Davenport v. Altman Petition for a Writ of Certiorari to the US Court of Appeals for the Second Circuit

    In The

J l u p m t t r  (C o u rt o f itje g u t t e d  j ^ t a i r s
Term 1974

No.

WILLIAM J. DAVENPORT,

Petitioner,

vs.

BENJAMIN ALTMAN, DANIEL W. JOY, HARRY 
MICHELSON, et al.,

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO THE 
UNITED STATES COURT OF APPEALS FOR THE 

SECOND CIRCUIT

WILLIAM J. DAVENPORT 
Petitioner, Pro se 

324 Allaire Avenue 
Leonia, New Jersey 07605 

(201) 944-1174

C7 0 9 1  ) LUTZ A PPE LLA TE  PRINTERS, INC.
Law and Financial Printing

South River, N.J. New York, N .Y . Philadelphia, Pa. Washington, D.C. 
(201) 257-6850 (212) 565-6377 (215) 563-5587 (202) 783-7288



TABLE OF CONTENTS

P etition ................................................................................  1

Jurisdiction ........................................................................  3

Questions Before this Court ............................................. 5

The Facts ..........................................................................  6

Page

Reasons for Granting the Writ:

I. Of all questions directly or indirectly before 
the courts, the burden o f proof has 
unlawfully been transferred from respondent
to petitioner. . . ................................................  18

II. Every consideration of the district court
judgment stated in the judgment is premised 
upon non-existent reality or reverses the 
evidence of documentary fact including a 
prior judgment of this United States Supreme 
Court....................................................................  19

III. Of statute and of record there is no authority
and no lawful grounds or cause for 
respondents’ ab initio orders. Respondents’ 
position, posture and presentments in this 
action are fraud. .............................................  29

IV. Serious injury caused to petitioner by 
respondents’ orders without lawful cause are



Contents

a manifest injustice which cannot be
Page,

tolerated under color of law. . . . . . . . . .  31

Conclusion ..........................................................................  34

Provisions o f the Statutes ...............................................  35

TABLE OF CITATIONS

Cases Cited:

Baldwin v. Chang, N.Y.L.J. July 23, 1973, p.2, col. 1 . .
........................................................................  10, 16,29

Bowles v. Willingham, 321 U.S. 503, 519-520 (1943) . .
............................................... 2, 3 ,4 , 5, 7, 19, 25

Davenport v. Berman, 629/66 (June 29, 1966) . . . .  16,17

Davenport v. Berman, 68 Civ. 4984 . . . . . . . . . .  6 ,17

Davenport v. City Rent etc., 70 Civ. 1011 . . . . . . . .  6

Eisen v. Eastman, 421 F.2d 560 (1969) . . . . . . . . .  21

Lynch v. Household Finance Corp., 40 U.S.L.W, 4335
(U.S. Mar. 23, 1 9 7 2 ) ....................................  2, 5, 20, 21

Matter o f Long Island R.R. Co., v. Hylan, 240 N.Y. 208
......................................................................................  30

McClendon, Harold et al. v. Thomas E. Rosetti, No.
71-1890 (2d Cir. April 12, 1 9 7 2 ) .................... 3, 5, 21



Ill

People ex rel. N.Y. Central R. & Co. v. Lindburg, 283
N.Y. 344 ....................................................................  30

Taylor v. New York City Transit Authority, 433 F.2d
665 (1970)   20

United Mutual v. Davenport, S.D.N.Y. 70 Civ. 3878 . . 27

Statutes Cited:

Title 28, U.S.C.:

Section 1331  4, 20

Section 1332   4, 20

Section 1343   4

Section 1 3 4 3 (3 ) ............................................     20

Title 42, U.S.C.:

Section 1983     21

Section 1 9 8 3 (3 )........................................................ 2, 4

N.Y.S. 1961, Chapter 337, Section 4 (4 ) (e ) ............. 4, 11, 29

N.Y.S. 1961, Chapter 337, Section 4(8) . ........................  11

N.Y.S. 1962, Chapter 21, Section 1 0 (a ) .................4, 11, 29

Contents
Page



IV

N.Y.S. Rent Control Law of 1954, Section 2(2)(h) . . .  8

United States Constitution Cited:

First Am endm ent.................... ............................. . . . 4 ,  29

Fourth Amendment  ....................... ... 4, 29

Fifth Amendm ent.............................. ... . . 4, 29

Fourteenth Amendment . . . . . . . . . . . . . . . . . .  4

Rules Cited:

F.R.C.P. 59(a)  .................................. 3, 4, 6, 21,24

F.R.C.P. 6 0 (b ) ............................................... 3, 4, 6, 21, 24

F.R.C.P. 11 ....................................... .. .......................... ..  28

F.R.C.P. 33       . 28

Other Authorities Cited:

N.Y.C. Regulation 2 f ( l l )  . . . . . . . . . . . . . . . . .  9

Contents

Page

State Rent Administrator’s Advisory Bulletin No. 1, par.
13 . . . . .  ...............................................  10



V

Page
APPENDIX

Appendix A - Judgment of the District Court ...............  la

Appendix B - Affirmance o f Second Circuit . . . . . . .  7a

Appendix C - Magistrate Schrieber’s Supplemental
R e p o rt ........................................  10a

Appendix D - Order and Opinion Denying Protest . . . 20a

Appendix E - Exerpts from Petitioner’s Interrogatory
and Respondents’ Answers . .......................................31a

Appendix F - Administrative Progress S h eet.................  44a

Contents



In The

j&upreme ffltmrt of ttje Pnited plates
Term 1974

— ----------------------♦ —— T-    

No.

WILLIAM J. DAVENPORT,

Petitioner,

vs.

BENJAMIN ALTMAN, DANIEL W. JOY, HARRY 
MICHELSON, et al.,

Respondents.

PETITION FOR A  WRIT OF CERTIORARI TO THE 
UNITED STATES COURT OF APPEALS FOR THE 

SECOND CIRCUIT

To The Chief Justice and the Associate Justices of the
Supreme Court o f the United States o f America.

Your petitioner, William J. Davenport, pro se, seeks to 
be charged with a lawful bill of particulars and heard in his 
own defense as provided by the statutes, that lawful 
resolution o f ten years of injurious controversy and 
harassment may be justly concluded. The respondent New 
York City Rent Control Administrators and their 
attorneys, maintain with force of law, their orders which 
are without statutory authority, without statement or 
showing o f lawful cause and they deny and obstruct 
petitioner’s constant quest for cause while those orders



9

deprive petitioner, o f his privately owned real property by 
procedures o f applied law in which respondents participate 
and petitioner is held to criminal penalties.

In the instant complaint, petitioner charged 
respondents with averring to the courts, fraudulent claims 
o f statutory requirement, original fact and prior 
administrative and judicial procedures and determinations 
while simultaneously concealing from petitioner the 
involved public records in prior and present litigation for 
the purpose o f obliterating or manipulating judgment. The 
record o f litigation hereto involved, has been dismissal 
without examination o f the records or witness and without 
trial, the courts premising dismissal upon the claims of 
respondents herein charged fraudulent. The dismissal of 
the district court, affirmed without opinion, was initiated 
on a motion o f the court after pre-trial conference and 
issued without hearing on the day the judge departed on 
vacation, there was no available rehearing. The judgment 
itself cites and reverses this Supreme Court’s opinion. 
Bowles v. Willingham, 321 U.S. 503, 519-520. This court 
specifies that “ hearings are required as per the statutes, 
delay is not denial.”  The district court in error as to fact 
adds to error with misconstruction to state “ in rent 
control cases no hearing is required”  (even though 
statutorily so required). The district court with reference 
to the Supplemental Report of Magistrate Schrieber (13a)* 
reversed the magistrate’s finding that jurisdiction resides in 
the federal courts in accordance with U.S.C. Title 42, 
Section 1983(3) citing Lynch v. Household Finance Corp.,

* Numbers in parentheses (“ a” ) refer to Appendix.



3

40 U.S.L.W. 4335 and Harold McClendon, et al. u. Thomas 
E. Rosetti, No. 71-1890 (2d Cir., April 12, 1972) by 
stating “ absent federal question.”  The district court 
judgment totally ignores petitioner’s charge o f fraud and 
jurisdictional question under F.R.C.P. 59(a) and 60(b) 
which provides for examination and relief from judgment 
where fraud can be shown to have caused that prior 
judgment, to state res judicata o f the prior judgment.

The judgment of U.S.D.J. Murray I. Gurfein, 
dismissing the complaint (71 Civ. 4263) was signed July 
31, 1973 (la). The appeal was before the Hon. Justices 
Kaufman, Feinberg and Mulligan and affirmation was 
entered March 5, 1974.

There appears to be bias of the second district and 
second circuit involved and unstated in the judicial posture 
derived from a disinclination to involve these federal 
courts in the “ large and messy”  situation o f New York 
City Rent Control controversies. Petitioner however has no 
facilities for entering a properly constructed class action.

JURIS1DICTION

Jurisdiction is original to this highest court due to the 
contrary district citation of this high court’s opinion which 
in effect and fact reverse this high court’s finding in 
Bowles v. Willingham, 321 U.S. 503, 519-520 (1943), and 
the affirmation of the second district after being informed. 
The exact page cited o f this court’s opinion states that 
hearings are required prior to administrative orders where 
so indicated in the statutes involved, as in the instant 
action, but that delay otherwise is not a denial of due



4

process. The interpretation placed thereupon by the 
district court is that “ no hearings are required in rent 
control cases.”  (The district court thereto states prior 
opportunity to answer charges in writing. Of record there 
are no such charges and thus no such opportunity. The 
respondents’ claims are part o f the fraud petitioner seeks 
to expose.)

Jurisdiction is further original to these federal courts in 
accordance with U.S.C. Title 28, Sections 1331, 1332 and 
1343; Title 42, Section 1983(3) and in accordance with 
F.R.C.P. 59(a) and 60(b) with adverse party fraud charged 
to respondents’ attorneys and respondents in prior 
litigation. Res judicata by the rules thereto does not have 
application.

Jurisdiction further derives from grounds of statutory 
law provided by the First, Fourth, Fifth and Fourteenth 
Amendments to the United States Constitution and 
further secured by the ISfew York State rent control 
statutes claimed as respondents’ authority; specifically 
N.Y.S. 1961 Chapter 337, Section 4(4)(e) which makes 
mandatory the pre-orders hearing as previously stated by 
this high court (Bowles v. Willingham, p. 520) and N.Y.S. 
1962 Chapter 21, Section 10(a) which prohibits the 
claimed administrative action requiring instead judicial 
proceedings which were not granted. The New York State 
Supreme Court has denied petitioner recognition of his 
claims.

Jurisdiction is stated to reside in these federal courts in 
Magistrate Schrieber’s supplemental report to district court 
judge Hon. Murray I. Gurfein in the statement on p. 14a.



The citing thereof o f the district court is in contradiction 
and in gross error.

“  . . . March 23, 1972, when the High Court held 
‘unequivocally that rights in property are basic civil 
rights within Sec. 1343(3), Lynch v. Household 
Finance Corp., 40 U.S.L.W. 4335.’ Harold 
McClendon, et al. v. Thomas E. Rosetti, (2d Cir. 
No 71-1890, April 12, 1972).”

QUESTIONS BEFORE THIS COURT

Elementally the unpleasant question before this court 
is whether the New York City Rent Administrator, 
through his attorneys, is the sole arbitor, without 
supervision, of petitioner’s lawful property rights as 
governed by New York City Rent Control and whether 
thereat they may direct or misdirect the court by any claims 
including frauds which they may chose to contradictorily 
present at any given moment. The answer is obviously not, 
thus the question arriving is whether there has been 
originally a statement of the issues and a reality of 
proceedings to determine fact, or conversely whether 
respondent and his attorneys have perpetrated and 
continue to maintain a fraud upon the courts. Thereto 
questions necessarily challenging district court judicial 
procedure o f arriving at its judgment are:

1. Did the district court correctly cite, or reverse, 
the opinion o f this court in Bowles v. Willingham and 
is petitioner thereto entitled as a matter of right to be 
heard: or; what is the requirement of law and has it in 
fact been met?



