Docket Number: EL-630002-RO
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 : ADMINISTRATIVE REVIEW
APPEAL OF DOCKET NO.: EL 630002-RO
:
CYLINE PROPERTIES CO., DRO DOCKET NO.: DH 630068-OR
PETITIONER :
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ORDER AND OPINION DENYING OWNER'S PETITION FOR
ADMINISTRATIVE REVIEW
On December 4, 1990, the above-named petitioner-owner filed a
Petition for Administrative Review against an order issued on
October 31, 1990, concerning the housing accommodations known as
3299 Cambridge Avenue, Bronx, New York, wherein in pertinent part,
the Administrator denied the owner's application to restore rent, in
whole or in part, based on a finding that there was no doorman or
lobby attendant on duty at the time of two inspections.
The issue in these proceedings is whether the Administrator's order
was correct.
The applicable law is Section 2520.6(r) and 2523.4 of the Rent
Stabilization Code.
The owner commenced these proceedings by filing an application to
restore rents previously reduced by an order issued on October 8,
1985 under Docket No. BCS-000095-B, and amended by the
Commissioner's order under Docket No. ART-5703-B, issued on
September 30, 1987, to include failure to provide a uniformed
doorman/lobby attendant forty (40) hours a week as a basis for the
rent reduction. There is no record of any judicial appeal of the
Commissioner's determination.
The level of required doorman services was established in prior
separate proceedings under Docket No. 59681-B wherein the
Administrator, incorporating an agreement between the parties,
directed the owner to provide doorman services as follows:
1. The doorman shall be at the door providing
doorman services from 6:00 p.m. to
11:00 p.m. five days-a-week;
2. From 2:00 p.m. to 5:00 p.m. five days-a-
week, the doorman shall either be at the
door providing doorman services or shall
provide porter services in the lobby or
on the first floor but not above the first
floor;
3. If the tenants find that the doorman is
not at the door during the hours specified
above they shall notify the owner in
Docket Number: EL-630002-RO
writing, and the owner will take whatever
steps are necessary to ensure that the
doorman is at the door.
In the application the owner asserted, in pertinent part, that
doorman/lobby attendant services were being provided forty (40)
hours per week.
In basically identical affidavits, as amplified by a cover letter
from the tenant's representative, the tenants conceded that the,
individual hired as a "doorman" works full-time (40-hours per week)
but asserted that "he works as a part-time port r and as a part-
time doorman totalling 40 hours a week" and that "during the hours
of 2 p.m. until 5 p.m. (5 days a week) he works as porter throughout
the premises, from 5 to 6 p.m. is meal time, and beginning at 6 p.m.
he performs uniform doorman services until 11 p.m." The tenants
contend that, as a consequence, they are being deprived of full-time
uniform doorman services, as required by the Commissioner's order.
An inspection was conducted on April 26, 1990 by a member of the
Division's inspection staff. The inspector reported that there was
no doorman present at the time of inspection.
A second inspection was conducted on July 19, 1990, wherein the
inspection again reported that there was no doorman/lobby attendant
at the time of inspection (2:45 - 3:30 p.m.).
On October 31, 1990, the Administrator issued orders denying the
owner's application to restore rent based on the owner's failure to
maintain and provide doorman/lobby attendant services pursuant to
the Commissioner's order under Docket No. ART-5703-B.
In the petition, the owner requests the Commissioner to annul the
Administrator's determination below, arguing in pertinent part, that
the fact that the DHCR inspector did not observe the doorman lobby
attendant did not mean that the service prescribed was not provided.
The petitioner speculates that the April 26, 1990 inspection may
have been conducted in the morning, when doorman service are not
required, and that at the time of the July 19, 1990 inspection, the
doorman may have been elsewhere in the building.
A copy of the owner's petition was served on the tenant's. However,
it does not appear that the tenants filed an answer.
After careful consideration the Commissioner is of the opinion that
the petition should be denied.
Docket Number: EL-630002-RO
The petitioner's reliance on the separate prior order under Docket
No. 59681-B is misplaced. The restriction therein that the
doorman/lobby attendant limit his porter functions to the lobby or
to the first floor but not above the first floor clearly establishes
that porter services were incidental and attendant to the
doorman/lobby functions and not a separate job function. Nor is
there any license apparant therein to permit the doorman/lobby
attendant to perform porter services to the exclusion of his
permanent duties. The Commissioner likewise rejects the
petitioner's attempt to divine a distinction between the
doorman/lobby attendant services required to be provided during the
afternoon shift from those provided during the evening shift, as
well as to draw a distinction between the doorman and lobby
attendant services.
The petitioner's speculations that the doorman may have been
elsewhere at the time of the July 19, 1990 inspection, confirms
the lack of service complained about by the tenants in January 1985
continued thereafter, even though the owner was directed to restore
services, and was not an isolated or inadvertant occurrance due to a
new, and temporary employee. Moreover, the petitioner's statement
constitutes an admission that the owner's employee was elsewhere
than the lobby/first floor area.
As to the petitioner's claim that the tenants were required to
notify the owner in writing of a problem with the doorman service is
rejected as being without merit or logic. The Commissioner points
out that the rent restoration proceeding, herein under appeal were
commenced by the owner upon a representation that the services were
being provided. Having represented that service were restored, it
was incumbent upon the owner to take steps necessary to insure that
the doorman performed his duties in conformity with the prior order
under Docket No. 59681-B, and as directed to do so in the underlying
rent reduction order, modified by the Commissioner subsequent PAR
order under Docket No. ART 05703-B. Moreover, that condition, while
constituting a condition to filing a complaint, does not excuse the
owner from the continuing responsibility for the proper management
of building staff.
The owner is cautioned to insure that the doorman be uniformed, as
previously directed.
THEREFORE, in accordance with the provision of the Rent
Stabilization Law and Code, Chapter 403 of the Law and 1983, and
Chapter 403 of the Law of 1983, and Chapter 102 of the Laws of 1984,
it is
Docket Number: EL-630002-RO
ORDERED, that this owner's petition be, and the same hereby is,
denied, and that the Administrator's order be, and the same hereby,
is affirmed.
ISSUED:
ELLIOT SANDER
Deputy Commissioner
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