STATE OF NEW YORK
DIVISION OF HOUSING AND COMMUNITY RENEWAL
OFFICE OF RENT ADMINISTRATION
92-31 UNION HALL STREET
JAMAICA, NEW YORK 11433
IN THE MATTER OF THE ADMINISTRATIVE ADMINISTRATIVE REVIEW
APPEALS OF DOCKET NOS.:
19 EAST 80TH STREET TENANTS' GF430112RO
DAVID FRANKEL REALTY, INC., RENT ADMINISTRATOR'S
ORDER AND OPINION DENYING TENANTS' PETITION (GF430359RT)
AND GRANTING OWNER'S PETITION (GF430112RO)
On June 11 and 22, 1992, the above-named petitioners filed peti-
tions for administrative review (PAR) of an order issued on May 15,
1992, by the Rent Administrator, concerning the housing accommoda-
tion known as 19 East 80th Street, New York, New York, various
apartments, wherein the Administrator determined that the owner had
complied with all the directives of the order issued on December 9,
1986 in Docket No. L002406B.
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 administrative appeal.
The owner commenced this proceeding on December 17, 1990 by filing
an "Owner's Application to Restore Rent and/or Collect Rent
Adjustment". In the application, the owner asserted that it had
restored all services for which an order had been issued directing
restoration of services, but not ordering a rent reduction. The
owner claimed that it had restored the services referred to in a
December 9, 1986 Administrator's order and a January 24, 1990
Compliance order, both bearing Docket No. L002406B. The services
to be restored were identified in the Administrator's order as:
1. Handyman service.
2. Doorman on duty Thursday afternoon
and Sunday morning.
3. Secure door when doorman is off on
hours noted in No. 2 above or sub-
stitution of employees.
The owner explained that the January 24, 1990 Compliance order
found that the owner had complied with the requirements to secure
the door and a doorman had been hired to work Thursday afternoons
and Sunday mornings and that with regard to the other services, a
handyman had been employed five days a weeks.
On April 2, 1991, the Administrator requested that the owner
provide additional information regarding the work schedules for the
handyman, doorman, and elevator operator for the past two years; a
description of the duties of the handyman; an explanation of how
the building entrance door is secured when the doorman and/or
elevator operator are off on Thursday and Sunday; and an explana-
tion of whether there is a substitution of employees when the
handyman, doorman, and elevator operator are off.
In response to this request, the owner submitted copies of weekly
payroll records for each week from January 1, 1989 through March
31, 1991. The owner explained that in 1989, the building had nine
full-time employees, each working 40 hours per week for a total of
360 hours. These hours consisted of elevator services 24 hours a
day, 7 days a week; superintendent services 8 hours a day, 5 days
a week; service elevator operation 8 hours a day, 7 days a week;
and doorman service for twelve 8 hour shifts. After the Commis-
sioner's January 24, 1990 order was issued finding noncompliance
with portions of the order to restore services, the owner hired
additional employees to provide 16 additional hours of doorman
service (eight hours each on Thursdays and Sundays) and 40 hours
per week of handyman service.
The duties of the handyman, according to the owner, are to assist
the superintendent in making repairs and to participate in the
general maintenance and upkeep of the building.
The owner asserted that since there is now doorman and elevator
service on Thursday afternoon and Sunday morning, it is meaningless
to consider how the door is secured when these employees are "off".
The owner, however, referred to the January 24, 1990 Commissioner's
order which found that the owner had sufficiently established that
it had installed an electronic security system to cover the time
when the doorman is away from the door.
The Tenant Association filed an answer on June 14, 1991 opposing
the owner's application. The tenants stated that services have not
been restored to the required level in that the handyman employed
by the owner does not work weekends and no relief personnel are
available to man the door during the numerous and often extended
breaks taken by the regularly scheduled doorman. The tenants
assert that the payroll records submitted by the owner established
that the handyman does not work even one weekend day and that this
creates a substantial hardship for the tenants. With regard to
doorman service, the tenants contended that the issue is misrepre-
sented by the owner. It is not just whether doorman service is
provided on Thursday afternoon and Sunday morning but whether
substitute personnel are provided at all times when the doorman is
absent from his post and this service has not been restored, nor is
it an acceptable substitute for the door to be locked when the
doorman is absent.
