DC130089RO

                                  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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          IN THE MATTER OF THE ADMINISTRATIVE     ADMINISTRATIVE REVIEW
          APPEAL OF                               DOCKET NO.: DC130089RO
                                                  
          VISUTTON MANAGEMENT/                    RENT
          ANITA OWNER'S INC.                      ADMINISTRATOR'S DOCKET 
                                                  NO.: BI110068B
                                  PETITIONER            
          ----------------------------------x


            ORDER AND OPINION GRANTING PETITION FOR ADMINISTRATIVE REVIEW
              IN PART, MODIFYING RENT ADMINISTRATOR'S ORDER AND REMANDING    
                         PROCEEDING TO RENT ADMINISTRATOR

               On March 3, 1989 the above named petitioner-owner filed a 
          Petition for Administrative Review against an order of the Rent 
          Administrator issued February 14, 1989. The order concerned various 
          housing accommodations located at 99-40 63rd Road, Rego Park, N.Y.  
          The Administrator directed restoration of services and ordered a 
          rent reduction for failure to maintain required services.  

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

               This proceeding was commenced on September 30, 1987 when 47 of 
          the 185 tenants joined in filing a Statement of Complaint of 
          Decrease in Building-Wide Services wherein they alleged, in 
          substance, that the owner was not maintaining certain required 
          services including peeling paint and plaster in the public areas, 
          leaking roof, infestation of roaches and water bugs, garbage 
          accumulation throughout the public areas, defective elevator, 
          graffiti in elevator, inoperative lobby side entrance door locks, 
          lobby furniture removed and never replaced, and missing names from 
          the bell and buzzer system and mailboxes.

               The owner was served with a copy of the complaint and afforded 
          an opportunity to respond. The owner filed a response on September 
          30, 1988 and stated, in substance, that the conditions stated in 
          the complaint did not exist or that repairs had been made.  The 
          Commissioner notes that the owner specifically denied that lobby 
          furniture was a base date service required to be maintained.
           
               The Administrator ordered a physical inspection of the subject 












          DC130089RO

          apartment.  The inspection was conducted on November 7, 1988 and 
          revealed the following:

                    1.   Peeling paint and plaster in public areas due to 
                         roof water seepage leaks,

                    2.   Wall paper in public areas is torn and ripped and 
                         exit lights were off,

                    3.   Evidence of vermin accumulation and the incinerator 
                         rooms are filled with garbage accumulation,

                    4.   Elevator fans inoperative and there is evidence of 
                         graffiti on elevator doors,

                    5.   Lobby side entrance door locks inoperative,

                    6.   Lobby furniture removed by owner and never 
                         replaced,

                    7.   Evidence of missing names on bell and buzzer system 
                         and over mailboxes.

          Other services were found to have been maintained.

               The Administrator issued the order here under review on 
          February 14, 1989 and ordered a reduction of the stabilized rents 
          based on the report of the inspector.

               On appeal the owner states that it purchased the building in 
          August, 1988, that it was not made aware of the complaint by the 
          prior owner, that, when it was made aware of the complaint, it 
          immediately answered and proceeded to make extensive repairs, that 
          it should not be responsible for any rent reduction preceding the 
          time it took ownership of the building, that the roof was repaired, 
          that the public areas were completely painted and plastered, that 
          a professional exterminator is employed and visits the building 
          twice a month, that garbage is removed on a daily basis, that the 
          elevator fans operate properly, that the elevator graffiti has been 
          removed, that the lobby door is properly locked, that the lobby 
          furniture was never a service required to be provided, and that any 
          lack of tenant names on the bell and buzzer system or mailboxes are 
          due to vandalism.  The petition was served on the tenants on May 
          10, 1989. 

               Various tenants filed responses to the petition and stated, in 
          substance, that the owner had not restored services and that the 
          order here under review should be affirmed.
           
               After careful review of the evidence in the record, the 
          Commissioner is of the opinion that the petition should be granted 
          in part and the order here under review should be affirmed as 






          DC130089RO

          modified herein except with regard to the issue of lobby furniture.

