Korein v. Conciliation & Appeals Board

84 A.D.2d 724, 444 N.Y.S.2d 93, 1981 N.Y. App. Div. LEXIS 15888

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 24, 1981
• Status: Published

Opinions

Order and judgment (one paper), Supreme Court, New York County (Stadtmauer, J.), entered March 5, 1980, dismissing petitioner’s CPLR article 78 petition, affirmed, without costs or disbursements. Petitioner owns a luxury Park Avenue apartment building which is subject to the Rent Stabilization Law. Respondent Conciliation and Appeals Board determined, on the basis of uncontroverted testimony, that the owner had provided 24-hour manned elevator service on the statutory lease date, May 31, 1968. In 1973, petitioner eliminated this service without consulting the tenants or making application to the board. After complaints by the tenants, the board directed petitioner to restore the manned elevator service. Petitioner complied until 1976 when she again ceased the service. After notification that petitioner had terminated the service the board urged petitioner, in writing, to restore the service, and warned of the imposition of sanctions for noncompliance. Despite the warning, petitioner did not restore 24-hour manned elevator service but, instead, attempted to justify her actions by alleging that the installation of mechanical security devices adequately compensated for the loss of the elevator operators. After a full hearing the board found, on the basis of undisputed evidence, that the installation of mechanical devices did not compensate for the loss of building security previously provided by the physical presence of the elevator operators, and that a doorman (theretofore in attendance on a 24-hour per day basis) could not possibly perform all of the duties, and, in particular, security-related functions, previously performed by the elevator operators. Accordingly, the board found that the owner’s termination of 24-hour manned elevator service had resulted in an unlawful diminution of required services and directed petitioner to restore the service in full. The law is well settled that “[t]he question of what constitutes a required service presents a factual issue which is to be determined by the respondent administrative agency.” (Fresh Meadows Assoc. v Conciliation & Appeals Bd., 88 Misc 2d 1003, 1004, affd 55 AD2d 559, affd 42 NY2d 925.) Although the board’s directive to restore 24-hour manned elevator service does not refer to the substitution of mechanical security devices, but only to the violation of its prior order, the board did consider “the entire record”, including the testimony of petitioner’s witnesses, before determining that, in fact, a reduction in services had occurred. In any event, it has been held that manned elevator service is a required service which the landlord may not unlawfully reduce or eliminate. (Kaplan v Prince, NYLJ, May 19, 1978, p 7, col 1, affd 67 AD2d 1110, mot for lv to app den 47 NY2d 707.) A determination that the elimination of manned elevator service by unilateral act of the owner, coupled with continuation of 24-hour doorman service and provision of mechanical security devices, constituted a reduction in required services in contravention of the Rent Stabilization Law was upheld in Sommer u Prince (NYU, March 4,1975, p 13, col 3, affd 55 AD2d 535, mot for lv to app den 42 NY2d 801). Interestingly, there, as here, the owner argued that the building could not sustain the expense of elevator operators and submitted the barest of proof in the nature of a one-page statement of the operating position of the building. Here, although requested to do so, the owner failed to provide the board with either her payroll records for all building personnel or any other evidence establishing the number and work classification of her personnel. Concur — Sullivan, Carro and Lupiano, JJ.