HC430193RO
                                  STATE OF NEW YORK
                      DIVISION OF HOUSING AND COMMUNITY RENEWAL
                            OFFICE OF RENT ADMINISTRATION
                                     GERTZ PLAZA
                               92-31 UNION HALL STREET
                                  JAMAICA, NY 11433




          ------------------------------------x        SJR No.: 7435
          IN THE MATTER OF THE ADMINISTRATIVE          ADMINISTRATIVE REVIEW
          APPEAL OF                                    DOCKET NO.:
                                                       HC430193RO
               East 11th Street Assoc.,

                                                       RENT ADMINISTRATOR'S
                                                       DOCKET NO.:
                                                       ED430058B
                                   PETITIONER
          ------------------------------------x

          ORDER AND OPINION GRANTING, IN PART, PETITION FOR ADMINISTRATIVE
              REVIEW, REVOKING IN PART, RENT ADMINISTRATOR'S ORDER, AND
                REMANDING, IN PART, PROCEEDINGS TO RENT ADMINISTRATOR
                              FOR FURTHER CONSIDERATION

          The above-named owner filed a timely petition for administrative 
          review of an order issued on February 9, 1993, concerning the 
          housing accommodations known as 318 East 11th Street, New York,
          New York, wherein the Rent Administrator determined the tenants' 
          complaint of a decrease in building-wide services.

          Subsequent thereto, the owner filed a petition in Supreme Court 
          pursuant to Article 78 of the Civil Practice Law and Rules in the 
          nature of a deemed denial.  The matter was remitted to the 
          Division, on consent, for an expeditious determination of the 
          owner's administrative appeal.
           
          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.

          In April, 1990, the tenant(s) of Apartment 8 individually commenced 
          the proceedings by filing a complaint asserting that the owner had 
          failed to maintain certain services.  No other tenants joined in 
          the complaint, which was assigned ED430058B for case processing.

          In May 1990 the owner filed an answer denying the allegations set 
          forth in the complaint, or otherwise asserting that all required 
          conditions had been or would be corrected.

          In June 1990, the tenant of Apartment 12 also filed a complaint.  
          Only the tenant signed the complaint.  While the box for a 












          HC430193RO

          supplemental signature and affirmation form was checked, no 
          supplemental signature and affirmation form was included with the 
          tenant's statement.  Instead, the complaining tenant indicated that 
          one would be sent under separate cover.  The complaint was assigned 
          EF430080B for case processing.  The complaint was served on the 
          owner on July 11, 1990.  While the supplemental signature and 
          affirmation form appears to have been submitted to the Rent 
          Administrator shortly thereafter stamped received on July 27, 1990, 
          there is no evidence that it was served on the owner.  The owner 
          responded to the complaint, as before, denying the allegations or 
          otherwise asserting that all required conditions had been or would 
          be corrected.

          In both cases, the owner noted a change of address for the owner's 
          managing agent.

          On April 9, 1991, the owner advised the Rent Administrator that the 
          owner and the tenant of Apartment 12, represented by their 
          respective attorneys, had resolved Housing Court proceedings 
          between them by a Stipulation of Settlement dated April 8, 1991, 
          signed by their respective attorneys, and which was so ordered by 
          the Court.  The Stipulation provided, in pertinent part, that: 

               Respondent [tenant] is hereby granted a twenty-five 
               percent (25%) abatement or $1850.00 reducing amount owed 
               to $5550.00.  The abatement in settlement of all claims, 
               counterclaims, defenses raised by Respondent herein & at 
               DHCR to date.  Respondent hereby consents to withdraw his 
               pending complaints at DHCR with prejudice and that this 
               stipulation may be filed thereafter as notice of 
               discontinuance.  (21365HL,21191HL) as to services and 
               repairs....Notwithstanding the above tenant alleges the 
               following need for repairs and landlord consents to 
               inspect and as necessary to repair:

               1)   Tenant alleges leaks from outside bricks.

                    *          *          *          *  

               5)   Clean halls at least once a week and remove 
                    garbage that may appear in front of building.

               Tenant alleges no other repairs....Repairs to be 
               completed within thirty (30) days....

          On June 3, 1991, the Rent Administrator ordered consolidation of 
          both cases under ED430058B.  The order was mailed to the 
          complaining tenants (Apartments 8 and 12) and eleven other tenants 
          whose signatures were listed on the photocopy of the supplemental 
          signature and affirmation form.

