HL130016RO
                                  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. 7447
          IN THE MATTER OF THE ADMINISTRATIVE          ADMINISTRATIVE REVIEW
          APPEAL OF                                    DOCKET NO.:
                                                       HL130016RO
                    Oregon Realty,
                                                       RENT ADMINISTRATOR'S
                                                       DOCKET NO.:
                                                       GD130024B
                                   PETITIONER
          ------------------------------------x


                    ORDER AND OPINION GRANTING, IN PART, PETITION
                              FOR ADMINISTRATIVE REVIEW

          The above-named owner filed a timely petition for administrative 
          review of an order issued on October 26, 1993, concerning the 
          housing accommodations known as 97-25 64th Avenue, Queens, New 
          York, wherein the Rent Administrator determined the tenants' joint 
          complaint of a reduction of various building-wide services.

          Thereafter, the owner commenced proceedings in the Supreme Court 
          pursuant to Article 78 of the Civil Practice Law and Rules, in the 
          nature of a "deemed denial".  Pursuant to a Stipulation of 
          Settlement, so ordered, the Court remanded the proceedings to the 
          Commissioner 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.

          The tenants commenced this proceeding by filing a complaint 
          asserting that the owner had failed to maintain certain services in 
          the subject building.

          In an answer, the owner denied the allegations set forth in the 
          complaint, asserted that certain items were not required services, 
          or otherwise asserted that all required repairs had been completed.  
          The owner also asserted that some of the signatures on the 
          complaint were obtained under false pretenses.  In support thereof, 
          the owner submitted copies of an owner's questionnaire, each signed 
          by a tenant, asking whether they had been "shown a copy of the 












          HL130016RO

          complaint" or signed a Supplemental Signature and Affirmation form.  
          The questionnaire did not indicate or refer to any DHCR services 
          proceedings.

          On December 10, 1992, DHCR conducted an inspection of the subject 
          premises.  The DHCR inspector reported, among other things, that 
          three windows were "hard to operate".  The tenants had complained 
          that the windows were sealed closed.  The inspector also confirmed 
          that no lobby furniture, storage space or a backyard sitting area 
          with benches were being provided at the time of inspection.

          In accordance with the DHCR's procedure at the time, the owner was 
          notified of the result of the first inspection and given an 
          opportunity to correct the defects.  A subsequent inspection on 
          January 20, 1993 found that the windows were operating properly. 

          Twenty-five tenants responded to the Rent Administrator's request 
          for notarized statements, noting therein when they began living in 
          the building, and indicating that lobby furniture, storage space 
          services and backyard sitting area were services the owner provided 
          to the tenants when they began occupancy.   

          A hearing was held on May 25, 1993, concerning the issue of whether 
          lobby furniture, storage and a sitting area with benches were 
          required services.  Several tenants testified as to when they took 
          occupancy, and whether these services were provided on the base 
          date, and if they were present thereafter.  The owner's managing 
          agent testified that she commenced her employment with the owner in 
          November 1986, that she had no knowledge of lobby furniture and 
          storage services, and that slats could be put back on the bench 
          equipment in the sitting area.

          The Rent Administrator directed the owner to correct the window 
          defects as well as to restore lobby furniture, storage space and 
          backyard sitting area services, and further, ordered a reduction of 
          the tenants' stabilization rent.

          The owner's petition for administrative review requests that the 
          Rent Administrator's order be reversed setting forth various 
          arguments.  The owner contends that the Administrative Law Judge 
          improperly permitted testimony from witnesses who commenced 
          occupancy after May 31, 1968 to testify regarding base date 
          services; that, in regards to storage space, the tenants' testimony 
          that there was a limited amount of storage space established that 
          storage space could not be provided for all the tenants in the 
          subject premises; that the services reduction complaint was not 
          affirmed by any individual; that the named complainants obtained 
          the signatures of other tenants under fraudulent circumstances; 
          that the fact that the windows were difficult to open and close did 
          not constitute a finding that the windows failed to open and close 
          properly or that the windows were otherwise defective; that the 
          complaints were stale and that no complaints were filed by any 






          HL130016RO

          tenant contesting the initial 1984 building services registration 
          which did not list the lobby furniture, storage space and a sitting 
          area with benches; that the tenants had not authorized any 
          representative to act on their behalf and did not have knowledge of 
          the contents of the complaint; and that the record was otherwise 
          insufficient to establish the services that existed on the base 
          date.

