ADM. REVIEW DOCKET NO.: GG530241RT




                                  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  SJR6661
          IN THE MATTER OF THE ADMINISTRATIVE :  ADMINISTRATIVE REVIEW
          APPEAL OF                              DOCKET NO.:              
                                                 GG530241RT 
                                              :  
                                                 RENT ADMINISTRATOR'S
                                                 DOCKET NO.: 
                                                 FF530071B
                                                 
                                                 

            LYNDA NOSTRAND FOR THE 
            WHITBY TENANTS' ASSOCIATION                                      
            
                                                                             
                                     
                                             
                                                  

                              PETITIONER      : 
          ------------------------------------X                             

            ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW


               On July 29, 1992, the above-named petitioner-tenants filed a 
          petition for administrative review of an order issued on June 25, 
          1992, by the Rent Administrator, concerning the housing 
          accommodation known as 325 West 45th Street, New York, NY, various  
          apartments, wherein the Administrator denied the tenants' complaint 
          of failure to maintain services.

               The Commissioner has reviewed all of the evidence in the 
          record and has carefully considered that portion of the record 
          relevant to the issue raised by the administrative appeal.  

               This proceeding was commenced on June 12, 1991 when the 
          tenants of 28 of the 219 apartments in the subject building joined 
          in filing a complaint alleging a decrease in building-wide services 
          and requesting a rent reduction.  Specifically, the complaint 















          ADM. REVIEW DOCKET NO.: GG530241RT

          alleged that the resident manager has been discharged and not 
          replaced; the resident superintendent has been replaced with an 
          off-site superintendent; front desk service has been eliminated and 
          with it such services as rent collection functions, itemized 
          telephone bills, complaint lists for repairs, 24 hour switchboard 
          service and the added security of having a person present near the 
          entrance door; and numerous other amenities have been discontinued 
          such as extermination service to control pigeons and other pests, 
          fresh flowers in the lobby, and access to the roof for sunbathing.  
          The tenants also alleged that there have been temporary 
          interruptions in heat and hot water services.  They claim that 
          there has been a reduction in basement storage areas, as well as 
          elevator service, water conditioning which purportedly reduces 
          discoloration of the water, revolving door repair and trash 
          compactor services.  They also assert that laundry room services 
          have been diminished, in that the machines are not maintained 
          properly, the room is dirty, and porter laundry room services have 
          been eliminated.   

               The tenants explained that the building was formerly a 
          residential hotel that was reclassified as an apartment building 
          pursuant to a decision of the former Conciliation and Appeals Board 
          that was modified by a Commissioner's Order and Opinion issued on 
          September 12, 1985 under Docket Nos. ARL04148L and ART04629L.  That 
          order incorporated the terms of a stipulation of settlement 
          agreement entered into between the tenants and owner, consenting to 
          the reclassification of the building and providing for leases and 
          rent abatements.

               An answer to the complaint was filed by the attorneys for the 
          owner (hereinafter "the Bank") of the unsold cooperative shares of 
          the subject premises which the Bank acquired title to as a result 
          of foreclosure of the underlying mortgage.  This entity denied 
          responsibility for the services listed in the complaints, claiming 
          that the cooperative board is required to provide and maintain all 
          building-wide services. 

               As to the substance of the complaint, the Bank asserted at the 
          outset that the base date for services at this building is July 17, 
          1985, the date the building was converted to a rent stabilized 
          housing accommodation, by agreement of the parties. 

               Addressing each item of complaint, the Bank alleged that a 
          building manager is employed Monday through Friday during the hours 
          of 9:00 a.m. to 5:00 p.m., that a superintendent resides in Apt. 
          105 and works from 8:00 a.m. to 4:00 p.m. Sunday through Thursday, 
          that the front desk is staffed 24 hours a day, that the front desk 
          employees are not authorized to accept rent payments or resolve 


          billing issues nor were they so authorized on July 15, 1985, that 
          telephone switchboard service is provided on a 24 hour basis, that 






          ADM. REVIEW DOCKET NO.: GG530241RT

          extermination services are provided, that access to the roof is 
          available, that heat and hot water are continuously provided, that 
          basement storage space has not been reduced, that the elevators and 
          revolving doors are adequately maintained, that the trash compactor 
          was recently replaced and is operational, and that the laundry room 
          is adequately maintained. 

               In reply to the answer, the tenants asserted that every 
          service in the complaint was provided in 1985 although the tenants 
          believe that an earlier base date (May 29, 1974) is appropriate.  
          They also stated that they pay rent to "Cross - 325 West 45th 
          Street Owners Corp." and it is that entity which is the landlord 
          and owner.  They also noted that the holder of the unsold shares 
          controls a large block of votes and can exercise substantial 
          influence over the cooperative corporation.  

