FH130169RO
                
                                  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
          IN THE MATTER OF THE ADMINISTRATIVE     ADMINISTRATIVE REVIEW
          APPEAL OF                               DOCKET NO.:   
                                                  FH130169RO
                   JAIME ASSOCIATES,              
                                                  RENT ADMINISTRATOR'S     
                                                  DOCKET NO.: 
                                  PETITIONER      DH130016B
          ----------------------------------x


            ORDER AND OPINION GRANTING PETITION FOR ADMINISTRATIVE REVIEW
                                       IN PART


          On August 19, 1991, the above-named petitioner-owner filed a 
          petition for administrative review against an order issued on 
          August 5, 1991, by a Rent Administrator concerning the housing 
          accommodation known as 102-30 Queens Boulevard, Forest Hills,
          New York wherein the Administrator determined 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 relevant to the issue raised 
          by the administrative appeal.

          This proceeding was commenced on August 25, 1989 when forty (40) 
          tenants joined in a building-wide complaint in which they re- 
          quested a rent reduction based on numerous conditions that they 
          asserted required repair.

          The owner answered the complaint and stated in substance that it 
          had purchased the building on December 1, 1989 and in eight months 
          expended over $250,000 in renovations.  They addressed each item in 
          the tenants' complaint and claimed that all services were being 
          maintained and that the real issue here is that the building is 
          being converted into cooperatives and certain tenants are 
          attempting to blackmail the owner into offering more favorable 
          terms and conditions for the purchase of apartments.  The owner 
          alleged that tenants signed the supplemental signature sheet 
          without knowing what they were signing.  The owner submitted copies 
          of letters showing that there are two tenants' associations in the 
          building competing against each other and that the complaint filed 
          with the DHCR was prepared by a splinter group whose goal is to 













          FH130169RO

          discourage the purchase of apartments.

A physical inspection of the building by a DHCR inspector took 
place on March 27, 1990.  The inspector reported that:

               1.   Incinerator room floors are stained and dirty.
               2.   Stairway doors do not fully close, need to be 
                    adjusted.
               3.   Vents are not functioning adequately on some floors 
                    and are inoperative on others.
               4.   Garage is inadequately lit.
               5.   Elevators do not stop level on all floors.
               6.   Bulkhead walls and ceiling on both sides of subject 
                    premises have peeling paint and plaster.
               7.   Laundry room's bottom left window sash has a 
                    defective lock.

          The owner was notified of the results of the inspection on May 10, 
          1990 and was directed to submit within 20 days documentation that 
          repairs have been made.  On May 30, 1990, the owner reported that 
          all seven items had been corrected.  

          A second inspection took place on July 23, 1990 which revealed that 
          various hallway floor vents were inoperative on the A-H side and 
          were working very slowly on the J-S side.  The elevators were found 
          to not stop level with the floors and the laundry room window was 
          found to be nailed shut.

          A third inspection on October 9, 1990 again found the public area 
          vents inoperative on the A-H side but working on the J-S side, the 
          elevators stopped between 1/2" to 2 1/2" below the floors on some 
          floors.

          The Administrator's order, appealed herein, reduced the rents 
          effective October 1, 1989 for all rent stabilized tenants who 
          joined in the complaint based on the following conditions:

               1.   The public area vents, from the lobby to the sixth 
                    floor, on the A-H wing of the building are 
                    inoperative.

               2.   The elevator on the J-S wing of the building stops 
                    two inches above the sixth floor.  The elevator on 
                    the A-H wing of the building stops two and a half 
                    inches below the sixth floor, two inches below the 
                    second floor, and one and a half inches below the 
                    first floor.

               3.   The laundry room window has been nailed shut.
          Other conditions were found to have been corrected, and the tenants 
          were advised to contact the New York City Office of Code 







          FH130169RO

          Enforcement for the noisy fuel pump and piping system, the 
          availability of someone twenty four hours a day on a emergency 
          basis, and inadequate exterior lighting.

          In the petition for administrative review, the owner asserts that 
          it was deprived of due process of law because it was not served 
          with a copy of the complaint and had no knowledge of the proceeding 
          until it received a copy of the Administrator's order.

          The owner also argues that in accordance with DHCR procedures it 
          should have been served with a copy of the inspection report and 
          given an opportunity to respond to the three remaining items found 
          to be in need of repair.  The owner contends that the laundry room 
          window was not nailed shut and is at most a de minimis condition, 
          that the public area vents are operative, and that the elevator is 
          under contract with a maintenance company and any levelling 
          problems are corrected immediately.  The owner also asserts that 
          tenants in the J-S wing should not get the benefit of a rent 
          reduction for inoperative vents in the A-H wing.

          The petitioner explains that the subject building is a condomin- 
          ium and that as owner of the rent stabilized apartments, the 
          petitioner cannot make repairs to public area items and therefore 
          should not be penalized for the alleged defects.

          Finally, the owner argues that the items for which the rent was 
          reduced were not included in the complaint, that not all tenants 
          who signed the complaint knew what they were signing, and that some 
          of the signatures were invalid since the tenants moved out before 
          the complaint was filed.

