FG 910077 RO
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
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IN THE MATTER OF THE ADMINISTRATIVE ADMINISTRATIVE REVIEW
APPEAL OF DOCKET NO.: FG 910077 RO
DAVID ASSOCIATES, DISTRICT RENT ADMINISTRATOR'S
DOCKET NO.: YFC-9-1-0589-S
PETITIONER
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ORDER AND OPINION GRANTING PETITION FOR ADMINISTRATIVE REVIEW,
IN PART AND REMANDING PROCEEDING TO THE ADMINISTRATOR
FOR FURTHER CONSIDERATION
On July 17, 1991, the above-named petitioner-owner filed a
Petition for Administrative Review (PAR) appealing an order issued
on July 11, 1991, by the Rent Administrator of the White Plains
District Rent Office, concerning the housing accommodation known
as 185 Bronx River Road, Apartment 5R, Yonkers, New York, wherein
the Administrator determined the tenant's complaint filed on April
3, 1991, regarding diminution of elevator service.
The basis of the tenant's complaint was a claim that both
elevators in the building were out-of-service due to a fire. The
owner did not deny that a fire temporarily rendered both of the
buildings' elevators completely inoperative. However, the owner
established, by documentary evidence consisting of the City of
Yonkers Elevator Certificate reflecting an inspection of the
elevator on March 21, 1991, that the south elevator was placed
back in service. The owner also indicated that work was proceed
ing expeditiously on the second elevator, and that, in the
meantime, the owner was providing the tenants with an alternative
service, in that an individual was hired for the purpose of
assisting tenants in going up the staircase, carrying their
packages, and otherwise assisting the tenants.
On July 11, 1991, the Administrator issued an order determining
that the owner had failed to maintain required service and
temporarily reduced the tenant's rent from December 1, 1990
through March 31, 1991.
The petitioner requests that the Administrator's order be
reversed, on the grounds that the owner had made a prompt, good
faith effort to rectify the emergency situation in a brief period,
and that, in fact, the services were restored.
The petitioner also contends that the Administrator erred in
imposing a rent reduction for the period prior to service of the
tenant's complaint on the owner. The petitioner points out that
as rent reductions are limited to the period commencing the first
of the month after the owner received transmittal of the tenant's
complaint, no rent reduction was warranted as services were
restored March 21, 1991.
FG 910077 RO
After careful consideration, the Commissioner is of the opinion
that the Petition for Administrative Review should be granted, in
part.
It is generally DHCR policy that a temporary service reduction
resulting from an emergency situation, which an owner makes prompt
good faith efforts to rectify, will not result in a rent reduc
tion. In addition, Policy Statement 90-2: Failure to Maintain
Services, Rent Reduction/Restoration, provides that, if prior to
inspection, the owner has restored services referred to in the
tenant's complaint, there is generally no rent reduction.
The record reflects the owner's good faith efforts to expedite the
reconstruction and replacement of the fire damaged elevators.
However, the owner's statement below that work was proceeding
expeditiously to restore service in the second elevator con
stituted an admission that, in fact, services were not, fully
restored. Nor has the owner indicated on appeal that repairs to
the second elevator were completed. Consequently, the PAR
decisions cited by the owner, to the effect that a temporary
service reduction resulting from an emergency situation which an
owner made prompt good faith efforts and did rectify the service
reduction, and Policy Statement 90-2, are not applicable to these
proceedings.
The petitioner is correct, however, that the Administrator erred
by imposing a rent reduction for the period prior to service of
the tenant's complaint on the owner. Consequently, the Ad
ministrator's order must be revoked, and the matter remanded to
the Administrator for reconsideration.
On remand, the Administrator shall provide the owner the oppor
tunity to present evidence that repairs have been completed, and
shall ascertain the period, if any, the tenant was entitled to
rent reductions. In determining whether the service reductions
warranted a rent reduction, the Administrator shall permit the
owner to establish that its efforts to complete repairs con
stituted good faith expeditious measures by industry standards and
practices. The owner shall be given the opportunity to supplement
the record to date. The Administrator shall also take into
consideration the owner's effort to ameliorate the loss of use of
the elevators by the hiring of temporary additional building
staff. If necessary for a determination, a hearing may be
scheduled. On remand, the Administrator may consolidate this
proceeding with other similar proceedings concerning the subject
building addressing the identical issue.
FG 910077 RO
THEREFORE, in accordance with the applicable provisions of the
Tenant Protection Regulation, the Emergency Tenant Protection Act
of 1974, and Chapter 403, Laws of 1983, as amended by Chapter 102,
Laws of 1984, it is
ORDERED, that the owner's petition be granted in part, that the
Administrator's order be revoked and that the matter be remanded
to the Administrator for further consideration, in accordance with
the above.
ISSUED:
ELLIOT SANDER
Deputy Commissioner
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