FH 130327-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
APPEALS OF DOCKET NO.:
FH 130327-RO
FISHER S & H,
RENT ADMINISTRATOR'S
DOCKET NO.:
PETITIONER DJ 130090-B
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ORDER AND OPINION GRANTING PETITION FOR ADMINISTRATIVE REVIEW
IN PART AND MODIFYING RENT ADMINISTRATOR'S ORDER
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
complaint.
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
basement.
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
car".
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
corrected.
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.
ISSUED:
JOSEPH A. D'AGOSTA
Acting Deputy Commissioner
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