GC 230097 RO; GB 210348 RT

                                  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     
                                                  SJR 6534 DEEMED DENIAL

          IN THE MATTER OF THE ADMINISTRATIVE     ADMINISTRATIVE REVIEW
          APPEALS OF                              DOCKET NOS.: 
                                                  GC 230097 RO
             GUTMAN, MINTZ, BAKER &               GB 210348 RT
             SONNENFELDT, P.C.
                                                  RENT
             RONALD COHEN, TENANT REP.                                        ADMINISTRATOR'S DOCKET 
                                                  NO.: CK 230005 B
                                 PETITIONERS            
          ----------------------------------x


            ORDER AND OPINION DENYING OWNER'S PETITION FOR ADMINISTRATIVE
           REVIEW AND GRANTING TENANT'S PETITION FOR ADMINISTRATIVE REVIEW
                                       IN PART

               The above named attorneys for the owner and tenant 
          representative filed timely Petitions for Administrative Review 
          against an order of the Rent Administrator issued January 27, 1992. 
          The order concerned various housing accommodations located at 2400 
          E. 3rd Street, Brooklyn, N.Y.  The Administrator ordered a 
          building-wide rent reduction for failure to maintain required 
          services.  

               Subsequent thereto, the owner deemed the petition denied and 
          filed a petition for judicial review pursuant to Article 78 of the 
          Civil Practice Law and Rules.  The court remitted the proceeding to 
          the Division for issuance of a final administrative determination 
          within 60 days of November 23, 1992.

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

               This proceeding was commenced on November 1, 1988 when 92 of 
          the 178 tenants filed a Statement of Complaint of Decrease in 
          Building-Wide Services wherein they alleged the following services 
          deficiencies:

                    1.   Defective intercoms,

                    2.   Defective windows,












          GC 230097 RO; GB 210348 RT

                    3.   Leaking roof,

                    4.   Elevators out of order,

                    5.   Lobby floor not level, hole in lobby ceiling and 
                         north wall,

                    6.   Roach infestation,

                    7.   Laundry room equipment out of order,

                    8.   Ventilation system obstructed,

                    9.   Exposed wiring above entrance canopy,

                   10.   Cracks in concrete opposite building entrance and 
                         throughout north and south rear yard; debris 
                         accumulation in north yard

                   11.   Public hallway tiles missing; chipped baseboard
                         tiles,

                   12.   Owner has denied access to Avenue X entrance gates,

                   13.   Parking lot gate unlocked and open to unauthorized 
                         access,
                   14.   Stairway walls dirty and in need of paint,

                   15.   Lack of regular building maintenance,

                   16.   Security service discontinued,

                   17.   Parking lot drain obstructed.

          The owner was served with a copy of the complaint and afforded an 
          opportunity to respond.

               The owner's managing agent filed a response on December 7, 
          1988.   It stated the following:

                    1.   A new intercom was installed in the building and 
                         the Managing Agent has addressed complaints 
                         relating to service,

                    2.   A building-wide questionnaire was circulated to the 
                         tenants to pinpoint which apartments had problems 
                         with the windows,







          GC 230097 RO; GB 210348 RT

                    3.   The majority of the roof leaks were traceable to 
                         one apartment.  The owner stated that it had been 
                         in contact with that tenant in an attempt to fix 
                         the problem,

                    4.   The elevator problems would be repaired,

                    5.   The lobby floor had been repaired,

                    6.   The laundry room equipment would be repaired by the 
                         company with whom the owner had a service contact,

                    7.   There is a contract with a licensed exterminator 
                         with regard to the roach problem,

                    8.   The owner would investigate the ventilator problem,
                         as well as the problems of the exposed wiring,      
                         concrete cracks and public hall tiles,
                              
                    9.   The rear yard exit gate is not a fire exit and is 
                         not a safety hazard to the tenants,

                   10.   A fence has been erected around the parking lot,

                   11.   The stairwells would be painted by the 
                         superintendent,

                   12.   Maintenance is performed in the building on a 
                         regular basis,

                   13.   The security guard service was supplied to the 
                         tenants on a temporary basis due to major 
                         construction being performed in the building.  The 
                         service was never meant to be permanent,

                   14.   The drain is no longer obstructed.

          The owner attached supporting documentation to the response.  This 
          documentation was offered to show that repairs were made, that the 
          building was being serviced or that the owner had service contracts 
          with companies.

