ADM. REVIEW DOCKET NO. BA 410150 RT
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
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IN THE MATTER OF THE ADMINISTRATIVE : ADMINISTRATIVE REVIEW
APPEAL OF DOCKET NO. BA 410150 RT
DISTRICT RENT
ADMINISTRATOR'S DOCKET NO.
: L-002406 - B
VARIOUS TENANTS AT THE PREMISES
KNOWN AS 19 EAST 80TH STREET,
NEW YORK, NEW YORK
PETITIONERS :
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ORDER AND OPINION GRANTING PETITION FOR ADMINISTRATIVE REVIEW
IN PART
On January 12, 1987, the above-described tenants filed a
petition for administrative review of an order issued on
December 9, 1986 by a District Rent Administrator concerning
various housing accommodations in the premises known as 19 East
80th Street, New York, New York.
The Commissioner has reviewed all of the evidence in the
record and has carefully considered that portion of the record
relevant to the issues raised by the petition for review.
On June 24, 1985 numerous tenants at the subject premises
filed an application for a rent reduction based on the owner's
alleged failure to maintain building-wide services alleging that
the position of handyman had been eliminated; that there was no
longer doorman service being provided from 3:00 P.M. to 11:00
P.M. on Thursdays, and 7:00 A.M to 3:00 P.M. on Sundays; that
there was no longer a service elevator operator on duty during
weekdays from 7:00 A.M. to 8:00 A.M., and 4:00 P.M. to 7:00 P.M.;
that the owner did not find substitutes for employees when they
were absent from work, and that the intercom system required an
employee to answer calls and announce visitors, but none was
being provided.
The owner interposed an answer, dated July 16, 1985, wherein
it alleged that it was maintaining all services required by the
rent regulations. The owner further asserted, among other
ADM. REVIEW DOCKET NO. BA 410150 RT
things, that all repair services were being maintained; that the
owner relied on outside contractors to make repairs; that
handyman services have been better in the last five years than
they were in the preceding ten years; that for the past ten years
doorman service had been unchanged, and that for the past ten
years there had been no change in the service elevator schedule.
On December 9, 1986 the District Rent Administrator issued
the order here under review, finding that a diminution of
services had occurred and directing the owner to restore handyman
services, doorman services between 3:00 P.M. to 11:00 P.M. on
Thursdays, and 7:00 A.M. to 3:00 P.M. on Sundays, and to secure
the door when the doorman and/or elevator operator are off duty.
The tenants' petition asserts that the Administrator's order
should be extended to include all services previously rendered
and listed on the original complaint.
The owner submitted its answer on March 13, 1987, in which
it asserted that all essential services were being provided, and
that there was no diminution of services. The owner also stated
that it had payroll records from January 1973 through December
1976 which allegedly showed that there had been no change in the
doorman and elevator service since January 1973.
The owner submitted a second answer, dated September 6,
1989. The owner states that the Administrator's order "did not
find that the absence of a doorman at the building during the
aforementioned days and hours constitutes a decrease in services.
Rather, the order states, in a subsequent paragraph, that the
owner must merely secure the door during the aforementioned days
and hours when there is no doorman on duty." The owner further
alleges that the services which had been performed by a handyman
are now being done by the superintendent and outside contractors.
The owner reiterates its assertion that all required and
essential services are being provided.
To its second answer the owner attaches alleged payroll
records from 1968, 1972, and 1980, which purport to show that
there has been no change in the number of doormen employed or the
number of days worked.
On December 11, 1989, the tenants filed their response to
the owner's second answer. The tenants state that as the owner
did not file its own petition for review of the District Rent
Administrator's order, it cannot attack the Administrator's order
through its answer to the tenants' petition.
