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


                                          

    

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