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   S.J.R. No. 7198
                                                  ADMINISTRATIVE REVIEW
          IN THE MATTER OF THE ADMINISTRATIVE     DOCKET NO.:HD130047RO
          APPEAL OF

          Leemar Management Corp.

                                                  RENT ADMINISTRATOR'S
                               PETITIONER         DOCKET NO: EA130021RP
                                                             (QCS000325OM)
          ------------------------------------X


          ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW

          On April 16, 1993, the above-named petitioner-owner filed a 
          Petition for Administrative Review (PAR) against an order issued on 
          March 16, 1993 by the Rent Administrator (Gertz Plaza) concerning 
          the housing accommodations known as 68-64 Yellowstone Boulevard, 
          Forest Hills, New York, various apartments, wherein the 
          Administrator revoked the rent increase granted on September 18, 
          1986 under Docket No. QCS 000325OM.

          Subsequent thereto, the owner filed a petition in the  Supreme 
          Court pursuant to Article 78 of the Civil Practice Law and Rules 
          requesting that the Court direct the Division to determine its 
          Administrative Appeal. Pursuant to a court order dated December 21, 
          1993 the proceeding was remitted to the Division for an expeditious 
          determination of the owner's Administrative Appeal.

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

          The owner initiated the instant proceeding by filing an application 
          for a major capital improvement (MCI) rent increase in November 
          1984 predicated on the installation of a new roof. Said application 
          was granted by the Rent Administrator on September 18, 1986 under 
          Docket No. QCS 000325OM and rent increase adjustments were 
          authorized for the installation of the new roof.


















          ADMIN REV. DOCKET NO. HD130047RO


          Several tenants (44) filed Administrative Appeals against the 
          Administrator's order (Docket No. QCS 000325OM) and on December 19, 
          1989 the Commissioner issued an order and opinion under Docket Nos. 
          AJ120200RT et al remanding the proceeding to the Administrator for 
          further processing in order to resolve the issue as to the adequacy 
          and effectiveness of the work performed.

          Upon the remand, a physical inspection was conducted of the subject 
          premises by Division personnel during April 1990. Said inspection 
          reported the existence of water seepage/damage in the upper floor 
          side hallways, as well as water damage to the ceilings in Apts. 
          60A, 61A, 62A, 63A, 64A, and 62B. The report indicates that the 
          inspector was unable to tell if a complete new roof had been 
          installed or some new tar paper was laid over the existing roof 
          surface, which tar paper was patched in three areas; that flashing 
          was missing in various areas of the roof and parapet had air 
          pockets.

          By notice dated June 25, 1991, the owner was served with a copy of 
          the inspection report and directed to submit evidence that the 
          necessary repairs have been performed to correct those conditions 
          noted during the inspection conducted in April 1990.

          By letter dated July 15, 1991, the owner stated, among other 
          things, that the necessary repairs were performed to correct the 
          conditions reported in the Division's inspection report.

          On July 7 and 8, 1992, subsequent inspections were conducted of the 
          subject premises, the report of which disclosed that the parapet 
          wall in section A is bulged and the existence of water damage and 
          bulging in the upper floor side hallway for both sections A and B. 
          Of the eighteen apartments scheduled for inspection, five of six 
          previously inspected apartments (60A, 61A, 62A, 63A, and 62B) still 
          disclosed evidence of water seepage/damage. Six apartments (60B, 
          61B, 64B, 65B, 66B and 67B) not previously inspected also disclosed 
          evidence of water seepage/damage. Said report further stated that 
          the inspector was unable to obtain access to apartments: 64A, 65A, 
          66A, 68A, 63B, and 68B.

          On March 16, 1993 the Administrator issued the order appealed 
          herein (Docket No. EA130021RP) revoking the rent increase granted 
          under Docket No. QCS000325OM on grounds that the roof installation 
          was performed in an unworkmanlike manner as evidenced by continued 
          water seepage/damage, bubbling and peeling paint/plaster found in 
          the upper floor apartments and the hallways.