The tenants also state that the owner's answer does not
address the tenants' petition as it relates to the service
elevator, the non-substitution of employees, the unattended
intercom or the requested rent reduction, and therefore, the
tenants assert, the owner's answer was unresponsive to the
issues raised by the tenants' petition. The tenants point out
ADM. REVIEW DOCKET NO. BA 410150 RT
that the second answer submitted by the owner only addresses the
issue of the handyman and doorman services, but that those issues
were not raised by the tenants' petition.
On May 9, 1990 the owner submitted an affidavit sworn to by
the subject building's managing agent stating that the owner
believed that the Administrator's order did not require the owner
to provide any additional handyman or doorman services. The
managing agent states: "Thus, the owner believed that it was not
aggrieved by the District Rent Administrator's order with the
result that a PAR was not filed." The owner also attaches an
affidavit by the managing agent, sworn to on December 12, 1986,
which was allegedly previously submitted to the rent agency,
which stated that the owner had restored services, and further
states:
2. No doorman on duty in building between
hours 3 P.M. to ll P.M. Thursdays and
Sundays 7 A.M. to 3 P.M.
3. Secure door when doorman and/or elevator
operator are off on hours noted in No. #2
above or substitution of employees.
Landlord has secured the door and installed a
security system consisting of T.V. Camera and
Monitor and communication system and automatic
door opener operated by elevator man when and
if doorman is off on-hours noted or at men's
room, etc.
The managing agent's affidavit, sworn to on May 9, 1990,
further alleges that D.H.C.R. should have informed the owner that
it had misunderstood the Administrator's order, based upon the
owner's affidavit sworn to on December 12, 1986.
On November 16, 1990 the tenants submitted a letter stating
that pursuant to Section 26-514 of the Rent Stabilization Law,
and 2202.16 of the Re t and Eviction Regulations, both rent-
stabilized and rent-controlled tenants are to be given a rent
reduction, as the Administrator determined that there was a
diminution of services.
On December 13, 1990, the tenants submitted a letter
reiterating their assertion that Section 26-514 of the Rent
Stabilization Law makes it mandatory on the rent agency to reduce
the tenants' rents where there has been a finding of a reduction
in essential services. To the letter the tenants attached a copy
of an Appellate Division, Second Department case, In the Matter
of Hyde Park v. State of New York, Division of Housing and
Community Renewal, 140 A.D. 2d 351, 527 N.Y.S. 2d 841 (2nd Dep't
1988), aff'd, 72 N.Y.2d 809, 541 N.Y.S.2d 345 (1989). The
tenants state that this case holds that D.H.C.R. must reduce the
tenants' rent when a finding of a decrease in required services
has been made.
On January 7, 1991, the owner submitted a letter alleging
ADM. REVIEW DOCKET NO. BA 410150 RT
that the Hyde Park Associates case can be distinguished from this
proceeding. The owner states:
There is no evidence in the record before the
District Rent Administrator to support a
finding of a decrease in required services.
The DRA Order did not state that the owner had
decreased handyman or doorman services ...
The DRA Order specifically stated that no rent
reductions were warranted, implying that no finding of
a decrease in required services had been made.
On February 26, 1991, the owner submitted a letter to the
rent agency requesting that this proceeding (Administrative
Review Docket No. BA 410150 RT) be consolidated with
Administrative Review Docket No. BI 410046 RO, which is an
owner's petition alleging that the Administrator's order (under
Docket No. 045773) incorrectly determined that the apartment
registration shall include doorman service, for sixteen hours per
day.
The tenants, on March 18, 1987, filed their objection to the
owner's request for consolidating the two aforementioned
proceedings. The tenants assert that the two proceedings raise
separate issues. The tenants point out that the petition, under
Docket No. BI 410046 RO, raises the sole issue of doorman
service, but that issue is not raised in the tenants' petition in
this proceeding.
On April 29, 1991 the owner submitted to the rent agency the
subject building's payroll records for the year 1968, and the
owner alleges that these records show that on the base date, May
31 1968, only one doorman was on duty for eight hours on
Thursdays and Sundays.
