FI130068RO
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.: FI130068RO
JUDY REALTY CO. RENT
C/O ROSENBERG & ESTIS ADMINISTRATOR'S DOCKET
NO.: DK130083B
PETITIONER
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ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW
On September 13, 1991 the above named petitioner-owner filed
a Petition for Administrative Review against an order of the Rent
Administrator issued August 12, 1991. The order concerned various
housing accommodations located at 40-66 Ithaca Street, Elmhurst,
N.Y. The Administrator ordered a rent reduction for failure to
maintain required services.
The Commissioner has reviewed the record and carefully
considered that portion relevant to the issues raised by this
appeal.
This proceeding was commenced on November 22, 1989 when 31
tenants filed a Statement of Complaint of Decrease in Services
wherein they alleged, among other things, frequent elevator
breakdowns and a dirty basement with bad odors.
The Commissioner notes that the tenants filed additional
building-wide services complaints. These complaints were assigned
Docket Nos. EJ130091B and EH130094B and alleged many of the same
conditions as the first complaint including the problems with the
elevator service and the dirty basement. These proceedings were
all consolidated
The owner was served with a copy of each complaint and
afforded an opportunity to respond. The owner filed a response on
January 24, 1990 and stated, in pertinent part, that any elevator
breakdown is immediately repaired by a licensed contractor and that
the basement is cleaned and disinfected on a regular basis. The
owner attached a letter from the elevator maintenance company to
the effect that the elevator is being properly maintained, as well
as an affidavit from the building superintendent, to the effect
that the tenants' complaints are without merit.
FI130068RO
The tenants filed a reply on October 12, 1990 wherein they
essentially restated the allegations of the complaint and requested
a DHCR inspection of the premises. The owner filed a reply on
November 6, 1990 wherein it again offered evidence that the
elevator was being maintained. The owner also stated that the
basement is cleaned on a regular basis.
The Administrator ordered a physical inspection of the subject
building. Inspection were conducted on October 4, 1990 and
reinspected on December 11, 1990 and revealed defective operation
of the elevator and garbage accumulation in the basement. Other
conditions complained of by the tenants were not confirmed.
The Administrator issued the order here under review on August
12, 1991, directing the owner to restore the services and ordering
a rent reduction of $9.00 per month for all rent controlled tenants
and an amount equal to the most recent guideline adjustment for
rent stabilized tenants who joined in the complaint.
On appeal the owner, through counsel, states that the elevator
levels properly according to industry standards, that the tenants
did not allege any elevator leveling problem in their complaint,
that the elevator is routinely repaired and maintained and that the
basement is cleaned on a regular basis.
The tenants association filed a joint response on October 17,
1991 wherein it stated, in sum, that the order here under review
was correctly issued and that the owner's petition should be
denied. The owner filed a reply on November 20, 1992 wherein it
reiterated that the elevator operation was in compliance with
accepted industry standards . It also stated that the complaint
filed by the tenants made no mention of garbage accumulation in the
basement and that, therefore, the Administrator exceeded the scope
of the complaint in basing the rent reduction, in part, on this
condition.
After careful review of the evidence in the record, the
Commissioner is of the opinion that the petition should be denied.
The Commissioner finds the owner's argument with regard to the
garbage accumulation in the basement to be without merit. The
tenants clearly complained of a "filthy" basement. This complaint
was sufficient to put the owner on notice of the condition . The
report of the DHCR inspector is clear and not contradicted by any
independent evidence. Numerous prior decisions of the Commissioner
have held that such a report is entitled to more probative weight
than the unsupported allegations of a party to the proceeding.
With regard to the issue of the elevator, 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,
FI130068RO
comprehensive procedures and inspection programs in place. The
staff engaged in carrying out these inspections 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.
Accordingly, the relevant inquiry is whether the Department of
Buildings has issued violations for the elevators in the subject
building during the period when the proceeding was before the DHCR.
The Commissioner notes that an elevator inspector of the
Department of Buildings conducted an inspection of the elevators in
the premises on July 10, 1990, and reported violations of the New
York City Administrative Code of failing to maintain the elevator
in a safe condition and in good working order. Based on these
violations confirming the tenants' complaint regarding the
elevators, the Commissioner finds that a rent reduction for failure
to maintain elevator service as ordered by the Administrator is
warranted.
Pursuant to Section 2523.4 of the Rent Stabilization Code a
tenant may apply to the DHCR for a rent reduction and the Division
shall reduce the rent based on a finding that the owner is failing
to maintain required services. Repairs, maintenance, elevator
services and removal of refuse are included in the definition of
required services pursuant to Section 2520.6(r). The Administrator
was required to reduce the rent of rent stabilized tenants upon
finding that required services were not being maintained. With
regard to rent controlled tenants, the Administrator was empowered
pursuant to Section 2202.16 of the Rent and Eviction Regulations to
order a rent reduction approximating the reduction in rental value
as the result of a decrease in essential services. Essential
services are defined by Section 2202.3 to include repairs,
maintenance, elevator service, janitor service and removal of
refuse. The Commissioner finds that the rent reduction ordered by
the Administrator for defective elevator service and garbage
accumulation in the basement was warranted.
The Commissioner notes that the owner has applied for rent
restoration and that the Administrator issued an order restoring
the rents on May 26, 1992 (Docket No. FI130063OR).
THEREFORE, pursuant to the Rent Stabilization Law and Code and
Rent and Eviction Regulations it is
ORDERED, that this petition be, and the same hereby is,
denied, and that the Rent Administrator's order be, and the same
hereby is, affirmed.
FI130068RO
ISSUED:
JOSEPH A. D'AGOSTA
Deputy Commissioner
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