6

2. Has petitioner presented a federal question not 
subject to res judicata?

3. Has the burden of proof for unstated charges of 
respondent been properly placed upon petitioner?

4. Had respondent ab initio lawful authority and 
lawful cause for the orders underlying this litigation?

5. Is there lawful justification for the exercise of 
New York City Rent Control Authority as here 
demonstrated?

THE FACTS

The first fact o f this litigation is that it is not 
repetition o f prior litigation. Of necessity, petitioner 
entered original litigation (Davenport u. Berman, 68 Civ. 
4984) which was dismissed and dismissal affirmed on 
grounds of insufficient showing o f federal jurisdiction. A 
replacement action (Davenport v. City Rent etc., 70 Civ. 
1011) was re-instituted but dismissed upon respondents’ 
claim of res judicata (petitioner’s attempted defense, U.S. 
Oct. 1970 No. 1149, failed: he is pro se and not 
acquainted with the procedures of litigation). Petitioner 
still seeking judicial relief, as provided properly by the 
statutes, having sought unsuccessfully to restore the prior 
actions to the court calendar, now enters the court in 
accordance with provisions of F.R.C.P. 59(a) and 60(b) 
charging and seeking to demonstrate a fraud perpetrated 
by adverse party attorneys in the prior actions, where 
petitioner was simultaneously denied access to the 
administrative files or so-called “ records” of reference in



7

the litigation by respondent and the courts themselves and 
thereto could not argue the facts o f record. (This court is 
referred to petitioner’s Petition for Writ of Certiorari, Oct. 
Term 1970, No. 1149.)

The second fact o f the litigation is that it is proceeded 
by no examination o f any questions or issues to determine 
the facts underlying the series o f litigations, either 
administratively or judicially. Every averment and 
allegation o f respondent is derived from a series of 
administrative claims advanced originally by an attorney 
before the court 'or an administrative document dated 
December 16, 1965. Neither of which has ever been 
opened for examination and both o f which are false in 
essential claims as to statutory provisions, administrative 
authority, administrative proceedings, and claims of 
determined facts upon unstated and non-existent 
questions.

Precedent to the issues are police authority of 
government rent control laws, whose purpose is to 
maintain parity o f the economic sectors retained from 
World War II, administered in New York between 1949 
and May 2, 1962 by a New York State commission and 
since that date by a New York City agency (whose name 
has changed several times). The mandates of such police 
authority include a forti fiori limitation in the exercise of 
the police authority which is well stated in this court’s 
decision Bowles v. Willingham, (1943). (However, 
respondent claims per curiam subsequent lower court 
authority to supersede the previously stated limitations.)



8

Petitioner acted under New York State Commission 
regulation between 1955 and 1961 inclusive in accordance 
with N.Y.S. Rent Control Law of 1954, Sec. 2(2)(h) which 
provided  sta tu tory  exemption  o f apartments 
owner-occupied for a period o f one year. The new New 
York City Rent Control agency in 1963-1965 
administratively issued orders stating revocation of four 
such exemptions. The authority, subsequently claimed, 
was ex-post facto New York City Regulations of 1962 
applied with retro effect. The agency claims “ virtually 
plenary authority . . .  in all respects . . .  to do anything 
which the State Rent control authorities might have done 
prior to May 1, 1962, and to supersede any rules, 
regulations, orders, determinations and decisions of the 
State Rent control authorities. ”  (Reference hereto 
including legislated law.)

The original issue o f litigation involves those 
administrative New York City rent control agency orders 
which seek to revoke the existent statutory exemptions, 
which had the prior acceptance and approval of the State 
Commission. The original provision of law is N.Y.S. Rent 
Control Law o f 1954, Sec. 2(2)(h):

“ Housing accommodations which are rented after 
April 1, 1953 and have been continuously
occupied by the owner thereof for a period of one 
year prior to the date o f renting; provided, 
however, that this paragraph shall not apply where 
the owner acquired possession of the housing 
accommodations after the issuance of a certificate 
o f eviction pursuant to the Rent and Eviction 
Regulations within the two year period



9

immediately preceding the date o f such renting, 
and provided further that this exemption shall 
remain effective only so long as the housing 
accommodations are not rented for other than 
single family occupancy.”

Subsequently, o f slight discussion is the section of law of 
reference by respondent which replaced the foregoing. The 
New York City Regulation is 2 f ( l l )  which almost 
equivalent to the foregoing, includes a restriction that only 
one exemption shall be so granted and alters the rented, 
for single family occupancy, to occupied, in single family 
occupany.

The lawful requirement of concern in the above are: 
(1) owner occupancy, not necessarily residency, for at 
least one year and (2) rerental not before two years after 
the issuance o f a certificate o f eviction, for single family 
occupancy.

Originally petitioner filed official forms entitled 
“ Landlord’s Report on Statutory Decontrol” for four 
apartments with the New York State Commission, which 
were accepted, examined, approved and the files closed 
and warehoused as State of New York Temporary State 
Housing Rent Commission dockets according to the 
following schedule.

Apt. Docket Filed Closed

1 DR-3974 October 15, 1957 November 27, 1957

6 DR-5420 January 6, 1959 January 9, 1959



10

5 DR-6643 January 5, 1960 January 28, 1960

2 DR-7855 December 2, 1960 January 3, 1961

In 1963-64 the new New York City Administrators 
ordered these files opened for review and subsequently 
claim “ to have treated them as applications” , assigned new 
docket numbers 2AD 2248-52, claim them to have been 
“ unadjudicated”  and claim to have adjudicated these “ new 
applications”  and to have (alternately) rejected, denied, or 
revoked them.

Petitioner has not been able to effect a judicial hearing 
on the merits or the question, however the New York 
State Supreme Court, Appellate Division, First 
Department, has dealt with the question in Baldwin v. 
Chang, N.Y.L.J. July 23, 1973, p. 2, col. 1 with reference 
to the State Rent Administrator’s advisory Bulletin No. 1, 
par. 13. Report of Statutory Decontrol provides:

“  . . .  an application for decontrol is not 
required . . . .

Section 2 f ( l l )  of the Rent Regulations provides 
for decontrol o f a housing accommodation where 
it has been owner occupied for at least one year. 
The section is self-operative without further action 
by the Rent Commission. . . . There is no statute, 
rule or regulation that gives the Rent Commission 
jurisdiction to make such determination as a 
condition precedent to decontrol. Absent such 
jurisdiction its order is a nullity.”



11

The lawfully required administrative proceedings are 
specified by three provisions, at least, o f the New York 
State Rent Control Laws, as hereunder indicated;

N.Y.S. 1961, Chapter 337, Section 4(4)(e):

“ Before ordering any adjustment in maximum 
rents, a reasonable opportunity to be heard 
thereon shall be accorded the tenant and the 
landlord.”

N.Y.S. 1961, Chapter 337, Section 4(8):

“ The powers granted in this section shall not be 
used or made to operate to compel changes in 
established rental practices, except where such 
action is affirmatively found by the commission to 
be necessary to prevent circumvention or evasion 
o f any regulation, order or requirements under this 
act.”

N.Y.S. 1962, Chapter 21, Section 10(a):

“ Whenever in the judgment of the city housing 
rent agency any person . . . engage in any 
. . . practices which constitute . . . violation o f any 

provision . . . the city housing rent agency may 
make application to the Supreme Court for an 
order enjoining . . .  to correct the violation, and 
upon a showing by the city housing rent 
agency . . . order shall be granted without 
bond___ ”

Petitioner’s charge in the complaint to the district 
court (p. 9, sub-paragraph I) was that respondent stated no 
questions or charges, presented no bill of particulars or



12

held no hearing to determine the facts prior to the issuance 
of orders. There is an absence now of record of any 
original charges, or any original determinations of fact, 
either before or after the administrative orders. Further 
the evidence o f record is that there were no administrative 
proceedings to determine fact, there is no signatory officer 
or document o f found or determined fact.

Therefore, of record, there are no lawful charges, there 
were no lawful proceedings to determine fact, there is no 
lawful cause which supports the contested administrative 
orders which were issued December 11, 1964.

Petitioner, through his attorney sought review 
proceedings during 1955. The administrative “ Progress 
Sheet”  (Exhibit R, 44a) shows the absence of review, 
which petitioner charges, and which respondent attorney’s 
averment contradicts. There was no administrative review, 
however a first document of administrative reasoning was 
issued December 16, 1965, for the orders issued December 
11, 1964. (Reference is made to respondents’ supporting 
statement in supplemental answers to interrogatory dated 
September 21, 1972, final sentence of subparagraph I 
(31a).) The document itself is rubber-stamped with the 
Rent Administrator’s signature and the certifying signature 
is illegible.

The administrative reasoning set forth in that 
document as justification of the administrative orders is as 
follows:

It is claimed the Apartments 1, 2 and 6 at a time of 
inspection were “ occupied for other than single family 
occupancy. Such occupancy in contravention of the Rent



13

Regulations mandates the recontrol. . . regardless of other 
factors which may or may not be consistent with the 
landlord’s alleged right to decontrol thereof.”

Petitioner is not playing games when he points out that 
no such charge is actually made. Further it is denied by 
respondents (Answers to Interrogatory, July 24, 1972, 
Answer No. 12, 42a) “  . . .  no claim was made that
plaintiff landlord rented any apartment for other than 
single family occupancy . .... .”  Further the inspector’s 
report is false. No such occupancy existed, much less it’s 
being charged to petitioner.

Although the dismissal judgment of the New York 
State Supreme Court to petitioner’s Article 78 proceeding 
was in part based upon presumption o f occupancy as an 
infraction of lawful specifications charged to petitioner. 
The fact of record is that it is not charged and the 
statutory provision shows no such requirement. The 
procedures of the court did not provide petitioner with a 
hearing that the question could have been examined and 
resolved.

Further it is claimed by respondents that somehow 
petitioner’s occupancy time was insufficient. The provision 
of law aforestated is a one-year requirement. Respondent 
concurs that petitioner resided in the subject four 
apartments consecutively for a period exceeding six years 
and two months.

Respondents’ document of December 16, 1965 states:

‘ ‘ A p a r t m e n t  N o .  1 t h e  
rejection . . . based . . . occupied for a period of 
less than two years . . . .



14

Apartment No. 6 . . . (Overlapping periods of 
utility services noted above re: Apartments 1 and
5).

Note: no insufficiency is actually shown to exist, 
the ConEd service overlap time supports 
petitioner’s claims. The statement appears to be for 
confusion where the respondent recognizes his own 
error.

Apt. No. 5. The record shows that as far as 
Apartment No. 5 is concerned the landlord appears 
to have had possession thereof and further appears 
to have shown occupancy thereof for the 
prescribed period o f  time. However, 
Administrator . . .opinion . . . .

Apt. No. 2. Landlord claims to have occupied 
Apartment No. 2 from December 1, 1959 to 
December 1, 1960, while the record shows that it 
was only on January 7, 1960 that a utility account 
was opened in his name for the subject 
apartment.”

In the foregoing administrative statement no infraction 
or insufficiency o f time is shown. Yet respondents’ 
attorney’s claim (Respondents’ Memorandum, New York 
State Supreme Court):

“ Moreover, the evidence of record also indicates 
that the landlord deliberately engaged In a scheme 
to create only an appearance o f residence in the 
subject apartments but never really lived there.”



15

And, respondents’ attorney claims in this action on appeal 
(Brief for Appellees p. 4, par. 2)

“ Factually, the administrative proceeding record 
showed . . . that Mr. Davenport had actually 
resided in each o f these apartments only a short 
time (less than a year in each case) . . . .”

Of the foregoing, a two-year occupancy is not lawfully 
required. Examination before the court can show actually 
such an occupancy to have occurred within the definitions 
o f law, the point is moot. Apartment No. 5 is recognized 
by respondent administrators as having been occupied 
according to the provision o f law. Yet the administrative 
respondents deny the statutory performance o f law 
claiming as grounds some vague “ Administrators’ 
opinion.”  Apartment No. 6, no lack of occupancy is 
actually claimed, although it is implied. The showing 
lawfully required is absent and petitioner invites 
examination by the court, the facts support petitioner. 
Apartment No. 2 is simply charged to have “ not had 
utility service billed to landlord for over a month.”  The 
charge itself is ludicrous, except for its serious misuse. 
Actually a question can be established for Apartment No. 
2 and it can be answered. It has not been raised and thus is 
moot.

The administrative subterfuge of claims proves no 
explanation of petitioner’s continuous occupancy of the 
four apartments for a period exceeding six years, but the 
administrative claim that the individual increments 
somehow add up to less than five.



16

Petitioner submits that the administrative claims might 
establish a question, but fail to effect a showing and are 
unlawful as cause.

