BE 410396 RO, BE 410081 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

      ------------------------------------X 
      IN THE MATTER OF THE ADMINISTRATIVE :  ADMINISTRATIVE REVIEW
      APPEAL OF                              DOCKET NOS. BE 410396 RO
                                                         BE 410081 RT 

                                          :  DISTRICT RENT OFFICE
           Clypeta Realty,                   DOCKET NO. ZL 002160 R
                 and                         
           Lawrence M. Kalstone,             TENANT: Lawrence M. Kalstone     
                      

                              PETITIONERS : 
      ------------------------------------X                             

          ORDER AND OPINION GRANTING PETITIONS FOR ADMINISTRATIVE REVIEW
                                     IN PART


      On May 22, 1987, the above-named petitioner-owner filed a Petition for 
      Administrative Review against an order issued on April 17, 1987, by the 
      Rent Administrator, 92-31 Union Hall Street, Jamaica, New York, 
      concerning the accommodations known as 250 East 73rd Street, New York,  
      New York, garage space No. #6, wherein the Rent Administrator determined 
      that the owner had overcharged the tenant.

      On May 20, 1987, the above-named petitioner-tenant filed a timely 
      petition for Administrative Review against the aforementioned order.  
      These petitions are being consolidated for disposition herein.

      The issue herein is whether the Rent Administrator's order was 
      warranted.

      The applicable sections of the Law are Section 2520.6 and 2526.1 of the 
      current Rent Stabilization Code.

      The Commissioner has reviewed all of the evidence in the record and has 
      carefully considered that portion of the record relevant to the issue 
      raised by the administrative appeals.  

      This proceeding was originally commenced in November 1984 by the filing 
      of a rent overcharge complaint by the tenant in which the tenant stated 
      in substance that the garage is owned and operated by the building 
      owners and therefore the garage space leases should be subject to the 
      Rent Stabilization Law and Code; that he is being overcharged in the 
      rent for his garage space and that the owner refuses to give him co- 
      terminus leases for the garage space as he requested but offers one year 












          BE 410396 RO, BE 410081 RT

      leases only.

      In support of these contentions the tenant stated that he has had two 
      and three year renewal leases for the subject apartment.  In addition 
      the tenant submitted copies of all his garage space leases beginning 
      with the leases commencing February 1, 1976 to October 31, 1987 for 
      garage space #6 which listed the owner (Clypeta Realty) as the lessor of 
      the garage space.

      In answer to the tenant's complaint, the owner stated in substance that 
      the garage space is not subject to the Rent Stabilization Law and Code 
      in that the space is rented pursuant to a separate and independent lease 
      and not increased in conjunction with the apartment lease.   The owner 
      submitted the Certificate of Occupancy in effect on May 31, 1968 which 
      indicated that 29 garage spaces are provided for tenants' use.

      In Order Number ZL 002160 R, the Rent Administrator found that the 
      garage space was subject to Rent Stabilization; that $160.00 was the 
      Initial Legal registered rent because the tenant had not filed a timely 
      objection to the 1984 apartment registration and that the owner had 
      overcharged the tenant $367.59 from November 1, 1984 through April 30, 
      1987 and directed the owner to refund the overcharge. 

      In the owner's petition, the owner alleges in substance that the order 
      should be reversed because the rent paid for the garage was $250.00 from 
      November 1, 1986 through April 30, 1987 and not $285.00 as cited by the 
      Rent Administrator; the overcharge should only be computed from April 1, 
      1984 and the garage space is not subject to Rent Stabilization.  

      The owner resubmitted the submission which was sent to the Rent 
      Administrator reiterating its contention that the garage space was not 
      subject to Rent Stabilization.

      The tenant responded to the owner's petition and alleged in substance in 
      his own petition that the garage lease was subject to Rent Stabilization 
      but that the order should be modified to treat the complaint as a timely 
      objection to the April 1, 1984 registered garage rent of $160.00 because 
      a Tenant Objection had been filed by the tenant August 20, 1984 which 
      was timely.

      The tenant submitted two photo copies of a Tenant Objection form both 
      dated August 20, 1984 which although essentially the same differed in 
      the wording of the complaint in Section 15 of the form, along with an 
      envelope addressed to DHCR dated by pre-paid postage meter as August 20, 
      1984 but not date-stamped by the post office.



      Further, the tenant alleged that the Rent Administrator had mistakenly 
      calculated the rent overcharge as the guideline increase rather than the 
      difference in rent between the lawful stabilized rent and the rent 
      charged; failed to adjust leases to be co-terminus with the apartment 






          BE 410396 RO, BE 410081 RT

      leases and failed to assess treble damages.

      The Commissioner is of the opinion that these petitions should be 
      granted in part.

