GF430359RT; GF430112RO
                                    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
          IN THE MATTER OF THE ADMINISTRATIVE     ADMINISTRATIVE REVIEW
          APPEALS OF                              DOCKET NOS.:                 
          GF430359RT;
              19 EAST 80TH STREET TENANTS'        GF430112RO
                    ASSOCIATION AND                    
               DAVID FRANKEL REALTY, INC.,        RENT ADMINISTRATOR'S
                                                  DOCKET NO.:
                                  PETITIONERS     EL430212OR          
          ----------------------------------x



              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.












          GF430359RT; GF430112RO



          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 






          GF430359RT; GF430112RO

          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. 
          BL410150RT.

          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 
          ordered.

          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 












          GF430359RT; GF430112RO

          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 
          restored either.

          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 
          reduced.

          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 
          it.

          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, 






          GF430359RT; GF430112RO

          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 












          GF430359RT; GF430112RO

          record adequately support a finding that services have been re- 
          stored.

          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 
          stated:

                    ". . . 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 






          GF430359RT; GF430112RO

          filed. 

          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 
          Eviction Regulations.


          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.


          ISSUED:




                                                                           
                                                JOSEPH A. D'AGOSTA
                                                Deputy Commissioner


                                          







    

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