          One of the signatures on this supplemental signature and 






          HC430193RO

          affirmation form appears to be the signature of a rent controlled 
          tenant.

          Both the complaints asserted, in pertinent part, that the halls 
          were rarely clean and were left unswept for months, that the 
          exterior brick work was neglected, that there was loss of mortar 
          between bricks on the east outer wall which was unpointed, and that 
          there were water leaks.

          On August 29, 1991 the DHCR conducted an inspection of the subject 
          premises.  In pertinent part, the DHCR inspector reported that the 
          interior public areas were in need of washing, defective painting 
          on the east side of the building, bricks cemented over in various 
          areas and cement falling off.  The owner was advised of the results 
          of the inspection, and was requested to provide additional 
          information.  The request, sent to the owner's managing agent's 
          prior address, was returned as not forwardable.

          On March 18, 1992 the tenant of Apartment 12 submitted a voluminous 
          reply disputing the owner's claim of repairs.  Among other things, 
          the tenant included Housing Court papers that the tenant had 
          petitioned in Housing Court for an Order to Show Cause seeking to 
          construe and modify this Stipulation of Settlement with the owner, 
          so as to repudiate that part wherein the tenant consented to 
          withdraw the pending services complaints at DHCR, and requesting 
          that the matter be set down for a trial due to the owner's alleged 
          failure to comply with the terms of the Stipulation.  However, the 
          tenant did not indicate whether or not the proceedings initiated 
          per the Order to Show Cause had been resolved.  New allegations 
          made by the tenant were not considered, in light of the fact that 
          an inspection had already been conducted.

          In an answer to a second request for additional information, dated 
          May 12, 1992, mailed to the owner's managing agent at the correct 
          address, the owner responded, in substance, that services were 
          provided and that all repairs were completed.  Reinspection on 
          October 9, 1992, showed that hallways were dirty and that there was 
          mildew on the public hallway and ceiling area between the fifth and 
          sixth floor landings.

          On February 3, 1993, the Rent Administrator issued an order 
          reducing the rent for stabilized and controlled tenants based on 
          the results of the last inspection.



          In the petition for administrative review, the owner requests that 
          the Rent Administrator's order under ED430058B be revoked, alleging 
          various procedural and substantive irregularities.

          The owner contends it never received and was not properly served a 
          copy of the rent reduction order, which would presumably have had 












          HC430193RO

          annexed to it a list of all tenants affected by the order.

          The owner also asserts that only the tenants of Apartments 8 and 12 
          signed their respective complaints, and that there were no other 
          signatures, at least as far as those documents served upon and 
          received by the owner.  The owner contends that no supplemental 
          signature and affirmation form was received by the owner and, that 
          it obtained the order under ED430058B only because one of the 
          tenants presented the order to the owner.  The owner also states a 
          belief that some of the signatures were fraudulent or were obtained 
          under false pretenses.  

          The owner further contends that the tenant of Apartment 12 had 
          agreed to withdraw his services complaint per the Housing Court 
          Stipulation of Settlement, so ordered by the Court.

          In addition to the above, the owner argues that the Rent 
          Administrator's findings were improper, citing various alternative 
          grounds.  The owner contends that the cleaning of hallways and 
          removal of mildew are part of routine maintenance and not required 
          services upon which a rent reduction may be based, that the owner 
          was not sufficiently apprised of these conditions in the complaint 
          or apprised that the items were cited in an inspection, and that 
          only a few tenants were affected by the mildew condition and/or 
          should have received a rent reduction for it.

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

          Only those rent stabilized tenants who sign a complaint of 
          decreased services may receive a rent reduction based on a finding 
          of a reduction of building-wide services.  Rent controlled tenants 
          may receive a rent reduction predicated on a reduction of building- 
          wide services, if at least one rent controlled tenant signed.

          To the extent that the tenants of Apartment 8 and 12 signed their 
          complaints, and as these complaints were served on the owner, who 
          filed answers to the complaints, there was adequate notice to 
          permit further processing of the complaints as to them.  The 
          conditions cited in the complaint gave the owner sufficient notice 
          of defective conditions, cited in the second inspection report, 
          which provided the basis for the rent reduction.  The conditions 
          cited in the rent reduction order were directly related or resulted 
          from the problems cited in the tenants' complaints.  Additionally, 
          the complaints were investigated in accordance with the DHCR's 
          procedures.  

