STATE OF NEW YORK
                            OFFICE OF RENT ADMINISTRATION
                                     GERTZ PLAZA
                               92-31 UNION HALL STREET
                                  JAMAICA, NY 11433

          APPEAL OF                                    DOCKET NO.: GG210154RO

                    Grace Duncan,
                                                       RENT ADMINISTRATOR'S
                                                       DOCKET NO.: FK210015S

                              FOR FURTHER CONSIDERATION

          The above-named owner filed a timely petition for administrative 
          review of an order issued on June 26, 1992, concerning the housing 
          accommodations known as 763 Lenox Road, Apartment 2R, Brooklyn, New 
          York, wherein the Rent Administrator determined the tenant's 
          complaint of decreased services.

          The Commissioner has reviewed all the evidence in the record and 
          has carefully considered that portion of the record relevant to the 
          issues raised by the petition.

          The tenant commenced this proceeding by filing a complaint 
          asserting that the owner had failed to maintain certain services in 
          the subject apartment.

          In an answer, the owner denied the allegations set forth in the 
          complaint or otherwise asserted that all required repairs had been 
          or will be completed.

          The DHCR conducted an inspection of the subject apartment that 
          confirmed certain conditions cited by the tenant.  The DHCR 
          inspector reported the evidence observed of roach and rodent 
          infestation, and that the new replacement patio door was drafty and 
          not weather stripped properly.


          The owner's attorney submitted a letter dated May 15, 1992, 
          addressing the tenant's contention that the owner would not permit 
          the tenant access to and use of the patio adjoining the apartment 
          even though the previous tenant had used it.  The letter stated 
          that "The subject apartment adjoins a terrace, which though not a 
          part of Apartment 2-R, was used by the previous owner as part of 
          said leasehold.  For all intents and purposes, however, the terrace 
          is really the top of a garage and clearly is not part of Apartment 

          The Rent Administrator directed restoration of these services and 
          ordered a rent reduction based on the results of the inspection, 
          and on the further finding that the owner's attorney's statement 
          regarding the patio/terrace constituted an acknowledgement of the 
          tenant's claim.

          In the petition for administrative review, the owner, by its 
          attorney, asserts that extermination services had been provided 
          only weeks prior to the inspection, and disputes the finding that 
          the replacement patio door permitted air seepage or needed 
          additional weather stripping.

          The owner also challenges the determination that the attorney's 
          statement below acknowledged that the tenant was entitled to access 
          to the patio/terrace.  The owner seeks to explain the statement 
          below, contending that the previous owner who had lived in the 
          apartment had access, but that such use did not establish it as a 
          base date service once the apartment was leased.  The owner further 
          asserts that no tenant was ever authorized to use the area.

          After careful consideration, the Commissioner is of the opinion 
          that the petition should be granted, in part, and that the 
          proceedings should be remanded to the Rent Administrator for 
          further consideration, as more fully set forth below. 

          While the Rent Administrator interpreted the attorney's statement 
          that the patio/terrace "was used by the previous owner as part of 
          said leasehold" to constitute an acknowledgement that the prior 
          owner allowed tenants to use the patio/terrace area, although it is 
          not part of the apartment that adjoins it, the owner's explanation 
          on appeal also offers a plausible alternative reading of the 
          attorney's statement below.  The record presented is not 
          sufficiently clear to serve as a predicate for a finding that the 
          prior owner allowed use of the patio/terrace area by tenants, which 
          the current owner is required to continue.

          Consequently, the question of whether the use of the patio/terrace 
          area is a service the owner is required to provide must be remanded 
          to the Rent Administrator for further consideration.

          On remand the parties shall be provided the opportunity to submit 
          additional information and to comment thereon.  If necessary for a 


          determination, a hearing may be held.

          In light of the above, a stay of the Rent Administrator's directive 
          that the owner restore this service is appropriate.    

          The owner does not establish any other basis for modifying or 
          revoking the Rent Administrator's order.  The inspection confirmed 
          the tenant's complaint of rodent infestation.  The extermination 
          services the owner asserts were performed prior to the inspection 
          do not appear to have been effective to eradicate the rodent 
          problem.  Also, the inspection results contradicted the owner's 
          assertion that the replacement patio door did not require 
          additional weather stripping to prevent drafts.

          Based on the record, a rent reduction was warranted pursuant to 
          Section 2523.4, which requires the DHCR to order a rent reduction, 
          upon application of a tenant, where it is found that the owner has  
          failed to maintain required services. 

          The automatic stay of the retroactive rent abatement that resulted 
          by the filing of the petition is vacated upon issuance of this 
          order and opinion.

          THEREFORE, in accordance with the Rent Stabilization Law and Code, 
          it is 

          ORDERED, that this petition be, and the same hereby, is granted in 
          part, to the extent of remanding the proceedings to ascertain if 
          use of the patio/terrace area was previously a service to the 
          tenants of the subject apartment, which the current owner is 
          required to provide.  A stay of the Rent Administrator's directive 
          to restore this service is also warranted.  In all other respects, 
          the Rent Administrator's order is hereby affirmed.       



                                             JOSEPH A. D'AGOSTA
                                             Deputy Commissioner  


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