STATE OF NEW YORK
DIVISION OF HOUSING AND COMMUNITY RENEWAL
OFFICE OF RENT ADMINISTRATION
92-31 UNION HALL STREET
JAMAICA, NY 11433
IN THE MATTER OF THE ADMINISTRATIVE ADMINISTRATIVE REVIEW
APPEAL OF DOCKET NO.: GH130262RO
DOCKET NO.: FD130047OR
ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW
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
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
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,
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