Further essential information to this court regards 
prior litigation. The question being res judicata or a 
fraudulent claim of res judicata which involves prior 
examination o f the issue. Thereto:

a. There was no statement o f issue, bill of 
particulars, statement of charges, or procedures of 
examination effected by respondent New York City 
Rent Administrators either at the district level or the 
administrators’ level. All of which is required but 
absent of record and thereto, there was no 
administrative determination of facts or statement of 
lawful cause.

Further, the claimed procedure, aside from not 
having in fact been effected, is contrary to the 
provisions of law and respondent has been so informed 
by the court, involved in the action of Baldwin v. 
Chang.

b. There was no examination of the records by the 
New York State Supreme Court, Davenport v. 
Berman, (June 29, 1966), references made by that 
court derive from respondents’ averments. The court 
did not open the record for examination and 
argument, which is a matter of public record.

c. The original federal action, Davenport v. 
Berman, 68 Civ. 4984, as a matter of record, was 
denied entry as a matter of law, on appeal the



17

affirmation was specified on that ground. The further 
opinion of the district court derived from respondents’ 
claims was excluded. Insufficiency o f showing 
jurisdiction is not a positive bar of res judicata.

Further, the opinion of the court, which was 
contributory to dismissal was premised upon 
respondents’ certification as to “ previously determined 
fact, by the prior court” , which averment was a fraud 
for the purpose of misleading the court.

d. The subsequent federal actions, all dismissed 
upon grounds o f res judicata depended upon the 
court’s acceptance o f respondents’ claims of prior 
judicial examination and determinations made before 
the federal court in Davenport v. Berman, 68 Civ. 
4984, with reference to Davenport v. Berman,(629/66), 
June 29, 1966 of the New York State Supreme Court.

Respondent respectfully submits to this court, that the 
charge of complaint was fraudulent claims by respondent 
in these prior actions to obliterate and misdirect the court 
judgment. Respondent has not in prior or present litigation 
shown documentary proof to support his first allegation 
before the courts. The district court denying entry of the 
records for argument and examination or trial therewith 
prohibits the introduction of the records that the absences 
may be shown.



18

REASONS FOR GRANTING THE WRIT

I.

Of all questions directly or indirectly before the 
courts, the burden of proof has unlawfully been 
transferred from respondent to petitioner.

Respondent is an agent o f government, to whom 
authority and responsibility for factfinding procedure has 
been assigned along with statutory specifications 
reinforcing the normal police authority mandates of law 
that such authority only be exercised with lawful cause 
and upon a showing of proof of the facts.

The entire history o f litigation is petitioner’s continual 
demand for that lawful cause, showing of proof and a 
charge that no such showing can be effected for the simple 
reason of absent lawful cause.

The entire precedent history of litigation is dismissal of 
the complaint by the courts without examination to verify 
the facts solely upon respondent attorneys’ certification 
that cause and proof exist and have been shown.

The complaint hereto is that the certification, is false.

Again the court dismisses the action on the basis of 
respondents’ claim without procedure requiring or 
permitting examination to verify the fact.

Inherent in every judicial proceeding has been the 
court requirement that petitioner show cause for judicial 
relief, which itself is a reversal o f the constitutional and



19

statutory mandate that respondent show cause for judicial 
approval.

Additionally, the record does show, that respondent 
has concealed the original documents o f record from the 
original inception o f administrative activity until one 
month before the filing o f this instant complaint, which 
was eight years and covers the period of all prior litigation.

Thereto, the administrative grounds offered for this 
administrative attempt to revoke statutory exemptions is 
“  . . . administrative . . . finding . . .  o f lack o f credibility” 
(Answer to Question No. 7, 34a). In clear language 
respondent states the cause of eight years o f litigation as 
his “ disbelief” of petitioner’s sworn statement.

II.

Every consideration of the district court judgment 
stated in the judgment is premised upon non-existent 
reality or reverses the evidence of documentary fact 
including a prior judgment of this United States Supreme 
Court.

The district court cites the opinion o f this high court 
(.Bowles v. Willingham, 521 U.S. 503, 519-520 (1943)) 
stating thereto exactly the reverse o f this court’s opinion 
as stated on the precise pages cited. This court stated a 
requirement o f statutorily mandated hearings, permitting 
in other situations “ delay . . .  is not denial . . . .”  The 
district court adds error of fact to a belief that “ in rent 
control cases”  no hearing is required.



20

The district court cites (Supplemental Report of 
Magistrate Schrieber, 13a) to reverse it and state “ absence 
of a federal question.”  The report cited instead states 
jurisdiction giving two examples:

“ II

Before doing so, a brief review of my earlier 
recommendation that summary judgment be 
granted to the defendant in case No. 71 CIV 2205 
is dictated by the recent opinion o f the United 
States Supreme Court in Lynch v. Household 
Finance Corp., 40 U.S.L.W. 4335 (U.S. Mar. 23, 
1972). In this matter (motion No. 107 on the 
October 19, 1972 motion calendar) the
Department o f Rent and Housing Maintenance 
sought to intervene and to be named as a 
defendant in 71 Civ 2205, in which John V. 
Lindsay was sued as an individual. The defendants 
also sought summary judgment. The report 
recommended that intervention be permitted and 
summary judgment be granted, for the issue was 
fully litigated in prior court proceedings in both 
state and federal courts. The earlier report stated,

‘Even if one were to assume that plaintiff could 
satisfy the jurisdictional requirements of either 28 
U.S.C. 1331 or 1332 or o f 28 U.S.C. 1343(3), he 
cannot overcome the res judicata and collateral 
estoppel barriers. See Taylor v. New York City 
Transit Authority, 433 F.2d 665 (1970).’



21

Further, it was my opinion that plaintiff’s 
reliance on Section 1983 o f Title 42 fails because 
o f the nature o f his claim — as the matter in 
dispute involved property, not ‘personal liberty.’ 
This view o f Section 1983 was the law of the 
Second Circuit Court of Appeals (Eisen , v. 
Eastman, 421 F.2d 560, 1969) until March 23, 
1972, when the High Court held ‘unequivocally 
that rights in property are basic civil rights within 
Sec. 1343(d) Lynch u. Household Finance Corp., 
40 U.S.L.W. 4335’ , Harold McLendon, et al. v. 
Thomas E. Rosetti, (2d Cir. No. 71-1890, April 12, 
1972).

While my earlier view o f plaintiff’s 1983 claim 
is now revised in this new direction o f the appellate 
courts . . . .”

The district court states res judicata with reference to 
prior judicial dismissal without examination or trial. The 
prior dismissal appealed did not elicit an appeal court 
acceptance of a res judicata opinion o f the prior court, but 
stated “ insufficient showing of federal jurisdiction.”  
Further, the instant action is not the same petition for 
relief but is a new entry, premised upon adverse party 
fraud of prior litigation and entered in accordance with 
F.R.C.P. 59(a) and 60(b) which precludes the res judicata 
ruling to require examination of the issue by the court and 
offers relief from the prior judgment.

The district court therefore states no valid grounds for 
its judgment. ■



22

Further analysis of the opinion of the district court 
would disclose an apparent bias and prejudice of the 
district court, as indicated:

a. The opinion starts with a reference to plaintiff as 
a black landlord, which was not o f discussion in the 
instant complaint, but a prejudicial derivation from the 
original federal complaint o f res judicata reference. 
Petitioner’s former attorney insistently entered these 
references and then failed to press the valid 
information and argument. The issue is not in 
contention, the point should be moot and the court’s 
reference is prejudicial.

b. The court next mentions “ to find that because 
o f rent control it does not contribute to his living.” , 
thereby stating the major unlawful effect of rent 
control in New York City. The court then shows an 
absolute absence o f concern of inaction.

The Rand Corporation Report to the New York 
City Government in 1969-1970; The First National 
City Bank of New York Monthly Economic Letter of 
July 1969 and multiple magazine, newspaper and 
private and public statements o f knowledgeable city 
officials indicate that o f expert opinion the New York 
City Rent Control law contributes to the housing 
problem rather than effects its cure. As such the 
authority of law is exercised contrary to its mandate 
and is unlawful.



23

c. The court notes peitioner is pro se, stating “ his 
circumstances merit a sympathetic hearing . . .  ” , in the 
order of dismissal which prevents just hearing o f the 
“ complaint and petition for the original hearing and 
determination o f fact lawfully required as due process 
of law.”

d. The court next refers to “ bare facts”  of 
controversy citing a preliminary hearing report of 
Magistrate Schrieber. Of record, Magistrate Schrieber 
was assigned hearing on a series o f motions by the 
court. His original report was unrecognized by the 
court as not containing finding of fact and 
determination o f law and a supplemental report was 
formulated, which could only state the existent 
judicial judgments as reference. The magistrate 
recognized no authority to supersede these prior 
judgments or hold trial.

Both reports failed to include the magistrate’s 
discovery that previously no hearings had occurred 
either administratively or judicially on the alleged 
questions to determine the merits thereof. Of record 
are petitioners immediate objections, which the district 
court has not accorded recognition.

The court has used this report for a purpose 
contrary to its instruction o f original intent, as a 
permanent rather than a temporary basis o f judgment. 
And for that purpose the magistrate’s hearing is a 
non-sequitur presenting as judgment of a fraud only 
the prior acceptance by the court as absolute proof of 
nothing.



24

e. The court refers to res judicata defense and its 
prior summary judgment in the action 71 Civ. 2205, 
the report and supplemental report of Magistrate 
Schrieber. The report was originally rejected by the 
court and is replaced by the supplemental report, which 
contrary to the court’s statements does state petitioner 
jurisdiction o f a federal court.

The court’s reference to res judicata accepts a 
conjecture o f the magistrate, which is presented in 
precisely that conjectural manner, as an absolute 
determination. By so doing the court totally ignores 
the issue o f complaint which is adverse party fraud; 
and the F.R.C.P. 59(a) and 60(b) provisions without 
verification, examination, argument or trial.

f. The court states “ plaintiff now contends . . .he 
was not granted a due process hearing before the 
determination by the City Rent Administration.”

The court is in error, plaintiff-petitioner has made 
and continued this portion of his complaint in all 
administrative and judicial application. This complaint 
is grossly larger charging that petitioner has (1) not 
been charged with even a bill of particulars statement, 
(2) has had no notice of charges, (3) has had no 
procedures of determination, (4) that there exists no 
statement, finding or determination of lawful cause 
attached to him to justify respondents’ orders, but (5) 
more specifically the issue of this complaint is adverse 
party fraud before the courts in prior litigation.



25

g. The court refers to magistrate’s findings and the 
judicial confirmation of a non sequitur. The court 
correctly states “ plaintiff was represented by counsel” , 
the remainder of the statement of the court is in error. 
There were no proceedings and no charges therefore no 
opportunity to answer in any fashion.

The court’s misinterpretation and reversal of this 
court’s opinion, Bowles v. Willingham was already 
discussed.

h. The court refers to due process finding o f Judge 
Cannella in 68 Civ. 4984. This prior judgment, derived 
from the charged adverse party fraud, which is the 
issue of the instant complaint was not upheld oja those 
grounds in appeal. For the court to prejudice judgment 
on these grounds in contrary to judicial procedure 
dependent upon the court’s major error of denying 
petitioner recognition of the issue o f the complaint.

The court noting its own adversity to the grounds 
of affirmance then invokes failure to state a federal 
claim which is contrary to the court’s stated 
acceptance of page 13a o f Magistrate Schrieber’s 
supplemental report.

i. The final large paragraph of the judgment page 
five is unbelievable intrusion o f the court in defense of 
respondent, where respondent has admitted the most 
gross possible judicial atrocity, that respondent 
concealed the records from petitioner between 1963 
and August, 1971. Full comprehension comes only 
with perspective view. In brief:



26

i. In discussion are the administrative files 
including the original New York State Commission 
docket sheets with the original notations of 
Commission approvals.

ii. The statutory responsibility o f law places 
upon respondent the requirement for determining 
fact, requiring that he hold hearings, and/or submit 
charges for judicial hearing before the New York 
State Supreme Court, which hearing procedure 
requires presentment of the involved documents.

iii. Respondent admits administrative denial of 
hearings and the records disclose that the courts 
held no examination or hearings. The records and 
many sworn statements of petitioner state that 
petitioner has not had access or knowledge of these 
basic documents of the litigation evidence, which 
he sought repeatedly to obtain by subpoena, from 
the inception of administrative action through all 
litigation prior to the instant complaint.

iv. Respondent has continually claimed original 
administrative proceedings, notice to petitioner, 
opportunity of petitioner to answer the charges.

v. Petitioner has continually inquired of the 
courts and respondent, “ What charges?” .

vi. The courts have in every instance summarily 
dismissed petitioner upon his failure to show an 
adequate complaint.



