
    In the Matter of Ralph W. Kerbs, on Behalf of Himself and Other Tenants in Premises 308 East 79th Street, New York, New York, Petitioner, against State Rent Administrator, Respondent, and Sitek Realty Co., Inc., Intervenor-Respondent.
    Supreme Court, Special Term, New York County,
    July 21, 1958.
    
      William L. Messing for petitioner.
    
      Nathan Keller and Sam L. Simon for respondent.
    
      McLaughlin $ Fougner (Robert S. Fougner of counsel), for intervener.
   Sidney A. Fine, J.

The determination of the Rent Administrator that the operation of the two passenger elevators between midnight and 8:00 a.m. by only one attendant, instead of by two, did not deprive the tenants of an 11 essential service ” may not be held arbitrary or capricious. The tenants’ acquiescence for many years was a factor entitled to be considered in evaluating the importance of having two manual operators during the hours in question, as was the fact that the number of passengers requiring elevator service during those hours is relatively small. The effect of giving up one elevator operator on the protection of the lobby of the building was not necessarily substantial or serious, in view of the fact that while both elevators were in operation neither attendant would be in the lobby. There was, in the circumstances, substantial basis for the determination that although the elimination of one operator curtailed services which had existed on March 1, 1950, it did not eliminate an “ essential service ”. In this situation, the court may not substitute its own views for those of the Administrator. This may be done only when the Administrator’s determination is without basis and, therefore, arbitrary or whimsical.

Motion denied.  