To: 3, ce: in 646 Jahn St, 1th Floor OATH TH OFFICE OF ADMINISTRATIVE TRIALS AND HEARINGS — Nework NY 0088 —- Hearings Divison Aelephone: (212) 436-0624 Fax: (212) 436-0714 Date Maited: 2-8" \ Summons Nos.: 351 513 222; -23K and -24M Appellant City of New York v. Helms Realty Corp. Shamonda Graham, Executive Director Premises: 230 West 101" Street, Manhattan ‘Administrative Enforcement Unit Date of Occurrence: 12/30/2014 Department of Buildings Agency: Department of Buildings 280 Broadway, 5" Floor ‘New York, NY 10007 Appeal No.: 1601233 Appellant: Petitioner Appeal Decision and Order ‘After an extension, an appeal to the Board was timely filed on 11/10/2016 from the following recommended master decision on the above violations by Hearing Officer # 986 (Manhattan). Maildate Law charged Recommendation Penalty 10/10/2016 Code Section 28-210.3 Dismissed $-0- Code Section 28-202.1 Dismissed $-0- Code Section 28-301.4 Dismissed $-0- BC Section 1005.2 Dismissed $0. ‘After consideration of the entire record before it, the Board now makes the following findings of fact and conclusions of law, consisting of 6 pages, attached. ‘The appeal is denied; and Respondent is found not in violation of Section 1005.2 of the New York City Building Code, found in Title 28 of the Administrative Code of the City of New York (Code) and Code Sections 28-210.3; 28-202.1; and 28-301.1, ‘The Board orders that the recommended master decision be: affirmed. ‘Total penalty already paid $-0- Total penalty now imposed $-0- Amount due §-0- Board decision date: February 2,2017 Fidel F, Del Valle /a 020217KJL/1064_ Commissioner & Chief Administrative Law Judge, OATH Rosenberg Calica & Bimey LLP 100 Garden City Plaza, Suite 408 Garden City, NY 11530 Helms Realty Corp. 230 West 101* Street New York, NY 10025Appeal No. 1601233 NYC v. Helms Realty Corp. p. 20f7 Petitioner, the Department of Buildings (DOB), appeals from that part of recommended master decision dismissing against Respondent, premises owner, a Class | violation of Section 28-2103 of the Administrative Code of the City of New York (Code) for permanent dwelting offered/used/converted for other than permanent residential purposes.' The summons, dated December 30, 2014, cites the following condition observed by the issuing officer (10) during his inspection of the cited premises: “Certificate of Occupancy [CO] # 29327 indicates building legally approved as a Class ‘A’ SROs. Now units # 441; 444; 625; 641; 642; 744, illegally converted as a transient use.” The summons further indicates that daily penalties are sought under Code Section 28-202.1. The hearing? ‘At the consolidated hearing, Petitioner's attomey submitted five sets of photographs taken by the 10 on the date of his inspections to establish transient occupancy, and a copy of the CO for the premises, issued on September 9, 1942, which lists the “Occupancy classification” as “Old Law Tenement/Single Room Occupancy.”* The CO authorizes one apartment on the first floor and 126 single room occupancies (SROs) on the second through seventh floors (21 SROs on each floor). Petitioner maintained that the CO does not allow transient use at the premises because, under the Section 4(11) of the Multiple Dwelling Law (MDL) definition of Class “A” multiple dwelling, stating “{tJhis class shall include tenements,” a TenemenU/Single Room Occupancy is a Class “A” multiple dwelling. He further argued that under amendments to the MDL in 2010, a Class “A” multiple dwelling could not include any units used transiently and » Petitioner's appeal references two other summonses, charging (1) Section 1005.2 of the Building Code (BC), found in Title 28 of the Administrative Code, for failure to comply with door encroachment requirement, and (2) Code Section 28-301. 1, for failure to provide number of required means of egress for every floor for transient use, These charges arose from the sare inspection and were dismissed by the same recommended master decision as the Section 28-210.3 charge under consideration, As the appeal does not address the hearing officer's findings on those summonses in any way, they are herein affirmed without discussion, 2 Following several adjoumments, including three at Petitioner's request forthe 10’s presence, on 69/16 the hearing officer stated that the immediately prior third adjournment, on 2/11/16, was, upon reconsideration, improper under Section 3-52.1 of Tile 48 of the Rules of the City of New York (Rule 3-52.1). He found the proper remedy for this ‘unauthorized adjournment was to proceed in the IO’s absence. At the hearing continued on 9/30/16, the IO was ‘allowed to remain inthe hearing room to consult with Petitioner's attorney but not to testify. As discussed below, Petitioner appeals the hearing officer's decision to proceed without the 10's testimony. > Section 4(11) of the Multiple Dwelling Law (MDL) provides, in pertinent part ‘A “tenement” is any building or structure or any portion thereof, erected before April eighteenth, nineteen hundred twenty-nine, which is occupied, wholly or in part, asthe residence of three families or more living independently of each other and doing their cooking upon the premises .... An “old-law tenement” isa