27

vii. Petitioner, held responsible for 
management operation of the subject property 
under i m p o ssible conditions created by 
respondents’ orders, has been subjected to 
secondary damage suits in law, to which he could 
offer not defense.

viii. As consequence of judgment obtained by 
his enforced default, the management finance 
failed, mortgage foreclosure began and in this 
directly resultant action (United Mutual v. Wm. 
Davenport, S.D.N.Y. 70 Civ. 3878) petitioner was 
finally able to successfully subpoena these 
“ public”  records for the first time in August 1971.

ix. Of the subpoenaed records, essential letters 
of correspondence are absent. The Con-Ed and 
Telephone Co. records which are stated crucial 
evidence by respondent are absent.

x. Admission of respondent comes only after 
interrogatory of petitioner and evasion by 
respondent and an order of the court to answer 
petitioner’s question. The question is not answered 
in a straight-forward manner, but in a confusing 
mode of evasiveness. But as the answer to the 
question, it is admission that the first known access 
was August 1971.

xi. Throughout the interrogatory, essential 
questions as to notice are interspersed. The answers 
and documentary submissions thereto are fraud, 
now documentary in the record and in the custody 
of the court.



28

xii. Respondent’s admission proves the fraud of 
every prior administrative claim.

xiii. It is unbelievable but, at this point the 
court interjects judicial defense. Where respondent 
is lawfully required to prove his prior compliance 
with lawful procedure, the court rejecting the 
requirements of F.R.C.P. 11 and 33 for positive 
answers accepts discussion of attorneys of the 
involved parties wherein respondents refused the 
statutorily required hearing which petitioner’s 
attorney demanded ab initio as a satisfactory 
substitute for compliance with the requirements of 
notice to petitioner with access to the information.

xiv. The final hope of the court that 
respondent will substitute his examination for that 
which the court denies, derives from the court’s 
recognition that petitioner has a just cause of 
complaint. I submit that it is unjust and unlawful 
for the district court to so simply seek to not be 
involved. The hope is forlorn expression after ten 
years of contention between the parties where no 
examination has been effected because respondent 
has fought tooth and nail to prevent it.



29

III.

Of statute and of record there is no authority and no 
lawful grounds or cause for respondents’ ah initio orders. 
Respondents’ position, posture and presentments in this 
action are fraud.

Of record, respondent did not originally examine an 
application as he seeks to claim. Respondent did open and 
review and reject prior administrative dockets o f statutory 
exemption while denying petitioner access to proceedings 
or administrative process by which he might discover the 
questions of administrative concern and/or speak thereto 
in his own defense. Which actions deny, are contrary to, 
and contravene the statutory and constitutional mandates 
o f the First, Fourth and Fifth Amendments and the Rent 
Control Laws o f the State o f New York [1961 Chapter 
337, Section 4(4)(e) and 1962 Chapter 21, Section 10(a)].

Further authority of the New York Supreme Court 
and the supersedent New York State Rent Administrator 
as stated in judgment (Baldwin v. Chang, N.Y.L.J. July 23, 
1973, p. 2, col. 1) is:

“ . . .There is no statute, rule or regulation that 
gives the Rent Commission jurisdiction to make 
such determination as a condition precedent to 
decontrol. Absent such jurisdiction its order is a 
nullity.”

True, but denied examination is petitioner’s claim that 
there is of record no bill o f particulars advanced during the



30

ten years of contention hereto which states a single 
infraction or infringement upon any specification shown 
of the statutes which is therewith shown attached to 
petitioner. There are a series of opinions, interpretations 
and conjectures by respondents which may be grounds of a 
question. The questions themselves are not formulated and 
the totality of respondents’ presentments to the court 
contradict that fact and are fraud.

“ An attempted action of a public body 
without power is void and may be attacked for 
want of jurisdiction at any time when an attempt is 
made to enforce claims founded on such action.”

The statement above is a quotation of the court 
(.People ex rel. N.Y. Central R. & Co. u. Lindburg, 283 
N.Y. 344, Matter o f Long Island R.R. Co. v. Hylan, 240 
N.Y. 208). It follows that appellant seeking to invoke his 
rights to useage and management of his personally-owned 
real property and obstructed and denied access to the 
procedures of law by appellee’s existent orders is entitled 
to the protection of this court o f his civil rights.

Further respondent fails to present documentation of 
lawful proceedings, which is petitioner’s averment and of 
record, no such proceedings have existed Respondents’ 
claims to such proceedings to examine the absent question 
and determine merit thereto is unsubstantiated fraud.

Of record, allegations by respondent attorneys of 
determined fact, are contrary to administrative opinion, 
unsubstantiated by evidence of record and are false.



31

IV.

Serious injury caused to petitioner by respondents’ 
orders without lawful cause are a manifest injustice which 
cannot be tolerated under color o f law.

The involvement of rent controls generally, are an 
economic control under the welfare and police authority 
o f a sovereign state which are otherwise constitutionally 
prohibited as an infringement upon the civil rights o f the 
people. The action of respondents and their predecessors 
here unless in accord with the purpose, mandates of 
statutory securities and consistent with true fact are 
unlawful under color of law and either must be prohibited 
and where they have occurred must be rectified; or must 
inevitably disintegrate lawful process and the public 
welfare. The effect is the diametric reverse o f their lawful 
purpose and itself makes the administration’s actions 
unlawful.

Evidence of the failure o f the rent controls in the City 
o f New York are common discussion in the public press, 
the legislative corridors and the administrative reports as 
well and of gross visibility in the public streets as block 
upon block o f destroyed housing.

In the instant litigation, petitioner’s property in 
1963-1964, at the inception of the administrative action, 
was fully tenanted and violation-free. Today, as a 
consequence of the administrative orders and absence of 
resolution to the questions and problems engendered, the 
same building is in foreclosure procedure and 
untenantable, and even though housing facilities are so 
badly needed, unlivable.



32

Respondent, by creating an insoluble block to lawful 
procedure and necessary economics has forced petitioner’s 
loss of tens of thousands of dollars and years of work, and 
by the same circumstance deprived the public of 
badly-needed housing.

The records cannot show lawful authority, lawful 
cause, or lawful proceedings to provide just grounds for 
the underlying administrative orders.

The prior and present claims of respondents’ attorneys 
are not supported by the evidence of record, by the 
statutes, or the original administrative statements. Thereto 
the courts have permitted a fraud to manipulate 
judgments.

It is obvious that a serious wrong has herein been 
effected under color of law.

The situation being applied to the hundred thousand 
small New York City property owners deserves and 
requires examination. The proliferation of rent controls to 
other areas besides New York City points out the urgency 
o f need. The remaining question is cause, if not lawful 
then what?

Petitioner is enjoined by the rules o f this court from 
entering deleterious comment in this document. However, 
it is public record that a few years ago the Hon. Adam C. 
Powell, congressional representative from New York City 
named one Ester James as a “ bagwoman” or “ graft 
collector”  for New York City politicians. Thereto he was 
sued for libel with an attorney, Mr. Raymond Rubin,



33

acting for Mrs. James. It is also public record that 
preceding the issuance o f Rent Administration orders in 
the instant situation, petitioner was denied access to 
officials or information, while Mr. Rubin acted, 
representing one o f petitioner’s tenants, filing suit for 
triple damage for overcharges in rent related to Apartment 
No. 1, prior to the issuance o f that administrative order. 
Correspondence between Mr. Rubin and administrative 
officials o f reference in documents is absent from the files. 
Logic indicates that Mr. Rubin had advance knowledge of 
the intended administrative orders. The court is reminded 
at this point, that while the law required one year or 
occupancy and while the administrative record 
acknowledges at least seventeen months o f owner 
residence, the administrative order seeks to revoke the 
statutory exemption stating “ occupancy other than single 
family”  without showing proof or stating attachment, and 
claiming a two year occupancy requirement. The order 
stating no lawful grounds gave rise to the tenancy suit and 
damage judgment which placed the property in 
foreclosure. Tenants of Apartments No. 1 and 6  on the 
administrative claim that they are occupying the 
apartment other than as rental agreement of single family, 
has provided them grounds for damage suits against 
petitioner for injury o f more than five thousand dollars.

It does appear that the authority of government and 
inert body o f the courts are the instrument of criminal 
action against petitioner as a property owner. However, 
every legislative, administrative or judicial agent with 
responsible authority has now developed “ precedential 
prior vested interest” in not correcting the performance of 
this malfunction of law. The only known independent 
authority without such a vested interest is this United 
States Supreme Court.



34

CONCLUSION

This court should grant certiorari on this petition to 
determine whether petitioner’s averment of deterioration 
of lawful process at the citizens’ functioning level is true. 
In determining from the records that these averments are true 
this court should exert its authority to restore the rights of 
the people to the people. In petitioner’s situation, it 
should state the nullity of respondents’ underlying orders, 
petitioner’s statutory rights to be heard, and petitioner’s 
lawful right o f redress for the injury sustained.

Respectfully submitted,

s/ William J. Davenport
Petitioner, Pro se



35

PROVISIONS OF THE STATUTES

N.Y.S. Emergency Housing Rent Control Law amended
1954 Section 2(2)(h)

“ Housing accommodations which are rented after 
April 1, 1953 and have been continuously
occupied by the owner thereof for a period of one 
year prior to the date o f renting; provided, 
however, this paragraph shall not apply where the 
owner acquired possession of the housing 
accommodations after the issuance o f a certificate 
of eviction pursuant to the Rent and Eviction 
Regulations within the two year period 
immediately preceding the date of such renting, 
and provided further that this exemption shall 
remain effective only so long as the housing 
accommodations are not rented for other than 
single family occupancy.”

N.Y.S. Laws o f 1961 Chapter 337 (Rent Control Law.)
Section 4(4)(e)

“ Before ordering any adjustment in maximum rents, a 
reasonable opportunity to be heard thereon shall be 
accorded the tenant and the landlord.”

N.Y.S. Laws o f 1962 Chapter 21 (Rent Control Law.)

“ An act to provide for the establishment and 
administration of rent control within cities of one 
million or more, to repeal section twelve-a of the 
emergency housing rent control law, to provide for 
the use of nineteen hundred fifty four equalization 
rates in rent adjustment proceedings, . . . .”



36

N.Y.S. Laws of 1962 Chapter 21, Section 10(a)

“ Whenever in the judgment o f the city housing 
rent agency any person has engaged or is about to 
engage in any acts or practices which constitute or 
will constitute a violation of any provision of 
subdivision nine of this section, the city housing 
rent agency may make application to the Supreme 
Court for an order enjoining such acts or practices, 
for an order enforcing compliance with such 
provision, or for an order directing the landlord to 
correct the violation, and upon a showing by the 
city housing rent agency that such person has 
engaged or is about to engage in any such acts or 
practices a permanent or temporary injunction, 
restraining order, or other order shall be granted 
without bond. Jurisdiction shall not be deemed 
lacking in the Supreme Court because the defense 
is based upon an order o f an inferior court.

N.Y.S. Laws o f 1949 (Rent Control Law) Section 5(a)(18)
provides:

“ a fair net operating income . . .  in such amount as 
is necessary to bring the net operating income from 
the building (expressed as a percentage of annual 
income) to the median net operating income of 
landlords generally. This median is 30 percent of 
annual income in the case of buildings containing 
less than five dwelling units and 25 percent in the 
case of buildings containing five or more dwelling 
units.”



la

APPENDIX A

JUDGMENT OF THE DISTRICT COURT

UNITED STATES DISTRICT COURT 

SOUTHERN DISTRICT OF NEW YORK

WILLIAM J. DAVENPORT,

Plaintiff,

-against-

BENJAMIN ALTMAN, et al,

Defendants.

GURFEIN, D. J.

The plaintiff is a black landlord who apparently 
invested his life savings in buying an eight unit apartment 
house in the Bronx only to find that because of rent 
control it does not contribute to his living. He appears pro 
se, and his circumstances merit a sympathetic hearing, 
keeping in mind the rights o f his tenants. His charges of 
racial discrimination have been dismissed earlier.

The bare facts o f his continuing controversy with the 
City Rent Administration are well told in findings of fact 
made by Magistrate Schreiber when he made a 
supplemental report on five motions referred by me and a 
sixth motion referred by Judge Bonsai:



2a

‘ ‘ F I N D I N G S  OF F A C T  A ND  
CONCLUSIONS OF LAW

1. Plaintiff, a citizen of New Jersey, is the 
owner o f an eight-unit apartment at 575 East 
168th Street, Bronx, New York.

