HL430013RP
                                    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.:  7391 (Previously
          IN THE MATTER OF THE ADMINISTRATIVE     SJR No.: 6742)
          APPEAL OF
                                                  ADMINISTRATIVE REVIEW
                                                  DOCKET NO.: 
                   ARTHUR D. ZINBERG,             HL430013RP
                                                          
                                                  RENT ADMINISTRATOR'S
                                   PETITIONER     DOCKET NO.:
          ----------------------------------x     CG430029B     



                      ORDER AND OPINION ON REMIT FROM THE COURT
                  AFFIRMING COMMISSI0NER'S PRIOR ORDER AND OPINION
            GRANTING, IN PART, OWNER'S PETITION FOR ADMINISTRATIVE REVIEW
            THAT AFFIRMED RENT ADMINISTRATOR'S ORDER AS MODIFIED THEREIN


          On May 22, 1989, the above-named petitioner-owner filed a Petition 
          for Administrative Review (PAR) appealing an order issued on April 
          20, 1989, by the Rent Administrator at Gertz Plaza, Jamaica, NY,
          concerning the housing accommodations identified as 504 East 5th 
          Street, New York, New York, wherein the Administrator determined 
          the tenants' complaint of an inoperative bell/buzzer system or 
          intercom system.

          An Order and Opinion issued by the Commissioner (per Docket No. DE 
          430232RO) on November 5, 1992, which granted, in part, the owner's 
          petition was subsequently appealed by the owner in the Supreme 
          Court pursuant to Article 78 of the Civil Practice Law and Rules.  
          The Court (Shainswit, J.) remitted the matter to the Commissioner 
          for further consideration of the owner's allegations that the 
          service, a functioning bell and buzzer system, was not provided on 
          the base date.

          The Commissioner has reviewed all the evidence in the record and 
          has carefully considered that portion of the record relevant to the 
          issues raised.

          The tenants commenced the underlying proceedings in a complaint 
          joined by 19 of the 32 tenants.  They alleged that the bell/buzzer 
          system was broken, that the intercom did not work, and that it was 
          not possible to "buzz" someone in.












          HL430013RP



          The owner had responded that the Initial 1984 Services Registration 
          did not list either system as a required service provided by the 
          owner, that there had not been any operative "buzzer" system for at 
          least forty (40) years, and that all tenants who moved into the 
          building commencing in 1977 signed a statement acknowledging that 
          there was no system to "buzz" someone in.  The owner further 
          advised that the building has additional mailing addresses known as 
          66 Avenue A, and 187 East 4th Street.

          With the answer the owner provided signed statements from nine (9) 
          rent stabilized tenants retracting their signatures from the 
          complaint.

          The Rent Administrator's order directed the owner to restore ser- 
          vices to the required level.  In addition the Rent Administrator 
          reduced the rents for rent controlled tenants by $3.00 per month 
          based on the results of an inspection conducted on January 30, 
          1989, that confirmed the tenants' complaint of inoperative buzzer 
          equipment.  The inspector reported that the bell/buzzer system was 
          inoperative. The inspector also reported that there was no evidence 
          of an intercom system.  The rents for rent stabilized tenants were 
          not reduced as the tenants had not requested a rent reduction.
            
          In the petition for administrative review, the owner reiterated the 
          assertions below, and submitted a statement, dated November 1977, 
          signed by seventeen (17) tenants, requesting the owner to "keep all 
          entrance doors locked and [to] disconnect the electric door opener 
          so that no person can unlock the entrance doors by buzzing the bell 
          from his apartment".

          The owner asserted that each wing of the building has its own  
          entrance and that apartments in other wings do not connect to the 
          inoperative bell/buzzer system at 504 East 5th Street.  The owner 
          also stated that there is no internal access between and among the 
          wings, and argued that any rent reduction should apply only to the 
          four rent controlled tenants who reside at 504 East 5th Street and 
          who are affected by the inoperative bell/buzzer. 

          The Commissioner, in pertinent part, found that the tenants' 
          November 1977 statement submitted by the owner, requesting the 
          owner to disconnect the electric door opener so that no person can 
          unlock the entrance door by buzzing the bell from his apartment, 
          contradicted the assertion of the owner's representative that there 
          has been no capability to "buzz" someone in for forty years;  
          noting, in fact, that it suggested an acknowledgement by the owner 
          that the bell/buzzer system was eliminated after the base dates.  










          HL430013RP

          The owner's argument that the order violated due process because it 
          did not specify why or when the bell system was inoperative was 
          found to be without merit, particularly in light of the owner's 
          statement that the equipment had been deliberately disconnected at 
          the request or suggestion of some tenants, or at least with their 
          consent.

          In the Article 78 petition, as below, the owner repeated the alle- 
          gation in the DHCR proceedings that the bell and buzzer system had 
          not functioned for at least forty (40) years, as well as the argu- 
          ment concerning the tenants' agreement that the bell and buzzer 
          system be disconnected.

          The Court granted the owner's petition to the Court to reverse and 
          annul the Commissioner's order, to the extent of remitting the 
          matter for further consideration.  The Court stated that the owner 
          had "submitted evidence to show that the bell/buzzer system 
          service, the absence of which formed the basis for respondent's 
          [DHCR] rent reduction order, did not exist as of the base date for 
          services", and directed that it be reconsidered.  The Court denied 
          the DHCR's motion for reargument.  However, the Court's decision 
          does not identify any evidence considered, nor point to any 
          specific error in the Commissioner's order. 