          After careful consideration the Commissioner is of the opinion that 
          the petition should be granted, in part, as more fully set forth 
          below.

          In rent stabilized premises, required services are defined in 
          Section 2520.6(r) of the Rent Stabilization Code as that space and 
          those services which the owner was maintaining or was required to 
          maintain on the applicable base date, and any additional space or 
          services provided or required to be provided thereafter by 
          applicable law.  The base date for required building-wide and 
          individual services for housing accommodations subject to the Rent 
          Stabilization Law on June 30, 1974 is May 31, 1968.  (Emphasis 
          added).

          The Commissioner finds that the Rent Administrator's order was 
          correct based on the record presented.

          The record included the testimony of several tenants that the 
          Administrative Law Judge found credible, as well as the notarized 
          statements of twenty-five tenants, and was sufficient to conclude 
          that there were services decreases.

          In contrast, the owner provided the testimony of its managing agent 
          who was not employed by the owner until November 1986, and who 
          testified that she had no knowledge concerning whether services 
          were previously provided.  The owner, who is also in the best 
          position to maintain and present adequate records to establish what 
          services were provided on the base date or thereafter, failed to do 
          so.

          Concerning the 1984 services registration and any delay in 
          commencing complaint proceedings, the Commissioner notes that the 
          owner's failure to register the services at the time did not serve 
          to create a new base date for services previously provided on the 
          base date and thereafter.  The tenants may initiate complaints of 
          a reduction of required services at any time, as the facts may 
          warrant.

          Whether or not services were listed on the tenants' lease is also 
          not relevant.  Required services are not confined to services set 
          forth in the lease.  

          Accepting as established the fact that storage space services were 
          provided after the base date but eliminated thereafter, several 












          HL130016RO

          tenants stated that not all tenants availed themselves of the 
          service.  The tenants' testimony also established that only a 
          limited amount of storage space was provided on the base date and 
          thereafter.  The owner is required to restore or to provide an 
          equal amount of storage space or an adequate substitute.  The 
          record did not establish the basis on which the storage space that 
          became available was made available to the tenants.  Evidence in 
          these regards may be established if or when the owner files an 
          application to restore rent predicated on a restoration of 
          services.

          The record the owner presented below and on appeal was not 
          sufficient to establish the allegations of fraud against one or 
          more tenants.  Nor have the tenants retracted their signatures from 
          the complaint.  The tenants' signatures on the owner's 
          questionnaire, which many tenants subsequently repudiated in 
          writing, did not constitute a withdrawal of the complaint.

          The owner's assertion that the complaint was not affirmed by at 
          least one tenant is belied by the record.  The further assertion 
          that the owner was not afforded an opportunity to restore services 
          prior to the order ignores the fact that the owner failed to do so 
          in the eighteen months between service of the complaint on the 
          owner and the date the order was issued.

          The owner's argument that the tenants' representative(s) did not 
          have the authority to file a complaint on their behalf, and that 
          the tenants had no knowledge of the contents of the complaint and 
          subsequent statements also ignore the fact that the tenants signed 
          the complaint individually, and filed individually signed and sworn 
          affidavits thereafter.  As also noted above, the owner alleged but 
          failed to establish fraud by the tenants' representative.

          The Commissioner concludes, however, that the finding that three 
          stairwell windows in the subject building were hard to operate did 
          not provide a proper basis for a rent reduction in this instance.  
          The tenants had complained that the windows had been sealed.  The 
          first inspection indicated that the windows were hard to operate, 
          but were not sealed.  The second inspection found windows to be 
          operating properly.  Based on the record, the windows condition is 
          revoked as a predicate for the rent reduction.  It is noted that 
          the owner acknowledged on appeal that the windows required 
          adjustment.

          The rent will be restored only when an owner's application to 
          restore rent is filed and granted based on the restoration of 
          services.  The owner may file an application, if the facts so 
          warrant.
                   
          THEREFORE, in accordance with the Rent Stabilization Law and Code, 
          it is







          HL130016RO

          ORDERED, that the owner's petition, be and the same hereby is 
          granted, in part, to the extent of revoking defective windows as a 
          predicate for a rent reduction in these proceedings.  In all other 
          respects, the Rent Administrator's order is affirmed.
             

          ISSUED:




                                                                     
                                             JOSEPH A. D'AGOSTA
                                             Deputy Commissioner  






    

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