GB230030RO
                                  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


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                                                  SJR 6527 DEEMED DENIAL

          IN THE MATTER OF THE ADMINISTRATIVE     ADMINISTRATIVE REVIEW
          APPEAL OF                               DOCKET NO.: GB230030RO
                                                  
               PARKWAY REALTY                     RENT
                                                  ADMINISTRATOR'S DOCKET 
                                                  NO.: DJ230053B
                                  PETITIONER            
          ----------------------------------x


            ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW
                                          
               On February 7, 1992 the above named petitioner-owner filed a 
          Petition for Administrative Review against an order of the Rent 
          Administrator issued January 6, 1992. The order concerned various 
          housing accommodations located at 100 Woodruff Avenue, Brooklyn, 
          N.Y.  The Administrator ordered a building-wide rent reduction for 
          failure to maintain required services.  

               Subsequently, the owner filed a petition pursuant to Article 
          78 of the Civil Practice Law and Rules in State Supreme Court 
          deeming its petition denied.  The matter was remitted to the 
          Division for a determination no later than March 22, 1993.

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

               This proceeding was commenced on October 17, 1989 when 50 
          tenants of the 97 who live in the building filed a Statement of 
          Complaint of Decrease in Building-Wide Services wherein they 
          alleged the following services deficiencies:

                    1.   Lobby door lock constantly broken,

                    2.   Elevator breaks down frequently; elevator door 
                         fails to close properly,

                    3.   Inadequate hot water,

                    4.   Lack of building security,

                    5.   Loose stairs,












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                    6.   Broken window panes,

                    7.   No lights in incinerators,

                    8.   Roach and rat infestation,

                    9.   Garbage accumulation in backyard.

          The complaint was assigned Docket No DJ230053B.

               The owner was served with a copy of the complaint and afforded 
          an opportunity to respond. The owner filed a response on November 
          22, 1989 and stated that the lobby door is always closed, that the 
          elevator is maintained on a monthly basis, that hot water is always 
          available, that the owner cannot afford a security guard and that 
          one is unnecessary due to the fact that the door is locked, that 
          some steps are loose but that the stairs are safe, that all windows 
          inside the apartments have been fixed, that a accumulation of 
          debris caused by an apartment fire has been cleaned up, that the 
          superintendent had ordered special material to exterminate and that 
          an exterminating service is available on a monthly basis.  The 
          owner attached a copy of an invoice from an elevator maintenance 
          company which was offered to show that the elevator was, in fact, 
          maintained.

               On February 28, 1990 the tenants filed an additional Statement 
          of Complaint of Decrease in Building-Wide Services.  This complaint 
          was a restatement of the allegations set forth in the complaint 
          bearing Docket No. DJ230053B and was assigned Docket No. EC230083B.  
          The tenants also included allegations that the sewer system was 
          backed up and that the washing machines in the basement were 
          constantly broken.  On April 27, 1990 the owner filed a response 
          wherein it essentially repeated the statements set forth above.  
          The owner added that the sewer problem had been corrected by the 
          City of New York.  The owner failed to address the issue of the 
          washing machines.  On September 24, 1990 the Administrator issued 
          an order consolidating both proceedings under Docket No. DJ230053B.
           
               The Administrator ordered a physical inspection of the subject 
          building.  The inspection was conducted on November 14, 1990 and 
          revealed the following:

                    1.   Left wing--sixth floor to second floor hallway 
                         floors missing tiles,

                    2.   Left wing--sixth, fifth and second floor hallway 
                         windows cracked glass panes,

                    3.   Right wing--cracked windows on first, second, fifth 
                         and sixth floors,
                    4.   Defective light bulbs in incinerator rooms on 
                    third, fifth and sixth floors of left wing and 






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                    third, fourth and sixth floors of right wing,

                    5.   Roach infestation in incinerator rooms,

                    6.   Basement incinerator room dirty,

                    7.   Roach, rodent and waterbug infestation in basement,

                    8.   Garbage accumulation in basement,

                    9.   Inadequate lighting in basement,

                   10.   One washing machine broken and inoperative.

          The following services were found to have been maintained:

                    1.   Vestibule door lock operative,

                    2.   No evidence of defects to left and right elevators,

                    3.   No backyard garbage accumulation,

                    4.   No evidence of sewer backup or foul odors,

                    5.   Public areas clean and lit.

               On November 29, 1990 the Administrator sent a notice to the 
          owner advising it of the results of the inspection and affording it 
          21 days to correct the deficiencies reported by the inspector and 
          to present proof thereof.  On January 4, 1991 the owner responded 
          to the Administrator's notice.  It stated that the defective window 
          panes had been replaced, that the incinerator light bulbs were 
          operating, that the basement had been cleaned and the exterminator 
          had been directed to pay attention to the basement, that the 
          garbage accumulation in the basement had been removed, that the 
          broken washing machine belonged to one of the tenants and that the 
          owner had requested that the tenant remove the machine and that the 
          missing floor tiles could not be replaced because they were 
          obsolete.  The owner stated that it would continue to look for a 
          place that carried the proper tiles. 
           
