EG110116RO

                                  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.: EG110116RO
                                                  
          SAMSON MANAGEMENT                       RENT
                                                  ADMINISTRATOR'S DOCKET 
                                                  NO.: DB110126B
                                  PETITIONER            
          ----------------------------------x


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

               On July 2, 1990 the above named petitioner-owner filed a 
          Petition for Administrative Review against an order of the Rent 
          Administrator issued June 12, 1990. The order concerned various 
          housing accommodations located at 144-67 41st Ave., Flushing, N.Y.  
          The Administrator directed restoration of services and ordered a 
          reduction of the stabilized rents.

               The Commissioner has reviewed the record and carefully 
          considered that portion relevant to the issues raised by this 
          appeal.

               This proceeding was commenced on June 6, 1989 when thirty-two 
          tenants of the subject building joined with the tenants of the two 
          other buildings in the complex in filing a Statement of Complaint 
          of Decrease in Building-Wide Services wherein they alleged that the 
          intercom was out of service and that the operation of the elevators 
          was erratic.  The tenants attached to the complaint a list of 
          requested repairs including among other things: "Provide accessible 
          times and area for tenants to dispose of garbage bags properly".

               The owner was served with a copy of the complaint and afforded 
          an opportunity to respond. In a response dated July 20, 1989 the 
          owner stated, in relevant part, that there are compactor rooms on 
          each floor and the tenants can use the compactor chutes to dispose 
          of garbage. 

               On October 5, 1989 the Administrator sent a notice to the 
          tenants requesting additional information regarding some of the 
          items in the complaint including whether there are notices posted 
          indicating schedules for garbage collections and whether the 
          compactor rooms are accessible.  The tenants did not respond.












          EG110116RO

               On November 27, 1989 the owner sent an additional response to 
          the Administrator and stated that all matters raised in the 
          complaint had been investigated and attended to.

               The Administrator ordered a physical inspection of the subject 
          building.  Inspections were conducted on December 29, 1989 and 
          February 5, 1990.  The first inspection revealed that two of the 
          three intercoms checked were defective, that there were various 
          defects in the operation of the elevator, and that there were no 
          signs posted regarding garbage disposal and there was garbage 
          accumulation in some of the compactor rooms.  The second inspection 
          revealed that the fence on 147th Street was defective.

               The Administrator issued the order here under review on June 
          12, 1990 citing the defective items reported by the inspector as 
          the basis for the rent reduction.

               On appeal the owner raises the following arguments in 
          requesting reversal of the Administrator's order:

                    1.   The three tenants whose intercoms were tested were 
                         not listed as signatories to the complaint,

                    2.   The inspectors failed to personally inspect each 
                         apartment for defective intercoms and could not 
                         confirm that the tenants were operating the phones 
                         properly,

                    3.   An inspection of the intercoms of three apartments 
                         is insufficient to conclude that the intercom 
                         system for the 70 apartments is defective,

                    4.   Inadequate elevator leveling was not mentioned in 
                         the complaint,

                    5.   The New York City Buildings Department has 
                         inspected the elevators and has not found any 
                         violations.  The owner argues that the DHCR should 
                         defer to the Buildings Departments' greater 
                         expertise in the area of elevator operation,

                    6.   The tenants never complained about defective 
                         elevator lights nor does the inspection report 
                         detail the number of lights working and not 
                         working,

                    7.   Garbage accumulation was not mentioned in the 
                         complaint,

                    8.   There was no evidence to suggest that garbage is 
                         left to accumulate in the compactor rooms for any 
                         length of time,






          EG110116RO


                    9.   The defective fence was not mentioned in the 
                         complaint. 

          The petition was served on the tenants on August 27, 1990.

               Two tenants filed responses to the petition wherein they 
          stated, in sum, that the order here under review was correctly 
          issued and should be affirmed.  
           
               After careful review of the evidence in the record, the 
          Commissioner is of the opinion that the petition should be granted 
          in part and the order here under review should be affirmed as 
          modified herein.