          A close examination of the record upon reconsideration establishes 
          that the Rent Administrator's determination, that the bell/buzzer 
          system is an essential service for rent controlled apartments which 
          must be provided, should be affirmed for the following reasons. The 
          owner's evidence was considered by both the Rent Administrator and 
          by the Commissioner.  The basis of their decision was the weight of 
          the evidence of record. The Rent Administrator and the Commissioner 
          took particular note of the allegations of many tenants of de- 
          creased services concerning elimination of an operative bell/buzzer 
          system after the applicable base date, and judged them to be more 
          credible than the owner's arguments based on unsubstantiated de- 
          nials, contradictory statements and erroneous technical arguments.

          The owner had presented below, among other items, a) the 1977 
          agreement by tenants (17) to discontinue a service which allegedly 
          did not exist, and b) post-1977 tenants' signed statements as to 
          there being no buzzer system.
           
          The 1977 agreement between the tenants and the owner requests the 
          owner to discontinue the electric door opener.  The Rent Adminis- 
          trator interpreted the language therein as a request to take action 





          at that time.  There is no indication therein that the tenants who 
          signed the November 1977 agreement must have been acknowledging a 












          HL430013RP

          prior agreement.  In order for that to be logically and factually 
          correct the request would have had to been made some time prior to 
          1948 (the date the owner claims there was no functioning 
          bell/buzzer system in the subject premises), or at least prior to 
          April 30, 1962, the base date for services under rent control 
          regulations.  If the draftsman and signatories intended such a 
          plain meaning they could have so stated, unless the purpose was to 
          be inaccurate so as to mislead.  It is also not credible and highly 
          unlikely that the tenants who signed the agreement had been in 
          occupancy nearly that long. 

          The fact that several complaining tenants may have known that the 
          bell/buzzer system for the premises did not function when they 
          moved in, and signed statements to that effect, does not establish 
          that a properly functioning bell/buzzer system is not an essential 
          service.  Indeed, all that the statements establish is that this 
          service was indisputably available, but that it had not been 
          provided in the premises when these tenants commenced occupancy 
          in/or about 1979.

          Likewise, the owner's reliance on the tenants' 1977 agreement to 
          waive the service provided by a properly functioning bell/buzzer 
          system, is misplaced.  Agreements entered into between owners and 
          tenants to waive the benefit of provisions of the rent laws and 
          regulations have been held to be void as against public policy and 
          unenforceable.  (Section 2200.15 of the Rent and Eviction 
          Regulations).  Also, an examination of rent control registration 
          records, reflecting a summary of actions concerning each of the 
          apartments from the inception of rent control, in 1943, until each 
          apartment becomes decontrolled, fails to reveal any indication that 
          the owner applied to reduce bell/buzzer system services.  An owner 
          could not decrease the dwelling space, essential services, 
          furniture, furnishings or equipment without applying for a prior 
          order by the Rent Administrator permitting same (per former Rent 
          and Eviction Regulations, Section 35, subd. 1(a), 59 McK. Unconsol. 
          Laws, Appendix, superseded by Section 2202.21 of the current Rent 
          and Eviction Regulations).  People ex rel Herman v. Girmac, 222 
          N.Y.S. 2d 584 (Sup. Ct. 1961)).  There is no evidence or assertion 
          that the owner ever applied for an order granting the owner 
          permission to modify or decrease bell/buzzer services.  In their 
          absence, the Rent Administrator properly concluded and must 
          construe that operating bell/buzzer system equipment is still 
          required to be provided by the owner.





          In fact the owner's submissions and documentation establish an 
          attempt by the owner to obtain evidence of the elimination of the 
          bell/buzzer system after the fact; see references to items (a) and 
          (b) above on page 3 hereof.  The owner's logical and factual dis- 






          HL430013RP

          crepancies presented in this record, as well as the absence of an 
          owner's application or an order permitting the owner to decrease 
          the services compel that, on remit from the Court, the Commissioner 
          reaffirm the previous determination confirming the finding of  
          decreased services.

          As in the previous order only the remaining rent-controlled tenants 
          who reside in that portion of the building served by the entrance 
          identified as 504 East 5th Street should get a rent reduction, 
          while the directive to restore services also applies to the rent- 
          stabilized tenants at that address.

          This order is issued without prejudice to the owner's right to file 
          an application to decrease bell/buzzer system services.  


          THEREFORE, in accordance with the provisions of the Rent Stabili- 
          zation Law and Code, the City Rent Control Law, and the Rent and 
          Eviction Regulations for New York City, it is

          ORDERED, that, on remit from the Court, the Commissioner reaffirms 
          the prior administrative review order and opinion that granted, 
          only in part, the owner's petition, and that affirmed the Rent 
          Administrator's order, as modified, to limit the reduction to the 
          rent controlled tenants residing at 504 East 5th Street.


          ISSUED:





                                                                           
                                                JOSEPH A. D'AGOSTA
                                                Deputy Commissioner






    

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