               On February 6, 1991 the Administrator sent another notice to 
          the owner.  In this notice, the Administrator sought information 
          and supporting documentation regarding whether laundry service was 
          provided by the owner at any time prior to the implementation of 
          the vending contract, the dates on which owner-operated laundry 
          service started and ended, and what equipment constituted the 
          previous laundry service.  The owner filed a response on February 
          28, 1991 and stated that laundry service was provided by the former 
          owner of the building.  This prior owner allegedly had a contract 
          with Hercules Coinmatic Corp. dating back 15-20 years for the 
          supply of laundry services.  The present owner also stated that it 












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          could not get a copy of that contract, that it had never provided 
          laundry service in the past or present, and that it never gave 
          anyone permission to operate such a service.

               On May 24, 1991 a reinspection of the premises was carried 
          out.  The inspector reported that the following services were not 
          being maintained:

                    1.   Floor tiles missing throughout public areas of both 
                         building wings except for first floor,

                    2.   Incinerator room light bulbs missing on third, 
                         fourth and sixth floors of both wings,

                    3.   Evidence of vermin infestation in basement,

                    4.   Evidence of garbage accumulation and old furniture 
                         in basement,

                    5.   One defective washer and two defective dryers.

          The following services were found to have been maintained:

                    1.   No evidence of cracked window panes in either wing,

                    2.   Adequate basement lighting.
           
               The Administrator issued the order here under review on 
          January 8, 1992.  The report of the inspector was set forth.  The 
          Administrator also found that the evidence indicated that the 
          laundry services were provided by Hercules Coinmatic Corp. and 
          concluded that the owner had failed to substantiate that the 
          services were always provided by an independent contractor and were 
          never provided by the owner directly or indirectly on or after the 
          base date.  The Administrator, therefore, ruled that laundry 
          service was a service required to be maintained by the owner.  The 
          Administrator ordered a rent reduction of $27.00 per month for rent 
          controlled tenants and an amount equal to the most recent guideline 
          adjustment for rent stabilized tenants. 

               On appeal the owner makes the following arguments in seeking 
          reversal of the Administrator's order:

                    1.   The floor tiles have been replaced on an ongoing 
                         basis by the building maintenance staff, but the 
                         problem has been exacerbated by tenant and visitor 
                         vandalism.  The owner states that it is attempting 
                         to install a more vandal proof tile and argues that 
                         it should not be penalized for acts of vandalism by 
                         others.

                    2.   The missing incinerator light bulbs fall within the 






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                    category of routine maintenance. Prior agency 
                         determinations have held items requiring routine 
                         maintenance are not a basis for a rent reduction.  
                         The owner again argues that the bulbs have been the 
                         subject of tenant vandalism and that they are 
                         replaced as needed.  The owner attached copies of 
                         paid bills for hardware supplies which specifically 
                         include light bulbs.

                    3.   Building tenants are using the basement as a 
                         garbage dump, despite the efforts of the building 
                         maintenance staff to keep the area clean.  Besides 
                         accounting for the garbage accumulation reported by 
                         the inspector, the owner argues that these acts by 
                         the tenants have resulted in the vermin 
                         infestation.  The owner states that the maintenance 
                         staff makes reasonable efforts to keep the building 
                         clean.

                    4.   The owner was not given notice of either of the two 
                         inspections and argues that this failure to give 
                         notice constituted a denial of due process.

                    5.   Laundry service is an ancillary service which is 
                         not subject to the provisions of the Rent 
                         Stabilization Code.  The owner states that service 
                         has been provided by Safkur Corp. for the past 15- 
                         20 years and that this company has never had any 
                         ownership interest in the building.  The owner 
                         further states that the 1984 Building Registration 
                         Statement does not list laundry services as one 
                         being provided by the owner.  

               Responses to the petition were filed by several tenants.  One 
          tenant stated that services were not being maintained and the 
          petition should be denied.  Two other tenants stated that the owner 
          was maintaining services, although one of the two tenants added 
          that the owner's repairs had come after the Administrator's order 
          had been issued. 
           
               After careful review of the evidence in the record, the 
          Commissioner is of the opinion that the petition should be denied.

