EG130115RO

                                  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.: EG130115RO
                                                  
          SAMSON MANAGEMENT                       RENT
                                                  ADMINISTRATOR'S DOCKET 
                                                  NO.: DB110124B
                                  PETITIONER            
          ----------------------------------x


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

               On June 22, 1990 the above named petitioner-owner filed a 
          Petition for Administrative Review against an order of the Rent 
          Administrator issued June 5, 1990. The order concerned various 
          housing accommodations located at 144-87 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 3, 1989 when forty-eight 
          (48) tenants of the subject building joined with the tenants of the 
          two other buildings in this 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, "Remove all graffiti from halls and stairwells."

               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 all graffiti has been removed 
          but that this is an ongoing problem caused by vandalism and is 
          dealt with on a routine basis. 

               On November 5, 1989 the Administrator sent a notice to the 
          tenants requesting additional information regarding some of the 
          items in the complaint.  The tenants did not respond.

               On November 27, 1989 the owner sent an additional response to 












          EG130115RO

          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 9, 1990.  The first inspection revealed that two of the 
          three intercoms checked were defective and there were various 
          defects in the operation of the elevator.  The second inspection 
          revealed evidence of graffiti on the wall of the lobby of the east 
          wing, broken and partially missing front right fence, and a missing 
          door on the right rear gate.  All other services complained of were 
          found to have been maintained.

               The Administrator issued the order here under review on June 
          5, 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 inspector failed to personally inspect each 
                         apartment for defective intercoms and could not 
                         confirm that the tenants were operating the phones 
                         properly,

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

                    3.   Two of the tenants whose intercoms were inspected 
                         did not sign the complaint and were not eligible 
                         for a rent reduction,


                    4.   The DHCR does not have the technical expertise to 
                         adjudicate matters involving elevator operation and 
                         maintenance.  The owner argues that the DHCR should 
                         defer to the New York City Buildings Department's 
                         greater expertise in the area of elevator 
                         operation,

                    5.   The graffiti condition in the lobby is a "minor" 
                         condition caused by tenant or outside vandalism and 
                         does not warrant a rent reduction,
                    
                    6.   The defective fence and gate were not mentioned in 
                         the complaint and cannot be a basis for the rent 
                         reduction. 

          The petition was served on the tenants on August 27, 1990.
               One tenant filed a response to the petition on September 12, 
          1990 and objected to the petition on the ground that the owner was 






          EG130115RO

          not providing the services set forth in the order here under 
          review.  
           
               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 revoked except as 
          to Apt. 307 for which a rent reduction based on a defective 
          intercom is affirmed.

               With regard to the issue of the defective intercoms, the 
          Commissioner has reviewed the inspection report.  The inspector 
          tested only three intercoms and found the buzzer mechanisms of all 
          three were functioning properly.  Communications were hard to 
          understand over the intercoms of Apts. 307 and 308.  The intercom 
          of Apt. 406 was reported to be functioning adequately.  Based on 
          this report, the Administrator ordered a building-wide rent 
          reduction for rent stabilized tenants based, in part, on a finding 
          of 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 tenant of Apt. 308 did not sign the 
          complaint and  therefore, is not entitled to a rent reduction.  
          Accordingly, the Administrator's order must be modified to cite the 
          defective intercom of Apt. 307 only as a basis for the rent 
          reduction.

               The Commissioner's review of the complaint reveals that there 
          is no mention of the fence and gate described in the order here 
          under review.  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 these items were elements 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, 
          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.












          EG130115RO


               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 graffiti in the lobby is 
          also revoked.  The Commissioner notes that the complaint filed by 
          the tenants requested that all graffiti be removed from halls and 
          stairwells. The owner responded on July 20, 1989 that all graffiti 
          would be removed within 60 days.  

               The physical inspection seven months later on February 9, 1990 
          cannot serve to establish that the graffiti was not promptly 
          removed by the owner in accordance with the intention stated in the 
          answer.  In fact, the inspector reported that there was no graffiti 
          in the halls and stairwells, indicating that the condition as 
          described in the tenants' complaint was indeed addressed.  As for 
          the graffiti in the lobby, the Commissioner is of the opinion that 
          the nature and extent of the condition is not adequately described 
          by the inspector to warrant a building-wide rent reduction.

               In sum, the order here under review is revoked except for Apt. 
          307 for which the rent reduction is affirmed based on the defective 
          intercom.  Rent arrears due as a result of this order may be paid 
          in installments of 24 months. 

               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. 307 for which a rent 
          reduction based on a defective intercom is affirmed.

          ISSUED:


                                                                             
                                             JOSEPH A. D'AGOSTA
                                             Deputy Commissioner
                                   
    

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