GL130188RO

                                  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.: GL130188RO
                                                  
          K & S ASSOCIATES                        RENT
                                                  ADMINISTRATOR'S DOCKET 
                                                  NO.: FG130078OR
                                  PETITIONER            
          ----------------------------------x


            ORDER AND OPINION GRANTING PETITION FOR ADMINISTRATIVE REVIEW
                   AND REMANDING PROCEEDING TO RENT ADMINISTRATOR

               On December 9, 1992 the above named petitioner-owner timely 
          refiled a Petition for Administrative Review against an order of 
          the Rent Administrator issued May 22, 1992. The order concerned 
          various housing accommodations located at 139-05 89th Drive, 
          Briarwood, N.Y.  The Administrator denied the owner's rent 
          restoration application.  

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

               The owner commenced this proceeding on July 1, 1991 by filing 
          a rent restoration application wherein it alleged that all services 
          for which a rent reduction had been ordered in Docket No. 80233B 
          had been restored.  The owner attached a rider to the application 
          consisting of a statement by it and accompanying affidavits by the 
          building superintendent and two tenants.  The rider asserts that 
          there was never storage space in the subject building except for 
          the room in which the superintendent stores his tools, that the 
          room is kept locked for security, that the tenants must contact the 
          superintendent to be permitted access to this room, that this has 
          always been the procedure, that the public area windows on the 
          second, third, fourth, fifth and sixth floors were never water 
          damaged but rather intentionally sealed for weatherizing purposes, 
          that the weather stripping has been removed and the sashes painted 
          and that the windows can now be easily opened.

               The tenants were served with copies of the application and 
          afforded an opportunity to respond. Various tenants filed 
          responses.  With regard to the storage space issue, the tenants 
          stated that the owner was not maintaining the proper base date 












          GL130188RO

          service in that they had previously been afforded unrestricted 
          access to a storage room and that the restricted access to the 
          "tool room" now provided was an inadequate and impermissible 
          substitute.  With regard to the windows, the tenants stated that 
          the windows still leaked water and had not been repaired.
           
               The Administrator ordered a physical inspection of the subject 
          building.  The inspection was conducted on March 16, 1992.  The 
          inspector reported that he could not ascertain if the tenants were 
          provided with a storage room as access to the basement could not be 
          obtained and the superintendent was unavailable.  With regard to 
          the windows, the inspector reported that the third floor top sash 
          right window was cracked, and that the top and bottom sashes on all 
          floors do not meet to close the windows properly.

               The Administrator issued the order here under review on May 
          22, 1992 and denied the owner's application based on the 
          inspector's report.

               On appeal the owner, as represented by counsel, states that 
          the affidavits described above established that the owner restored 
          the storage space  to the base date level and that the 
          Administrator erred in finding that the storage area had not been 
          restored.  With regard to the issue of the public area windows, the 
          owner argues that the rent reduction order cited window sashes and 
          frames that leaked water and moldy windows as a basis for the rent 
          reduction.  In Docket No. CG130151OR the owner applied for rent 
          restoration but the application was denied, in part, because the 
          physical inspection found water damaged public area windows.  The 
          owner argues that the physical inspection in the instant proceeding 
          did not reveal any water damaged windows but found, instead, a 
          cracked window sash and top and bottom sashes that do not meet to 
          close properly. The owner states that this finding represented a 
          new condition of which it was never notified of and further states 
          that it has been denied due process of law.  The petition was 
          served on the tenants on January 25, 1993.

               Six tenants filed responses to the petition and stated, in 
          sum, that the public area windows were still subject to leaks and 
          were moldy.  The tenants also disputed the owner's assertions with 
          regard to the alleged restoration of the storage area.

               After careful review of the record, the Commissioner is of the 
          opinion that the petition should be granted and the proceeding 
          should be remanded to the Administrator for further processing.

               With regard to the issue of the storage space, the 
          Commissioner is of the opinion that the Administrator did not 
          adequately investigate the issue.  It is clear from the record that 
          a dispute exists regarding what service was being maintained on the 
          base date and whether or not the owner has restored the service.  
          Both the owner and tenants offered conflicting written testimony.  






          GL130188RO

          The physical inspection did not resolve the issue as the inspector 
          reported that it could not be ascertained whether or not the owner 
          was providing storage space for the tenants.  The Administrator 
          should not have denied the application based on this report.  
          Further inquiry, including the holding of a hearing if the facts so 
          warrant, is required.

               With regard to the issue of the windows, the Commissioner 
          finds that the Administrator failed to properly instruct the 
          inspector. The owner is correct in that the rent reduction order 
          cited windows and sashes that leaked water and were moldy as the 
          condition that must be corrected.  The Administrator directed the 
          inspector to "check window sashes and frames building wide--public 
          areas".  The inspector was not instructed to check the windows for 
          mould or the effect of water damage due to leaks.  It cannot be 
          ascertained from the report if the failure of the window sashes to 
          close properly is a result of these conditions. The Administrator 
          should have attempted to specifically ascertain whether or not the 
          condition cited in the rent reduction order had been corrected.
          Based on all of the foregoing, the Commissioner is of the opinion 
          that this proceeding must remanded to the Administrator for further 
          processing consistent with this order and opinion. 

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

               ORDERED,  that this proceeding be, and the same hereby is, 
          remanded to the Rent Administrator for further processing 
          consistent with this order and opinion.  The order here under 
          review remains in full force and effect until the Administrator 
          issues a new order on remand.

          ISSUED:



                                                                             
                                             JOSEPH A. D'AGOSTA
                                             Deputy Commissioner
                                   






    

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