tenement existing before April twelfh, nineteen hundred one, and recorded as such in the department before April eighteenth, nineteen hundred twenty-nine... ‘MDL Section 4(16) provides: “Single room occupancy’ is the occupancy by one or two persons of a single room, or of two or more rooms which are joined together, separated from all other rooms within an apartment in a multiple dwelling, so that the occupant of occupants thereof reside separately and independently ofthe other occupant or occupants of the same apartment. When a class A multiple dwelling is used wholly or in part for single room occupancy, it remains a class A multiple dwelling.Appeal No. 1601233. NYC v. Helms Realty Corp. p. 30f7 that Respondent's job application in 2011 to convert the 21 SRO units on each floor to a smaller number of “Transient Hotel Rooms Class B” amounted to an admission that the then-existing transient use of the SROs was illegal. In response, Respondent’s attorney denied there was any illegal transient use at the premises. He also argued that the CO authorized Class “B” transient use and that use has been consistent cover 70 years at the premises. He asserted that the CO lists two different occupancy classifications, “Old Law Tenement” for the one Class “A” unit, and “Single Room Occupancy” for the 126 Class “B" SROs. He submitted into evidence as reflecting the Class “B” status of the SROs the following government records. + A Department of Housing Preservation and Development (HPD) “I-card” for the cited premises indicating that in 1942, CO # 29327 was issued identifying one Class “A” apartment on the first floor and 126 Class “B” sleeping rooms on the second through seventh floors; © Alletter of approval, dated 10/07/1992, from the New York City Fire Department (FDNY) for modification of the fire alarm system at the premises to Class J-1; * A letter, dated 10/12/2006, from DOB Deputy General Counsel, describing factors considered by Petitioner in its determination that an unrelated property, whose CO identified the building as Class “A,” was in fact a transient hotel based on the presence of a watchman's time detector and fire alarm system, consistent transient use, payment of hotel occupancy taxes, Department of Finance classification, and hotel directories listing the premises as a transient hotel; * ADOB Technical Policy and Procedure Notice #4/89, dated 12/31/1989, providing that any residential classification on a CO other than a Class “A” or “Apartment Hotel” is classified as aJ-1 occupancy; «A memorandum from DOB Assistant Commissioner, George E. Berger, dated 02/01/1988, indicating that the cited premises was not exempt from the requirements for a transient hotel, and that determination of the number of Class “A and Class “B” units depended upon the CO, the HPD I-card, and HPD computer printouts; © Three NYC Hotel Occupancy Tax Retums for the cited premises, showing payment of substantial amounts of hotel occupancy tax, and two delinquency notices from the NYC Department of Finance (DOF) requesting the filing of such returns; * Nine sets of Final Assessment Rolls from DOF, and a DOF classification plossary, showing that DOF classified the cited premises as H-9, a “Miscellaneous Hotel”; © Copies of 41 pages of classified advertisements from 1974, 1975 and 1985, advertising the cited premises to the public as the “Broadway Studio Hotel” and “Broadway Studios,” with daily rates provided;Appeal No. 1601233 NYC v. Helms Realty Corp. p.40f7 © Copies of utility bills, three letters, and a classification table from ConEdison showing electricity charges at the cited premises, classified EL9, non-residential/hotel rates, since at least 1977; «HPD printouts showing the cited premises contained one Class “A” unit and 126 Class “B” units; and ‘* A photograph of a stairwell exit sign showing that Respondent had the required exit sign for a transient hotel. Respondent's attomey also presented the testimony of Ronny Livian, former Deputy Commissioner for Technical Affairs at DOB, who was certified by the hearing officer as an expert witness, Mr. Livian testified as follows. (1) The occupancy classification indicated on the CO for the premises was unclear as to legal occupancy because SROs can be either permanent residential Class “A” or transient use Class “B.” (2) When a CO is unclear as to occupancy, DOB considers additional factors, including, but not limited to, other agency records, to make such classification. The “i-card” provided the most persuasive evidence of transient use, as it described one Class “A” unit and 126 Class “B” units. (3) The CO for the premises also indicated a sprinkler system, watchman’s time detector, and interior fire alarm system, all of which were requirements for a transient hotel - occupancy classification J-1. In particular, that Respondent was required to install a modified J-1 fire alarm system at the premises verifies that DOB classified the building as having Class “B” SROs, as Respondent ‘would not have installed such system at great expense if not required by law. Instead it did so in reliance on DOB’s classification of the building as J-1. Under cross-examination, Mr. Livian acknowledged that no one exhibit or factor