After careful consideration, the Commissioner is of the
opinion that the tenants' petition should be granted in part.
The Commissioner notes that the Commissioner issued an
order, dated January 24, 1990, and an amended order, dated
February 7, 1990, after conducting a hearing. Both orders found
that the owner did not comply with the Administrator's order, in
this proceeding, in that the owner had not restored handyman
service, and doorman service on Thursdays 3:00 P.M. to 11:00 P.M.
and Sundays 7:00 A.M. to 3:00 P.M. The first order stated: "The
owner concedes that the two positions of handyman and
superintendent were replaced by 1980 by one position of
superintendent who now does handyman work. The owner submitted
records to show that it now hires outside help to replace
handyman service and supplement superintendent service. The
tenants credibly testified, however, that the handyman service
has deteriorated since 1980 and that the outside help is not an
adequate substitute for the on-site handyman."
The Commissioner further notes that the owner filed an
Article 78 proceeding for judicial review of the aforementioned
ADM. REVIEW DOCKET NO. BA 410150 RT
order of the Commissioner. The Supreme Court, New York County,
under Index No. 5992/90, affirmed the Commissioner's order. The
Court stated that:
The Deputy Commissioner's conclusion that the
District Rent Administrator's order imposed a
duty upon petitioner to hire a handyman and to
maintain a doorman during the Thursday and
Sunday shifts is perfectly logical. It is in
fact the only correct interpretation that can
be given to the plain wording of the DRA order.
The Court also held that the owner may not attack the
findings in the Administrator's order as it had not filed its own
petition for administrative review of that order. The
Commissioner notes that the owner alleged in its Article 78
petition that the Commissioner's order was unjustified because
"DHCR had failed to give notice ... that it had misinterpreted
the DRA order." The Court held that there "is no duty upon DHCR
to give notice to landlords who have improperly interpreted its
orders. The Division provided petitioner with a copy of the
District Rent Administrator's order herein, and an opportunity to
be heard on appeal. That is sufficient."
The Commissioner notes that the Appellate Division, First
Department, by order and decision entered on October 22, 1991,
affirmed the Supreme Court's decision. The Court stated that:
... the arguments raised by petitioner in this
Article 78 proceeding constitute a collateral
attack upon the order, which should have been
raised in a timely filing of a Petition for
Administrative Review challenging said order ...
The original order was clear and unambiguous
in requiring petitioner to restore the reduction
in services.
Accordingly, the Commissioner finds that as to the owner's
response to the tenants' petition, it is the law of this case,
and res judicata, pursuant to the Supreme Court's decision,
which was affirmed by the Appellate Division, that the owner is
to hire a handyman and to provide doorman service during the
hours stated in the Administrator's order; that the
Administrator's order concerning the restoration of services was
clear and unambiguous; that DHCR had no duty to inform the owner
that it may have misinterpreted the Administrator's order, and
that the owner may not attack the Administrator's order as it
did not file its own petition.
The Commissioner is of the opinion that the proceedings
under Administrative Review Docket Nos. BA 410150 RT and BI
410046 RO, should not be consolidated. Section 2529.1 of the
Rent Stabilization Code states: "The Commissioner may, in his
discretion, consolidate two or more PAR's which have at least one
ground in common." The Commissioner finds that there is no
common ground in the issues raised in the aforementioned
ADM. REVIEW DOCKET NO. BA 410150 RT
petitions. The issues that are raised in this petition are
whether the complainants' rents should be reduced as the
Administrator determined that there had been a diminution of
services, and that the Administrator's order should have found a
diminution of all of the items listed in the tenants' service
complaint. The tenants do not raise the issue of doorman
service in their petition. As the owner did not file a petition
in this proceeding, the issue of the number of hours doorman
service is to be provided is not an issue in this proceeding, but
that is the only issue in the proceeding under Docket No. BI
410046 RO. Even if a common ground could be found in the two
proceedings, it would still be a proper exercise of the
Commissioner's discretion in denying the owner's request for
consolidation, because of the possibility of confusion, among
the parties, in understanding the final determination rendered by
the Commissioner, due to the complexity of the issues that are
raised in the two proceedings that are before the Commissioner.
