Docket Number: BA 410160-RT
STATE OF NEW YORK
DIVISION OF HOUSING AND COMMUNITY RENEWAL
OFFICE OF RENT ADMINISTRATION
GERTZ PLAZA
92-31 UNION HALL STREET
JAMAICA, NEW YORK 11433
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IN THE MATTER OF THE ADMINISTRATIVE : ADMINISTRATIVE REVIEW
APPEAL OF DOCKET NO.: BA 410160-RT
:
JOHN M. DEGENSHEIN, DRO DOCKET NO.: ZL 004126-R
PETITIONER :
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ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW
On January 22, 1987, the above-named petitioner-tenant filed a
Petition for Administrative Review against an order issued on
December 31, 1986, by the District Rent Administrator, 92-31 Union
Hall Street, Jamaica, New York, concerning the housing
accommodations known as Apartment 11F, 250 East 73rd Street, New
York, New York, wherein the District Rent Administrator determined
that the tenant had not been overcharged.
The issue in this appeal is whether the District Rent
Administrator's order was warranted.
The applicable section of the law is Section 2526.1(a)(3)(i) of the
Rent Stabilization Code.
The Commissioner has reviewed all the evidence in the record and has
carefully considered that portion of the record relevant to the
issue raised by the administrative appeal.
This proceeding was commenced on October 1, 1985 by the tenant's
filing of a rent overcharge complaint wherein the tenant contended
in substance that he was being overcharged for his rental of a
garage space and that he did not receive a copy of the 1984
Apartment Registration. The Commissioner notes that the tenant
included with his complaint a "Tenant's Copy" of the 1984 Apartment
Registration Form (RR-1) dated June 20, 1984.
On May 2, 1986, the Division of Housing and Community Renewal (DHCR)
requested from the owner documentation evidencing proof of service
upon the tenant of the 1984 Apartment Registration Form.
In its response, the owner stated that a careful search of its
records failed to reveal any of the documents requested. The owner
further contended that the tenant had enclosed with his complaint a
copy of the Apartment Registration Form, and that therefore, the
tenant's complaint was, in itself, a signed admission of receipt of
the apartment registration.
Docket Number: BA 410160-RT
In Docket No. ZL 004126-R issued December 31, 1986, the District
Rent Administrator determined that the owner had registered the
April 1, 1984 rent for the subject apartment and had served the
tenant with the Apartment Registration Form; that the tenant failed
to file a timely Tenant's Objection to the April 1, 1984 rent; that
therefore the April 1, 1984 registered rent became the initial legal
regulated rent; that the garage rent ($250.00) charged and collected
by the owner at the time of the tenant's complaint was the same
amount set forth as the initial legal regulated rent; and that
therefore no overcharge occurred.
In this petition, the tenant contends in substance that the District
Rent Administrator's order is incorrect and should be reversed
because the original overcharge complaint claimed an overcharge
going back to June 1, 1982; he never received copies of the owner's
answer or of the Apartment Registration Form; there was common
ownership of the apartment building and garage, therefore the garage
space rental is rent stabilized; and the case of Matter of Mid-State
Management Corp. v. CAB, 491 NYS 2d 634 (2d Dept. 1985), holds
that where common ownership of a building and garage occurs, the
owner cannot obtain rent increases such as those which occurred in
the instant case.
In its response to the tenant's petition, the owner contends in
substance that the Administrator's order should be affirmed because
the 1984 apartment registration was timely served upon the tenant as
evidenced by the tenant's attachment of the "tenant's copy" of the
registration to his original complaint.
In rebuttal, the tenant contends in substance that the owner's
answer completely ignores the basis for his petition, namely that
since his apartment is stabilized, his garage space should also be
stabilized due to the common ownership of the apartment and garage;
that for the past several years the owner has tried to confuse the
tenants by first insisting that the garage space was not subject to
stabilization, and now conceding that the garage is stabilized but
asserting in defense that the tenant did not timely file an
objection to the rent increase; and that he is particularly
concerned with the jump in his garage rent from $190.00 to $250.00
as of June 1, 1984.
On April 23, 1987, the tenant, through his attorney, contended in
substance that neither he nor any of the other tenants of the garage
ever received the 1984 registration until 1985; that in 1984 the
owner was insisting that the garage was not subject to
stabilization; that it was only in 1985 that the owner filed a
Notice of Rent Increase (which the tenant alleges to have attached
to his complaint); and that it was in response to this 1985 notice
of increase that the tenant immediately and timely filed his
complaint. The tenant further contended that in a separate case
under Docket No. ZL 002160-R, another tenant of the garage under
virtually identical circumstances was granted a rent reduction due
to an overcharge.
The Commissioner is of the opinion that this petition should be
denied.
Docket Number: BA 410160-RT
Section 2526.1(a)(3)(i) of the Rent Stabilization Code provides in
pertinent part that except as to complaints filed within ninety days
of the initial apartment registration,
... the legal regulated rent for purposes of determining
an overcharge shall be deemed to be the rent shown in
the annual registration statement filed four years prior
to the most recent registration statement (or, if more
recently filed, the initial registration statement),
plus in each case any subsequent lawful increases and
adjustments.
The evidence of record in the instant case indicates that in his
original overcharge complaint the tenant alleged that he never
received a copy of the 1984 apartment registration, yet the tenant
enclosed with his complaint a "Tenant's Copy" of the 1984 Apartment
Registration dated June 20, 1984. Furthermore, the Commissioner
notes that the tenant has also contradicted himself on appeal,
initially alleging in his petition that he never received a copy
of the apartment registration form, and then alleging in a
subsequent submission that he didn't receive the 1984 apartment
registration until 1985. The Commissioner finally notes that
although the tenant alleged to have received the 1984 apartment
registration in 1985 together with a Notice of Increase which in
turn caused him to file an overcharge complaint, no such notice of
increase regarding the garage space rental was ever submitted by the
tenant either in the proceeding before the Administrator or on
appeal. Based on the foregoing, the Commissioner rejects the
tenant's contention of never being served with the 1984 apartment
registration, and finds that the Administrator correctly determined
that the tenant had failed to file a timely Tenant's Objection.
Since the tenant failed to file a timely objection to the initial
apartment registration, the registered garage rent of $250.00 became
the initial legal regulated garage rent. The Commissioner further
notes that at the time of his complaint, the tenant was still paying
a garage rent of $250.00. Accordingly, the Commissioner finds that
the Administrator correctly determined that no overcharge occurred.
Contrary to the tenant's contention on appeal, the garage space
rental was correctly considered a rent stabilized unit by the
Administrator.
Finally, with regard to the tenant's contention that another tenant
of the garage was given a rent reduction in virtually identical
circumstances under Docket Number ZL 002160-R, the Commissioner
notes that the above-mentioned case is wrongly relied upon by the
tenant because in that case the Administrator also found that the
tenant did not file a timely objection to the apartment
registration. The Commissioner further notes that the tenant has
Docket Number: BA 410160-RT
incorrectly relied on the case of Mid-State Management Corp. v. CAB,
supra, which merely holds that where an owner owns both a building
and swimming pool, the swimming pool is considered a required
service which is subject to the Rent Stabilization Law and rent
guidelines.
THEREFORE, in accordance with the Rent Stabilization Law and Code,
it is
ORDERED, that this petition be, and the same hereby is, denied, and
that the District Rent Administrator's order be, and the same
hereby is, affirmed.
ISSUED:
ELLIOT SANDER
Deputy Commissioner
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