FH 130327-RO
                                  STATE OF NEW YORK
                            OFFICE OF RENT ADMINISTRATION
                                     GERTZ PLAZA
                               92-31 UNION HALL STREET
                               JAMAICA, NEW YORK 11433

          APPEALS OF                              DOCKET NO.:   
                                                  FH 130327-RO             
                     FISHER S & H, 
                                                  RENT ADMINISTRATOR'S       
                                                  DOCKET NO.: 
                                  PETITIONER      DJ 130090-B


          On August 28, 1991, the above-named petitioner-owner filed a 
          Petition for Administrative Review of an order issued on August 5, 
          1991, by the Rent Administrator concerning the housing 
          accommodations located at 35-43 84th Street, Jackson Heights, 
          New York wherein the Rent Administrator ordered rent reductions for 
          rent-controlled and rent-stabilized tenants based on a finding that 
          certain services were not being provided or maintained.

          The Commissioner has reviewed all of the evidence in the record and 
          has carefully considered that portion of the record relevant to the 
          issue raised by the administrative appeal.

          This proceeding was commenced on October 30, 1989 when 46 tenants 
          joined in the filing of a complaint of a decrease in building-wide 
          services in which they alleged numerous problems with the eleva- 
          tors. Specifically, they alleged that the elevators are continually 
          out of order, the overhead fans do not work, the floor indicator 
          lights are inoperative, the cars stop above or below the floors, 
          they make loud noises when they stop and the shafts have not been 
          cleaned in years, causing a dangerous condition.

          Another building-wide complaint filed on March 15, 1990 alleging 
          defective fire escapes, cracks in basement walls, and asbestos on 
          the pipes in the basement was consolidated with the earlier 

          The earlier complaint was sent to the owner on November 24, 1989 
          and the later complaint was sent on April 4, 1990.  In an answer 
          dated May 20, 1990, the owner stated that the cracks and fire 
          escapes had been fixed and that there was no asbestos in the 

          FH 130327-RO

          On April 20, 1990, the tenants advised that a new panel had been 
          installed in each elevator but none of the problems with the 
          elevators cited in the original complaint had been corrected.

          A physical inspection of the premises on August 27, 1990 by DHCR 
          revealed as to the right wing elevator, the fan was not working, 
          there was no floor indicator panel, the elevator did not stop level 
          at various floors, the elevator bounced and made noise when 
          stopping, and the elevator certificate was present.  In the left  
          wing of the building, the fan was not working, there was no floor 
          indicator panel, the elevator did not stop level on various floors, 
          but there were no loud noises when it stopped.

          The inspector also reported minor hairline cracks on the walls in 
          the right wing basement, chipped walls and ceilings and peeling 
          paint in the left-wing basement, the pipes in the basement did not 
          all have insulation, and the fire escapes had evidence of rusting  
          and rotted areas.  The inspector also noted a blocked up drain in 
          the basement causing a hazardous condition.

          The results of the inspection were sent to the owner on September 
          17, 1990 with instructions to submit proof within 20 days that all 
          conditions had been corrected.  

          On October 22, 1990, the owner reported that the elevators never 
          had fans and other repairs to the elevators would be completed by 
          October 25, 1990.  The owner also stated that the basement walls 
          and ceilings, the fire escapes, and the basement drain had been 
          corrected.  The owner submitted a letter from the Staley Elevator 
          Company dated October 11, 1990, stating that these elevators never 
          had fans, and that the leveling problems are "due to the A/C Wet 
          Brake 100 ft. per minute type elevator which varies with load of 

          A second inspection on December 31, 1990 revealed an inoperative 
          fan in the right wing elevator, leveling that varied between 1/2" 
          and 2" on every floor, and the elevator bouncing and making noise 
          when it stopped.  The left wing elevator had an inoperative fan and 
          leveled between 1/2" and 1 1/2" on most floors.  All other 
          conditions cited in the earlier report were found to have been 

          The Administrator's order, appealed herein, reduced the rent for 
          all stabilized tenants who joined in the complaint by the most 
          recent guidelines adjustment and by $14.00 per month for all rent 
          controlled tenants in the building.  The inoperative elevator fans 
          and the leveling problems were cited as the bases for the finding 
          of the failure to maintain required services.

          FH 130327-RO

          The order also stated that there was no evidence of cracks in the 
          basement walls, that the fire escapes had been painted and that 
          there was no evidence of the elevators making loud noises.  The 
          tenants were advised to file individual complaints regarding 
          defective fire escapes outside the apartment and refer this matter 
          to the New York City Office of Code Enforcement and the New York 
          City Department of Buildings.  The tenants were also advised to 
          refer the issue of the elevator shaft not being cleaned to the 
          New York City Office of Code Enforcement and the issue of asbestos 
          in the basement to the New York City Department of Health.

          In the petition for administrative review, the owner asserts that 
          the tenants' complaint referred only to defective fire escapes, 
          cracks on the walls in the basement and asbestos on the pipes in 
          the basement while the order refers to defects in the elevators and 
          therefore fails to comport with the basis of the complaint. 

