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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.:
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SAMUEL GERTEL,
RENT ADMINISTRATOR'S
DOCKET NO.:
PETITIONER 044506
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ORDER AND OPINION GRANTING PETITION FOR ADMINISTRATIVE REVIEW
On July 13, 1987, the above-named petitioner-owner filed an Admin-
istrative Appeal against an order issued on June 24, 1987, by the
Rent Administrator, 92-31 Union Hall Street, Jamaica, New York,
concerning the housing accommodation known as 808 West End Avenue,
New York, N.Y., Apartment 1109.
The issue herein is whether the Rent Administrator properly deter-
mined the apartment and building services the owner is obligated to
and does provide to the subject tenant and whether the registration
statement was properly amended to reflect those services.
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.
On September 22, 1984, the tenant commenced the original proceeding
by filing with the Division a tenant's objection form to the
rent/services registration statement filed by the owner. The
tenant alleged that the owner did not include therein a number of
building services and that the apartment contains two and not three
rooms. Specifically, the tenant stated that the following services
were either incorrect or omitted from the registration:
1. We do not have two full-time service
employees.
2. Laundry room facilities.
3. We have two automatic elevators.
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On April 20, 1987, the owner answered the objection alleging, in
essence, that there are two full time maintenance employees; that
a separate independent contractor provides laundry-room services to
the tenants and that there are two automatic elevators in the
building. No answer was included concerning the room count of the
subject apartment.
The Rent Administrator's order, appealed herein, amended the
registration to include those services listed by the tenant based
on the evidence in the record, including the owner's answer
submitted below. Additionally, the Rent Administrator determined
that the apartment consists of two rooms based on the owner's
failure to answer the tenant's challenge to the room count.
On appeal, the petitioner-owner asserts that the apartment contains
three rooms and not two; that the laundry facilities are provided
by an independent contractor and is, therefore, not a service re-
quired to be maintained by the owner; that he did not answer the
tenant's challenge to the room count because the Division of
Housing and Community Renewal (DHCR) never requested or directed
the owner to provide such an answer and that evidence in the form
of apartment floor plans submitted on appeal, support his assertion
that the subject apartment is a three-room apartment.
After a careful consideration of the entire evidence of record the
Commissioner is of the opinion that the Administrative appeal
should be granted.
Section 2528.2 of the Rent Stabilization Code requires the initial
registration filed for each housing accommodation to include, among
other things, "the number of rooms in such housing accommodations"
and "all services provided for in the last lease or rental
agreement, provided or required to be provided on the applicable
base date, or thereafter."
A room has been defined as:
1. A windowless kitchen containing at least 59
square feet.
2. An enclosed area with window containing at
least 60 square feet.
3. An enclosed area without window containing at
least 80 square feet.
4. Do not include bathroom, walk-in closet, etc.
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A careful review of the floor plan submitted by the owner reveals
that the subject apartment contains a kitchen, bedroom and living
room for a total of three rooms. The dining room is not an
enclosed area and is, therefore, not considered a room according to
the aforecited definition.
Moreover, the file reveals that the owner was not in fact notified
that the tenant's objection contained a room count challenge.
The Commissioner notes that, although provided an opportunity to do
so, the tenant did not submit an answer to the petition.
Required services are defined by Section 2520.6(r) of the Code and
include ancillary services for which there is a separate charge.
However, a service continuously provided by an independent con-
tractor for which there is no common ownership between the operator
of such service and the owner is not subject to the provisions of
the Code.
The record clearly shows that laundry-room service has been
provided by an independent contractor. Therefore, this service is
not subject to the provisions of the Code and need not be
registered.
Accordingly, the Commissioner finds that, in pertinent part, the
Rent Administrator erred in issuing the order below and that
laundry room service should not have been added to the registration
statement and further that the registration should be amended to
reflect this fact and to show that the apartment has three rooms
rather than two.
THEREFORE, in accordance with the provisions of the Rent Stabili-
zation Law and Code, it is,
ORDERED, that this petition be, and the same hereby is, granted,
and the Administrator's order be, and the same hereby is, revoked,
in pertinent part, in accordance with this Order and Opinion.
ISSUED:
JOSEPH A. D'AGOSTA
Acting Deputy Commissioner
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