          Included with the petition were two photographs of the laundry room 
          window - one showing it closed with a locking mechanism and the 
          other showing it open, a statement from a home improvement company 
          attesting that the public area vents were inspected on August 12, 
          1991 and found to be in "perfect operative condition", and a 
          statement from the elevator maintenance company that the 
          elevator in the subject building is a single speed type which has 
          no provision for automatic levelling correction and which the 
          Building Code allows for up to a three inch zone between the floor 
          landing and the car floor.  The Commissioner notes that the 
          petition was served on the tenants on October 7, 1991.

          After careful consideration of the evidence of record, the 
          Commissioner is of the opinion that the petition should be granted 
          in part.

          The owner's due process arguments are without merit since the 
          record indicates that the owner answered the tenants' complaint, 
          addressing in detail each item listed therein.  Also, contrary to 
          the owner's assertions, the results of the March 27, 1990 inspec- 













          FH130169RO

          tion were served on the owner, who responded that all items had 
          been corrected.

          The owner has not established, beyond the bare allegations, that 
          any tenants who joined in the complaint were unaware of what they 
          were signing or that any vacated before the complaint was filed.  
          The assertion that some tenants organized the preparation and 
          signing of the complaint in order to defeat the conversion plan, 
          even if true, does not affect the validity of the complaint or 
          establish that any tenant did not know what they were signing.  In 
          fact, one of the letters the owner submitted refers to a meeting 
          one of the tenants groups held to explain the complaint to tenants.

          The status of the subject building as a condominium does not 
          relieve the petitioner of the consequences of a finding that 
          required services in public areas are not being maintained.  
          Pursuant to Section 2520.6 of the Rent Stabilization Code, the 
          definition of an owner includes "an owner of a condominium unit", 
          and the definition of required services is "that space and those 
          services which the owner was maintaining or was required to 
          maintain on the applicable base date . . .".  As the Division has 
          consistently held, a cooperative or condominium owner is respon- 
          sible for taking whatever steps are necessary to assure that 
          defective conditions in public areas are corrected and the failure 
          to do so warrants a rent reduction for all stabilized tenants who 
          joined in the complaint.

          With respect to the laundry room window, the tenants' complaint 
          stated that the window does not lock, giving access to the 
          building.  The inspection on March 27, 1990, the results of which 
          were sent to the owner, confirmed that the bottom left window sash 
          in the laundry room had a defective lock.  The owner advised the 
          Administrator on May 30, 1990 that the condition had been repaired.  
          A subsequent inspection on July 23, 1990 revealed that the window 
          had been nailed shut.  The Commissioner is of the opinion that 
          since the tenants' complaint alleged a condition describing a 
          window that permitted intruders to enter the building through the 
          laundry room, the inspector's report that the window had been 
          nailed shut confirmed that the owner had corrected the condition 
          complained of.  It was, therefore, error for the Administrator to 
          include "The laundry room window has been nailed shut" as an item 
          warranting a rent reduction and the order appealed herein is 
          modified to delete this item.


          As for the defective vents, a review of the record reveals that the 
          tenants clearly included in the complaint the statement that the 
          vents in the halls are not working.  In fact, the owner responded 
          to this item by stating that the "vents are working - one motor is 
          being replaced."  Three inspections revealed that the vents in the 
          A-H Wing were not working and the Administrator properly relied on 







          FH130169RO

          the observations of the Division's impartial and disinterested 
          inspector in ordering a rent reduction for this condition.  The 
          owner's contention that a home improvement company inspected the 
          vents on August 12, 1991 and found them to be in working order does 
          not establish that necessary repairs were made before the 
          Administrator's order was issued.  No evidence was submitted to the 
          Administrator to rebut the results of the three inspections which 
          revealed that the vents were not working.  The Commissioner finds, 
          however, that only the tenants who occupy apartments in the A-H 
          Wing are entitled to a rent reduction because only those tenants 
          have been deprived of a required service.

          With regard to the issue of the elevator levelling, 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 DHCR to determine appropriate performance 
          standards and ancillary equipment for elevators of varying age and 
          manufacture.

          The Commissioner notes that the Department of Buildings inspected 
          the elevators on April 4, 1990, November 23, 1990 and September 23, 
          1991.  No violations regarding elevator operation were issued.  
          Therefore, the Commissioner finds that sufficient evidence does not 
          exist to support the Administrator's finding regarding the 
          elevator.  That finding must, therefore, be revoked.
           
          Pursuant to all of the foregoing, the Commissioner grants the 
          instant petition in part and revokes that portion of the 
          Administrator's order which premised the rent reduction on the 
          elevator levelling problems and the laundry room window. The rent 
          reduction is also revoked for the defective vents for all tenants 
          other than those residing in the A-H Wing.

          The Commissioner notes that the owner filed for rent restoration 
          and that the application was granted on February 25, 1993 (Docket 
          No. FI130155OR).
          THEREFORE, in accordance with the Rent Stabilization Law and Code, 
          it is

          ORDERED, that this petition be, and the same hereby is, granted in 
          part and the Administrator's order be, and the same hereby is, 
          modified to order a rent reduction for defective vents in the A-H 
          Wing for those complaining tenants who reside in that wing.  Any 
          rent arrears due to the owner as a result of this order by tenants 













          FH130169RO

          not residing in the A-H Wing may be paid off in twelve (12) equal 
          monthly installments.

          ISSUED:



                                                                 
                                        JOSEPH A. D'AGOSTA       
                                        DEPUTY COMMISSIONER



    

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