HH630201RO
                                  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.:  7388
          IN THE MATTER OF THE ADMINISTRATIVE
          APPEAL OF                                    ADMINISTRATIVE REVIEW
                                                       DOCKET NO.:
                                                       HH630201RO
               RESIDENTIAL MANAGEMENT,
                                                       RENT ADMINISTRATOR'S
                                                       DOCKET NO.:
                                   PETITIONER          FA630034RP
          ----------------------------------x     


            ORDER AND OPINION GRANTING PETITION FOR ADMINISTRATIVE REVIEW
                     IN PART AND MODIFYING ADMINISTRATOR'S ORDER


          On August 20, 1993, the above-named petitioner-owner filed a 
          petition for administrative review (PAR) of an order issued on July 
          16, 1993, by the Rent Administrator, concerning the housing accom- 
          modation known as 1001 Grand Concourse, Various Apartments, Bronx, 
          New York, wherein the Administrator determined that doorman 
          services were not being provided, reduced the rent for rent 
          controlled and rent stabilized tenants and directed a restoration 
          of services.

          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 "deemed denial" of its administrative appeal be 
          annulled.  The proceeding was thereafter remitted to the Division 
          pursuant to Court order 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 administrative appeal.

          This proceeding was commenced by the filing by the tenants of a 
          complaint of a decrease in services dated February 18, 1988.  An 
          inspection by a Division of Housing and Community Renewal (DHCR) 
          staff inspector revealed, among other things, that doorman service 
          was being provided, resulting in the issuance of the Administra- 
          tor's order on November 22, 1988, denying the tenants' complaint 
          (Docket No. CB630088B).












          HH630201RO




          An administrative appeal of that order resulted in the issuance of 
          an order and opinion remanding the proceeding to the Administrator 
          for reconsideration (Docket No. CL610343RT).  Upon remand, a 
          hearing was conducted and the Administrator issued the order herein 
          appealed under Docket No. FA630034RP on July 16, 1993, wherein the 
          Administrator determined that while the required number of hours of 
          doorman service are being provided there is nevertheless a decrease 
          in services in that the doormen do not stay at the door and do not 
          wear uniforms.  

          In the PAR, the owner states that a finding of a decrease in 
          service cannot be based on the fact that doormen do not wear 
          uniforms as uniforms are not a required service and there has been 
          no showing that the lack of a uniform impeded the ability of the 
          doormen to perform their duties.  In addition, the owner contends 
          that the Administrator should have dismissed the complaint because 
          the tenants waited until 1988 to file a complaint concerning 
          doorman uniforms, which allegedly have not been worn since 1984, 
          that the Administrator's finding is contrary to prior inspections 
          and prior orders of the DHCR which found that doorman service was 
          properly provided, that the Administrator's finding of sporadic 
          service was improperly vague, and that the hearing officer's 
          determination was against the weight of the evidence.  The owner 
          further states that it was improper for the rent reduction to be 
          retroactive to the date of the original complaint, in that there is 
          an intervening Administrator's order, issued June 20, 1989, which 
          was never challenged, and which found that doorman service was 
          being properly provided.  The owner also contends that only those 
          tenants who joined in the PAR should qualify for a rent reduction, 
          as the finding of a decrease in services occurred after the filing 
          of an administrative appeal to reverse an earlier order denying the 
          tenants' complaint, and that it was improper, on remand, for the 
          Administrator to expand the complaint to include the allegation 
          regarding uniforms which was never raised in the complaint below.

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

          The Commissioner's prior order under Docket No. CL610343RT remanded 
          the proceeding to the Administrator for consideration of what 
          constituted base date level of doorman service.  It was proper for 
          the Administrator to consider as part of the remand, all the 
          reasons that doorman service may be inadequate.  












          HH630201RO


          The petitioner is incorrect in its contention that the uniform 
          issue was not raised in the original complaint.  The record before 
          the Administrator in that proceeding contains a response, filed on 
          September 7, 1988, which stated that doormen do not wear the 
          uniforms which were issued to them.  It was proper for the Adminis- 
          trator to find after a hearing, that the doorman service was 
          inadequate because they do not stay at their posts and do not wear 
          uniforms as they had in the past.  Although the owner contends that 
          uniforms are not an obligation of the owner, the owner submits in 
          the record below that new uniforms were ordered in 1988, "in order 
          that better service can be provided."  The record establishes that 
          uniforms were intended as part of the daily routine of the doormen 
          and had been up to 1984.  

          Regarding the owner's defense of laches, the applicable statutes do 
          not prohibit filing of a complaint of decrease in services regard- 
          less of when such decrease arises.  Notwithstanding this, the 
          record reflects that in 1988, the year in which the tenants filed 
          their complaint, the owner provided new uniforms for the doormen 
          which it has been shown, were not worn.  

          The owner is correct that there was an order issued by the Adminis- 
          trator on June 30, 1989, which held that doorman service was 
          adequate.  The order was issued in response to a separate complaint 
          of a decrease in services.  The Commissioner rejects the owner's 
          contention that such an order contradicts the order herein appealed 
          or renders it of no effect.  That order was based on an inspection 
          which found, among other things, that the doorman was in uniform 
          and at his post.  Such an order, though not challenged in an 
          administrative appeal, does not preclude a contrary finding based 
          on a prior or subsequent complaint where such finding was properly 
          based on the evidence of record including a hearing.

          The Commissioner rejects the owner's contention that the Adminis- 
          trator's finding of sporadic service was vague.  The evidence below 
          which included a hearing in which both sides participated, supports 
          the finding that the doormen do not stay at the door, but rather 
          sometimes sit on the fence across the street, and do not wear their 
          uniforms.  The Administrator's characterization of these services 
          as sporadic is sufficient notice of the existing condition.

          The Commissioner concurs with the owner's contention that the 
          effective date of the rent reduction should not be retroactive to 
          the date of service of the original complaint.






          While the Administrator's order is based on a complaint filed on   












          HH630201RO

          February 18, 1988, and served on the owner on April 11, 1988, it is 
          not appropriate for the order to have the effective dates given.  
          The first notice of the intent to reconsider was first given in the 
          Commissioner's order issued on January 18, 1991, remanding the 
          proceeding to the Administrator.  Accordingly the effective dates 
          are hereby determined to be August 1, 1991, for rent stabilized 
          tenants and August 1, 1993, for rent controlled tenants, which 
          correspond to the date of service of notice of the reopened 
          proceeding and to the date of issuance of the order herein under 
          review respectively.  Any rent arrears due as a result of this 
          order are payable monthly in the amount of the monthly reduction 
          granted by the rent reduction order until such arrears are paid in 
          full.

          The Commissioner rejects the owner's contention that only the 
          tenants who signed the previous PAR, which resulted in the order of 
          remand, can be affected by the Administrator's order.  The PAR was 
          signed by the tenant in the capacity of an authorized tenant 
          representative.  The Order and Opinion determining that PAR treated 
          it as an administrative appeal by various tenants.


          THEREFORE, in accordance with the Rent Stabilization Law and Code, 
          the City Rent Law, Rent and Eviction Regulations, and the Emergency 
          Tenant Protection Act of 1974, 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, modified in accordance with this Order and Opinion, and 
          as so modified, affirmed. 
           

          ISSUED:






                                                                                                                         
                                                       LULA M. ANDERSON   
                                                       Deputy Commissioner



    

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