FH130339RO
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 S.J.R. NO.: 6135
IN THE MATTER OF THE ADMINISTRATIVE ADMINISTRATIVE REVIEW
APPEAL OF DOCKET NO.:
FH130339RO
OCEAN LEASING CO.
c/o MID STATE MANAGEMENT, RENT ADMINISTRATOR'S
DOCKET NO.:
PETITIONER EF130024B
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ORDER AND OPINION GRANTING PETITION FOR ADMINISTRATIVE REVIEW,
AND REVOKING THE RENT ADMINISTRATOR'S RENT REDUCTION ORDER
On August 27, 1991, the above-named petitioner-owner filed a peti-
tion for administrative review (PAR) of an order issued on July 30,
1991, by the Rent Administrator, concerning the housing accommo-
dation known as 22-11 New Haven Avenue, Far Rockaway, New York,
wherein the Administrator determined the tenants' complaint filed
on June 12, 1990, alleging a decrease in various building-wide
services, including that the owner had failed to maintain elevator
services, in that there were chronic elevator service interrup-
tions.
The Administrator dismissed the tenants' complaint with respect to
all other issues. An amended order was issued on August 21, 1991,
to serve page 2 of the order on the parties, inadvertently omitted
in the initial mailing. The amended order did not affect the
findings herein under review.
The tenants' complaint had alleged, in pertinent part, that the
"elevators [were] broken 4-5 times monthly." However, the
Administrator limited the investigation to levelling conditions
only. Inspections were conducted on November 13, 1990 and on
January 24, 1991.
The Division's inspector observed that the building has two wings,
denominated left and right, with one elevator in each wing. The
November 13, 1990 inspection showed the elevators to be levelling
properly in most instances. The reinspection on January 24, 1991,
also found both elevators to be levelling properly for the majority
of floors with only two isolated occurrences where the elevator did
not level.
FH130339RO
On July 30, 1991 the Administrator issued the challenged order
determining that elevator services were reduced based on a finding
that both elevators failed to level properly.
On appeal, the owner argues that the order herein should be
rescinded because, among other things, the inspection dealt with
matters beyond the scope of the complaint. The owner also objects
to the DHCR's processing of the tenants' complaint, asserting that
this issue should be adjudicated by the New York City Buildings
Department.
The owner also reiterates the arguments made below that the
elevators were on a monthly maintenance program, that they were
checked regularly, and that service calls were taken care of within
24 hours of notification, and that the type of elevators involved
could not be made to level more precisely, even when new.
The owner also filed a petition in the Supreme Court pursuant to
Article 78 of the Civil Practice Law and Rules, requesting that the
"deemed denial" of the administrative appeal filed on August 27,
1991 be annulled. The Court remanded the proceeding to the
Division for an expeditious determination of the administrative
appeal.
Section 2523.4 of the Rent Stabilization Code states that a tenant
may apply to DHCR for a rent reduction and "the DHCR shall so
reduce the rent for the period for which it is found that the owner
has failed to maintain services." Section 2520.6(r) of the Code
defines required services to include repairs, decorating, mainten-
ance and elevator services, among other items.
Pursuant to these Code sections, the Commissioner notes initially
that the DHCR has the requisite authority to process tenants'
complaints of elevator service decreases. The owner is correct
that the Administrator dealt with matters beyond the scope of the
tenants' complaint, to the extent that the Administrator improperly
limited the investigation to levelling conditions, which were not
cited by the tenants, whereas the tenants' complaints of chronic
elevator service interruptions were not investigated.
It is noted that on the two occasions that DHCR staff inspectors
visited the subject building, both elevators were operational,
albeit not levelling on two landings.
On appeal, the New York City Department of Buildings violation
reports were obtained. The City Department of Buildings has long-
established, comprehensive procedures and inspection programs in
FH130339RO
place, and the City staff engaged in carrying out these programs
also 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 record of City inspections conducted on April 24, 1990 and
March 11, 1991 show only one violation for the period from the date
the complaint was filed (June 12, 1990) to the date of the Adminis-
trator's order (July 30, 1991). The violation cited was a
defective certificate frame; a condition that has no impact on
elevator services.
The Commissioner finds, therefore, that the evidence was insuffi-
cient to support a determination of decreased elevator services
warranting a rent reduction.
It is also noted that on May 29, 1992 the Administrator granted the
owner's rent restoration application per Docket No. FH130072OR,
based on the results of an inspection that showed the elevators to
be levelling adequately.
THEREFORE, pursuant to the Rent Stabilization Law and Code, it is,
ORDERED, that this petition be, and the same hereby is, granted,
and that the Administrator's order be, and the same hereby is,
revoked. Rent arrears due the owner from the tenants as a result
of this order may be paid over the course of the next twelve (12)
months following the date of this order.
ISSUED:
JOSEPH A. D'AGOSTA
Deputy Commissioner
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