Docket No. FE 910175-RO
STATE OF NEW YORK
DIVISION OF HOUSING AND COMMUNITY RENEWAL
OFFICE OF RENT ADMINISTRATION
92-31 UNION HALL STREET
JAMAICA, NEW YORK 11433
IN THE MATTER OF THE ADMINISTRATIVE ADMINISTRATIVE REVIEW
APPEAL OF DOCKET NO.: FE910175RO
David Associates NO.: YFC910001S
ORDER AND OPINION GRANTING PETITION FOR ADMINISTRATIVE REVIEW,
IN PART AND REMANDING PROCEEDING TO THE ADMINISTRATOR
FOR FURTHER CONSIDERATION
The above-named petitioner-owner filed a petition for
Administrative Review (PAR) appealing an order issued by the Rent
Administrator of the White Plains District Rent Office concerning
the housing accommodation known as 185 Bronx River Road, Apartment
5T, Yonkers, New York, wherein the Administrator determined the
tenant's complaint regarding diminution of elevator service.
The basis of the tenant's complaint, which was filed March 1,
1991, was a claim that both elevators in the buildings were out-of-
service due to a fire. The owner did not deny that a fire
temporarily rendered both of the buildings' elevators completely
inoperative. However, the owner established, by documentary
evidence consisting of the City of Yonkers Elevator Certificate
reflecting an inspection of the elevator on March 21, 1991, that
the south elevator was placed back in service. The owner also
indicated that work was proceeding expeditiously on the second
elevator, and that, in the meantime, the owner was providing the
tenants with an alternative service, in that an individual was
hired for the purpose of assisting tenants in going up the
staircase, carrying their packages, and otherwise assisting the
Subsequently, the Administrator issued an order determining
that the owner had failed to maintain required service and
temporarily reduced the tenant's rent from December 1, 1990 through
March 31, 1991.
The petitioner requests that the Administrator's order be
reversed, on the grounds that the owner had made a prompt, good
Docket No. FE 910175-RO
faith effort to rectify the emergency situation in a brief period,
and that, in fact, the services were restored.
The petitioner also contends that the Administrator erred in
imposing a rent reduction for the period prior to service of the
tenant's complaint on the owner. The petitioner points out that
as rent reductions are limited to the period commencing the first
of the month after the owner received transmittal of the tenant's
complaint, no rent reduction was warranted as services were
restored March 21, 1991.
After careful consideration, the Commissioner is of the opinion
that the petition for Administrative Review should be granted, in
It is generally DHCR policy that a temporary service reduction
resulting from an emergency situation, which an owner makes prompt
good faith efforts to rectify, will not result in a rent reduction.
In addition, Policy Statement 90-2: Failure to Maintain Services,
Rent Reduction/Restoration, provides that, if prior to inspection,
the owner has restored services referred to in the tenant's
complaint, there is generally no rent reduction.
The record reflects the owner's good faith efforts to expedite
the reconstruction and replacement of the fire damaged elevators.
However, the owner's statement below that work was proceeding
expeditiously to restore service in the second elevator constituted
an admission that, in fact, services were not, fully restored. Nor
has the owner indicated on appeal that repairs to the second
elevator were completed. Consequently, the PAR decisions cited by
the owner, to the effect that a temporary service reduction
resulting from an emergency situation which an owner made prompt
good faith efforts and did rectify the service reduction, and
Policy Statement 90-2, are not applicable to these proceedings.
The petitioner is correct, however, that the Administrator
erred by imposing a rent reduction for the period prior to service
of the tenant's complaint on the owner. Consequently, the
Administrator's order must be revoked, and the matter remanded to
the Administrator for reconsideration.
On remand, the Administrator shall provide the owner the
opportunity to present evidence that repairs have been completed,
and shall ascertain the period, if any, the tenant was entitled to
rent reductions. In determining whether the service reductions
warranted a rent reduction, the Administrator shall permit the
owner to establish that its efforts to complete repairs constituted
good faith expeditious measures by industry standards and
practices. The owner shall be given the opportunity to supplement
the record to date. The Administrator shall also take into
consideration the owner's effort to ameliorate the loss of use of
the elevators by the hiring of temporary additional building staff.
Docket No. FE 910175-RO
If necessary for a determination, a hearing may be scheduled.
On remand, the Administrator may consolidate this proceeding with
other similar proceedings concerning the subject building
addressing the identical issue.
THEREFORE, in accordance with the applicable provisions of the
Tenant Protection Regulation, the Emergency Tenant Protection Act
of 1974, and Chapter 403, Laws of 1983, as amended by Chapter 102,
Laws of 1984, it is
ORDERED, that the owner's petition be granted in part, that the
Administrator's order be revoked and that the matter be remanded
to the Administrator for further consideration, in accordance with
Joseph A. D'Agosta