2. In September 1963, administrative 
proceedings were begun in the Bronx District Rent 
Office o f the City Rent Administration to 
determine whether five decontrolled apartments in 
plaintiff’s building were subject to the provisions 
o f the New York City Rent Eviction and 
Rehabilitation Law.

3. During these proceedings, plaintiff was 
represented by counsel and was afforded the 
opportunity to answer the charges and present 
evidence in writing.

4. On December 11, 1964, the Bronx District 
Rent Director held that four of the five apartments 
in question did not qualify for statutory decontrol 
and were subject to the City rent control law.

5. Thereafter, plaintiff, by his counsel, filed 
an administrative appeal from this decision, which 
was denied by an order and opinion (docket No. 
CPLA 9638-9641, December 15, 1965).

6 . Plaintiff’s counsel then sought judicial 
review of the Rent Administrator’s final

Judgment



3a

determination by Article 78 proceedings in the 
Supreme Court, New York County (Index No. 
629/1966).

7. These proceedings were decided adversely 
to the plaintiff by Mr. Justice Carney (New York 
Law Journal, April 29,1966, p. 18 col. 1).

8 . Plaintiff, by his counsel, appealed this 
ruling to New York Appellate Division — First 
Department, however, the lower court ruling was 
affirmed without opinion on March 9, 1967 
(.Davenport v. Berman, 27 A.D. 2d 903).

9. Plaintiff’s counsel, followed this denial, by 
instituting a class action in this Court challenging 
the constitutional validity o f the New York City 
Rent Control Law (Davenport v. Berman, et al. 6 8  

Civ. 4984).

10. In an unpublished decision, filed July 25, 
1969, Judge Cannella granted defendants’ motion 
to dismiss the complaint. The Court also held that 
plaintiff’s claim of a lack of due process with 
respect to the decontrol proceedings was without 
merit — the requirements of due process of law 
having been met by adequate proceedings and 
judicial review in the state court.

11. Judge Cannella’s ruling was affirmed by 
the Second Circuit Court of Appeals (420 F.2d 
294, 2d Cir. 1969).

Judgrn ent



4a

Judgment

12. On March 13, 1970, plaintiff, appearing 
pro se, initiated his second federal action, seeking 
preliminary injunctive relief enjoining the 
enforcement o f the orders o f the city rent 
control authorities (Davenport v. City Rent & 
Rehabilitation Administration and Mayor John V. 
Lindsay, 70 Civ. 1011).

13. In an unpublished order and opinion filed 
May 11, 1970, Judge Tenney denied the plea for 
injunctive relief and dismissed the complaint. The 
Court found that the action was barred by the res 
judicata principle.

14. Plaintiff’s appeal of this order was 
dismissed without opinion by the Second Circuit. 
(Docket No. 35002- 2d Cir. Sept. 24, 1970) and a 
motion for certiorari was denied by the United 
States Supreme Court, 401 U.S. 956, 91 Sup. Ct. 
978.

15. On April 20, 1971, plaintiff, again 
appearing pro se, commenced his third action in 
this Court against the Governor o f the State of 
New York (.Davenport v. Rockefeller, 71 Civ. 
1747).

16. This action was dismissed by an order of 
Judge Cannella, filed October 19, 1971. The Court 
held that plaintiff failed to state a claim upon 
which relief could be granted.



5a

17. In May 1971, the plaintiff, in his pro se 
capacity, commenced his fourth federal action in 
this Court against John V. Lindsay, as an 
individual, seeking essentially the same relief as in 
the prior actions (71 Civ. 2205).

18. On September 30, 1971, plaintiff
appearing pro se instituted his fifth and last federal 
action to date against the Rent Commissioner, the 
General Counsel for the Rent Control Office and 
the four families occupying the re-controlled 
apartments in his building seeking similar relief to 
that sought in his four prior actions (No. 71 Civ. 
4263).”

Mr. Davenport has been defeated by the City’s res 
judicata defense in the earlier actions and again when I 
granted summary judgment for the defendant in 71 Civ. 
2205. I based that decision, in part, on the conclusion that 
the matter was res judicata (Report of Magistrate 
Schreiber, p. 10; Supplemental Report, p. 3).

The plaintiff now contends in this case that he was 
not granted a “ due process”  hearing before the 
determination by the City Rent Administration. But 
Magistrate Schreiber found and I confirmed that 
“ [Djuring these proceedings, plaintiff was represented by 
counsel and afforded the opportunity to answer the charge 
and present evidence in writing” (Finding No. 3). That is, 
in any event, sufficient for due process in rent control 
cases. Bowles v. Willingham, 321 U.S. 503, 519-20 (1943).

Judgment



6a

Moreover, the “ due process”  claim was before Judge 
Cannella in 6 8  Civ. 4984 and he decided it adversely to the 
plaintiff. Even if the per curiam affirmance was on grounds 
o f insufficiency of jurisdictional amount, 420 F.2d 294 (2 
Cir. 1969), Judge Cannella’s decision is law of the case. I 
agree with my learned brethren, Judge Cannella and Judge 
Tenney, and will dismiss the action on the alternative 
grounds o f failure to state a federal claim and res judicata. 
The other pending motion to strike the defense of 
collateral estoppel and res judicata is, accordingly, denied.

Mr. Davenport is in error when he argues that 
Michelson’s supplemental answers to interrogatories 
constitute admissions that Mr. Davenport was denied due 
process in the original proceedings before the Rent 
Administrator. The answers o f Mr. Michelson, general 
counsel to the office o f Rent Control, mean only that Mr. 
Davenport had access to the records at least as o f August 
1971. Moreover, Mr. Michelson expressly states at answer 
4j that: “ The entire file o f docket 2 A.D. 2248-52 was 
available to Mr. Davenport’s attorneys, and it either was or 
could have been examined by them when the proceeding 
was pending at the administrative level, and also in judicial 
review proceedings thereafter.”

I hope the Rent Administrator will review Mr. 
Davenport’s grievances again.

The complaint is dismissed.

Judgment

Dated: July 31, 1973.

M.I. Gurfein 
U.S.D.J.



APPENDIX B

AFFIRM ANCE OF SECOND CIRCUIT 

UNITED STATES COURT OF A PPE A LS 

F or the Second Circuit 

----------- ❖ —---------

No. 345— September Term, 19G9.

(Argued December 5, 1909 Decided December 29, 1969.)

Docket No. 34027

7a

W illiam Davenport,

Plaintiff-Appellant,

—against—

F rederick S. B erman, individually, and as Commissioner 
of Office of Bent Control, Marie Bambino, individually, 
John V . L indsay, Mayor op the City oe New Y ork, and 
Committee on General W elfare,

Defendants-Appellees.

B e f o r e :
W aterman, H ays and Fkinberg,

Circuit Judges.
----------- *-----------

Appeal from denial of application for three-judge court 
and dismissal of complaint attacking New York City rent



8a

control. Order of United States District Court for the 
Southern District of New York, John M. Cannella, J.} af­
firmed.

A ffim an ce o f  Second Circuit

Gene Ckkscenzi, New York, N. Y., for Plaintiff- 
Appellant.

W i l l i a m  E. R o s e n , New York, N. Y. (Daniel W. 
Joy, Acting General Counsel, Office of Rent 
Control, Department of Rent and Housing 
Maintenance, New York City Housing and 
Development Administration, on the brief), 
for Defendants-Appellees Berman and Bam­
bino.

Irving Genn , New YoO:, N. Y. (J. Lee Rankin, 
Corporation Counsel, Stanley Buchsbaum, 
on the brief), for Appellees Lindsay and 
Committee on General Welfare.

Per Curiam :

Challenging rent control in New York City,1 plaintiff AYil- 
liam Davenport brought suit against Frederick S. Berman, 
individually and as Commissioner of the New York City 
Office of Rent Control, John V. Lindsay, Mayor of the City

Sec New Yoik City Rent ami Rehabilitation Law, X. Y. C. Adni. Code, 
Ch. 51 , Title Y, authorized by Local Emergency H o u s i n g  Rent Control 
Law, N. Y. Uneonsol. Laws $$8G01-17 (McKinney S u p p .  1 9 6 9 ) .

1



9a

of New York, The Committee on General "Welfare, and 
Marie Gambino.2 The United States District Gouit for the 
Southern District of New York, John M. Cannella, J de­
nied plaintiff’s application for a three-judge court and 
dismissed the complaint. Davenport appeals and we affiim.

Appellant is a Negro landlord of a ront-controlled apuit- 
ment house in the Dronx. The complaint and papeis in 
opposition to defendants’ motions to dismiss present a 
variety of theories, including the averment that plaintiff 
sues as a representative of both landlords and tenants. As 
best we can make out, the claims still pressed in this court 
are as follows: (1) Kent control deprives Negroes of the 
equal enjoyment and use of property because black tenants 
are thereby kept in inadequate housing and denied the op­
portunity to be charged higher rents which would main­
tain decent housing tor them; this also disciiminates 
against Negro landlords. (2) The procedures for decon­
trol of apartments violate due process and were applied 
discriminatorily against Negro landlords, including appel­
lant. (3) Kent control forces appellant into involuntary 
servitude.

To the extent that the complaint and papers allege loss 
of money or property rights, absent racial discrimination, 
they gave the district court no sufficient basis for dcteimin- 
ing that plaintiff’s claim met the jurisdictional minimum of

Affirmance o f  Second Circuit

2 \Ve put to one side the inaccuracies in the papers; e.g., Marie 
Gambino is apparently the incorrect name for Josephine Gambino, a 
rent administration official. •



10a

either 28 U.S.C. §1331 or 28 U.S.C. §1332 and did not 
meet the requirements of 2S U.S.C. §1343(3). See Risen

Eastman, slip op. 621 (2d Cir. Nov. 28, 1969). While the 
claim of discrimination might be covered by 28 U.S.C. §1343 
(3), mere conelusory statements that rent control furthers 
racial discrimination, without supporting facts, are not' 
sufficient. Powell v. Workmen’s Compensation Board, 327 
F.2d 131, 137 (2d Cir. 196S). The claim of involuntary 
servitude is frivolous. Marcus Brown- Holding Co. v. Veld- 
man, 256 TJ.S. 170, 199 (1921).

Judgment affirmed.

APPENDIX C

M AGISTRATE SCHRIEBER’S SUPPLEMENTAL REPORT

UNITED STATES DISTRICT COURT 
SOUTHERN DISTRICT OF NEW YORK

WILLIAM J. DAVENPORT,

Plaintiff,

-against- 7 1  Civ. 1747

NELSON A. ROCKEFELLER,
Governor of the State o f New York,

Defendant.

A ffim a n ce o f  Second Circuit



11a

Magistrate Schrieber’ s Supplemental Report 

WILLIAM J. DAVENPORT,

Plaintiff,

-against- 71 Civ, 2205

JOHN V. LINDSAY, as an individual.

Defendant.

WILLIAM J. DAVENPORT,

Plaintiff,

-against- 7 1  Civ. 4263

BENJAMIN ALTMAN, etc.,

Defendants.

I .

On January 21, 1972, I issued a report and
recommendations covering five motions referred by Judge 
Gurfein and a sixth motion referred by Judge Bonsai. All 
these motions dealt with the attempts by the plaintiff to 
overcome a 1964 order o f the City Rent Administrator, 
which re-controlled four apartments in a house owned by 
the plaintiff.

The report recommended that three of the motions 
by the defendants, which sought to quash plaintiff’s



12a

subpoenas o f September 2, 1971, September 28, 1971 and 
November 5, 1971, be denied as the matters were moot. 
The records sought by the plaintiff were produced for 
inspection and copying during a series of hearings on the 
motions and the issue was no longer a viable one.

A fourth motion by the plaintiff seeking a stay of 
proceedings in one o f his three pending cases was, in my 
judgment, not justifiable.

In the fifth motion, the Department o f Rent and 
Housing Maintenance sought permission to intervene in 
case No. 71 Civ 2205. In addition, defendants sought 
summary judgment. My recommendation was that the 
intervention and summary judgment relief be granted.

