CG430057RT





                                  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
          IN THE MATTER OF THE ADMINISTRATIVE     ADMINISTRATIVE REVIEW
          APPEAL OF                               DOCKET NO.: CG430057RT
                                                  

          DAVE AMES                               RENT
                                                  ADMINISTRATOR'S DOCKET
                                                  NO.: BK410051B 
                                                       
                                  PETITIONER            
          ----------------------------------x


            ORDER AND OPINION GRANTING PETITION FOR ADMINISTRATIVE REVIEW
               IN PART AND REMANDING PROCEEDING TO RENT ADMINISTRATOR

          On July 11, 1988 the above named petitioner-tenant filed a Petition 
          for Administrative Review against an order of the Rent 
          Administrator issued June 3, 1988 concerning the housing 
          accommodations known as Apt. 7D, 145 West 55th Street, New York, 
          NY, wherein the Administrator directed the owner to restore certain 
          services but did not order a rent reduction.
                    
          The Commissioner has carefully reviewed all the evidence of record 
          and has carefully considered that portion relevant to the issues 
          raised on appeal.

          A review of the record reveals that in November 24, 1987, seventy- 
          three tenants in this 92 unit building joined in filing a complaint 
          seeking a rent reduction based on the owner's alleged failure to 
          maintain certain building-wide services.  The tenants stated, in 
          relevant part, that there are exposed wires throughout the 
          building, that the freight elevator was removed by the landlord and 
          one of the remaining two passenger elevators was converted to a 
          freight elevator, that the exit stairs from the basement to the 
          lobby are defective, that the roof is leaking causing extensive 
          leaks in the apartments and hallways below, and that no garbage 
          receptacles are available.   

          In answer to the complaint, the owner stated that there are no 
          exposed wires in the building, that the building never had two 












          CG430057RT

          passenger elevators, that the basement stairs are under repair, 
          that there are no roof leaks at this time, and that the garbage is 
          collected twice a day at the hours posted on every floor.

          A physical inspection by DHCR on March 10, 1988 revealed that there 
          were exposed cable TV and bell wires on each floor, there were 
          several broken stairs from the basement to the lobby, there were 
          pools of water on the roof and peeling paint and plaster on the 
          public hallway on the 15th floor due to water damage, and that 
          plastic bags are used for garbage.  All other conditions complained 
          of were found to have been repaired.  With regard to the elevator, 
          the inspector reported that elevator service was not defective and 
          that there was no evidence that floor indicators were ever provided 
          in the freight elevator.

          Based on this report, the Rent Administrator issued the order 
          appealed herein directing the owner to restore services but finding 
          that a rent reduction was not warranted.

          In the petition for administrative review, the tenant asserts that 
          a rent reduction is warranted because the inspector failed to 
          notify the tenants of the scheduled inspection and many tenants 
          were not at home, that the entire intercom  system is faulty and 
          this was confirmed in the MCI proceeding commenced by the owner, 
          that there were originally three elevators in the building and the 
          conversion of one elevator shaft for use as a ventilation shaft for 
          a commercial tenant constitutes a reduction in services, that a 
          rent reduction was awarded for fourteen tenants in another 
          proceeding based on a finding of inadequate hot water, and that the 
          owner's application for a rent increase for windows was denied 
          based on a finding that the installation was defective and 
          substandard.  The tenant also contends that the owner did not  
          correct the conditions he was ordered to repair in the 
          Administrator's order.

          In answer to the petition, the owner submits copies of invoices and 
          cancelled checks for repairs to the basement stairs, installation 
          and repairs to the intercom, plaster work, and the purchase of 
          garbage bags.  The owner also states that there is one passenger 
          elevator, and that there is a garbage receptacle on each floor and 
          the garbage is collected every morning between 7 a.m. and 10 a.m.

          After careful consideration of the entire evidence of record, the 
          Commissioner is of the opinion that the petition should be granted 
          in part and the proceeding remanded to the Rent Administrator.

          Section 2523.4 of the Rent Stabilization Code requires the Division 
          to order a rent reduction, upon application by a tenant, where it 
          is found that the owner has failed to maintain required services.  
          Required services are defined in Section 2520.6(r) as that space 
          and those services which the owner was providing or was required to 
          provide on the applicable base date.






          CG430057RT


          In determining whether required services are being provided, the 
          Rent Administrator properly relied on the results of a physical 
          inspection which revealed that, other than the conditions which the 
          owner was directed to correct, required services were being 
          maintained.  The intercom was found to be working properly, the 
          tenants did not complain about inadequate heat and hot water, and 
          the complaints about the windows referred to windows in individual 
          apartments rather than public area windows and must be raised in 
          individual complaints.  For building-wide conditions in public 
          areas, the Division does not notify tenants of scheduled inspection 
          dates.  

          The inspector did find several defective conditions including 
          exposed wires, broken basement steps, peeling paint and plaster in 
          a public hallway, and an absence of garbage cans for which a rent 
          reduction should have been granted. 

          With regard to elevator service, the investigation of this matter, 
          which cannot be determined solely based on a physical inspection, 
          was inadequate.  The complaint concerned the removal of one of 
          three elevators and the conversion of one of the remaining 
          passenger elevators to a freight elevator with the removal of the 
          floor indicator panel from that car.  The physical inspection which 
          confirmed that there were no indicators in one elevator but 
          otherwise found that elevator service was not defective does not 
          adequately resolve the issue of whether there has been a decrease 
          in elevator service.
            
          On remand, the Administrator should order a rent reduction for the 
          petitioner-tenant based on the results of the March 10, 1988 
          inspection.  The rent should be reduced to the level in effect 
          before the most recent guidelines adjustment which commenced before 
          the effective date of this rent reduction.  The effective date 
          should be January 1, 1988 which is the first of the month following 
          service of the complaint on the owner.  However, because of the 
          owner's inability to file a rent restoration application prior to 
          the issuance of this Commissioner's order, the Administrator should 
          also investigate on remand if and when services were restored and 
          order restoration of the rent as of that date.

          With regard to the elevator, the Administrator should investigate, 
          by means of a hearing if necessary, if there were formerly three 
          elevators on the base date which have now been reduced to two.  If 
          the allegations regarding elevator service are confirmed, this 
          should be added as a basis for the aforementioned rent reduction 
          order and the owner should be afforded an opportunity to establish 
          if and when elevator service was restored so that rent restoration
          can be also be ordered.

          Therefore, in accordance with the Rent Stabilization Law and Code, 
          it is












          CG430057RT

          p
          ORDERED that this petition be and the same hereby is granted in 
          part, and the proceeding be and the same hereby is remanded to the 
          Rent Administrator for further processing in accordance with this 
          order and opinion.    


          ISSUED:



                                                                             
                                             JOSEPH A. D'AGOSTA
                                             Deputy Commissioner
                                   
    

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