STATE OF NEW YORK
                            OFFICE OF RENT ADMINISTRATION
                                     GERTZ PLAZA
                               92-31 UNION HALL STREET
                                  JAMAICA, NY 11433

          APPEAL OF                                    DOCKET NO.: GH130262RO

                    Fisher Associates,
                                                       RENT ADMINISTRATOR'S
                                                       DOCKET NO.: FD130047OR



          On August 21, 1992, the above-named petitioner-owner filed a 
          petition for administrative review of an order issued on July 22, 
          1992, by the Rent Administrator, concerning the housing 
          accommodations known as various apartments at 35-46 74th Street, 
          Jackson Heights, New York, wherein the Administrator granted the 
          owner's rent restoration application in part for rent controlled 
          tenants and denied it for rent stabilized tenants.

          The Commissioner has reviewed all of the evidence in the record and 
          has carefully considered that portion of the record relevant to the 
          issue raised by the administrative appeal.

          A review of the record reveals that the owner filed an Application 
          to Restore Rent on April 5, 1991 in which the owner stated that 
          "the items for which a rent reduction has previously been ordered 
          were satisfactorily completed in accordance with the letter of 
          Donal Butterfield and Associates dated November 30, 1990."  The 
          rents had been reduced in Docket No. CJ130063B for:

          1.   The windows in the public hallways have peeling paint and 
               plaster and require caulking.
          2.   The roof doors do not close securely.
          3.   The laundry room and the basement window panes are cracked and 
some panes are missing.
          4.   The elevator fans are inoperative.

          Donal Butterfield and Associates is identified in the letterhead as 
          an architecture, engineering, and planning firm and the letter 


          states that all of the above mentioned conditions were corrected 
          except for the elevator fan and, according to this letter, the 
          elevator cab was manufactured without a fan and one has never been 
          installed.  The owner also submitted a letter from the elevator 
          service company stating that the elevators in the subject building 
          never had fans and that there exist louvers in the top of the cabs 
          which provide ventilation.

          The application was served on the tenants on April 5, 1991.  Some 
          tenants responded, saying that not all repairs had been made.

          A physical inspection by DHCR on December 5, 1991 confirmed that 
          all conditions had been corrected except that there were no fans in 
          either elevator.

          Based on this inspection report, the Rent Administrator issued 
          orders granting the application in part for rent controlled tenants 
          and restoring their rents by $11.00 per month and denying the 
          application for rent stabilized tenants.  The owner was advised to 
          file an application with the Division for permission to modify or 
          decrease services.

          In the petition for administrative review, the owner asserts, in 
          relevant part, that the finding that the elevator fans are 
          inoperative incorrectly assumes that elevator fans were a required 
          service.  The owner argues that the finding that there are no fans 
          in the elevators establishes that the elevators were constructed 
          without fans and that it is impossible for the owner to restore 
          this service.  The owner seeks a retroactive rent restoration for 
          the rent stabilized tenants.

          The owner refers also to a Commissioner's order issued on August 5, 
          1992 in Docket No. FH130327RO finding that the DHCR does not have 
          the requisite expertise to determine defects in the operation of 
          elevators and that the Department of Buildings of the City of New 
          York is the proper forum for such matters.  

          The petition was served on the tenants on March 11, 1993.

          After careful consideration of the entire evidence of record, the 
          Commissioner is of the opinion that the owner's petition should be 

          The Division's records reveal that the owner filed a petition for 
          administrative review of the rent reduction order (Docket No. 
          CJ130063B) for which restoration of rent is being sought herein.  
          In that petition, which was denied in a Commissioner's order and 
          opinion issued on March 28, 1991, the owner failed to raise the 
          issue of whether elevator fans are required services.  This issue 
          was also not raised by the owner in answer to the tenant's 
          complaint.  The directive to restore the inoperative elevator fans 
          is a final determination, of which the owner did not seek judicial 


          review, and which is not now subject to collateral attack in this 
          proceeding.  The Rent Administrator properly advised the owner to 
          apply for permission to modify or decrease services in accordance 
          with Section 2522.4 of the Rent Stabilization Code or Section 
          2202.21 of the Rent And Eviction Regulations for New York City.

          Based on the failure to restore the elevator fans, the Rent 
          Administrator properly granted the owner's rent restoration 
          application in part to restore that portion of the rent reduction 
          attributable to the services that were restored and properly denied 
          the application for rent stabilized tenants in accordance with the 
          Rent Stabilization Code which requires restoration of all services 
          before the rent may be restored.

          The Commissioner's order issued in Docket No. FH130327RO was 
          subsequently reopened and the rent reduction was reinstated based 
          on finding that violations for elevator defects had been placed by 
          the Buildings Department for New York City, warranting a rent 

          THEREFORE, in accordance with the Rent Stabilization Law and Code, 
          it is

          ORDERED, that this petition be and the same hereby is denied and 
          the Rent Administrator's order be and the same hereby is affirmed.  


                                             JOSEPH A. D'AGOSTA
                                             Deputy Commissioner  


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