Docket Number: FE-430086-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
------------------------------------X SJR No. 5692
IN THE MATTER OF THE ADMINISTRATIVE : ADMINISTRATIVE REVIEW
APPEAL OF DOCKET NO.: FE 430086-RT
:
LESLIE OTTOWAY, et al DRO DOCKET NO.: EF 430120-OR
PETITIONER :
------------------------------------X
ORDER AND OPINION GRANTING TENANTS' PETITION FOR ADMINISTRATIVE
REVIEW, IN PART, REVOKING RENT RESTORATION ORDER AND TERMINATING
RENT RESTORATION PROCEEDINGS AS MOOT
On May 3, 1991, the above-named petitioner-tenant filed a Petition
for Administrative Review against an order issued on April 1, 1991,
concerning the housing accommodations known as 330 West 55th Street,
New York, NY, wherein the Administrator granted the owner's
application to restore the tenants' rents previously reduced under
Docket No. DH-430029-RP in an order dated December 26, 1989.
Thereafter, the tenants commenced a proceeding in the Supreme Court
pursuant to Article 78 of the Civil Practice Law and Rules, seeking,
in pertinent part, to reverse the Commissioner's order revoking the
tenants' rent reductions, to stay the rent restoration order herein
under appeal, and to consider the tenants' allegations that the
owner's submissions in the rent restoration proceeding below, and in
the underlying rent reduction proceedings, were fraudulent. On May
31, 1991, the Court (Silberman, J.) issued an interim order, denying
the petitioner's request for a stay, and permitting the Division to
take such further action as would be taken had the Article 78
proceedings not been brought, pending a final determination in the
Article 78 proceedings.
On August 13, 1991, the Court (Silberman, J.), on consent, remitted
the proceedings to the Division to consider the tenant's allegation
of fraud regarding submissions made by the respondent owner. The
Court's order also denied the tenant's request for a stay of the
rent restoration order.
In the underlying rent reduction order, the Administrator found as
follows:
The evidence of record reveals that the owner
failed to comply with the directives of order
no.83863-B issued on May 5, 1987 wherein the
Division finds upon holding a Hearing, that
the service of the doorman's hours and days
were reduced from six (6) days to five (5)
days and from 1:00 A.M. to 12:00 P.M. The
rent reduction ordered under this proceeding
was for Apt. 1-B only.
Subsequently, various tenants filed a
Docket Number: FE-430086-RT
statement of a decrease in building-wide
services stating the same allegations. This
proceeding was assigned Docket #ZCA 430118-B.
A physical inspection was held on Nov. 4, 1988;
it revealed the following: Building clean and
well-kept. There are five (5) machines
(three washers and two dryers). One machine
was out of order (washing machine). There is
a doorman from 4:00 P.M. to midnight,
Wednesday through Sunday. Doorman wears a
uniform.
Inadvertently, an order denying application
of termination proceedings was issued on
March 17, 1989 to all the tenants who joined
in these proceedings. On the basis that the
tenants received a rent reduction under
proceeding #83863-B, it is noted that
proceedings is pending under an administrative
review Docket #BF410010-RO. A determination
has not been made at this time. Therefore, it
is ordered that the above-mentioned order
previously entered herein be, and is hereby
modified, and the legal regulated rent is
hereby reduced by the percentage of the most
recent guidelines adjustment for the tenants'
leases, which commenced before the effective
date of this rent reduction. Furthermore, no
rent increase may be collected after the
effective date of this rent reduction order
until a rent restoration order has been issued.
[Emphasis in the original]
It is noted that the order did not determine the complaint of a
reduction of laundry room services.
The owner commenced the rent restoration proceedings, herein under
review, on or about June 1, 1990, claiming that the services for
which the rent reduction had been issued were being provided pending
resolution of the owner's appeal of the rent reduction order. The
owner stated that it was providing a uniformed doorman from 4:00
P.M. to 1:00 A.M. Tuesday through Sunday and that the laundry room
was open seven (7) days a week.
The tenants filed basically identical responses, to the effect that
doorman services were not being provided as claimed, in that the
Docket Number: FE-430086-RT
doorman was periodically unavailable on Sunday and late at night,
that doormen were frequently out of uniform, i.e., tie, jacket and
dark pants, and that the doormen were not performing their functions
adequately. The tenants also complained that the laundry room
opened and 8:00 A.M. and closed at 10:00 P.M. rather than remaining
open twenty-four hours a day.