The Administrator's order issued on May 15, 1992 found that the
owner had fully complied with the directives of the order issued on
December 9, 1986 in Docket No. L002406B in which the owner was
directed to restore services but no rent reduction was ordered. A
rent abatement was granted in the Commissioner's order (Docket No.
BL410150RT) determining the tenants' petition for administrative
review of that order. In the order appealed herein, the
Administrator terminated the restoration proceeding stating the
services were found to have been restored in the Commissioner's
order. Subsequently, a petition for judicial review pursuant to
Article 78 of the Civil Practice Law and Rules was brought by the
tenants challenging the validity of the rent restoration
determination in the Commissioner's order. The parties entered
into a stipulation, agreeing that the issues concerning rent
restoration would be determined in the PARs against the rent
restoration order, notwithstanding the determination in Docket No.
In the petition for administrative review, filed by the owner, it
is argued that the effective date of restoration should be earlier
than March 1, 1991. It is noted that the effective date of the
restoration is stated in the Commissioner's order and not in the
restoration order. The owner argues that the effective date should
be March 1, 1990 because the tenants were notified by letter dated
February 20, 1990 that the owner had complied with the directive to
restore services. The owner asserts that it did not file a res-
toration application sooner because no rent reduction had been
The owner's petition was served on the tenants on June 30, 1992.
In the petition for administrative review filed by the tenants,
they assert that services were not restored in that there is no
weekend handyman and no relief doorman services. They claim that
the Administrator's restoration order is incorrect in relying on a
finding made in the Commissioner's order that services were re-
stored when no such finding was made. The tenants' petition was
served on the owner on July 8, 1992.
In an amendment to the petition filed on November 17, 1992 and
served on the owner on December 3, 1992, the tenants assert that
pursuant to the Commissioner's order (Docket No. BL410150RT) the
owner is also required to restore the hours for the service
elevator, continual manning of the intercom, and the provision for
substitute employees whenever regularly assigned employees are
absent from work.
The tenants claim that none of these additional services have been
In answer to the tenants' petition, the owner asserts that the
tenants never raised the issue of whether handyman services had to
be provided on weekends or whether a relief doorman had to be
provided when the regular doorman was on duty, but taking a short
meal or bathroom break. In sum, the owner contends that it cannot
be required to restore services which were never found to have been
After careful consideration of the entire evidence of record, the
Commissioner is of the opinion that both the tenants' and the
owner's petitions should be denied.
Although the Administrator's order, appealed herein, improperly
relied on the Commissioner's order in finding that services had
been restored when in fact no such finding was made in that order,
there is sufficient evidence in the record to support a determina-
tion that all required service have been restored. The services to
be restored must be identified by reading the Administrator's order
issued on December 9, 1986 Docket No. L002406B together with the
Commissioner's order and opinion issued on May 18, 1992 in Docket
No. BA410150RT affirming the Administrator's order, and ordering a
rent reduction based on a finding that the tenants were entitled to
The Administrator's order directed the owner to restore "handyman
service". It did not identify specific hours or days that a handy-
man must be available, and the tenants' attempts to elaborate in
the restoration proceeding on what was meant in the 1986 Adminis-
trator's order constitutes an impermissible collateral attack on a
final order. It is noted that the Commissioner's order granting the
tenants' PAR of that order did not modify the directive to the
owner to restore "handyman service" and that the tenants' Article
78 petition for judicial review of the Commissioner's order did not
result in any modification to this portion of the order.
According to the payroll records submitted by the owner and the
tenants' own admissions, a handyman has been hired and is employed
five days a week. This is sufficient to support a determination
that this service has been restored to the extent required.
It is also undisputed that a doorman is now on duty Thursday after-
noons and Sunday mornings, so this service too has been restored.
As for the directive to secure the door when the doorman is off,
the Commissioner finds that the compliance order issued on January
24, 1990, also by the Commissioner, determined that this portion of
the Administrator's order had been complied with. This too is a
final agency determination which was affirmed on appeal and is not
subject to collateral attack in this restoration proceeding. If
security has diminished since issuance of the Compliance order, the
tenants are advised of their right to file a new application for a
rent reduction, but any course of conduct subsequent to January 24,
1990 with regard to this item is not an appropriate matter for
consideration in this proceeding.