               With regard to the issue of the defective intercoms, the 
          Commissioner has reviewed the inspection report.  The inspector 
          tested the intercoms of apartments 625, 323 and 222.  The intercom 
          of Apt. 625 was reported to be "fairly clear, with a little static 
          in communication" with the buzzer reported working.  The report 
          regarding the intercom of Apt. 323 revealed that it was very hard 
          to understand communications but that the buzzer was working.  The 
          report regarding the apartment of Apt. 222 revealed that it was 
          difficult to understand communications and that the buzzer was 
          defective.  Based on this report, the Administrator ordered a 
          building-wide rent reduction for rent stabilized tenants, in part, 
          based on defective intercoms.  

               The Commissioner is of the opinion that the investigation of 
          three intercoms in a building with 70 units was not a sufficient 
          sampling on which to base a building-wide rent reduction.  In the 
          absence of a finding that some component of the intercom system 
          affecting all apartments is defective or a larger random sampling 
          of  individual units the rent reduction must be limited to only 
          those apartments reported to have defective intercoms.  The owner 
          is also correct in that the tenants of Apt. 323 did not sign the 
          complaint and could not be granted a rent reduction.  Accordingly, 
          the Commissioner is of the opinion that the Administrator's finding 
          regarding the intercoms must be modified to order a rent reduction 
          solely for the tenant residing in Apt. 222.

               The Commissioner's review of the record reveals no tenant 
          complaint regarding the fence on 147th Street.  A rent reduction 
          may not be granted if the owner was not put on notice of the 
          defective condition in question.  Since the owner was never 
          informed that the fence in question was an element of the 
          complaint, this finding must also be revoked.

               With regard to the issue of the elevators, the Commissioner 
          acknowledges that enforcement of applicable standards regarding 
          elevator operation and safety is under the jurisdiction of the New 
          York City Department of Buildings, which has long established, 












          EG110116RO

          comprehensive procedures and inspection programs in place.  The 
          staff engaged in carrying out these programs has the necessary 
          technical expertise to conduct periodic inspections; to interpret 
          and apply relevant codes, regulations and industry standards and to 
          issue violations.  Further, in view of the City's greater 
          experience with elevator enforcement, the City is in a better 
          position than the DHCR to determine appropriate performance 
          standards and ancillary equipment for elevators of varying age and 
          manufacture.

               The Commissioner notes that a search of the Department of 
          Building records has revealed that no violations regarding the 
          subject elevator were confirmed while the complaint was pending 
          before the Rent Administrator.  Therefore, the Commissioner finds 
          that sufficient evidence does not exist to support the 
          Administrator's finding regarding the elevator.  This finding must, 
          therefore, be revoked.

               The Administrator's finding regarding garbage accumulation is 
          also revoked.  The Commissioner notes that the tenants complained 
          that the owner had failed to provide accessible times and areas for 
          the proper disposal of garbage bags.  Based on this complaint, the 
          Administrator's request for an inspection of the condition of the 
          compactor rooms was beyond the scope of the complaint.  The subject 
          building is indisputably equipped with unlocked rooms on each floor 
          and off the lobby containing compactor chutes for garbage disposal, 
          suggesting that "times and areas for proper disposal of garbage 
          bags" should not be necessary.  The Administrator's attempt to 
          clarify the meaning of this portion of the complaint in the October 
          5, 1989 notice met with no response.  The finding of garbage 
          accumulation on the floor of some of the compactor rooms was not 
          among the conditions cited in the complaint and must be revoked.

               THEREFORE, pursuant to the Rent Stabilization Law and Code 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, revoked except as to Apt. 222 for which a rent 
          reduction based on the defective intercom is affirmed.

          ISSUED:

                                                                             
                                             JOSEPH A. D'AGOSTA
                                             Deputy Commissioner
                                   
    

TenantNet Home | TenantNet Forum | New York Tenant Information
DHCR Information | DHCR Decisions | Housing Court Decisions | New York Rent Laws
Disclaimer | Privacy Policy | Contact Us

Subscribe to our Mailing List!
Your Email      Full Name