               The owner filed four supplementary responses.  The first was 
          filed on December 22, 1988.  The owner stated that it had scheduled 
          appointments for window and intercom repair, that the roof would be 
          repaired at a later time, that the lobby, ventilation system, 
          stairwells and parking lot drain had been repaired, that the 
          concrete problem would be repaired in January, and reiterated that 
          the security service was hired on a temporary basis.  The owner 
          again attached documentation to support it's claims to the 
          response.













          GC 230097 RO; GB 210348 RT

               The second supplementary response was filed on January 24, 
          1989.  The owner stated that the roof leaks in apartments 707, 722 
          and 723 had been repaired and that 11 apartments had been serviced 
          for window repairs.  Invoices for the work allegedly done were 
          attached to the response.

               The third supplementary response was filed on February 16, 
          1989.  The owner stated that the laundry room had been painted and 
          plastered, that the light fixture at the building entrance had been 
          repaired, that 13 apartments had received intercom servicing, that 
          12 apartments had their windows serviced, and that the elevator was 
          in the process of being upgraded.  The owner attached additional 
          invoices as well as a letter from a licensed exterminator  
          attesting to the fact that exterminating services were offered to 
          the tenants on a regular basis.

               The final response, dated June 29, 1989, was notification, by 
          the managing agent, that the elevator upgrading was complete.  The 
          owner submitted proof of payment to the construction company.
           
               The Administrator ordered a physical inspection of the subject 
          building.  The initial inspection was conducted on June 20, 1989.  
          The building was reinspected on May 7, 1990 and again on September 
          10, 1991.  The inspector reported the following:

                    1.   Lobby floor buckled and uneven,

                    2,   Cracked concrete found in north and south rear 
                         yards.

          The following services were found to have been maintained:

                    1.   Elevator,

                    2.   Janitor service building-wide,

                    3.   Laundry room ceiling,

                    4.   Vestibule ceiling,

                    5.   Ventilation system,

                    6.   Main entrance wiring,

                    7.   Building-wide walls,

                    8.   Rear yard fence,

                    9.   Parking lot drain,

                   10.   Shrubbery grounds,







          GC 230097 RO; GB 210348 RT

                   11.   Laundry room washers and dryers.

               The Administrator was required to resolve the issue of whether 
          security guard service was a "required" service within the meaning 
          9 NYCRR 2520.6 (r) and 2523.4.  Accordingly, on April 25, 1990 a 
          notice was sent to the parties requesting production of a notarized 
          statement and supporting documentation in response to the following 
          questions:

                    1.   How many guards were provided and the work schedule 
                         they followed,

                    2.   What the guards' duties were and where they were 
                         stationed,

                    3.   A copy of any contract entered into with any 
                         security guard company and the name of said 
                         company,

                    4.   A copy of the cooperative offering plan for the 
                         subject building.

               The owner did not submit a response to the Administrator.  The 
          tenants' council submitted a response to the Administrator dated 
          June 4, 1990.  In that response the tenants stated that the 
          security guard service was provided beginning in 1986.  The service 
          was 8 hours per day, 5 days a week of 1 uniformed guard during the 
          hours of 6 PM to 2 AM.  The tenants further stated that the service 
          had been instituted due to their repeated complaints of poor 
          security.  The tenants stated that the owner discontinued the 
          service in the spring of 1988 and that the tenants protested this 
          action.  The owner then allegedly reinstituted the service in May 
          of 1988 with 2 guards being employed each day between the hours of 
          6 PM and 6 AM.  The service was allegedly discontinued for the 
          final time in October, 1988.  No copy of the offering plan was 
          provided.

               The Administrator issued the order here under review on 
          January 27, 1992.  The Administrator found that the lobby floor and 
          rear yard concrete were not being maintained.  Based on the 
          tenant's submission and the fact that the owner did not file a 
          response to the April 25, 1990 notice, the Administrator deemed the 
          owner to have admitted that security guard service was a required 
          service not being maintained.  Based on these three findings of 
          decreased services, the Administrator ordered a rent reduction of 
          an amount equal to the most recent guideline adjustment.  The rent 
          reduction was ordered effective December 1, 1988.
           
