ADM. REVIEW DOCKET NO.: BC 710297-RO
STATE OF NEW YORK
DIVISION OF HOUSING AND COMMUNITY RENEWAL
OFFICE OF RENT ADMINISTRATION
GERTZ PLAZA
92-31 UNION HALL STREET
JAMAICA, NEW YORK 11433
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IN THE MATTER OF THE ADMINISTRATIVE : ADMINISTRATIVE REVIEW
APPEAL OF DOCKET NO.: BC 710297-RO
: D.R.O. DOCKET NO.:
N-C-86-S-135-S
SOLGAR REALTY, INC.,
PETITIONER :
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ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW
AND MODIFYING THE ADMINISTRATOR'S ORDER
On March 19, 1987, the above-named petitioner-owner filed a
Petition for Administrative Review against an order issued on
February 12, 1987, by the Rent Administrator, 50 Clinton Street,
Hempstead, New York, concerning housing accommodations known as
Apartment 26-A, 232 Cedarhurst Avenue, Cedarhurst, New York,
wherein the Rent Administrator determined that a garage space was
a required service included in the base rent and ordered the
owner to pay the tenant $75.00 per month for the period October
1, 1985 through January 1987 ($1200.00) for the value of the
service which was wrongfully denied the tenant.
The Commissioner has reviewed all of the evidence in the
record and has carefully considered that portion of the record
relevant to the issues raised by the administrative appeal.
The tenant (Ludwig H. Kutlina) commenced this proceeding on
May 21, 1986 by filing a complaint alleging the owner refused to
provide a garage space at no additional cost even though the
prior tenants had received such a space.
In answer to the complaint, the owner stated that the
previous tenants did not have a garage space.
From the Division records, the Administrator found that in
prior proceedings, e.g., CTC-82-1, CTC-82.3 and CTC-82-38,
involving the subject building it had been found that garage
space was included in the rent without additional charge.
ADM. REVIEW DOCKETNO.: BC 710297-RO
Accordingly, on January 9, 1987, the Administrator sent a
notice advising each party of the findings of the above-cited
proceedings and attaching a copy of A and F Management and S.K.S.
Associates v. DHCR, Supreme Court, N.Y. Co., Index No.
10255/83,June 3, 1983, J. Schwartz, in which the court affirmed
the DHCR's finding in Docket Number MINTC 82-37, involving
ADM. REVIEW DOCKET NO.: BC 710297-RO
different premises, that the use of a garage space on the ETPA
base date (even without a lease clause explicitly authorizing
such use) caused a garage space to become a required service that
the owner could not withdraw.
The owner was directed to provide the tenant with a garage
space and the parties were given twenty days to advise the
Administrator of the status of the situation.
The owner did not respond to that notice. However, on
January 23, 1987 the tenant filed a response stating in part that
the owner left a message on the tenant's answering machine on
January 20, 1987 advising the tenant that he would be given a
garage space but that the owner was going to appeal the
Administrator's decision and that the tenant would be "penalized"
for the use of the garage during the pendency of the appeal.
The tenant requested a rent abatement for the period when he
did not have use of a garage space.
In the Order herein under review the Administrator found
that the owner was now providing a garage space based on the
tenant's response and directed the owner to pay the tenant $75.00
per month for the period when the tenant did not have use of the
garage.
In this petition, the owner contends that the Rent
Administrator's Order is incorrect and should be modified because
a garage space was not a provided service on the base date. In
the alternative, the owner requests that the $75.00 per month
refund should be reduced to $50.00 per month, the latter being
the "market value" of a garage space. No proof is offered to
support the allegation that $50.00 per month is the correct
market value. Attached to the owner's petition is a copy of the
lease in effect during 1973-1975, including the date, May 1,
1975, when Cedarhurst came under the jurisdiction of the ETPA.
The owner had only submitted copies of renewal lease forms
for the prior tenant to the Administrator. No explanation for
not submitting this lease to the Administrator is given.
The Commissioner is of the opinion that this petition should
be denied.
An administrative appeal is not a de novo proceeding but,
absent good cause, is limited to the evidence and issues which
were before the Administrator. Accordingly, the lease submitted
for the first time on appeal will not be accepted as evidence.
Parenthetically, the Commissioner notes that Clause 39, part
of the printed lease form, of the lease states in part:
"That no out-door parking space for pleasure
automobiles shall be used by the Tenant other
than the space designated by the Landlord. In
connection with the said out-door parking space,
ADM. REVIEW DOCKET NO.: BC 710297-RO
it is understood as follows: Tenant shall not
make any repairs to automobile or wash same in
said space; right to use said space shall not be
assigned; automobile shall be placed in said
space by Tenant at own risk; privilege to use
said parking space shall terminate upon the
termination of the tenancy for Tenant's
apartment.
