HH420215RO
                                  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
          IN THE MATTER OF THE ADMINISTRATIVE          ADMINISTRATIVE REVIEW
          APPEAL OF                                    DOCKET NO.:
                                                       HH420215RO
                    28th Street Investors Co.,
                                                       RENT ADMINISTRATOR'S
                                                       DOCKET NO.:
                                                       FK420078OR
                                   PETITIONER
          ------------------------------------x


            ORDER AND OPINION GRANTING PETITION FOR ADMINISTRATIVE REVIEW

          On August 13, 1993, the above-named petitioner-owner filed a 
          petition for administrative review of an order issued on July 12, 
          1993 by the Rent Administrator, concerning the housing 
          accommodation known as 137-139 East 28 Street, Apt. 6A, New York, 
          N.Y., wherein the Administrator denied the owner's application to 
          restore the rent, which had been previously reduced under Docket 
          No. EK420436S.

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

          This proceeding was commenced by the filing by the owner of an 
          application to restore rent dated November 11, 1991.  In the 
          application the owner alleged that the tenant had, on at least two 
          occasions, refused access to the owner's contractor for the purpose 
          of making repairs of the conditions cited in the order.

          An inspection conducted by a DHCR staff inspector on June 10, 1993 
          revealed peeling paint and plaster on the kitchen ceiling and wall 
          and defective bathroom wall tile.  The Administrator thereafter on 
          July 12, 1993 issued an order denying the owner's application on 
          the basis that services had not been restored.




          In the PAR, the owner states that the Administrator's order 
          erroneously concludes that the owner's application to restore rent 












          HH420215RO

          was based on a restoration of services whereas the application to 
          restore rent was made by the owner on the ground that the tenant 
          has unreasonably prevented access for repairs.  The owner further 
          states that the tenant, on at least two occasions, has refused 
          access to the owner's contractor; that the owner continued to 
          attempt to schedule access after the application to restore rent 
          was filed but the tenant continued to refuse the owner's 
          contractor; that after the tenant filed a harassment complaint with 
          this Division's Enforcement Unit, the Division was also unable to 
          obtain the tenant's cooperation to complete repairs.

          After careful consideration, the Commissioner is of the opinion 
          that the petition should be granted.

          The Commissioner notes that by a previous order issued under Docket 
          No. FJ420229RO on May 17, 1994, the rent reduction relating to the 
          bathroom wall tiles was revoked.  Accordingly, the only condition 
          remaining in this administrative appeal relates to the kitchen 
          painting and plastering.

          The evidence of record discloses that the owner's rent restoration 
          application was not based on a restoration of services but on the 
          tenant's refusal to permit access to the owner to make repairs.  
          The owner documented the tenant's refusal on at least two occasions 
          after the rent reduction order was issued and before the 
          application to restore rent was filed.  It was therefore error for 
          the Administrator to schedule an inspection to determine whether 
          repairs had been made and thereafter issue an order finding that 
          services had not been restored.

          The record in this case is replete with statements and letters 
          alleging each party has obstructed repair efforts.  The Division's 
          records in the numerous other proceedings before this agency 
          involving this tenant and owner are likewise filled with identical 
          letters and documents which all together draw a detailed  picture 
          of a history of conflict between these parties.  The Commissioner 
          notes that counsel in this Division's Office of Enforcement was 
          also unable to solicit the tenant's cooperation to allow repairs to 
          be made as indicated by the numerous pieces of correspondence 
          between counsel and this tenant both in this record and in the 
          records of other proceedings.  It is especially noteworthy that 
          this tenant refused to allow repairs and/or inspection by this 
          Division in order that he could preserve the status quo and 
          thereby, pursue an action against the owner in Civil Court.




          In addition to the foregoing, the Commissioner notes that the 
          inspection in the proceeding under Docket No. EK420436S occurred on 
          August 28, 1991 and that the inspection in this case took place on 
          June 10, 1993.  The record reveals that there was an intervening 






          HH420215RO

          fire in the apartment above the subject apartment on October 26, 
          1992 that caused significant water damage to the tenant's 
          apartment.  Given this fact, the Commissioner is of the opinion 
          that the defect reported by the inspector relating to the kitchen 
          constitutes a new condition that was not the subject of the 
          original rent reduction order.  The evidence of record establishes 
          that any defects noted in the inspection of June 1993 would have to 
          be the subject of a new complaint.

          THEREFORE, in accordance with the provisions of the City Rent Law 
          and the Rent and Eviction Regulations, it is

          ORDERED, that the administrative appeal be, and the same hereby is, 
          granted, and that the Administrator's order be, and the same hereby 
          is, revoked, and that the rent be restored in the amount of $5.00 
          for the condition described as paint/plaster kitchen effective the 
          first rent payment due after July 12, 1993.
                     


          ISSUED:






                                                                     
                                             JOSEPH A. D'AGOSTA
                                             Deputy Commissioner  






    

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