               Addressing the owner's arguments in the order presented, the 
          Commissioner has consistently rejected the argument that acts of 
          tenant or visitor vandalism or neglect can excuse an owner from the 
          continuing duty to maintain required services (Accord: CI130116RO; 
          EG530202RO). It is the owner's obligation to insure that the 
          defective condition is corrected either by purchasing vandal-proof 
          tiles or taking action against any tenant or visitor found to have 
          been vandalizing building property.  The Commissioner also notes 
          that prior decisions have affirmed rent reduction orders for 












          GB230030RO

          defective building tiles (see Docket. Nos. EL430202RT and 
          FK530308RO).

               With regard to the defective incinerator room light bulbs, the 
          Commissioner rejects the owner's defense that the replacement of 
          these bulbs constitutes routine maintenance for which a rent 
          reduction is not appropriate.  The maintenance of adequate public 
          area lighting is related to the important issue of tenant safety.  
          While the owner may have made attempts to replace the defective 
          bulbs, the fact remains that two different physical inspections 
          several months apart confirmed the tenants' complaint.  The 
          Administrator was correct in ordering the rent reduction based on 
          this finding.

               The owner's contention regarding the infestation and garbage 
          accumulation in the basement is without merit.  As stated above, it 
          is the responsibility of the owner to maintain services regardless 
          of the acts of the tenants.  Whether by more frequent cleaning of 
          the basement or taking action against any tenant found to be using 
          the basement as a garbage dump, the owner must maintain a clean 
          basement and eradicate the infestation.  

               The owner states that it was denied due process by not being 
          given notice that inspections would be conducted by the agency.  
          However, it is the policy of the DHCR that the complaint of the 
          tenants puts the owner on notice of the existence of the conditions 
          and the need to investigate.  No further notice is required.  The 
          courts have upheld this policy (see Empress Manor Apartments v. 
          DHCR 147 A.D.2d 642, 538 N.Y.S.2d 49 [2nd Dept., 1989]).  The 
          Commissioner also notes that fact that the owner was sent a copy of 
          the results of the first inspection and afforded a reasonable 
          opportunity to correct the deficiencies noted, but the second 
          inspection revealed that no repairs had been done.

               Finally, with regard to the issue of the rent reduction based 
          on the defective washer and dryers, the Commissioner notes that the 
          owner's February 21, 1991 response to the Administrator's notice 
          stated that the laundry service was being provided by a former 
          owner to the building through Hercules Coinmatic Corp.  In the  
          petition, the owner states that the service is and was being 
          operated by Safkur Corp. who "never had any ownership interest in 
          the building."  
               Required services are defined by Section 2520.6 (r) of the 
          Rent Stabilization Code as "that space and those services which the 
          owner was maintaining or was required to maintain on the applicable 
          base date... and any additional space or services provided or 
          required to be provided thereafter by applicable law."  Ancillary 
          services for which there is a separate charge are not subject to 
          the provisions of the Code where no common ownership between the 
          operator of such services and the owner exists or existed on the 
          applicable base date or at any time subsequent thereto and such 
          service is or was provided on the applicable base date by an 






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          independent contractor.

               The base date for building-wide services for housing 
          accommodations subject to the Rent Stabilization Law on June 30, 
          1974 is May 31, 1968.

               For rent controlled tenants essential services are defined by 
          Section 2200.3 (b) to include "those essential services which the 
          landlord furnished, or which he was obliged to furnish on April 30, 
          1962 and which were included in the maximum rent for the housing 
          accommodations on that date."

               In the instant case, the owner has failed to establish that 
          the laundry facilities were not provided on the applicable base 
          dates or that they were always provided by an independent 
          contractor.  The vague statements that there has been a contract 
          for the provision of this service for the past 15 to 20 years is 
          not dispositive of what the situation was on the base date.

               Moreover, the absence of laundry service on the 1984 building 
          registration is not dispositive of the issue.  Required or 
          essential services that an owner must continue to maintain are 
          defined by what was required on the base date regardless of what 
          was registered.  The rent reduction for defective laundry 
          facilities ordered by the Rent Administrator was warranted.  The 
          order here under review is affirmed.
           
               THEREFORE, pursuant to the Rent Stabilization Law and Code and 
          Rent and Eviction Regulations for New York City it is 

               ORDERED, that this petition be, and the same hereby is, 
          denied, and that the Rent Administrator's order be, and the same 
          hereby is, affirmed.
          ISSUED:



                                                                             
                                             JOSEPH A. D'AGOSTA
                                             Deputy Commissioner
                                     






    

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