established legal occupancy at the premises. He nevertheless maintained that, in his expert opinion, the totality of the evidence produced by Respondent established that the cited premises has always been a transient hotel. In his decision dismissing the violations, the hearing officer credited Petitioner’s evidence as. ‘establishing transient use on the date of inspection. Nonetheless, he concluded that Petitioner failed to prove transient use ofthe cited SROs constituted conversion of a permanent dwelling for other than residential purposes. With NYC v. Lexington Associates, LLC* as a “roadmap,” he found as follows: Based on a totality of the evidence in the record, the CO authorized one Class “A” unit on the first floor and 21 Class “B” SROs on each of the second through seventh floors (for a total of 126 Class “B” SROs). The occupancy classification “Single Room Occupancy” on the CO applies to the 126 SROs as Class “B” units as specified on the I-card, Petitioner had offered no evidence to prove the cited SROs were Class “A” dwelling units or ‘support its contention that reference to Class “B” units in the I-card and HPD records meant that the SROs were configured as Class “B” units within'a Class “A” occupancy. The 2010 amendments to the MDL and the case law construing those amendments were therefore inapplicable. * Appeal No. 1600696, September 8, 2016.‘Appeal No. 1601233 NYC v. Helms Realty Corp. p. 5 0f7 Issues on appeal ‘The issues on appeal are whether: (1) the hearing officer improperly precluded the 1O's testimony after adjourning an earlier hearing so he could appear; and, ifnot (2) whether Petitioner established a violation of Code Section 28-210.3; and if so, (3) whether Respondent established a valid defense to the violation. Applicable law Section 3-52.lof Title 48 of the Rules of the City of New York provides in pertinent part: (@) [Albsent extraordinary cizcumstances, a hearing will not be adjourned for the sole purpose of enabling the officer who issued the notice of violation to attend if: () the hearing has already been adjourned for the sole purpose of enabling the officer who issued the notice of violation to attend; (ii) the respondent timely appears on the adjourned hearing date at the specific board office location indicated on the adjournment ‘order; and (iii) the issuing officer does not timely appear at the specific board office indicated on the adjournment order. .. . (©) An adjournment will sometimes be appropriate because of extraordinary circumstances. Under such circumstances, a petitioning agency may be entitled to an adjournment that would not otherwise be permitted. To ask for an adjournment because of extraordinary circumstances, the agency must file with the board a written statement of the claimed circumstances, accompanied by any supporting documents. The agency must also serve a copy of its request and any supporting documents on the respondent. The request must be ‘made as soon as is reasonable after the agency becomes aware of the circumstances it claims to be extraordinary, but in no event more than five days after the agency becomes aware of those circumstances. ... Code Section 28-210.3 provides, in pertinent part: [D]welling units within . . . a class A multiple dwelling . .. shall be used only for permanent residence purposes. ... It shall be unlawful for any person or entity who owns or occupies a multiple dwelling or dwelling unit classified for permanent residence purposes to use or occupy, offer or permit the use or occupancy or to convert for use or occupancy such multiple dwelling or dwelling unit for other than permanent residence purposes. MDL Section 4(8)(a) provides, in pertinent part: A “class A” multiple dwelling is a multiple dwelling that is occupied for permanent residence purposes. This class shall include tenements, flat houses, maisonette apartments, apartment houses, apartment hotels .... A class A multiple dwelling shall only be used for permanent residence purposes. For the purposes of this definition, “permanent residence purposes” shall consist of occupancy of a dwelling unit by the same natural person or family for thirty consecutive days or more and a person o family so occupying a dwelling unit shall be referred to herein as the permanent occupants of such dwelling unit.Appeal No. 1601233 NYC v. Helms Realty Corp. p. 6 of 7 MDL Section 4(9) provides, in pertinent part: A “class B” multiple dwelling is a multiple dwelling which is occupied, as a rule transiently, as the more or less temporary abode of individuals or families who are lodged with or without meals. This class shall include hotels, lodging houses, rooming houses, boarding houses, boarding schools, furnished room houses .. . . The appeal ‘On appeal, Petitioner's attomey argues as follows: (1) Respondent did not rebut the prima facie case that established the illegal transient use of a building intended for permanent occupancy. ‘The CO for the building is properly interpreted as requiring Class “A” permanent use of the building. The CO's description of the building as an “Old Law Tenement, Single Room Occupancy” indicates that the premises is a Class “A” multiple dwelling to be used for permanent occupancy purposes. The hearing officer's reliance on Lexington Associates was improper, as that case provides an inaccurate roadmap for a hearing officer in deciding the meaning of an “Old Law Tenement, Single Room Occupancy” on a CO. Respondent relied on documentary evidence not commonly allowed to prove the legal occupancy of the premises. (2) Under the Section 4(8)(a) of the MDL, “permanent use” of a building means occupancy of 30 days of more, Any assertion of Respondent's continuing rights of allowing stays of less than 30 days was extinguished by the 2010 amendments to the MDL.’ (3) Because the prohibition against the IO testifying in either the direct case or the rebuttal case unduly prejudiced Petitioner, the case should be remanded for a new hearing. Respondent answered the appeal, arguing that (1) documentary evidence and expert testimony established that “Single Room Occupancy” on the CO applied to the 126 SRO's as Class “B” units and (2) the 10’s testimony was properly precluded after multiple adjouraments, The Board's determination Having fully reviewed the record, the Board finds that the hearing officer's decision is supported by the law and a preponderance of the evidence and denies the appeal. No error in precluding IO’s testimony Petitioner's case under Code Section 28-210.3 consisted of the IO’s sworn statements on the summons and photographs of the cited location taken on the date of inspection. ‘The hearing officer credited the 10"s sworn statements and photographs, finding Petitioner established that the cited premises, advertised to the public as the Broadway Studio Hotel and Broadway Studios, was being used for transient occupancy. The Board generally defers to a hearing officer's credibility findings, and finds no basis to disturb those findings here. As to Petitioner's claim that the hearing officer improperly barred the 10's testimony at the hearing in presenting its case and to rebut Mr. Livian’s expert testimony, the Board finds that prohibition was immaterial in both respects. Petitioner established its prima facie case without the 10’s testimony and has made no assertion at the hearing or on appeal that the IO was a person authorized by DOB to 5 tm support ofthis argument Petitioner cites In re Grand Imperial, LLC, 137 A.D. 34 $79 (1 Dept. 2016), and MYC, RCP. (Appeal No. 1400528, September 18, 2014),Appeal No. 1601233 NYC v. Helms Realty Corp. p. 70f7 make any decisions about the legal use and occupancy of the cited location, the subject of Mr. Livian’s testimony. The CO authorizes 126 Class “B” SROs The Board finds that the CO for the cited premises authorizes Class “B” SROs, a transient use, ‘The CO lists the occupancy classifications as “Old Law Tenement” and “Single Room Occupancy.” The CO authorizes one “apartment” on the first floor, and 2i “rooms, single room “occupancy,” on each of the second through seventh floors, for a total of 126 SROs, MDL Section 4(8)(a) provides that Class “A” dwellings include “tenements” and “apartment houses.” Accordingly, the occupancy classification of “Old Law Tenement” constitutes a Class “A” permanent-occupancy use and applies to the one apartment located on the first floor of the building. The occupancy classification of “Single Room Occupancy” is not specifically listed under the MDL definition of Class “A” or Class “B” dwellings. Here, however, the 126 SROs to which “Single Room Occupancy” applies are specified in the HPD I-Card and records for the premises as Class “B” units, That Respondent may have applied in 2011 to convert the 126 SROs to a smaller number of “Transient Hotel Rooms Class B” did not amount to an admission that the SROs were Class “A.” Rather, the Board finds that, while no one factor is determinative, taken together here, the existence of a watchman’s time detector, a Class J-1 fire alarm system, consistent transient use for 70 years, payment of hotel occupancy taxes, DOF classification as a miscellaneous hotel, and hotel directories listing the premises as a transient hotel, establish that the premises was and has always been a transient hotel. Further, Petitioner's attomey failed to offer any document that lists the cited SROs as Class “A” dwellings. Accordingly, the Board finds that CO authorized transient use at the premises. Amendments to the MDL not relevant Petitioner's attomey furthermore provided no evidence or authority to support his contention that the transient use of the Class “B” units referred to in Respondent's exhibits occurred within a Class “A” multiple dwelling. The 2010 amendments to the MDL definition of Class “A” saultiple dwelling barring such use are therefore inapplicable.® The cases cited by Petitioner's attomey are likewise inapplicable as they all involve the partial illegal transient use of Class “A” multiple dwellings. Accordingly, the Board affirms the hearing officer's dismissal of the summonses. § MDL Section 4(8)(a) provides, in pertinent part, that “[s] class A multiple dwelling shall be only be used for ‘permanent residence purposes.” MDL Section 4(16) provides, in pertinent part, that “[wlhen a class A multiple ‘dwelling is used wholly or in part for single room occupancy, it remains a class A multiple dwelling.”