               The tenants submitted with the reply the affidavit of a former 
          resident manager, explaining in detail her former functions, 
          describing various services previously provided in the building and 
          stating in substance that there were formerly three full-time 
          resident employees and now there are none.

               The tenants further asserted that the building manager does 
          not reside in the building, that the superintendent actually lives 
          in Westchester as evidenced by an enclosed private investigator's 
          report, that the front desk did formerly accept rent payments and 
          resolve billing issues and the Bank admits discontinuing these 
          services, that the reduction in switchboard services is described 
          in the former resident manager's affidavit, that the tenants' 
          complaint regarding extermination services concerned pigeon 
          extermination which has been discontinued, that access to the 
          basement storage area has been substantially curtailed, that the 
          problems with the revolving doors are described in the former 
          resident manager's affidavit, and that the Bank's answer fails to 
          address the reduction in staff, particularly the elimination of the 
          positions of resident manager, resident superintendent, and 
          resident porter.  

               A physical inspection of the subject building by a DHCR 
          inspector took place on June 8, 1991.  The inspector reported that 
          there was a resident superintendent; that there is no sign posted 
          with phone numbers for emergencies; that this is a "well kept 
          building" and that janitorial services throughout are adequate; 
          that the front desk is staffed on a 24 hour basis; that the front 
          desk staff also operates the switchboard and receives mail and 
          packages, takes messages and handles rent collection functions; 


          that a check of the window sills showed no evidence of pigeon 
          feces; that the tenants have access to the roof for sunbathing; 
          that access to the storage areas is provided by contacting either 
          the super or the building manager; that the elevators and revolving












          ADM. REVIEW DOCKET NO.: GG530241RT

          doors were working properly at the time of inspection; that the 
          coloration of the water supply was clear; that there are two trash 
          compactors, one in each wing; and that all 12 washers and all 12 
          dryers were in working order at time of inspection.  The inspection 
          did reveal that there were no fresh flowers in the lobby.  The 
          inspector attached to the report the 24 hour work schedules of the 
          building staff.

               Based on the inspector's report, the Rent Administrator denied 
          the tenants' application and terminated the proceeding.   

               In the petition for administrative review, the tenants assert 
          that the Administrator's order should be reversed because the 
          Administrator overlooked the fact that the premises were formerly 
          a hotel and that, as part of the settlement concerning the 
          reclassification, the owner agreed to continue all the services 
          that the tenants allege to have been curtailed. The tenants stated 
          that the owner should be considered in default because the owner is 
          the 325 West 45th Street Owners Corp. and that entity has not 
          submitted any papers in this proceeding.  They argue that the Bank 
          is the sponsor's "nominee" and does not have the means or authority 
          to provide the services in question and should not be permitted to 
          interpose an answer.   

               The tenants further assert that the Administrator's order 
          failed to address the fact that two building employees are no 
          longer on staff, that there is no longer a resident building 
          manager, and that there was formerly a resident manager and a 
          building manager. 

               With regard to specific services, the tenants claim that in 
          the petition that the Administrator failed to investigate or even 
          mention that rent can no longer be paid by credit card and receipts 
          for cash payments are no longer given. The tenants claim that the 
          owner is about to do away with in-house telephone service and mail 
          service provided by the front desk, to be replaced with a simple 
          intercom.  The tenants also claim that it is no longer possible to 
          go over a rent bill with a person on the premises.  

               They include with the petition copies of court stipulations 
          purportedly requiring that certain services continue to be 
          maintained, a copy of the part of the offering plan which requires 
          the owner to put a rental tenant on the maintenance committee and 
          which the tenants claim has not been done, and a copy of the 


          owner's corporate bylaws which contain a prohibition against a 
          reduction in services.  Included with the PAR are individual 
          statements of tenants regarding, among other things, telephone 
          billing mistakes, front desk errors resulting in a lost package, 
          and the statement of one tenant regarding copper oxide deposits in 
          the water supply and the need to replace the plumbing with 






          ADM. REVIEW DOCKET NO.: GG530241RT

          galvanized pipe.

               The petition asserts that the Administrator overlooked 
          evidence consisting of a private investigator's report showing that 
          the superintendent lives in Westchester. It also contends that the 
          Administrator did not address the issues of the discontinuance of 
          the services of pigeon extermination; housekeeping services, such 
          as window shades, curtains, furniture, fluorescent light bulbs, as 
          well as someone to replace these items; and water treatment to 
          prevent rusty water.  The tenants claim that the Administrator 
          erroneously determined the issues of storage space for which access 
          is repeatedly refused by the building manager, elevators which are 
          not properly maintained as a violation by the Department of 
          Buildings purportedly confirms, inadequate cleaning and maintenance 
          of the public areas including the brasswork, and the discontinuance
          of fresh flowers in the lobby on a weekly basis. 