In the sixth motion in case 71 Civ 4263, plaintiff 
sought a preliminary injunction staying the Rent 
Commissioner from enforcing four re-control orders issued 
in December 1964. Relief o f this nature had previously 
been sought by plaintiff in two earlier cases before this 
Court, and in each, Judge Tenney and Judge Cannella 
denied such relief. As the plaintiff failed to present any 
new facts which would warrant this Court to reconsider its 
prior rulings, it was recommended that the Court once 
more deny plaintiff’s motion for a preliminary injunction.

Because the initial report and recommendations did 
not set forth specific findings o f fact and conclusions of 
law, as called for by Rule 52(a) of the Federal Rules of 
Civil Procedure, the report was returned by Judge Gurfein 
on February 9, 1972 for further consideration.

Magistrate Schrieber’ s Supplemental Report



13a

II.

Before doing so, a brief review of my earlier 
recommendation that summary judgment be granted to 
the defendants in case No. 71 Civ 2205 is dictated by the 
recent opinion of the United States Supreme Court in 
Lynch v. Household Finance Corp., 40 U.S.L.W. 4335 
(U.S. Mar. 23, 1972). In this matter (motion No. 107 on 
the October 19, 1972 motion calendar) the Department of 
Rent and Housing Maintenance sought to intervene and to 
be named as a defendant in 71 Civ 2205, in which John V. 
Lindsay was sued as an individual. The defendants also 
sought summary judgment. The report recommended that 
intervention be permitted and summary judgment be 
granted, for the issue was fully litigated in prior court 
proceedings in both state and federal courts. The earlier 
report stated,

“ Even if one were to assume that plaintiff could 
satisfy the jurisdictional requirements o f either 28 
U.S.C. 1331 or 1332 or o f 28 U.S.C. 1343(3), he 
cannot overcome the res judicata and collateral 
estoppel barriers. See Taylor v. New York City 
Transit Authroity, 433 F.2d 665 (1970).”

Magistrate Schrieber’ s Supplemental Report

Furthermore, it was my opinion that plaintiff’s 
reliance on Section 1983 of Title 42 fails because of the 
nature o f his claim — as the matter in dispute involved 
property, not “ personal liberty” . This view of Section 
1983 was the law of the Second Circuit Court of Appeals 
(Eisen v. Eastman, 421 F.2d 560, 1969) until March 23,



14a

1972, when the High Court held “ unequivocally that rights 
in property are basic civil rights within Section 1343(3), 
Lynch v. Household Finance Corp., 40 U.S.L.W. 4335” . 
Harold McClendon, et al. u. Thomas E. Rosetti (2d Cir. 
No. 71-1890, April 12, 1972).

While my earlier view o f plaintiff’s 1983 claim is now 
revised by this new direction of the appellate courts, it is 
still my judgment that plaintiff cannot overcome the 
defenses res judicata and collateral estoppel, and summary 
judgment is in order.

Magistrate Schrieber’ s Supplemental Report

III.

On the question of injunctive relief sought by the 
plaintiff, the first report recommended that it be denied, 
because no new facts were presented to warrant reversal of 
the earlier rulings o f two judges o f this Court which denied 
similar applications for the same relief. Furthermore, it 
was my judgment that on the record before the Court, 
there was little probability of plaintiff’s success. The 
possible detriment to the public if the injunction is issued 
and is ultimately proved unwarranted outweighed the 
possible harm to plaintiff.

Whether a motion for a preliminary injunction should 
be granted or denied is ordinarily within the descretion of 
the trial court (Garland v. Ruskin, 249 F. Supp. 977 
(S.D.N.Y. 1965), and,

“ There are, in this regard, four concepts which the 
court should take into consideration and balance



15a

before granting this relief: the probability that 
plaintiff will eventually succeed on the merits; the 
presence o f some irreparable injury to the plaintiff; 
the injury to defendant, and the public interest in 
the granting o f the preliminary injunction” 
Citizens Committee for Hudson Valley v. Volpe, 
297 F. Supp. 804 (S.D.N.Y. 1969).

See also 7 Moore's Federal Practice 2d Ed. Section 65.04; 
First — Citizens Bank & Trust Co. v. Camo, 432 F.2d 481, 
(4th Cir. 1970); Concord Fabrics, Inc. v. Marcus Brothers 
Textile Corp., 409 F.2d 1315, (2d Cir. 1969).

Even if it is assumed that plaintiff could make a 
showing of some injury, as to the other three factors, it is 
clear that the scales tip heavily in defendants’ favor, for 
the probability that plaintiff could succeed is a remote 
one, at best. Furthermore the injury to the defendant (in 
this case the Rent Commission and the tenants residing in 
the four recontrolled apartments) in staying the 
enforcement of rent orders would cause considerable 
hardship. Therefore, this Court should exercise its sound 
discretion in denying plaintiff’s plea for injunctive relief.

IV.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

1. Plaintiff, a citizen o f New Jersey, is the owner of 
an eight-unit apartment at 575 East 168th Street, Bronx, 
New York.

Magistrate Schrieber’ s Supplemental Report



16a

2. In September 1963, administrative proceedings 
were begun in the Bronx District Rent Office of the City 
Rent Administration to determine whether five 
decontrolled apartments in plaintiff’s building were 
subject to the provisions o f the New York City Rent 
Eviction and Rehabilitation Law.

3. During these proceedings, plaintiff was represented 
by counsel and was afforded the opportunity to answer 
the charges and present evidence in writing.

4. On December 11, 1964, the Bronx District Rent 
Director held that four o f the five apartments in question 
did not qualify for statutory decontrol and were subject to 
the City rent control law.

5. Thereafter, plaintiff, by his counsel, filed an 
administrative appeal from this decision, which was denied 
by an order and opinion (docket No. CPLA 9638-9641, 
December 15, 1965).

6 . Plaintiff’s counsel then sought judicial review of 
the Rent Administrator’s final determination by Article 78 
proceedings in the Supreme Court, New York County 
(Index No 629/1966).

7. These proceedings were decided adversley to the 
plaintiff by Mr. Justice Comey (New York Law Journal, 
April 29, 1966, p. 18 col. 1).

Magistrate Schrieber’ s Supplemental Report



17a

8. Plaintiff, by his counsel, appealed this ruling to 
New York Appellate Division — First Department, 
however, the lower court ruling was affirmed without 
opinion on March 9, 1967 (Davenport v. Berman, 27 A.D. 
2d 903).

9. Plaintiff’s counsel, followed this denial, by 
instituting a class action in this Court challenging the 
constitutional validity o f the New York City Rent Control 
Law (Davenport v. Berman, et al. 68 Civ 4984).

10. In an unpublished decision, filed July 25, 1969, 
Judge Cannella granted defendants’ motion to dismiss the 
complaint. The Court also held that plaintiff’s claim of a 
lack of due process with respect to the decontrol 
proceedings was without merit — the requirements of due 
process of law having been met by adequate proceedings 
and judicial review in the state court.

11. Judge Cannella’s ruling was affirmed by the 
Second Circuit Court o f Appeals (420 F.2d 294, 2d Cir. 
1969).

12. On March 13, 1970, plaintiff, appearing pro se, 
initiated his second federal action, seeking preliminary 
injunctive relief enjoining the enforcement o f the orders of 
the city rent control authorities (Davenport v. City Rent & 
Rehibilitation Administration and Mayor John V. Lindsay, 
70 Civ 1011).

13. In an unpublished order and opinion filed May 11, 
1970, Judge Tenney denied the plea for injunctive relief 
and dismissed the complaint. The Court found that the 
action was barred by the res judicata principle.

Magistrate Schrieber’ s Supplemental Report



18a

14. Plaintiff’s appeal o f this order was dismissed 
without opinion by the Second Circuit. (Docket No. 
35002 — 2d Cir. Sept. 24, 1970) and a motion for 
certiorari was denied by the United States Supreme Court, 
401 U.S. 956, 91 Sup. Ct. 978.

15. On April 20, 1971, plaintiff, again appearing pro 
se, commenced his third action in this Court against the 
Governor of the State of New York (Davenport v. 
Rockefeller, 71 Civ. 1747).

16. This action was dismissed by an order of Judge 
Cannella, filed October 19, 1971. The Court held that 
plaintiff failed to state a claim upon which relief could be 
granted.

17. In May 1971, the plaintiff, in his pro se capacity, 
commenced his fourth federal action in this Court against 
John V. Lindsay, as an individual, seeking essentially the 
same relief as in the prior actions (71 Civ 2205).

18. On September 30, 1971, plaintiff appearing pro 
se instituted his fifth and last federal action to date against 
the Rent Commissioner, the General Counsel for the Rent 
Control Office and the four families occupying the 
re-controlled apartments in his building seeking similar 
relief to that sought in his four prior actions (No. 71 Civ 
4263).

19. Plaintiff’s motion for injunctive relief is directed 
to the fifth action, and should be denied.

Magistrate Schrieber’ s Supplemental Report



19a

20. In view of the prior decisions o f this Court and 
the State Courts, rejecting plaintiff’s repeated claims for 
relief, it is highly unlikely that plaintiff can eventually 
succeed on the merits. Therefore, injunctive relief at this 
stage is not warranted.

21. Furthermore, the injury to the apartment 
dwellers in removing controls would be a serious one, not 
justified by the present facts.

22. Finally, the public interest would not be served 
by the granting of this extraordinary relief.

Magistrate Schrieber’ s Supplemental Report

Dated: May 2, 1972

Respectfully submitted,

Sol Schreiber 
U.S. Magistrate



20a

APPENDIX D

ORDER & OPINION DENYING PROTEST

THE CITY OF NEW YORK 
City Rent and Rehabilitation Administration 

280 Broadway 
New York 7, New York

Protest Docket Nos. CPLA 9638-9641

D.R.O. Docket Nos. 2AD 2248-51

-------------------------------------------------------------------------------- --

IN THE MATTER OF THE PROTEST OF 

WILLIAM J. DAVENPORT,

Applicant.

-  - --------------------------- --- --------------------------------- X

ORDER AND OPINION DENYING PROTEST

On January Y l , 1965 the above-named applicant- 
landlord filed protests against orders issued on 
December 11, 1964 by the District Rent and Re­
habilitation Director of the Bronx District Rent 
Office concerning the housing accommodations 
known as 575 East 168th Street, Apartments 1, 
2, 5 and 6, Bronx, New York.

These protests are being determined pursuant 
to Section 2f (11) of the Rent, Eviction and Re­
habilitation Regulations.



21a

The Administrator has carefully reviewed all 
the evidence in the record and has considered 
this matter de novo.

Order and Opinion Denying Protest

Since the housing accommodations involved in 
the said protests are within a single structure 
and since there are common questions involved, 
the Administrator has consolidated the said pro­
tests for disposition.

The issue in this proceeding is whether each 
of the four subject apartments is eligible for de­
control.

The record shows that between October 15, 
1957 and March 13, 1962, the landlord filed five 
decontrol reports (Section 9 (11), ^State Rent 
Regulations) alleging qualifying owner-occupancy 
as to five of eight dwellings located in the premises 
as follows:

Date of Filing 

Oct. 15, 1957 

Jan. 6, 1959 

Jan. 6, 1960 

Dec. 2, 1960 

Mar. 13, 1962

Apartment No. 

1 

6 

5 

2

Report Number 

DR-3974 

DR-5420 

DR-6643 

DR-7855

7 DR-9261



22a

Order and Opinion D enying P rotest

Reported date of inception 
of landlord occupancy

Oct. 6, 1955

Sept. 15, 1957

Dec. 16, 1958

Dec. 1, 1959

Jan. 1, 1961

Reported date of sub 
sequent renting

Sept. 16, 1957

Dec. 15, 1958

Jan. 5, 1960

Dec. 1, 1960

Mar. 5, 1962

On December 11, 1964, the District Rent 
Director issued orders rejecting the decontrol 
reports (Section 2f ([11]) and establishing maximum 
rents for four of these apartments (Nos. 1, 2, 5 
and 6).

The District Rent Director accepted decontrol 
as to Apartment No. 7 (DR-9261) finding that this 
apartment was owner-occupied by the present owner 
for at least one year prior to March 5, 1962 
within the meaning and intent of the pertinent 
section of the Regulations.

The above orders were issued on the basis of 
a physical inspection of the subject building as 
well as an examination of the reported records 
of the Consolidated Edison Company.

The physical inspection conducted by the Dis­
trict Rent Director on March 20, 1964, revealed 
that Apartments Nos. 1, 2, and 6 were occupied 
for other than single family occupancy. At the



23a

time of inspection the landlord occupied Apartment 
No. 3.

