, but only unused extra garbage 
     cans.  (3) No legal parking was provided at the time the owner acquired the 
     building; the owner's application for a permit to park three personal 
     vehicles is still pending (as of January 13, 1992) with the City of Mount 
     Vernon.  (4) The tenants are merely speculating that heat will not be 
     adequate at a future time.

     The Commissioner is of the opinion that the owner's petition should be denied 
     and that the tenants' eight petitions should be denied.

     At the outset, the Commissioner notes that the Administrator's first order 
     did not find that the owner was obligated to provide either parking or a 
     storage room.  The tenants did not file a petition against that order 
     (MED910039B).  Accordingly, the owner was not required to restore those 
     services in order to receive a rent restoration.  Therefore, the tenants' 
     allegations regarding parking and the storage made in opposition to the 
     owner's application for a restoration of rent were beyond the scope of the 
     restoration proceeding (MFH910169OR) and the similar allegations made on 








          DOCKET NOS.:  FH930135RO, et al.

     appeal are all beyond the scope of the present appeal.  By not appealing the 
     Administrator's first order within 35 days of its issuance, the tenants lost 
     their right to appeal the Administrator's findings with respect to the 
     parking and the storage room.

     To raise these issues in the rent restoration proceeding or in these appeals 
     amounts to collaterally attacking the Administrator's first order.  The fact 
     that the owner raised the issue of parking in its appeal does not change this 
     principle.

     Secondly, all of the allegations regarding services (and/or harassment) other 
     than the specific services for which a rent reduction was ordered and than 
     restored (garbage room and hot water) are beyond the scope of this review and 
     will not be considered.  Included in the issues which are beyond the scope of 
     this review are: heat, painting, doorbells, exterminator service.  However, 
     this order is without prejudice to the tenants' rights to raise any or all of 
     these issues in another proceeding, if the facts so warrant.

     Turning to the relevant substance of these appeals, the owner's petition must 
     be denied.  It is undisputed that the hot water was inadequate on the day of 
     the inspection.  It was not arbitrary to reduce the rent based on that 
     inspection.

     Since the rent reduction and restoration for hot water and garbage room would 
     have occurred in the same amount and for the same period based on the hot 
     water alone, it is not necessary to determine whether the rent reduction for 
     the garbage room was warranted.  However, the Commissioner notes that in its 
     answer to the tenants' complaint the owner admitted discontinuing the use of 
     a garbage room and alleged it was not a required service.  It was found to 
     have been restored as a service in the Administrator's second order.

     Regarding the tenants' appeals of the rent restoration, three of the four 
     contentions (regarding the storage room, parking area, and heat) are beyond 
     the scope of review as stated above.  The fourth contention (that the owner 
     only partially restored use of the garbage room and is using the remaining 
     portion to store paint) is hereby found to be without merit.  Based on the 
     record as a whole, including the fact that the tenants did not even allege 
     that the number of trash receptacles after the restoration was less than 
     before, the Commissioner hereby affirms Administrator's finding that suitable 
     garbage disposal is now provided.  As to the allegation that the owner's 
     storage of paint creates a fire hazard, this is beyond the scope of this 
     proceeding and could perhaps be addressed to the appropriate department of 
     the City of Mount Vernon or in a new service complaint, if the facts so 
     warrant.

     As stated above, because the tenants failed to appeal the Administrator's 
     first order (MED910039B), the issue of parking is beyond the scope of these 
     appeals.  Nevertheless, because the record on appeal discloses that the 
     parking area whose use was denied to the tenants has subsequently been used 
     by the owner and that the owner has applied for and perhaps by now received 
     a permit from the City of Mount Vernon to park in the area in question, this 
     Order is without prejudice to the tenants' right to file another complaint 
     regarding the issue of parking, if the facts so warrant.  If such a complaint 
     is filed, one issue to be considered is how the tenants were able to use the 
     parking area from 1978 (the year the violation was issued by the City of 
     Mount Vernon) until 1988 when the present owner acquired the building.




          DOCKET NOS.:  FH930135RO, et al.

     THEREFORE, in accordance with the Emergency Tenant Protection Act and 
     Regulations, 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.

     ISSUED:



                                                                               
                                                    JOSEPH A. D'AGOSTA
                                                    Deputy Commissioner






    

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