          However, the record does not establish that the owner was served 
          the supplemental signature and affirmation form.  The tenant in 






          HC430193RO

          Apartment 12 filed the complaint individually and indicated that 
          the supplemental signature and affirmation form would be submitted 
          under separate cover.  The case files contain only a photocopy of 
          the supplemental signature and affirmation form and there is no 
          record of a cover notice or Rent Examiner's notation that the form 
          was served on the owner in either proceeding.

          In that the owner had notice of the complaint by the tenant of 
          Apartment 8, that the conditions cited therein were confirmed by 
          inspections, and that the conditions confirmed upon inspection were 
          proximately related to the complaint, the Rent Administrator's 
          order with respect to Apartment 8 is affirmed.

          To the extent that there is insufficient evidence to establish that 
          the owner was properly served the supplemental signature and 
          affirmation form, the rent reductions were invalid as to those 
          tenants whose signatures were apparently entered on the the 
          supplemental signature and affirmation form but not on the 
          complaint, and must be revoked, and the full legal regulated rent 
          reinstated.

          However, in light of the fact that the record of the proceedings 
          does contain a copy of the supplemental signature and affirmation 
          form, apparently signed by various tenants, they are entitled to 
          consideration by the Rent Administrator as to whether their 
          signatures were valid and were properly submitted and served, so as 
          to warrant action in the complaint as to them.  

          Consequently, the proceedings should be remanded to the Rent 
          Administrator for further consideration of the complaint and the 
          record, as to the rent stabilized and rent controlled tenants that 
          signed the form and to the remaining rent controlled tenants.  The 
          Rent Administrator shall also consider the owner's allegations that 
          some, if not all, of the signatures may be false or were obtained 
          under false pretenses.  The tenants whose signatures are found to 
          be true, but who may assert they did not knowingly sign the 
          complaint should be afforded the opportunity to withdraw from the 
          proceedings.  If any signatures are found to be false, no further 
          consideration shall be warranted as to them in these proceedings.  
          The tenants affected are from Apartments 1, 2, 4, 5, 6, 7, 9, 10, 
          11, 13, 14, 15 and 16.

          A copy of the Rent Administrator's order, as well as of the 
          supplemental signature and affirmation form shall be annexed with 
          and fully made a part of this order.  Unless it is established on 
          remand that the owner was properly served the supplemental 
          signature and affirmation form, the issue date of this order shall 
          serve as the basis for determining the effective date of the rent 
          reduction for the conditions that have not been corrected.

          The owner established below that the tenant of Apartment 12 had 
          stipulated in Court to withdraw DHCR services complaints.  The 












          HC430193RO

          Stipulation set forth, in pertinent part, that "this [rent] 
          abatement is in settlement of all claims, counterclaims, and 
          defenses raised by Respondent [tenant] herein and at DHCR to 
          date...." 

          The Rent Administrator's determination that the provisions of the 
          Stipulation, prepared by the parties' attorneys, were inclusive, 
          and also contemplated the service complaints, was reasonable and 
          should be affirmed.  The tenant stated below that he had petitioned 
          in Housing Court for an Order to Show Cause specifying further 
          action in connection with the Stipulation of Settlement but the 
          record does not show the outcome of those proceedings.  Since it 
          appears that the Stipulation remains in full force and effect, the 
          rent reduction is also revoked and the legal regulated rent is 
          reinstated as to the tenant of Apartment 12.  If it is established 
          on remand that the Stipulation of Settlement became void or 
          voidable, the Rent Administrator may consider reinstatement of the 
          rent reduction for this tenant, in whole or in part, as the facts 
          may warrant.

          This order is without prejudice to the tenants' right to apply for 
          a rent reduction based on current services decreases.

          The reduced rent will be restored as to the tenant of Apartment 8 
          only when an owner's application to restore rent is filed and 
          granted.  The owner is advised to file an application if the facts 
          so warrant.

          The collection of any rent arrears due the owner as a result of 
          this determination is stayed pending issuance of a new order by the 
          Rent Administrator on remand.









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

          ORDERED, that the owner's petition for administrative review is 
          granted, in part, to the extent that the Rent Administrator's rent 
          reduction order be revoked and the proceedings remanded for further 
          consideration as to the tenants in Apartments 1, 2, 4, 5, 6, 7, 9, 
          10, 11, 12, 13, 14, 15, 16, in accordance with the above.  It is 
          further

          ORDERED, that the Rent Administrator's order be and the same hereby 
          is affirmed as to the tenant of Apartment 8.






          HC430193RO



                


          ISSUED:






                                                                     
                                             JOSEPH A. D'AGOSTA
                                             Deputy Commissioner  






    

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