Order and Opinion Denying P rotest

The utility company records (supra) show that 
the landlord has maintained the following accounts:

FROM TO

Apt. 1 1 0 /4 /5 5 6 /6 /5 8

Apt. 2 1 /7 /7 0 Active as of 3 /2 6 /6 4

Apt. 3 3 /2 /6 2 Active as of 3 /2 6 /6 4

Apt. 5 12 /23 /58 1 /7 /6 0

Apt. 6 4 /1 /5 7 1 /6 /5 9

Apt. 7 6 /1 /6 0 9 /6 /6 2

In rejecting the aforenoted reports the District 
Rent Director found that:

Apartment No. 1 had been landlord-occupied 
for less than two years after the issuance 
of the certificate of eviction, (Docket No. E - 
7883; February 2, 1955). It is to be noted 
that notwithstanding the fact that an account 
with the Consolidated Edison Company was 
opened in the landlord’ s name on October 4, 
1955 for Apartment No. 1, the record shows 
that in April of 1957 (approximately 17 
months later) the landlord had opened an 
account in his name for Apartment No. 6;



24a

Apartment No. 2 was apparently owner- 
occupied for less than one year. The Con­
solidated Edison report shows the landlord’s 
account for this apartment was opened on 
January 7, 1960 and was still active on 
March 26, 1964 while an account in the name 
of the landlord had been opened for Apart­
ment No. 7 on June 1, 1960. The period of 
alleged owner occupancy of Apartment 2 is 
from December 1959 to December 1960;

Apartment No. 5 had apparently been occupied 
for less than the required period because 
the alleged period of occupancy (December 
16, 1958-January 7, 1960) clearly overlaps 
the inception date of occupancy for Apart­
ment No. 2 (December 1, 1959);

Apartment No. 6 was not occupied as a 
single family unit at the time of the afore- 
noted inspection of the premises. (Over­
lapping periods of utility services noted 
above re: Apartments 1 and 5.)

In protest, the landlord alleges that he has 
occupied each of the subject apartments for the 
appropriate period of time and that the subject 
apartments were, at all times, rented and occupied 
for single family occupancy.

Specifically, the landlord maintains that the 
apartments which are the subject of this protest 
were occupied by him according to the following 
schedule:

Order and Opinion D enying Protest



2 5 a

Order and Opinion Denying P rotest

FROM IQ
Apt. 1 8 /1 5 /5 5

Apt. 2 1 2 /1 /5 9

9 /1 5 /5 7

1 2 /1 /6 0

Apt. 5 12 /16 /58 1 /5 /6 0

Apt. 6 9 /1 5 /5 7 12 /15 /58

The landlord further contends that rejection of 
decontrol reports after the passing of between 
five and three years (when applicable) since the 
initial filing of the within decontrol reports creates 
an undue hardship upon the landlord.

After a careful consideration of the entire 
evidence of record, the Administrator is of the 
opinion that these protests should be denied.

As the inspector’ s report (supra) clearly shows, 
three of the subject apartments (Nos. 1, 2 and 6) 
were at the time of inspection occupied for other 
than single family occupancy. Such occupancy 
in contravention of the Rent Regulations mandates 
the recontrol of these apartments regardless of 
other factors which may or may not be consistent 
with the landlord’ s alleged right to decontrol 
thereof.

Concerning Apartment No. 1 the rejection of 
decontrol is properly based upon the fact that the 
subject apartment if in fact landlord-occupied



26a

was so occupied for a period of less than two 
years after the issuance of a certificate of evic­
tion. Under the (State Section 9(11), and City) 
Rent Regulations decontrol based upon landlord 
occupancy will not attach.

As aforenoted, the landlord’ s evidence dis­
closes substantial inconsistencies regarding the 
correlation between the landlord’ s alleged occu­
pancy and the utility services rendered to the 
landlord.

As shown by the Consolidated Edison Company 
reports, the landlord could not have occupied 
Apartments No. 1 and 6 at the same time within 
the contemplation of Section 2f (11) of the Regula­
tions.

Landlord claims to have occupied Apartment No. 
2 from December 1, 1959 to December 1, 1960, 
while the record shows that it was only on January 
7, 1960 that a utility account was opened in his 
name for the subject apartment.

The record shows that as far as Apartment 
No. 5 is concerned the landlord appears to have 
had possession thereof and further appears to 
have shown occupancy thereof for the prescribed 
period of time. However, the Administrator is, 
on the basis of this entire record, of the opinion 
that the landlord has not established occupancy of 
the nature and extent contemplated by Section 2f 
(11) of the Regulations as qualifying it for decontrol 
as will appear (infra).

Order and Opinion Denying P rotest



27a

The landlord has alleged that since acquiring 
the title to the premises in 1955 he has occupied 
as his permanent home and residence no less than 
five of the eight apartments in these premises.

The only substantial and credible evidence sub­
mitted by the landlord in support of his position 
is consistent less with the claim of qualifying the 
landlord-occupancy than with the District Rent 
Director’ s finding of occasional occupancy and use 
of these accommodations for the production of 
rental income.

The record shows that throughout the entire 
period of this landlord’ s ownership of the subject 
building the landlord, as a professional seaman, 
has spent the major portion of his time at sea; 
that the landlord has utilized the apartments or 
portions thereof as a “stopping-off” place and has 
not occupied or intended to occupy them as his 
permanent residence or home. This latter fact 
becomes even more apparent from a consideration 
of the clear indication contained in this record 
that the landlord during the claimed periods of 
alleged owner-occupancy of any one of the four 
subject apartments had rented space in these 
apartments to a roomer or roomers with whom 
he would share occupancy.

For example, in reply to the District Rent 
Director’ s Notice of Commencement of Proceeding 
to Fix Maximum Rent, the tenant George Gowins 
stated as follows:

Order and Opinion Denying P rotest



28a

“After sharing Mr. Davenport’ s apartment, 
as a roomer, friend, and fully both in his 
presence and absences at sea for over a year 
I rented the apartment from him when he 
moved to another apartment in the building. 
I first rented Apartment No. 1, on the Ground 
Floor of 575 E. 168 St. We agreed in late 
August or early September of 1957 that I 
was to take the apartment when he vacated 
and would tenant the apartment within the 
terms of the Rent Control Law’ s definition 
of Single Family Occupancy. During the 
next 2 or 3 months until Mr. Davenport 
moved it was a private joke between us as 
to who was presently the Tenant and who 
the Roomer.”

While it must be conceded that a merchant 
seaman, as many other persons whose profession 
or occupation requires long absences from home, 
is entitled to maintain a permanent home and 
residence, in the matter under consideration it is 
clear that the landlord herein did not maintain 
these various apartments as his permanent home. 
The landlord has merely attempted to use the 
availability of the apartments in this building in 
conjunction with his protracted absences from the 
premises as a device to create an appearance of 
qualifying landlord-occupancy without the intent 
to create the substance of such occupancy. The 
course pursued by the landlord cannot under all 
of the circumstances disclosed by the record be

Order and Opinion Denying Protest



29a

permitted to achieve a result that must in the Ad­
ministrator’ s opinion be deemed to be in circum­
vention and evasion of the Rent Law and Regula­
tions.

Decontrol of an accommodation following its 
occupancy by a landlord essentially contemplates 
the enhancement of the housing rental market. 
The mere appearance of qualifying landlord occu­
pancy indicating eligibility for decontrol cannot 
be permitted to operate as a device to wrongfully 
divest tenants of all of the protections of the Rent 
Law and Regulations or to obtain unwarranted 
rentals for the landlord.

To permit the result which the landlord seeks 
to achieve herein would be totally inconsistent 
with the purpose, intent and meaning of the Rent 
Law and Regulations generally, and of Section 2f 
(11) specifically.

Thus, on the basis of the entire evidence of 
record, the Administrator finds that this landlord’ s 
occupancy of the subject apartments does not fall 
within the purview, intent or definition of the 
owner-occupancy intended by the Regulations to 
provide a valid basis for decontrol.

The District Rent Director’ s orders are proper 
and should be affirmed.

Therefore, in accordance with the provisions 
of the City Rent and Rehabilitation Law, as amended,

Order and Opinion Denying P rotest



30a

and the Rent, Eviction and Rehabilitation Regula­
tions promulgated thereunder, it is

ORDERED, that these protests be, and the same 
hereby are, denied, and that the District Rent 
Director’ s orders be, and the same hereby are, 
affirmed.

ISSUED DEC 16 1965

Order and Opinion Denying P rotest

s /  Hortense W. Gabel 
HORTENSE W. GABEL 
Administrator

I hereby certify that this is a 
true copy of an order issued on 
the above date.

s /  Joseph__________________
(Certifying Officer)



31a

APPENDIX E

EXERPTS FROM PETITIONER’S IN TER R O G ATO R Y  
AND RESPONDENTS’ ANSWERS

The following exerpts are taken from petitioners 
written interrogatory in the proceedings 71 Civ 4263, apd 
the answers and supplemental answers.

William J. Davenport as plaintiff questions,

and

Harry Michelson answers as defendant and attorney for 
Benjamin Altman and Daniel Joy, answers dated 24 July 
1972 and supplemental answers after hearing dated 21 
Sept. 1972.

Heading o f Interrogatory

All o f the following questions are in reference to State 
of New York Temporary State Housing Rent Commission 
dockets numbered DR-3974, DR-5420, DR-6643 and 
DR-7855. Which in the instant litigation plaintiff 
specifically charges have been contrary to the provisions of 
the New York State Rent Control laws of 1954 through 
1961, wrongfully subjected to administrative proceedings, 
claims and allegations before the courts by yourself and/or 
your predecessors. All o f which is contrary to further 
provisions o f Title 28, Title 42 and Title 18 o f the United 
States Codes.

All of the following questions should be answered in 
adequate detail or if no answer is made, it should be so 
stated, if possible giving the reason.



32a

To: Benjamin Altman, individually,
Daniel Joy, individually,
Harry Michelson, individually.

Question No. 1. . . . What is your name, etc.

Question No. 2.

Are the New York State Housing Rent Commission 
dockets in reference which are DR-3974, DR-5420, 
DR-6643 and DR-7855 classifiable and/or properly 
classified (in your opinion) as STATUROTY 
EXEMPTIONS under New York State Rent Control 
Law as amended 1954; or are they applications for 
exemption under New York City Regulations known 
as N.Y.C. Public Law No. 20 o f 1962.

Answer

Upon information and belief, the numbers DR-3974, 
DR-5420, DR-6643 and DR-7855, are file numbers 
referring to forms entitled “ Landlord’s Report on 
Statutory Decontrol,”  which were unadjudicated filed 
claims of decontrol by the plaintiff o f certain housing 
accommodation to which the New York State Rent 
Control, known as the Emergency Housing Rent 
Control Law, was applicable prior to May 1, 1962, and 
on and after May 1, 1962, the New York City Rent 
Control Law, known as the City Rent and 
Rehabilitation Law, enacted as Local Law No. 20 for 
1962, has been applicable to the said claims of 
decontrol filed under the above file numbers.

Excerpts from  Petitioner's Interrogatory
and R espondents' Answers



33a

Question No. 4.

What are the dates o f filing, and what date was the 
docket closed by the New York State Commission o f  
the following noted dockets, and are they notices to 
the New York State Commission; or applications to 
the New York City Rent Administration.

(a,b,c,d, — the docket no’s, in sequential order.)

Excerpts from  Petitioner's Interrogatory
and R espondents' Answers

Answer

(statement of DR No’s and Filing dates only.)

Upon information and belief, no dockets were opened 
or closed for any o f the four filed reports by the State 
Rent Commission; the papers filed were entitled 
“ Landlord’s Report on Statutory Decontrol” and 
constituted unadjudicated claims by the landlord to 
decontrol; the reports were filed without adjudication 
and subject to later evaluation and adjudication o f the 
truth o f the statements contained in the reports.

Question No. 5.

Do applications for decontrol o f the apartments 
involved in the noted docket numbers exist? If so 
please note their docket numbers and whereabouts.

Answer



34a'

Upon information and belief, in 1963 upon the iniative 
o f the District Rent Director of the New York City 
Rent and Rehabilitation Administration, the said 
landlord’s Reports o f Statutory Decontrol were treated 
as applications for decontrol and for that purpose the 
District Rent Director opened fact finding proceedings 
to which he was assigned docket numbers 2AD 
2248-2252 to investigate what appeared to be 
inconsistent claims made by the plaintiff-landlord and 
to determination after notice to the plaintiff-landlord 
the validity of his claims of decontrol. The files are 
presently in the control of the New York City Office 
o f Rent Control.