      Section 2520.6(r)(4)(xi) of the current Rent Stabilization Code provides 
      in pertinent part that ancillary services such as garage facilities for 
      which there is or was a separate charge shall not be subject to the 
      provisions of the Rent Stabilization Code where no common ownership 
      between the operator of such service and the owner exists or existed on 
      the applicable base date and such service is or was provided on the 
      applicable base date and at all times thereafter by an independent 
      contractor pursuant to a contract or agreement with the owner.  Where, 
      however, on the applicable base date or at any time subsequent thereto, 
      there is or was a separate charge, and there is or was common ownership, 
      directly or indirectly, between the operator of such service and the 
      owner, or the service was provided by the owner, any increase, other 
      than the charge provided in the initial agreement with a tenant to 
      lease, rent or pay for such service, shall conform to the applicable 
      rent guidelines rate.

      In the instant case the evidence of record including copies of the 
      garage space leases discloses that from the date of the tenant's first 
      garage lease in February 1, 1976 the garage was operated by the owner 
      itself.

      Accordingly, the garage space is subject to the applicable rent 
      guidelines rate of the Rent Stabilization Law pursuant to Section 
      2520.6(r)(4)(xi).  Further the tenant was entitled to select co-terminus 
      renewal leases for the garage space just as he selected lease options 
      for apartment renewal leases.

      Section 2526.1 of the Rent Stabilization Code provides in pertinent part 
      that any owner who is found by the DHCR to have collected any rent or 
      other consideration in excess of the legal regulated rent on and after 
      April 1, 1984 shall be ordered to pay to the tenant a penalty equal to 
      three times the amount of such excess.  If the owner establishes by a 
      preponderance of the evidence that the overcharge was not willful, the 
      DHCR shall establish the penalty as the amount of the overcharge plus 
      interest from the date of the first overcharge on or after April 1, 
      1984.

      In the instant case the owner has not submitted any evidence to 
      establish that the overcharge was not willful.

      Accordingly, the imposition of treble damages is warranted as the tenant 
      contends.

      The Commissioner rejects the tenant's contention that a timely Tenant 
      Objection to the initial apartment registration was filed on August 20, 
      1984 by the tenant.













          BE 410396 RO, BE 410081 RT

      A diligent search of DHCR registration records fails to reveal a Tenant 
      Objection Docket for the subject apartment nor has the tenant indicated 
      such a docket number existed.  Further, the tenant's proof of mailing is 
      insufficient proof in the absence of corroborating documentation by the 
      post office.  Finally, the tenant's submission of two different 
      photocopies both purported to be of the original tenant objection form 
      filed on August 20, 1984 casts doubt on the tenant's contention that a 
      timely objection was in fact filed.

      Accordingly, the rent of $160.00 registered on April 1, 1984 for garage 
      space 6 is the Initial Legal Registered Rent.

      The Commissioner notes that the tenant is correct in his contention that 
      the guideline increase used as the amount of the rent overcharge in the 
      Rent Administrator's order was incorrect and that the garage leases 
      should have been adjusted to be co-terminus with the apartment leases.

      The Commissioner further notes that the owner's contention that the 
      overcharge should only be computed from April 1, 1984 is moot because 
      the overcharge commenced November 1, 1984 in the Rent Administrator 
      order and April 1, 1984 was established as the base date rent. 

      The Owner and Tenant through their submissions both concur that the rent 
      paid from November 1, 1986 through April 30, 1987 was $250.00 not 
      $285.00 and therefore that portion of the Owner's petition is granted.

      Taking the aforementioned factors into account, the Commissioner has 
      calculated the lawful stabilization rents and the amount of the rent 
      overcharge for the subject garage space.  

      The lawful stabilization rents and amount of the rent overcharge are set 
      forth on the amended rent calculation chart attached hereto and made a 
      part hereof.

      Because this determination concerns lawful rents only through           
      April 30, 1987, the owner is cautioned to adjust subsequent rents to an 
      amount no greater than that determined by this order plus any lawful 
      increases, and to register the garage rents with this order and opinion 
      being given as the explanation for the registration.

      This order may, upon the expiration of the period in which the owner may 
      institute a proceeding pursuant to Article 78 of the Civil Practice Law 
      and Rules, be filed and enforced in the same manner as a judgment or not 
      in excess of twenty percent per month thereof may be offset against any 
      rent thereafter due the owner.

      THEREFORE, in accordance with the provisions of the Rent Stabilization 
      Law and Code, it is

      ORDERED, that these petitions for administrative review be, and the same 
      hereby are, granted in part, and, that the order of the Rent 
      Administrator be, and the same hereby is, modified in accordance with 






          BE 410396 RO, BE 410081 RT

      this order and opinion.  The lawful stabilization rents and the amount 
      of the rent overcharge are established on the attached chart which is 
      fully made a part of this order.  The amount of the rent overcharge 
      through April 30, 1987 is $7,653.00.



      ISSUED:



                                                                    
                                      JOSEPH A. D'AGOSTA
                                      Acting Deputy Commissioner






    

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