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
|