Question No. 7.

Has the New York City Rent Administrator, or the 
New York State Rent Commission charged any fraud 
to exist in the landlord’s sworn and filed notices of the 
above dockets, (b) if so, is it alleged to be intentional 
or accidental, and what statements are involved?

Question No. 8.

Who made the above charge?

Answer to No. 7.

Upon information and belief, no criminal charges were 
filed, but administrative determinations were based in 
substantial part upon findings in substance of lack of

Excerpts from Petitioner's Interrogatory
and R espondents' Answers



35a

credibility of the plain tiff-landlord’s conflicting claims 
made in separate reports o f decontrol.

Ans to No. 8. — is “ See answer to interr. No. 7.

Supplemental Answer to No. 7 (after magistrate hearing 
and order to answer)

Upon information and belief, the landlord, William J. 
Davenport, was notified by the mailing o f notices to 
his attorney, Marshall H. Kozinn, Esq., dated March 3, 
1964 and July 27, 1964, of the reasons for the 
proposed administrative determinations that certain 
apartments, previously claimed by Davenport to be 
decontrolled, did not factually satisfy the legal 
requirements for decontrol. The notices, o f which 
copies are attached as Exhibits 1 through 10, offered 
Mr. William J. Davenport opportunities, through his 
attorney, to submit evidence in his own behalf and in 
opposition to the evidence in the record summarized in 
the notices.

Upon information and belief, the administrative 
proceedings under docket numbers 2AD 2248-2252 
were commenced upon the personal initiative o f the 
District Rent Director of the Bronx District Rent 
Office o f the New York City Rent and Rehabilitation 
Administration, between approximately July, 1963 
and September, 1963, and preliminary investigation 
was begun about September, 1963, by examining and 
comparing the statements made by William J. 
Davenport in the various claims filed by him for 
decontrol of five separate apartments in premises 575 
East 168th Street, Bronx, New York.

Excerpts from  Petitioner's Interrogatory
and R espondents' Answers



Excerpts from  Petitioner's Interrogatory
and R espondents' Answers

Question No. 9.

Has any NOTICE of such CHARGES, or any 
opportunity to reply in his own defense been provided 
landlord-plaintiff, where evidence and witnesses were 
exhibited and examined under oath with powers of 
subpoena provided the landlord either by the New 
York City Rent Administrator or the courts to 
determine the FACTS, if so by whom on what date?
(a) (b)

Answer

Upon information and belief, landlord-plaintiff was 
fully notified o f the administrative proceedings, and 
was actually represented by attorneys at the two levels 
o f administrative proceedings, and the two further 
levels o f judicial proceedings, and the landlord-plaintiff 
was entitled in the two levels o f administrative 
proceedings to rebut all adverse date in the record, and 
plaintiff-landlord did submit for consideration all the 
data and arguments he had to offer through his 
attorneys.

Supplemental Answer

Upon information and belief:

(a) Notice o f charges was given to William J. Davenport 
in various ways including the notices dated March 3, 
1964 and July 27, 1964 referred to in and annexed as



37a

part of the supplemental answer to Interrogatory No. 
7., which notices were sent to an attorney representing 
Mr. Davenport.

(b) The said notices dated March 3, 1964 and July 27, 
1964 explicitly offered an opportunity to submit 
evidence on behalf o f Mr. Davenport’s position.

(c) The proceedings under Docket No. 2AD 2248-2252 
were adversary in nature, as were all such proceedings 
before the New York City Rent and Rehabilitation 
Administration, pursuant to the Rent Control Law and 
Regulations.

(d) Specific notice of all evidence considered in the 
proceedings under Docket No. 2AD 2248-2252 was 
made available to the landlord Davenport, by the 
mailing of copies of adverse data to his attorney with 
an opportunity to answer and rebut, and constructive 
notice was also given by the general availability of the 
file for inspection by his attorney during the pendency 
of the proceedings before the District Rent Office and 
thereafter for preparation o f a protest appeal and 
during the pendency of the administrative protest 
appeal to review the District Rent Director’s 
determination.

(e) No oral hearing was held but the landlord was given 
an opportunity to be heard in the sense that he was 
entitled to be aware of, and was constructively aware 
of, all the adverse data in the record and was entitled 
to challenge any such adverse data. The landlord

Excerpts from  Petitioner's Interrogatory
and R espondents' Answers



38a

Davenport, on several occasions through his attorney, 
submitted data in his own behalf. In a letter dated 
November 18, 1964 from Mr. Davenport’s attorney, 
the attorney stated that Mr. Davenport had no further 
or additional evidence to submit. A copy o f the said 
letter dated November 18, 1964 is annexed hereto as 
Exhibit 11.

(Petitioner’s comment here interjected — THERE IS NO
SUCH LETTER OR COMMENT.)

(f) The Rent Control Law authorizes the Rent 
Administrator in discretion to subpoena witnesses and 
documents, but the record shows no request was ever 
made for subpoenas on behalf o f Mr. Davenport.

(g) Oral hearings were requested by the attorney for 
Mr. Davenport. Under the rent control regulations, oral 
hearings may be held in the discretion o f the rent 
control officials when necessary but oral hearings were 
denied in this case as unnecessary in the circumstances 
of the case. Mr. Davenport, through his attorneys, 
continued to assert as error the refusal to afford him 
an oral hearing, and his contentions were rejected in an 
administrative appeal, as well as in judicial proceedings 
brought by Mr. Davenport through various attorneys in 
both Special Term of the New York Supreme Court 
and in the Appellate Division.

(i) The determinations made by the District Rent 
Director denying decontrol were based solely upon 
papers contained in the file of Docket No. 2AD

Excerpts from  Petitioner's Interrogatory
and R espondents' Answers



2248-2252, and the determination o f the protests by 
Mr. Davenport was based solely on the papers 
contained in Docket Nos. 2AD 2248-52 and CPLA 
9 6 38 -9 6 41 . The rationale o f the protest 
determinations is set forth in detail in an order and 
opinion dated December 16, 1965, a copy o f which is 
annexed as Exhibit 12.

(Note: this document not included here is on file in the 
Court — as Appendix A, o f petition for writ o f certiorari 
Oct. 1970 No. 1149.)

(k) The entire contents o f the file o f docket 2AD 
2248-52 is also known personally to the 
plaintiff-landlord William Davenport, and Mr. 
Davenport presumably has a complete copy o f the 
entire file which he obtained by a subpoena duces 
tecum in an unrelated action before U.S. District 
Court, Judge Motley in approximately August, 1971 
and which file he again examined in the presence of 
U.S. Magistrate Schrieber in about October 1971, 
under which last occasion your deponent personally 
delivered to Mr. Davenport copies o f each o f the 
papers in the said file which Mr. Davenport requested 
to be copied for him.

Question No. 10.

Has a charge o f fraud by plaintiff as stated in question 
No. 7 been submitted to the courts as provided by the 
subject Rent Control Laws o f the State o f New York 
of 1961 and 1962 as follows:

Excerpts from  Petitioner's Interrogatory
and R espondents' Answers



40a

“ Whenever in the judgment of the commission any 
person has engaged in or is about to engage in any acts 
or practices which constitute or will constitute a 
violation o f any provisions o f Section ten o f this act, 
the commission may make application to the Supreme 
Court for an order enjoining such acts or practices or 
for an order enforcing compliance with such
provision.........Whenever the commission has reason to
believe that any person is liable to punishment under 
this subdivision, the commission may certify the facts 
to the district attorney o f any county having 
jurisdiction o f the alleged violation . . .

Answer Upon information and belief, no criminal charges 
were filed.

No supplemental answer. (The above answer being
incomplete, there is no answer).

Question No. 11.

Has any proof been exhibited, examined or subjected 
to trial that plaintiff-landlord did not in fact have 
occupancy as provided by law of the involved 
apartments for the entire period which he has claimed? 
If so specify what and when examined, and how 
examined.

Answer

Upon information and belief, in District Rent Office 
administrative proceedings, under docket numbers

Excerpts from  Petitioner's Interrogatory
and R espon den ts’ Answers



41a

2AD 2248-2AD 2252, and further administrative 
protest proceedings, under docket number CPLA 
9658-9641, there was documentary evidence and other 
data o f which plaintiff’s attorneys had notice, in which 
proceedings he was represented by attorneys, and in 
which proceedings he had an opportunity through his 
attorneys to rebut adverse data in the record.

Supplemental answer

Upon information and belief, all o f the data and 
evidence upon which the District Rent Director and 
the City Rent Administrator relied is contained in the 
files o f Docket Nos. 2AD 2248-2252 and CPLA 
9658-9641; that the determinations made were based 
upon considerations of the entire record; and that the 
original record before the District Rent Director 
consists of over 200 pages, approximately one-half of 
which contain data material to the District Rent 
Director’s determination.

(Note —- 9658-9641 is respondent’s error, should be
9638-1941)

Question No. 12.

In reference to the involved dockets, has the claim or 
charge been made that plaintiff-landlord rented the 
subject apartments for other than single family 
occupancy by any Rent Administrator in any official 
paper or document? If so specify what paper or 
document and where stated.

Excerpts from  Petitioner's Interrogatory
and R espondents' Answers



42a

Excerpts from  Petitioner's Interrogatory
and R espondents' Answers

Answer

Upon information and belief, based upon an 
incomplete study o f relevant records, no claim was 
made that plaintiff-landlord rented any apartment for 
other than single family occupancy although on 
official inspection, several apartments were found to 
be occupied for other than single family occupancy.

Question No. 14.

Is the landlord-plaintiff lawfully responsible for acts 
and unlawful occupancy by tenants? If so state the 
specification o f law.

Answer

In general, in some respects, a landlord may be 
responsible for unlawful occupancy by his tenants. 
However, no specific answer to this question is possible 
because the question is too broad and vague for a 
responsible answer.

Question No. 17.

Did the New York City Rent Administrator revoke the 
prior statutory exemptions o f the subject dockets or 
deny applications to him which were enclosed in those 
dockets? (b) In either instance specify the year and 
section or provision of law applicable and governing 
the administrative action.



Excerpts from  Petitioner's Interrogatory
and R espon den ts’ Answers

Answer

Upon information and belief, the New York City Rent 
Administrator adjudicated that certain o f the 
landlord’s claims o f decontrol were invalid and that the 
landlord was not entitled to decontrol as to certain 
apartments. Action was taken in administrative 
proceedings bearing docket numbers 2AD 2248-2251, 
which were commenced in 1963 and concluded at the 
level o f the District Rent Director by orders and 
determinations issued on or about December 11, 1964, 
and such actions were taken pursuant to City Rent 
Regulations Section 2 f ( l l ) ,  and Section 36 and the 
corresponding statutory provisions, and were 
thereafter affirmed by the City Rent and 
Rehabilitation Administrator upon the plaintiff’s 
protest appeal under Docket No. CPLA 9638-9641.

Question No. 19.

Has the New York City Rent Administrator’s orders 
relative to dockets DR-3774 and DR 5420 effectively 
established grounds by which the landlord-plaintiff in 
this action should legally be held responsible in further 
actions at law to the tenants for triple damages for 
overcharges o f rents, as a consequence o f infraction by 
the tenants on the occupancy contract and 
requirements o f law which in fact constitute an injury 
to the landlord-plaintiff? Explain.



44a

Excerpts from Petitioner's Interrogatory
and R espondents' Answers

Answer

I do not know the answer to this question and I 
therefore express no opinion.

APPENDIX F

ADMINISTRATIVE PROGRESS SHEET

The administrative “ appellate”  level review of 
administrative appeal dockets CPLA 9638-9641 as 
recorded on the official sheet — exhibit “ R”  with 
complaint.

Protest Attorney KANAREK
Senior Attorney Duerehne (?)

PROGRESS SHEET

1. Date o f assignment o f Protest by Senior Attorney 
5/15/65

2. Date of review of record by Protest Attorney

3. Date and nature o f first action taken

(For example, notice o f conference mailed, inspection 
request o f DRO, etc.)



45a

Administrative Progress Sheet

4. Date o f conference, if any, and duration thereof

5. Date o f submission o f final order to Senior Attorney

6. Date o f mailing o f final order 
12/16/65

(This information furnished by Docket Section)

MAILING OF COPIES OF ORDERS. If either party 
appears by attorney envelopes should be addressed to the 
party, e/o his attorney at attorney’s office address. The 
attorney who appears on the protest, where there has been 
a change o f attorneys, is the proper one to be notified. 
Prepare envelopes for: