GA430129RO

                                  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.: GA430129RO
                                                  
          MATILDA & MIKLOS KISS                   RENT
                                                  ADMINISTRATOR'S DOCKET 
                                                  NO.: EC430076B
                                  PETITIONER            
          ----------------------------------x


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

               On January 10, 1992 the above named petitioner-owner filed a 
          Petition for Administrative Review against an order of the Rent 
          Administrator issued December 18, 1991. The order concerned various 
          housing accommodations located at 502 W. 143rd Street, New York, 
          N.Y.  The Administrator directed restoration of services and 
          ordered a rent reduction for failure to maintain required services.  

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

               This proceeding was commenced on March 22, 1990 when 9 of the 
          24 tenants filed a Statement of Complaint of Decrease in Building- 
          Wide Services wherein they alleged, in sum, that the owner was not 
          maintaining certain required or essential services including 
          failure to maintain the public hallways and the fact that there had 
          been no elevator service for the past three weeks.

               The owner was served with a copy of the complaint and afforded 
          an opportunity to respond. The owner filed a response on April 17, 
          1990 and stated, in relevant part, that the public hallways were 
          regularly cleaned and mopped by the superintendent and that the 
          elevator is maintained by a contractor.
           
               The Administrator ordered a physical inspection of the subject 
          building.  The inspection was conducted on May 1, 1991 and revealed 
          that the public area floors were dirty, that the elevator was out 
          of order and that there was no sign posted informing the tenants of 
          the superintendent's name, address and telephone number.  All other 
          services complained of were found to have been maintained.













          GA430129RO


               On July 11, 1991 the Administrator sent the owner a notice 
          wherein it was informed of the conditions relating to the elevator 
          and sign.  The Administrator did not notify the owner about the 
          condition of the public hallway floors.  The owner was afforded an 
          opportunity to make repairs and present proof thereof.

               On July 18, 1991 the owner filed a response and certified that 
          the elevator had been repaired and that the superintendent sign had 
          been posted.  The owner provided documentation and photographs to 
          support this contention.

               The Administrator ordered a second inspection of the building.  
          The inspection was conducted on September 3, 1991 and revealed that 
          the elevator was inoperative and that the public hallway floors 
          were not clean.

               The Administrator issued the order here under review on 
          December 18, 1991.  Rent controlled tenants were granted a rent 
          reduction of $5.00 per month for the condition relating to the 
          floors plus a specified percentage of the maximum collectible rent 
          for the condition relating to the elevator.  A rent reduction of an 
          amount equal to the most recent guideline adjustment was ordered 
          for rent stabilized tenants.

               On appeal the owner states that the elevator was temporarily 
          inoperative and the hallways temporarily unclean due to ongoing and 
          temporary major capital improvement construction in the building.  
          The owner further states that the tenants agree that the reduction 
          in services was temporary in nature and that 7 of the tenants 
          listed as recipients of the rent reduction no longer live in the 
          building.  The owner attached documentation to the petition in the 
          form of copies of an application for rent increases due to the 
          installation of major capital improvements.  This documentation is 
          offered to support the owner's contention that the repair work 
          being done was temporary and necessary for the upgrading of 
          building services.  The petition was served on the tenants on May 
          6, 1992. 
           
               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 here under review should be affirmed as 
          modified.

               With regard to the issue of the elevator, the Commissioner 
          notes that, pursuant to Section 2523.4 of the Rent Stabilization 
          Code, tenants may apply to the DHCR for a rent reduction based on 
          the owner's failure to maintain services and the Administrator 
          shall reduce the rent upon finding that services have been reduced.  
          Pursuant to Section 2202.16 of the Rent and Eviction Regulations, 
          rent controlled tenants may apply for a rent reduction and the 
          Administrator is empowered to order a rent reduction in a specific 






          GA430129RO

          dollar amount reflecting the reduction in rental value because of 
          the diminution of services.  Elevator service is included within 
          the definition of required and essential services.

               The Commissioner finds that the Administrator based this 
          determination on the entire record including the results of the on- 
          site physical inspection described above.  The owner's defense, to 
          the effect that elevator operation was halted due to ongoing MCI 
          construction, is insufficient to rebut the inspector's report.  The 
          DHCR inspector is neither a party to the proceeding or an 
          adversary.  The report stated that the elevator was out of order 
          and did not refer to any ongoing repair work.  This finding is 
          affirmed.

               The finding with regard to the hallway floors is revoked.  The 
          Commissioner notes that the Administrator's July 11, 1991 notice, 
          sent to the owner after the initial inspection, made no mention of 
          the fact that the inspector reported that the public hallways were 
          dirty.  The failure to provide the owner complete notification of 
          the inspector's report and subsequent granting of a rent reduction 
          based, in part, on a condition missing from the notice in question 
          denied the owner due process of law.  The finding, and the rent 
          reduction ordered for rent controlled tenants based on this 
          condition, were granted erroneously.  The rent reduction ordered 
          for rent stabilized tenants is affirmed. The order here under 
          review is affirmed as modified herein.  With regard to rent 
          stabilized tenants, the automatic stay of the retroactive rent 
          abatement that resulted by the filing of this petition is vacated 
          upon issuance of this order and opinion.

               The owner may file for rent restoration when services have 
          been fully restored.

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

               ORDERED, 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, affirmed as modified herein.  With regard to 
          rent controlled tenants who owe arrears based on this the 
          Commissioner's decision herein, the installments of back rent 
          payable for each month shall not exceed the difference between the 
          rent established by the order and the prior rent.

          ISSUED:
                                                                             
                                             JOSEPH A. D'AGOSTA
                                             Deputy Commissioner
                                   






    

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