               With regard to all issues except the  wallpaper, exit lights, 
          elevator and lobby furniture, the Commissioner notes that  pursuant 
          to Section 2523.4 of the Rent Stabilization Code, the DHCR is 
          mandated to order a rent reduction, upon application by a tenant, 
          based on a finding of failure to maintain required services. 
          Repairs and maintenance are within the statutory definition of 
          required services.  The Commissioner finds that the Administrator 
          properly based this determination on the record including the 
          report of the on-site physical inspection conducted on November 7, 
          1988 by a DHCR employee who is neither a party to this proceeding 
          or an adversary.  The owner has not offered any evidence to rebut 
          the inspector's report regarding all but the three conditions set 
          forth above.

               With regard to the wallpaper and exit lights, the Commissioner 
          has reviewed the complaint and finds that the tenants did not 
          complain about these conditions.  Due process requires that an 
          owner be notified of the services not being maintained so that it 
          may have an opportunity to investigate and correct any 
          deficiencies.  Since the Administrator ordered a rent reduction, in 
          part, based on conditions that were not cited by the tenants, the 
          findings regarding the wallpaper and exit lights are revoked.

               With regard to the elevators the Commissioner acknowledges 
          that the enforcement of applicable standards regarding elevator 
          operation and safety is under the jurisdiction of the New York City 
          Department of Buildings, which has long established, comprehensive 
          procedures and inspection programs in place.  The staff engaged in 
          carrying out these programs has the necessary technical expertise 
          to conduct periodic inspections; to interpret and apply relevant 
          codes, regulations and industry standards and to issue violations.  
          Further, in view of the City's greater experience with elevator 
          enforcement, the City is in a better position that the DHCR to 
          determine appropriate performance standards and ancillary equipment 
          for elevators of varying age and manufacture.

               The Commissioner notes that a search of the Department of 
          Building records has revealed that no violations regarding elevator 
          operation were issued while the complaint was pending before the 
          Administrator.  Therefore, the Commissioner finds that sufficient 
          evidence does not exist to support the Administrator's finding 
          regarding the elevator.  This finding must, therefore, also be 
          revoked.  

               Finally, with regard to the lobby furniture reported to be 
          missing, the record reveals that the Administrator failed to 
          investigate whether or not lobby furniture is a required base date 
          service despite the fact that the owner raised the issue in the 
          response described above.  Instead, the Administrator instructed 
          the inspector to investigate whether the furniture had been removed 












          DC130089RO

          and, if so, when the owner did so.  The inspector reported that 
          "There is no lobby furniture in either building lobby."  This 
          report was the sole basis for the Administrator's finding.

               The Commissioner is of the opinion that further investigation 
          is required to determine if the owner is required to maintain lobby 
          furniture.  Accordingly, this proceeding is remanded to the 
          Administrator for further processing consistent with this order and 
          opinion, including the holding of a hearing if the facts so warrant 
          on the issue of the nature and extent of lobby furniture provided 
          on the applicable base date.  On remand, the Administrator should 
          also determine whether this service, if required, has been restored 
          and, if so, order rent restoration. 

               The Commissioner notes that the owner's rent restoration 
          application (Docket No. DC130030OR) has been granted.
              
               The order here under review which ordered a rent reduction for 
          the rent stabilized tenants who joined in the filing of the
          complaint is affirmed as modified herein.  The automatic stay of 
          the retroactive rent abatement that resulted by the filing of this 
          petition is vacated upon issuance of this order and opinion.
             
               THEREFORE, pursuant to the Rent Stabilization Law and Code it 
          is 

               ORDERED, that this petition be, and the same hereby is, 
          granted in part, and that the Rent Administrator's order be, and 
          the same hereby is, affirmed as modified herein with regard to all 
          issues other than whether or not the owner is required to maintain 
          lobby furniture and it is further.

               ORDERED, that this proceeding be, and the same hereby is, 
          remanded to the Rent Administrator for further processing 
          consistent with this order and opinion.

          ISSUED:



                                                                             
                                             JOSEPH A. D'AGOSTA
                                             Deputy Commissioner
                                   
    

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