               In response to the tenants' PAR, 325 West 45th Street Owners 
          Corp., the cooperative corporation filed an answer alleging in 
          substance as follows:  that the co-op corporation submitted an 
          answer below although it is not subject to the agency's 
          jurisdiction or the Rent Stabilization Law and was not served with 
          the tenants' complaint, that Crossland Savings Bank is the 
          successor holder of unsold shares and therefore the "Landlord" 
          under the Rent Stabilization Law, that the 1984 stipulation does 
          not provide for the continuation of services to the extent alleged 
          by the tenants, that payment of rent by credit card is not a 
          required service; that the former building manager, Lorraine 
          Siemion, whose affidavit is included in the tenants' PAR, was 
          discharged from her employment because of poor performance, and 
          being a tenant of the building before and after her employment 
          resided there as a consequence of her tenancy and not her 
          employment; that the building superintendent resides in the 
          building; that the building manager has an office in the building 
          and maintains the working hours of 9 - 5 P.M.; that there is 
          extreme bitterness between purchasing and non-purchasing tenants; 
          that the cooperative tenants have investments to protect and that 
          to suggest they are allowing the building to deteriorate is 
          ludicrous; that pigeon extermination and housekeeping services were 
          not contained in the complaint below and cannot be properly raised 
          in the PAR; that the tenants' predictions with respect to 
          elimination of in house telephone and mail services are speculative 


          and the services have not been eliminated to date; that in the 1985 
          stipulation the tenants agreed to accept those services which were 
          provided after the conversion; that for security reasons the 
          building manager maintains control over the storage space through 
          prearranged appointments; that building management responded 
          immediately to elevator problems and that evidence submitted by the 
          tenants supports this; that the DHCR has held that enforcement of 
          standards of elevator operation is under the jurisdiction of the 












          ADM. REVIEW DOCKET NO.: GG530241RT

          Dept. of Buildings; that the DHCR has previously held that a 
          reduction in building staff does not by itself constitute a 
          reduction in services; and, that the Rent Administrator's 
          determination was properly based on the results of inspection.    
                    
               The Commissioner is of the opinion that the petition should be 
          denied.

               Section 2520.6(r) of the Rent Stabilization Code defines 
          required services as those which the owner was maintaining or was 
          required to maintain on the applicable base date including repairs 
          and maintenance, furnishing of heat and hot and cold water, 
          elevator and janitorial services and removal of refuse.

               The tenants have repeatedly asserted that a settlement reached 
          with the tenants in connection with the reclassification of the 
          building from hotel to residential apartments calls for certain 
          services to be maintained.  The tenants assert that such services 
          include all those which the tenants claim have been curtailed.  The 
          PAR includes copies of four different settlements or stipulations 
          dated April 28, 1980, February 3, 1981, November 15, 1982, and July 
          17, 1985.  In the latest stipulation, the parties consented to the 
          reclassification of the building as a "Class A Apartment Building 
          subject to the provisions of the Rent Stabilization Law."  The 
          stipulation set rents and granted rent abatements.  The tenants 
          agreed thereunder to withdraw pending rent overcharge and service 
          reduction complaints and to make no further challenge to the rents 
          then in effect or file additional complaints based upon alleged 
          past diminutions in services.  The owner agreed to retain all 
          services then being provided.  However, the stipulation of 
          settlement does not specify what those services are.  The 
          documentation submitted is inconclusive on the issue of exactly 
          what services were being provided on July 17, 1985 the effective 
          date of the reclassification from hotel to apartment house.    

               The tenants claim that there has been a reduction in full- 
          time building staff, that the positions of resident manager and 
          building manager (two different positions) have been eliminated.  
          Documents provided by the tenants in the form of letters and 
          building notices show that the position of manager has not been 


          eliminated, but that the manager no longer resides in the building. 
          The record indicates that the former position of resident manager 
          is filled and carried out off premises, and evidence presented 
          shows that the manager maintains the same business hours as the 
          former resident manager.  Billing disputes are resolved by the 
          manager's office.  In addition, evidence indicates there is a 
          superintendent who resides on the premises and maintains regular 
          business hours.  The tenants indicate in the PAR that after hours 
          the superintendent can be reached by beeper.       