An inspection was conducted on December 5, 1990, by a member of the
Division's inspection staff in connection with the owner's rent
restoration proceedings. The inspector reported that he was
informed by the owner's staff that uniformed doorman services were
being provided, as asserted, from 4:00 P.M. to 1:00 A.M., Tuesday
through Sunday, and that the laundry room was open seven days a week
and remained open as posted from 8:00 A.M. to 10:00 P.M. daily.
On April 1, 1991, the Administrator issued an order restoring the
tenant's rent effective August 1, 1990, finding that the doorman and
laundry room service to be maintained.
However, previously on February 20, 1991, the Commissioner had
issued an order revoking the rent reduction order. That order
provided, in pertinent part, the Administrator had inappropriately
relied on the Administrator's finding in the proceedings in Docket
No. 83863-B, rather than rendering a determination based on the
evidence in the record under Docket No. DH430029-RP/CA-430118-B.
There being presented some evidence for finding the proof presented
and considered under Docket No. 83863-B to have been misleading, and
some question as to credibility of the tenant's witness with regard
to the issue of doorman services, the Commissioner revoked the
Administrator's determination under Docket No. 83863-B, and under
Docket No. DH430029-RP/CA430118-B issued in reliance thereon. The
Commissioner remanded the rent reduction proceedings to the
Administrator for a complete and thorough consideration of the facts
de novo.
As a consequence of the revocation of the rent reduction order, the
owner's application for restoration of rent was rendered moot. The
Commissioner therefore finds that the rent restoration order must
also be revoked and the rent restoration proceeding terminated as
moot.
Concerning the remit by the Court, to the Division, on consent for
the limited purpose of consideration by the Division whether the
tenants' allegation of fraud warranted a stay of the Commissioner's
February 20, 1991 orders revoking rent reductions, the Commissioner
finds the sworn affidavits of two (2) of the thirty-one (31) tenants
disputing that they signed the document in the record, stating that
there the doorman always worked five (5) days a week from 4:00 P.M.
to 12:00 P.M., inadequate to establish that the owner committed a
fraud.
One affiant attests that while he did, in fact, sign a petition in
support of a doorman who some people wanted to fire, the document
Docket Number: FE-430086-RT
was "doctored" with and a new heading added, after the tenant signed
the document. The second affiant avers that she never signed the
document.
The tenants "proof" of fraud, prepared in support of litigation,
several years after the events described, and introducing a novel
explanation of the situation, is insufficient to permit the
Commissioner to establish that the owner committed fraud.
Moreover, while the Commissioner found documents submitted by the
owner, of value in the decision to revoke the underlying individual
rent reduction orders (Docket No. 83863-B and DH 430029-RP/
CA-430118-B), the Commissioner found more persuasive, the tenant's
own 1976 letter setting forth the doorman's hours in 1976, to the
effect that the doorman worked from 4:00 P.M. to 11:00 P.M. That
letter requested a rent reduction for the period during which
doorman services had not been provided due to a strike, and does not
complain about a partial reduction of doorman hours, as the tenant
claims.
As to the tenants' general speculation that other documents
submitted by the owner were fraudulent, the Commissioner points out
that the Administrator did not consider all available documents in
the record of the in the building-wide rent reduction complaint (DH
430020-RP/CA-430118-B), but improperly relied solely on the owner's
failure to restore rent as directed to do so in the prior rent
reduction granted to a individual tenant under Docket Number
83863-B. Clearly the Administrator should have considered the
owner's submissions in the building-wide rent reduction proceedings
below (DH-430029-RP/CA-430118-B) for all purposes; albeit they were
not part of the Administrator's record in the prior individual
complaint (Docket no.83863-B).
This order is issued without prejudice to the parties right to
present the submissions herein to the Administrator in the
proceeding under Docket No. EE-410024-RP, and to request the
Administrator to consider additional questions, raised, including
the question of misrepresentations, if any, by any party.
THEREFORE, in accordance with the provisions of Chapter 403, Law of
1983, as amended by Chapter 102 of the Laws of 1984, it is
ORDERED, that the petition be granted to the extent of revoking the
Administrator's rent restoration order as moot, and that the
proceedings be terminated as moot.
ISSUED:
ELLIOT SANDER
Deputy Commissioner
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