                                         [2]









          ADMIN REV. DOCKET NO. HD130047RO


          In this Petition for Administrative Review, the owner requests 
          revocation of the Administrator's order and contends, in substance, 
          that the roof work was completed in May 1984; that the gap of six 
          or eight years between the installation and the inspections is too 
          long and makes any report arbitrary and capricious as to the 
          condition of the roof in 1984; that if the Division had made timely 
          inspections, the MCI increase would have been granted; that the 
          roof work should not be considered as repairs since such work 
          consisted of cutting, flattening and sealing of bubbles/tarring the 
          roof/applying two-ply covering, 15 pounds of felt and asphalt; that 
          the April 1990 inspection report was inconclusive at best since 
          said report did not state that a new roof was not laid down and 
          accordingly, the Division must find that a new roof was installed; 
          that the issue turns on the alleged leakage and evidence of water 
          damage which the Division arbitrary assumed occurred due to defects 
          of the roof; that the alleged existence of water seepage/damage 
          does not necessarily mean it resulted from a defective roof since 
          evidence of such damage can also result from inadequate 
          waterproofing on the exterior walls or damage to plumbing pipes; 
          and that the owner has submitted documentation to the Division 
          evidencing that various repairs were attended to.

          Submitted with the petitions were copies of contracts and invoices 
          for work performed (plastering, painting, pointing, waterproofing, 
          sealing and repairing cracks) in and to exterior of several 
          apartments (A60, A61, A62, A63, A64, A66, A67, A68, B60, B63, B64, 
          B67 and B68).

          After a careful consideration of the entire record, the 
          Commissioner is of the opinion that this petition should be denied.  

          At the outset the Commissioner notes that when the matter was 
          originally before the  Rent Administrator, 59 tenants asserted that 
          the work was of poor quality and that leaks and water seepage 
          continued after the stated completion of the work; and that the 
          proceeding was properly remanded to the Rent Administrator for 
          further action since the Administrator had not adequately 
          investigated the tenants' complaints.

          The Commissioner further notes that the issue herein is not whether 
          a new roof was  laid down but rather whether the installation in 
          question was performed in such a workmanlike manner so that all 
          tenants benefited therefrom.



                                         [3]















          ADMIN REV. DOCKET NO. HD130047RO


          Although the owner was afforded adequate opportunity to correct the 
          conditions noted by the April 1990 inspection, reinspections 
          conducted in July 1992 confirmed the continued existence of water 
          seepage/damage in the upper floor hallways and in several 
          apartments. The fact that eleven out of a total of eighteen top 
          floor apartments showed signs of water seepage/damage upon 
          subsequent inspection is further evidence of a recurring problem of 
          water penetration. Whenever a new roof is replaced it is reasonable 
          to expect that the top floor apartments should enjoy the benefit of 
          an improvement that is free from exterior water seepage. It would 
          be inappropriate to approve an increase where, as in the case 
          herein, the record discloses that essential services particularly 
          relevant to the claimed improvement are not being maintained.

          The owner in its application for MCI increases certified to the 
          maintenance and continued maintenance of essential services. 
          Clearly the owner has not been maintaining services as far back as 
          1989 as evidenced by an inspection conducted of the subject 
          premises by the Attorney General's office on July 11, 1989.

          The record discloses that although the owner submitted several 
          copies of contracts/invoices as evidence that various repairs were 
          attended to, only six invoices from a painting company, L.A. 
          Painting Co., for plastering and painting were dated subsequent to 
          the inspections conducted in July 1992.

          Accordingly, the Administrator properly found that the roof 
          installation performed in 1984 and the repairs performed thereafter 
          were not performed in a workmanlike manner and were not all the 
          work necessary to keep the premises reasonably free from water 
          penetration from the roof and thus a rent increase is not warranted 
          under the applicable Code provisions and Regulations.

          THEREFORE, in accordance with the Rent Stabilization Law and Code 
          and the Rent and Eviction Regulations for New York City, it is

          ORDERED, that this petition be, and the same hereby is, denied; and 
          that the order of the Rent Administrator issued on March 16, 1993 
          revoking the rent increases previously granted be, and same hereby 
          is, affirmed.


          ISSUED:




                                                                          
                                                  JOSEPH A. D'AGOSTA
                                                  Deputy Commissioner


































































    

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