The Commissioner's order and opinion issued in BA410150RT found
that the tenants' complaint regarding the service elevator, the
intercom, and the substitution of absent employees was included in
the Administrator's finding that building personnel had been re-
duced. The tenants Article 78 petition seeking judicial review of
that order did not result in any modification of that portion of
the order and it is not now subject to further review.
The evidence of record supports a finding that these services have
also been restored. The payroll records establish that the service
elevator is available 8 hours a day, 7 days a week. Although the
Administrator's order did not specify the hours the service ele-
vator is to be provided, the owner is cautioned to maintain no less
than these hours of operation.
The intercom issue relates to the availability of personnel to
answer the door and announce visitors. The testimony at the
hearing conducted in the Compliance proceeding reveals that mon-
itoring the intercom is one of the functions of the doorman and
that no one was available to operate the intercom when the doorman
was not on duty or away from his station. With the undisputed
hiring of additional personnel to cover the previously eliminated
doorman shifts and the installation of an electronic security
system, the door is now covered at all required times. The finding
in the Compliance proceeding that a security system has been
installed to cover the door when the doorman is away from his post
sufficiently establishes that the owner has made appropriate
arrangements for those times when the doorman takes his meal or
bathroom breaks. The security system provides for electronic
surveillance of the door which can be viewed through a monitor in
the elevator, allowing the elevator operator to determine if
someone who buzzes should be admitted, and if so, to release the
door lock under his control. This apparatus precludes the need for
the hiring of additional personnel to fill in when the doorman must
be away from his post.
Based on the foregoing the Commissioner finds that the evidence of
record adequately support a finding that services have been re-
The owner in its petition seeks an earlier effective date for the
restoration claiming that all services were actually restored in
April 1990 when the required number of building personnel were
employed but because there had been no rent reduction, the owner
had no reason to file a restoration application.
The Commissioner is of the opinion that this argument is without
merit. The Division's procedures have consistently required rent
restoration for stabilized tenants to be effective the first of the
month following service of the application on the tenants just as
rent reductions are effective the first of the month following
service of the complaint on the owner. There is no basis for
modifying these established procedures for this particular case.
The Commissioner notes that the owner attempted to establish
compliance with the order to restore services so that it could
collect rent increases that it was barred from collecting by the
January 24, 1990 Commissioner's order. The owner filed an "Affirm-
ation of Compliance" on June 5, 1990 and then on July 20, 1990, in
a letter to DHCR, the owner requested a written determination
finding compliance. The owner then commenced a mandamus proceeding
and in an order and in an order and decision dated November 2,
1990, the Supreme Court (Weissberg, J.) denied the petition and
". . . DHCR claims that petitioner has not yet
filed RTP-19 Application for Rent Restoration.
There can be no determination of compliance
until that form is properly filed, and the
procedures for an administrative determination
have been completed."
On December 17, 1990 the owner finally did file the RTP-19 Form
which is entitled "Owner's Application to Restore Rent And/Or
Collect Rent Adjustment" (emphasis added) and contains an option
for indicating that "the owner has restored all services for which
an order was issued directing restoration of services. No rent
reduction was given." Clearly, the Division had a form and proced-
ures appropriate to the situation presented in this case where no
rent reduction had been ordered. The owner was advised to file the
RTP-19 Form by DHCR in its answer to the mandamus proceeding.
The Division's practice is to advise owners to file for restora-
tion when a finding of compliance is made. In this case no finding
of compliance was made before the restoration application was
The record reveals that the owner's application was served by the
Division on the tenants on February 6, 1991. This is the formal
proceeding required by the Division and directed by the court.
Accordingly, rent restoration is properly effective as of March 1,
1991 for rent stabilized tenants. For rent controlled tenants, the
effective date of restoration is the first rent payment due
following May 15, 1992. pursuant to Section 2202.2 of the Rent and
THEREFORE, in accordance with the Rent Stabilization Law and Code,
and the Rent and Eviction Regulations for New York City, it is,
ORDERED, that the owner's and tenants' petitions be and the same
hereby are, denied and the Administrator's order be, and the same
hereby is, affirmed as modified to state that the owner's applica-
tion for restoration (EL430212OR) is granted and that the rents are
restored as of March 1, 1991 for rent stabilized tenants and as of
the first rent payment following May 15, 1992 for rent controlled
tenants, plus all lawful subsequent increases.
JOSEPH A. D'AGOSTA