Accordingly, as the owner did not file its own petition in
this proceeding, and based upon res judicata, collateral
estoppel, and the law of the case, the Commissioner finds that
the owner may not seek to revoke the Administrator's order
through its answer to the tenants' petition.
As the Commissioner has determined that there has been a
reduction in required services, the Commissioner is of the
opinion that that portion of the tenants' petition requesting a
rent reduction for the complaining tenants should be granted,
pursuant to the sections of the Rent Stabilization Law and Code
that were noted in the tenants' petition, and pursuant to the
holding set forth in the case of In the Matter of Hyde Park
v. State of New York Division of Housing and Community Renewal.
The Administrator's order is to be modified to reflect the fact
that the rents of those rent-stabilized tenants who signed the
original complaint shall be reduced to the level in effect prior
to the last rent guideline increase which commenced before the
effective date of that rent reduction. The effective date of
the rent reduction is August 1, 1985, the first day of the month
after the owner was served with the tenants' complaint. The
rent-controlled tenants who were signatories to the complaint
should have their rents reduced effective on the first rent
payment day following the issuance of the original
Administrator's order on December 9, 1986, by $6.00 for
inadequate doorman service and failure to secure the door in the
doorman's absence, and $3.00 for lack of handyman service for a
total of $9.00 per month.
The Commissioner notes that a careful reading of the
tenants' complaint reveals that the allegations regarding the
service elevator and the intercom do not concern the malfunction
of these services but relate to the general issue of inadequate
personnel available to run the service elevator or man the
intercom or to provide replacement employees when the assigned
employees are absent from work. The Commissioner finds that this
issue is adequately addressed in the Administrator's order
ADM. REVIEW DOCKET NO. BA 410150 RT
finding a diminution of services based on reduced personnel and
is, therefore, included in the rent reduction ordered herein.
THEREFORE, in accordance with the City Rent and
Rehabilitation Law, the Rent and Eviction Regulations, and the
Rent Stabilization Law and Code, it is
ORDERED, that this petition be, and the same hereby is,
granted in part, and that the order issued by the District Rent
Administrator on December 9, 1986 under Docket No. L-002406-B be,
and the same hereby is, modified, and that the rents of the
stabilized tenants, whose names appear amongst the signatories to
the original complaint who are listed in Appendix "A" attached
hereto, be, and the same hereby are, reduced to the levels in
effect prior to the last rent guideline increase which commenced
before August 1, 1985, which is the effective date of this rent
reduction; and it is
FURTHER ORDERED, that the rents of the rent-controlled
tenants, whose names appear on Appendix "B" attached hereto, be,
and the same hereby are reduced by $9.00 per month, ($6.00 for
inadequate doorman service and $3.00 for lack of handyman
service), effective January 1, 1987, the first rent payment due
after issuance of the Administrator's order, and it is
FURTHER ORDERED, that based on the determination made in
docket number EL 430212-OR that services have been restored, the
aforementioned rent reductions are restored effective March 1,
1991, the month following service of the owner's restoration
application on the tenants, for rent stabilized tenants, and it
is
FURTHER ORDERED, that the rents be restored by $9.00 per
month for rent controlled tenants effective June 1, 1992, the
month following issuance of this Commissioner's order and it is
FURTHER ORDERED, that the owner shall credit any refund for
which it may be liable as a result of this order against the
future rents of the complainants over a period not in excess of
six months, and that if the refund exceeds the total rent due for
six months, the owner shall continue to credit the complainants'
rents until the refund is fully credited.
ISSUED:
ADM. REVIEW DOCKET NO. BA 410150 RT
JOSEPH A. D'AGOSTA
Acting Deputy Commissioner
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