"It is further understood that Landlord shall
not be obligated to supply any attendants and
Landlord shall not become liable to any person
for injuries to any person, or loss or damage
to property arising out of, or connected with
the use of the said parking space. Tenant
hereby releases and discharges Landlord and
owner from any and all claims which the
Tenant has or might have for damages for
personal injuries or damage to property
arising out of or connected with, or in-
cidental to the use of the said parking
space. Notwithstanding anything contained
herein, Landlord reserves the right to
terminate parking space agreement at any
time upon two days' notice in writing by
mail to the Tenant."
Clause 47, a typed rider, reads as follows:
"If the landlord shall furnish to the tenant
indoor or outdoor garage space, the tenant
shall store and park the tenant's
automobile at the tenant's own risk, and
the landlord shall not be liable for any
injury to the person or property of the
tenant, or loss by theft, or damage
otherwise, of said automobile or its
contents from all and every cause
whatsoever, including fire, the elements,
violation of law, or negligence on the
part of the landlord, its servants, agents,
employees or other tenants.
"The tenant further agrees to indemnify and
hold the landlord harmless for any and all
claims, damages or loss asserted against or
sustained by the landlord as a result of the
tenant's negligence in the parking and/or
storing of the tenant's automobile in the
garage. It is expressly agreed and
understood that the landlord shall not be
regarded as, nor have any of the duties of,
a bailee of the tenant's automobile during
the term of this agreement, or any renewal,
extension or holdover hereunder. The
landlord may, from time to time, re-allocate
the space within which the tenant may park
ADM. REVIEW DOCKET NO.: BC 710297-RO
tenant's car, at any time, at landlord's
sole discretion, during the tenancy without
landlord's obligation to the tenant or
reduction in rent for such space."
While not definitive, it is clear that the lease, if
accepted, would tend to support the tenant's view-especially in
conjunction with the history of the subject building as found in
dockets CTC 82-1, 82-3, 82-37, cited above.
Since the owner has offered no evidence to contradict the
Administrator's finding, the Commissioner hereby affirms the
Administrator's finding that a garage space is a required
service.
Similarly, the owner has offered no proof that $50.00 is a
more accurate estimate of the value of garage space than the
$75.00 used by the Administrator. (The Administrator's file
shows that the $75.00 used was based on file number CTC-82-1
wherein the garage space value was $70.00 in 1982 for the
subject building. The Administrator added $5.00 to account for
the passage of two years). Accordingly, the Administrator's
$75.00 value is hereby affirmed.
Finally, the Commissioner notes that in a letter received
February 18, 1987 the tenant correctly pointed out the following
error in the Administrator's order: On page one of the Order the
Administrator correctly stated the complaining tenant's initial
lease commenced in October of 1984. However, on page two and in
the computation the Administrator incorrectly used October 1985,
thereby reducing the correct amount owed the tenant by $900.00.
Section 2510.4 of the Tenant Protection Regulations requires
a petition against an Administrator's order to be filed "only on
a form prescribed by the Commissioner." Accordingly, the
tenant's letter can not be construed as a petition.
Nevertheless, the Commissioner notes that the order states
that "tenant had been without the service of a garage space
included in the rent from [the] inception of [the] tenancy,
October, 1985 (sic) to the present, and is, therefore, entitled
to a refund of the value of the garage space from October 1985
(sic) through January 1987."
Thus, the owner was fully informed that the Administrator
intended to require a $75.00 payment from the inception of the
lease. Accordingly, the Commissioner hereby finds, on the motion
of the Commissioner, that the Administrator's substitution of
October 1985 for October 1984 is an irregularity in a vital
matter; obvious not only to the parties but to anyone reading the
Order. Accordingly, the Administrator's Order is hereby modified
by adding $900.00 for the period October, 1984-October, 1985 to
the amount owed the tenant by the owner, for a total of $2100.00.
This order may, upon the expiration of the period in which
the owner may institute a proceeding pursuant to Article seventy
eight of the civil practice law and rules, be filed and enforced
ADM. REVIEW DOCKET NO.: BC 710297-RO
by the tenant in the same manner as a judgment or not in excess
of twenty percent thereof per month may be offset against any
rent thereafter due the owner.
THEREFORE, in accordance with the Emergency Tenant
Protection Act of 1974 and Regulations, it is
ORDERED, that this petition for administrative review be,
and the same hereby is, denied, and, that the order of the Rent
Administrator be, and the same hereby is, modified in accordance
with this Order and Opinion.
ISSUED:
ELLIOT SANDER
Deputy Commissioner
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