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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
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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.:
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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.
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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.
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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
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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-
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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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