               Both the owner and tenants filed appeals from the order.
          The tenants state that the Administrator's order fails to address 
          certain items as stated in the complaint.  Specifically, the 
          tenants state that the order did not address the issues of the rear 












          GC 230097 RO; GB 210348 RT

          yard exit gate which has not been repaired by the owner thus 
          eliminating a fire exit.  Second, the tenants state that the 
          building parking lot was formerly locked by a gate.  The lot is no 
          longer locked thereby exposing the lot to unauthorized access and 
          the fence at the rear of the lot has been taken down thereby 
          exposing the rear yard to vehicle transit and damage.  Finally, the 
          tenants state that, with regard to the rear yard, the order here 
          under review did not address the issues of accumulated debris.  The 
          debris in question are two steel dumpsters not utilized for garbage 
          removal.
               
               The petition of the owner, as represented by counsel, states 
          that the Administrator's order was served on the improper managing 
          agent.  The petition also states that "Services cited on Order were 
          not decreased."  The petitioner states that additional 
          documentation would be forthcoming, yet no such documentation has 
          been received.  The tenants' council filed a response on May 4, 
          1992 wherein the tenants stated that the owner's petition should be 
          dismissed for the following reasons:

                    1.   The original complaint named both the cooperative 
                         and the managing agent,

                    2.   The tenants notified the DHCR of the management 
                         change by letter in 1990,

                    3.   The owner (i.e. the coop corporation) was served 
                         with a copy of the complaint,

                    4.   The petition is not timely filed.
           
               After careful review of the evidence in the record, the 
          Commissioner is of the opinion that the petition of the owner 
          should be denied but that the petition of the tenants should be 
          granted in part and the order here under review should be affirmed 
          as modified herein.

               The Commissioner considers the owner's petition to be without 
          merit.  Regardless of whether the owner was properly served with 
          the Administrator's order, the fact remains that a timely petition 
          for administrative review has been filed to challenge that order.  
          The filing of this petition preserved the owner's rights and, 
          indeed, the owner has not been prejudiced in any way.  The 
          statement that services have not been decreased is wholly 
          unsupported and at variance with the inspector's report.  It is 
          settled that the report of a DHCR inspector is entitled to more 
          probative weight than the unsupported allegations of a party to the 
          proceeding.

               With regard to the tenants' petition, however, the 
          Commissioner notes that the reports of the DHCR inspectors 
          confirmed that the Avenue X rear yard exit gate was padlocked at 






          GC 230097 RO; GB 210348 RT

          the time of the inspection and that the East 2nd Street parking lot 
          was not locked and did not have a lock.  The Commissioner further 
          notes that a Notice of Opportunity to Present Information was sent 
          to the parties on October 26, 1992.  Both parties responded to the 
          notice and stated that there is no longer access to the street from 
          the Avenue X exit and that the parking lot gate remains unlocked.  
          Accordingly, the Commissioner is of the opinion that the tenants 
          are correct in stating that the Administrator's order should have 
          included both of these items in the list of services not being 
          maintained.  The order is hereby modified to include the failure of 
          the owner to afford the tenants access to Avenue X through the rear 
          yard exit, and the failure of the owner to properly lock the 
          parking lot gate.  In order for the rent to be restored, the owner 
          must demonstrate that these services have been restored, in 
          addition to repairing the lobby floor and cracked concrete in the 
          rear yards.

               The Commissioner notes that, with regard to the issue of 
          debris in the rear yard, the physical inspections revealed that the 
          condition did not exist at the time of the inspections.

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

               ORDERED, that the owner's petition for administrative review 
          be, and the same hereby is, denied and it is further           

               ORDERED, that the tenant's petition for administrative review 
          be, and the same hereby is granted in part, and the order here 
          under review be, and the same hereby is, modified in accordance 
          with this order and opinion.

          ISSUED:



                                                                             
                                             JOSEPH A. D'AGOSTA
                                             Deputy Commissioner
                                   






    

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