          ADM. REVIEW DOCKET NO.: GG530241RT

               A decrease in the number of building employees does raise a 
          presumption of a decrease in building services which can be 
          rebutted by a showing that services have in fact not been affected.  
          In this case, the presumption of a decrease in building services is 
          rebutted by the results of the inspection conducted on June 8, 
          1992.  The Commissioner notes that the inspection was conducted in 
          response to specific items raised in the complaint, and the report 
          was prepared by a rent agency employee who is not a party to the 
          proceeding nor an adversary.  The Commissioner is of the opinion 
          that it was appropriate for the Administrator to rely on the 
          results of the inspection, as they relate to the complaint rather 
          than the statements of a party to the proceeding, in determining 
          the outcome of this case.  Accordingly, the report of inspection, 
          placed in the record for consideration by the Administrator below 
          was properly accorded substantial weight and the results of that 
          inspection which have been previously set out in this order and 
          opinion do not support a finding of a decrease in services. 

               The other allegations raised in the tenants' PAR regarding 
          various personal services provided by the former resident manager 
          such as assisting the elderly and supervising repairs were not 
          included in the complaint or substantiated by any evidence.  If 
          necessary repairs are not being made to individual apartments, 
          those tenants may file individual complaints with the Division. 

               As for the superintendent, even if he maintains a home 
          elsewhere, the evidence of record indicates that there is a 
          superintendent's apartment in the building and that superintendent 
          services are being maintained.

               Notwithstanding the inspection results the tenants contend 
          that certain issues were incorrectly considered by the 
          Administrator.  They say in the PAR that this issue is not lack of 
          storage space but lack of access to the storage space.






               The Commissioner notes that the complaint below was a 
          reduction of tenant use of basement storage areas.  Since 
          inspection disclosed that storage is available by appointment with 
          building staff, the Commissioner finds that the Administrator 
          properly found that such does not constitute a reduction in 
          services.  Similarly, the tenants argue that pigeon extermination 
          and water treatment, ostensibly to prevent rusty water, were 
          services that were formerly provided and have been discontinued.  
          Inspection by this Division disclosed, no accumulation of pigeon 
          feces on window sills.  The inspector also reported that the water 
          in the building ran clear.  The Commissioner accepts the report of 
          the Division's inspector over the personal observation, submitted 












          ADM. REVIEW DOCKET NO.: GG530241RT

          with the PAR, of a tenant who, by tying a handkerchief around the 
          faucet, determined the water quality to be unacceptable.  

               The complaint below noted that the elevators were poorly 
          maintained and subject to breakdown.  While the inspection below 
          found the elevators fully functioning, on PAR the tenants submit a 
          notice of violation issued by the N.Y.C. Dept. of Buildings for 
          failure to perform an elevator inspection and to file the 
          inspection report with the Department.  The notice provides that 
          the remedy is to file a timely inspection report for 1992.  The 
          notice of violation is not indicative of poorly maintained 
          elevators or of any defects in elevator service.  The Commissioner 
          finds that the Administrator properly determined that there has 
          been no reduction in services based on the elevator.

               Inspection disclosed that rent payments can still be made at 
          the front desk.  That payments cannot be made by credit card or 
          third party check, or that receipts are not issued thereby 
          eliminating payment by cash, does not constitute a failure to 
          maintain required services. 

               The allegation regarding housekeeping and brass polishing 
          services is raised for the first time in this administrative 
          appeal.  The Commissioner notes that an administrative appeal is 
          not a proper vehicle to raise new service complaints and is 
          strictly limited to issues of law and fact raised in the proceeding 
          below.  Accordingly, the tenants' allegation regarding housekeeping 
          services as to which no evidence had been presented below cannot be 
          considered in this appeal. 

               As for brass polishing, insofar as it relates to inadequate 
          cleaning of the public areas, the Commissioner relies on the 
          inspector's observation that the building is "well maintained" 
          noting no conditions with respect to brasswork.




               The allegations regarding telephone service are speculative.  
          The tenants are advised to file another complaint if required 
          telephone services are discontinued.  The reference to the lack of 
          a listing in the directory was not raised in the complaint and is 
          therefore beyond the scope of review of this administrative appeal.

               Lastly, the Commissioner finds that the discontinuance of 
          fresh flowers in the lobby on a weekly basis does not constitute a 
          failure to maintain required services which would warrant a 
          building-wide rent reduction. 

               THEREFORE, in accordance with the Rent Stabilization Law and 
          Code, it is







          ADM. REVIEW DOCKET NO.: GG530241RT

               ORDERED, that this petition be, and the same hereby is, denied 
          and the Rent Administrator's order be, and the same hereby is,
          affirmed.

          ISSUED:


                                                                        
                                          JOSEPH A. D'AGOSTA
                                          Deputy Commissioner




                                                    







    

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