ADM. REVIEW DOCKET NO.: BI 410046 RO
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.
BI 410046 RO
:
DISTRICT RENT
ADMINISTRATOR'S DOCKET
NO. 045773
19 EAST 80TH STREET ASSOCIATES
PETITIONER :
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ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW
On September 8, 1987, the above-named owner filed a
petition for administrative review of an order issued on August
20, 1987 by a District Rent Administrator concerning the housing
accommodation known as Apartment 2A, 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.
This proceeding was commenced by the tenant's filing of an
objection to the 1984 building services registration, dated
September 26, 1984. The tenant alleged, among other things, that
a doorman is a required service for 16 hours a day, seven days a
week.
The Division of Housing and Community Renewal (D.H.C.R.)
mailed to the owner a notice, on June 18, 1987, which directed
the owner to submit to the rent agency its answer to the tenant's
complaint, within twenty days of the aforementioned date, and to
include any relevant documentation to substantiate its answer.
The owner's answer, dated July 9, 1987, alleged that
doorman services are not for 16 hours, 7 days a week, and that
the tenant may inspect the owner's payroll history and schedules
by making an appointment. The owner also alleged that it is
maintaining all required services.
The tenant's response to the owner's answer, dated July 30,
1987, alleged that during the tenant's initial occupancy (July 1,
ADM. REVIEW DOCKET NO.: BI 410046 RO
1973) there were two full eight-hour doorman shifts, servicing
the building sixteen hours daily, seven days per week, but that
doorman service had been eliminated on Thursdays from 3:00 PM to
11:00 PM and on Sundays from 7:00 AM to 3:00 PM.
In the order reviewed herein the Administrator determined
that the apartment registration shall include doorman service,
for sixteen hours per day, seven days a week.
The owner's petition alleges that the sixteen hour per day
doorman service applies only on Monday, Tuesday, Wednesday,
Friday and Saturday. The owner bases this allegation on the
subject building's managing agent's statement: "I have been
agent for the last 13 years and there has always been only 8
hours doorman service on Thursday and Sundays."
The tenant's answer to the owner's petition, dated December
16, 1987, points out that the owner does not substantiate its
allegations with any evidence, other than the managing agent's
personal recollection. The tenant also points out that the
owner's answer before the District Rent Administrator mentioned
payroll records that allegedly exist, but that the owner did not
produce these records.
To her answer the tenant attaches a letter, dated October 4,
1985, submitted by the owner to the rent agency, pertaining to a
separate proceeding, in which the owner states that the
building's payroll records dating back to 1968 and 1974 cannot
be located.
On December 24, 1987, the owner submitted a response to the
tenant's answer reiterating its assertions contained in its
petition, including its invitation to any tenant to review the
building's payroll records.
On February 26, 1991, the owner submitted a letter to the
rent agency requesting that this proceeding (Administrative
Review Docket No. BI 410046 RO) be consolidated with
Administrative Review Docket No. BA 410150 RT, which is a
tenants' petition asserting, among other things, that the
Administrator's order (under Docket No. L-002406-B) should have
ordered a reduction in the tenants' rents for the diminution of
services noted in the order.
The tenants, on March 18, 1991, filed their objection to the
owner's request for consolidating the two aforementioned
proceedings. The tenants assert that the two proceedings raise
separate issues. As the tenants point out, 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,
under Docket No. BA 410150 RT.
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 Thursdays and
Sundays only one doorman was on duty for eight hours.
ADM. REVIEW DOCKET NO.: BI 410046 RO
After careful consideration, the Commissioner is of the
opinion that the owner's petition should be denied.
The Commissioner is of the opinion that the two 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
petitions. The issues that are raised in the tenants' petition,
under Docket No. BA 410150 RT, 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 that proceeding, the issue
of the number of hours doorman service is to be provided is not
an issue in the aforementioned proceeding, but that is the only
issue in this proceeding. 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.
The Commissioner finds that based upon the record that was
before the Administrator in this proceeding, the Administrator's
determination pertaining to the level of doorman service was
proper. The Commissioner notes that in the notice that was
mailed to the owner, on June 18, 1987, the Administrator
requested that the owner include any relevant documentation to
substantiate its answer. The Commissioner further notes that the
owner did not submit any documentation or probative evidence to
the Administrator to substantiate its answer. Furthermore, the
Commissioner is of the opinion that the owner does not adequately
explain why it did not submit the subject building's payroll
records to the rent agency, until over three years after the
issuance of the Administrator's order. Any assertions by the
owner that it could not locate the payroll records until 1991 is
belied by the owner's answer which was submitted to the
Administrator on July 14, 1987, which invited the tenant to
inspect the building's payrolls for any year.
Furthermore, by the time the Administrator isseud his order
in this proceeding (Docket No. 045773), on August 20, 1987, the
rent agency had already issued Docket No. L-002406-B, on December
9, 1986, which was a final determination of the issue of doorman
service, as the owner did not file a petition for administrative
review of that order. Accordingly, the Commissioner finds that
the owner's petition should be denied, as it is the law of this
case and res judicata, that the owner is to provide doorman
ADM. REVIEW DOCKET NO.: BI 410046 RO
service during the hours stated in the Administrator's order.
It is noted that the Commissioner issued an order, dated
January 24, 1990, and an amended order dated February 7, 1990,
after conducing a hearing. Both orders found that the owner had
not complied with the Administrator's earlier order, in the
proceeding under Docket No. L-002406-B, in that the owner had not
restored doorman service on Thursday 3:00 P.M. to 11:00 P.M. and
Sundays 7:00 A.M. TO 3:00 P.M.
The Commissioner further notes that the owner filed an
Article 78 proceeding for judicial review of the aforementioned
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 ...
maintain a doorman during the Thursday
and Sunday shifts is perfectly logical.
The Appellate Division, First Department, by order and
decision entered on October 22, 1991, affirmed the Supreme
Court's decision.
With regard to the payroll records which the owner submits
for the first time upon administrative review, the Commissioner
notes that the owner has not established that they could not
reasonably have been offered or included in the proceeding before
the District Rent Administrator. They are therefore outside the
scope of the Commissioner's review in this proceeding.
THEREFORE, in accordance with the Rent Stabilization Law
and Code, it is
ORDERED, that the owner's petition be, and the same hereby
is, denied, and that the District Rent Administrator's order be,
and the same hereby is, affirmed.
ISSUED:
JOSEPH A. D'AGOSTA
Acting Deputy Commissioner
ADM. REVIEW DOCKET NO.: BI 410046 RO
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