FL 130333 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.: FL 130333 RO
FISHER/FLANDER ASSOCIATES RENT
ADMINISTRATOR'S DOCKET
NO.: EK 130044 B
PETITIONER
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ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW
On December 18, 1991 the above named petitioner-owner timely
refiled a Petition for Administrative Review against an order of
the Rent Administrator issued August 6, 1991. The order concerned
various housing accommodations located at 87-10 37th Ave., Jackson
Heights, N.Y. The Administrator ordered a building-wide 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 19, 1990, when 59
tenants of the 84 who reside in the subject building filed a
Statement of Complaint of Decrease in Building Wide Services
wherein they alleged the following services deficiencies:
1. Main entrance, side door, garage door and emergency
entrance door locks broken; garage emergency exit
condemned,
2. Public areas in need of painting,
3. Frequent malfunctioning of elevator and intercom
systems,
4. Deteriorating mail boxes,
5. Inadequate public lighting,
6. Rat and roach infestation,
7. Lack of porter services,
FL 130333 RO
8. Garbage accumulation in laundry room,
9. Lack of access to laundry room after 8 PM,
10. Lack of prompt attention to apartment repair calls,
11. Lack of smoke detectors in apartments,
12. Uncourteous responses to tenant complaints by
landlord and superintendent,
13. Reduction of building wide wattage supply due to
change of electrical fuses,
14. Air conditioning and utility charges included on
base rent.
The owner was served with a copy of the complaint and afforded
an opportunity to respond. The owner filed a response on December
26, 1990 and stated the following:
1. Front door locked and properly secured by intercom
system: side doors to professional apartments also
secured by intercom system,
2. Elevator working properly and maintained by
elevator company,
3. Intercom system functioning and maintained,
4. Hallways sufficiently lighted,
5. Extermination provided on second Monday of each
month,
6. Mailboxes functioning properly,
7. Porter in building 6 hours a day for 6 days a week,
8. Laundry room open from 8 AM to 10 PM,
9. Superintendent promptly responds to complaints on
receipt thereof,
10. All apartments contain smoke detectors,
FL 130333 RO
11. Electrical services have not been reduced,
12. Air conditioning charges separate from base rent.
Seven tenants filed replies to the owner's response. Each
tenant took issue with the owner's contention that services were
being maintained.
The Administrator ordered a physical inspection of the subject
apartment. The inspection was conducted on February 7, 1991 and
revealed the following:
1. Elevators do not stop level (specific problems
detailed in order),
2. Peeling paint and plaster on 1st floor and
stairways leading to third and first floor on left
side of building and third and first floor on right
side of building.
The following services were found to have been maintained:
1. No evidence of defective locks of side doors,
2. Adequate lighting of public areas,
3. No evidence of roach or rodent infestation in
public areas,
4. Public areas clean,
5. No evidence of garbage accumulation in laundry
room,
6. Although building entrance door not locked,
vestibule door lock operative at time of inspection
with intercom located between entrance and
vestibule doors,
7. Emergency exit doors operative.
A second inspection was conducted on April 9, 1991. The
inspector reported that there are two emergency garage door exits,
that there was no evidence that the emergency exits had been
condemned, and that a sign was posted indicating that the exit
existed.
The Administrator issued the order here under review on August
9, 1991. The inspector's report was incorporated into the order.
The Administrator noted that a rent reduction was not warranted for
the unlocked entrance door based on the fact that the vestibule
FL 130333 RO
door was locked. The Administrator also noted that the owner had
stated that laundry room service was provided from 8 AM to 10 PM
and that the tenants had not rebutted the owner's assertion
although afforded an opportunity to do so. Therefore, the
Administrator concluded that the schedule was adequate for laundry
service. Finally, the Administrator advised the tenants that the
issue of electrical fuse amperage could not be ascertained by DHCR
inspection. The tenants were advised to refer this issue to the
New York City Office of Code Enforcement. A rent reduction of an
amount equal to the most recent guideline adjustment was ordered to
be effective December 1, 1990.
On appeal the owner states that the order herein should be
reversed because the inspection dealt with matters beyond the scope
of the complaint. The owner also objects to DHCR's processing of
the tenant's elevator complaint. The owner asserts that this issue
should be adjudicated by the New York City Buildings Department.
The tenant's association filed a response to the petition on
October 8, 1991. The association stated, in sum, that DHCR's
processing of the elevator complaint was proper and within the
scope of the complaint. They also stated that the side entrance to
the building on the west wing is not accessible, that the main
entrance inside lock handle is broken, that the garage escape door
has been condemned and that the fire escape stairways are blocked
by grown trees.
Seven individual tenants filed responses to the petition
wherein they restated that the owner was not maintaining required
services and requested that the order here under review be
affirmed. The owner filed a reply on February 19, 1992 and again
on July 7, 1992 wherein it again questioned DHCR's policy regarding
elevator inspections.
After careful review of the evidence in the record, the
Commissioner is of the opinion that the petition should be denied.
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." Required services are
defined by Section 2520.6(r) to include repairs, decorating,
maintenance and elevator services.
The Commissioner initially notes that the rent reduction
ordered by the Administrator was based on the specific tenant
complaints of elevator malfunction and public areas in need of
painting. The order clearly did not exceed the scope of the
complaint.
With regard to the portion of the order here under review
which grants a rent reduction based on the inspector's report of
peeling paint and plaster, the Commissioner finds that there was of
sufficient evidence to support this finding. The Commissioner
further finds that the owner has presented no evidence to rebut the
inspector's report. Therefore, that portion of the order here
under review which found peeling paint and plaster in the public
areas is affirmed.
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, comprehensive procedures and inspection
programs in place. The staff engaged in carrying out these
programs 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 Commissioner notes that an elevator inspector from the
Department of Buildings conducted an inspection of the elevators in
these premises on January 8, 1991. Among the violations found by
the inspector, for which the owner was cited, was the failure of an
elevator to stop level with the landing, the same violation found
by the DHCR inspector in February, 1991. Both inspections verified
the tenant's complaint of reduced services. Therefore, the
Commissioner is of the opinion that there existed sufficient
evidence to support a determination that elevator services are not
being maintained for which the rent reduction ordered by the
Administrator is required. Since both findings of the Administrator
were based on the record, the order here under review is,
therefore, affirmed.
THEREFORE, pursuant to the Rent Stabilization Law and Code 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.
ISSUED:
JOSEPH A. D'AGOSTA
Deputy Commissioner
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