FH130327RO
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.:
FH130327RO REOPENED
FISHER S & H, RENT ADMINISTRATOR'S
DOCKET NO.:
PETITIONER DJ130090B
----------------------------------x
ORDER AND OPINION GRANTING PETITION FOR ADMINISTRATIVE REVIEW
AND REVOKING RENT ADMINISTRATOR'S ORDER AFTER RECONSIDERATION
PURSUANT TO REOPENING
On August 28, 1991, the above-named petitioner-owner filed a
Petition for Administrative Review of an order issued on August 5,
1991, by the Rent Administrator concerning the housing accommoda-
tions located at 35-43 84th Street, Jackson Heights, New York
wherein the Rent Administrator ordered rent reductions for rent-
controlled and rent-stabilized tenants based on a finding that
certain services were not being provided or maintained.
On August 5, 1992 the Commissioner issued an order and opinion
granting the petition for administrative review and revoking the
Administrator's order. On August 17, 1992 the tenants requested
reconsideration of the Commissioner's order. On September 30, 1992
the Commissioner granted this request.
The Commissioner has again reviewed all of the evidence in the
record and has carefully reconsidered that portion of the record
relevant to the issues raised by the administrative appeal.
This proceeding was commenced on October 30, 1989 when 46 tenants
joined in the filing of a complaint of a decrease in building-wide
services in which they alleged numerous problems with the eleva-
tors. Specifically, they alleged that the elevators are continually
out of order, the overhead fans do not work, the floor indicator
lights are inoperative, the cars stop above or below the floors,
they make loud noises when they stop and the shafts have not been
cleaned in years, causing a dangerous condition.
Another building-wide complaint filed on March 15, 1990 alleging
defective fire escapes, cracks in basement walls, and asbestos on
the pipes in the basement was consolidated with the earlier
complaint.
The earlier complaint was sent to the owner on November 24, 1989
FH130327RO
and the later complaint was sent on April 4, 1990. In an answer
dated May 20, 1990, the owner stated that the cracks and fire
escapes had been fixed and that there was no asbestos in the
basement.
On April 20, 1990, the tenants advised that a new panel had been
installed in each elevator but none of the problems with the
elevators cited in the original complaint had been corrected.
A physical inspection of the premises on August 27, 1990 by DHCR
revealed various defects in the operation of the elevators,
including inoperative fans.
The inspector also reported minor hairline cracks on the walls in
the right wing basement, chipped walls and ceilings and peeling
paint in the left-wing basement, the pipes in the basement did not
all have insulation, and the fire escapes had evidence of rusting
and rotted areas. The inspector also noted a blocked up drain in
the basement causing a hazardous condition.
The results of the inspection were sent to the owner on September
17, 1990 with instructions to submit proof within 20 days that all
conditions had been corrected.
On October 22, 1990, the owner reported that the elevators never
had fans and other repairs to the elevators would be completed by
October 25, 1990. The owner also stated that the basement walls
and ceilings, the fire escapes, and the basement drain had been
corrected. The owner submitted a letter from the Staley Elevator
Company dated October 11, 1990, stating that these elevators never
had fans.
A second inspection on December 31, 1990 revealed inoperative fans
in both elevators and leveling defects. All other conditions cited
in the earlier report were found to have been corrected.
The Administrator's order, appealed herein, reduced the rent for
all stabilized tenants who joined in the complaint by the most
recent guidelines adjustment and by $14.00 per month for all rent
controlled tenants in the building. The inoperative elevator fans
and the leveling problems were cited as the bases for the finding
of the failure to maintain required services.
In the petition for administrative review, the owner asserts that
the tenants' complaint referred only to defective fire escapes,
cracks on the walls in the basement and asbestos on the pipes in
the basement while the order refers to defects in the elevators and
therefore fails to comport with the basis of the complaint.
The owner further contends that elevators are inspected by the New
York City Department of Buildings on a bi-annual or tri-annual
basis; that these inspections have failed to disclose any
violation; that the agency charged with the enforcement of
applicable standards regarding elevator operation and safety has
FH130327RO
determined that the subject elevators are in compliance with all
applicable requirements; that by ordering a rent reduction for
defects in the subject elevators, DHCR has usurped the jurisdiction
of the New York City Department of Buildings; and that DHCR
inspectors lack the expertise to determine leveling distances and
failed to consider the age, make, and type of the subject elevators
as factors affecting stopping distances.
The owner includes with the petition a letter from the elevator
manufacturer who installed the subject elevators, Staley Elevator
Company, stating that these elevators are the single speed, 100 ft.
per minute type and are not required as a matter of law to level at
a tolerance of less than three inches. The letter further states
that the elevators were constructed in 1952/3 and never had fans.
Another letter, enclosed with the petition, by the Service Manager
states that there has never been a fan in these elevators and that
there are no holes in the top of the elevator cabs which would have
led to a mistaken conclusion of a cab fan ever having existed.
In an answer to the petition joined by 42 tenants, it is argued
that the owner failed to support his contentions regarding leveling
standards with any references to applicable sections of the
Building Code and that the elevator cab ceilings clearly have
ventilation grills as shown in attached photographs. One tenant
states in an individual answer that the elevator had a working fan
when this tenant moved into the building in 1976.
After careful consideration of the entire evidence of record, the
Commissioner is of the opinion that the petition should be granted
and the Administrator's order should be revoked.
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 pro-
grams 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 a review of the Department of Buildings
records reveals that the elevators in the subject premises were
inspected on January 10, 1991. That inspection revealed no
violations regarding elevator operation. Therefore, the
Commissioner finds that sufficient evidence does not exist to
support the Administrator's finding on August 5, 1991 that the
owner failed to maintain required elevator services. That finding
must therefore, be revoked.
FH130327RO
THEREFORE, in accordance with the Rent Stabilization Law and Code,
and the Rent and Eviction Regulations for New York City, it is,
ORDERED, that this petition be, and the same hereby is, again
granted after reconsideration and that the Administrator's order
be, and the same hereby is, revoked. Any arrears due to the owner
as a result of this Order may be paid by the rent stabilized
tenants in twelve equal monthly installments. Rent controlled
tenants may pay the arrears in amounts of $14.00 per month until
all arrears are repaid pursuant to Section 2202.24 of the Rent and
Eviction Regulations.
ISSUED:
JOSEPH A. D'AGOSTA
Deputy Commissioner
|