          The owner further contends that elevators are inspected by the New 
          York City Department of Buildings on a bi-annual or tri-annual 
          basis; that these inspections have failed to disclose any 
          violation; that the agency charged with the enforcement of 
          applicable standards regarding elevator operation and safety has 
          determined that the subject elevators are in compliance with all 
          applicable requirements; that by ordering a rent reduction for 
          defects in the subject elevators, DHCR has usurped the jurisdiction 
          of the New York City Department of Buildings; and that DHCR 
          inspectors lack the expertise to determine leveling distances and 
          failed to consider the age, make, color, model number and type of 
          the subject elevators as factors affecting stopping distances.

          The owner includes with the petition a letter from the elevator 
          manufacturer who installed the subject elevators, Staley Elevator 
          Company, stating that these elevators are the single speed, 100 ft. 
          per minute type and are not required as a matter of law to level at 
          a tolerance of less than three inches.  The letter further states 
          that the elevators were constructed in 1952/3 and never had fans.

          Another letter, enclosed with the petition, by the Service Manager 
          of Staley Elevator Company states that there has never been a fan 
          in these elevators and that there are "no holes in the top of the 
          elevator cabs which would have led to a mistaken conclusion of a 
          cab fan ever having existed".

          In an answer to the complaint joined by 42 tenants, it is argued 
          that the owner failed to support his contentions regarding leveling 
          standards with any references to applicable sections of the 
          Building Code and that the elevator cab ceilings clearly have 
          ventilation grills as shown in attached photographs.  One tenant 
          states in an individual answer that the elevator had a working fan 
          when this tenant moved into the building in 1976.

          After careful consideration of the entire evidence of record, the 
          Commissioner is of the opinion that the petition should be granted 

          FH 130327-RO

          in part and the Administrator's order should be modified.

          It is noted at the outset that the earlier complaint dated October 
          30, 1989 referring to defects in the elevators was served on the 
          owner at the address provided by the owner in the 1989 building 
          registration.  The owner was further alerted to the substance of 
          the complaint regarding the elevator conditions when the results of 
          the inspection report were served on it on September 17, 1990.

          The Division's authority to order rent reductions for rent 
          stabilized tenants is contained in Section 2523.4 of the Rent 
          Stabilization Code which requires DHCR to reduce the stabilized 
          rent by the most recent guidelines adjustment based on a finding 
          that the owner has failed to maintain required services.  Required 
          services are defined by Section 2520.6(r) as "that space and those 
          services which the owner was maintaining or was required to 
          maintain on the applicable base dates . . . , and any additional 
          space or services provided or required to be provided thereafter by 
          applicable law.  These may include, but are not limited to . . . 
          elevator services."

          For rent-controlled tenants, a decrease in the maximum rent is 
          authorized by Section 2202.16 of the Rent and Eviction Regulations 
          based on a finding that there has been a decrease in the essential 
          services required to be provided.  Essential services are defined 
          in Section 2200.3 to include those essential services the landlord 
          furnished or was obligated to furnish on April 30, 1962, including 
          elevator services.

          A rent reduction is therefore clearly authorized when the evidence 
          of record supports a finding that required elevator services are 
          not being provided.  However, in making such a determination with 
          regard to elevator leveling conditions, the Commissioner deems it 
          appropriate to defer to the expertise of the New York City 
          Department of Buildings which inspects all elevators at regular 
          intervals and applies the standards contained in current codes and 
          regulations that are relevant for the particular type and age of 
          elevator involved.  Rather than duplicate the efforts of another 
          government agency, DHCR will not order rent reductions for rent 
          regulated apartments for elevator leveling defects in the absence 
          of a violation for such conditions placed on the building by the 
          New York City Department of Buildings.  Since there is no evidence 
          in this case that any violations were reported for elevator condi- 
          tions, the portion of the Administrator's order referring to the 
          leveling defects is deleted.  

          With regard to the fans, however, the record adequately supports a 
          finding that the subject elevator cabs have fans, and that these 
          fans worked at one time but are no longer operative.  The Divi- 
          sion's inspector reported on two occasions that the elevator fans 

          FH 130327-RO

          were inoperative.  If there were no possibility of the elevators 
          even having fans, as the owner suggests, the inspector would have 
          reported that the elevators were not equipped with fans.  Moreover, 
          the tenants have submitted photographs which clearly show the 
          existence of fans on the ceilings.

          THEREFORE, in accordance with the Rent Stabilization Law and Code,  
          and the Rent and Eviction Regulations for New York City, it is,

          ORDERED, that this petition be, and the same hereby is, granted in 
          part, and that the Administrator's order be, and the same hereby 
          is, modified to the extent of deleting any reference to elevator 
          leveling defects but is affirmed in all other respects.


                                                JOSEPH A. D'AGOSTA
                                                Acting Deputy Commissioner



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