Docket Number: BC 110383.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.: BC 110383 RT
:
MARTIN KACZERSKI, DRO DOCKET NO.: 36430
PETITIONER :
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ORDER AND OPINION GRANTING PETITION FOR ADMINISTRATIVE REVIEW
IN PART
On March 20, 1987, the above-named petitioner-tenant filed a
Petition for Administrative Review against an order issued on March
2, 1987 by the District Rent Administrator, 10 Columbus Circle, New
York, New York concerning housing accommodations located at 71-50
260th Street, Glen Oaks, New York, Apartment A132 wherein the
District Rent Administrator, among other things, ordered that the
registration be amended to include certain services.
The issue in this appeal is whether this order is correct.
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 October 2, 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, among other things, that the owner did not include therein
a number of apartment and building services. Specifically the
tenant stated that the owner omitted a stove, refrigerator, shades,
and garage as apartment services and electricity, storage space, and
front desk, as building-wide services.
In answer to the tenant's objections, the owner asserted that a
stove and refrigerator are provided with the apartment; electricity
is not required to be registered; shades are not provided; storage
space outside the apartment is not provided; garages are the
property of the co-op corporation; there is no front desk; linoleum,
toilet seat, fixtures, screens, and exterminator are provided with
the apartment; and exterior door locks, benches, parking, community
rooms, snow removal, security, landscaping, outside water spigots,
and clotheslines are provided by the co-op corporation for the
common areas and are not required to be listed on the apartment
registration.
On March 2, 1987, the District Rent Administrator issued an order in
which, among other things the Administrator amended the registration
to include a stove, refrigerator, window shades, luggage room and
screens.
Docket Number: BC 110383.RT
In the Petition for Administrative Review, the tenant urges that the
Administrator's order should be amended to include all the items
contained in the original objection form or specify which do not
need to be listed because they are either required by law or fall
within the definition of normal maintenance.
The Commissioner is of the opinion that the tenant's petition should
be granted in part.
A review of the record indicates that the District Rent
Administrator's record contained only a partial objection, lacking a
reverse side which contained the additional services mentioned by
the tenant in his appeal.
According to Section 2528.1 of the Rent Stabilization Code, an owner
was required to register all housing accommodations subject to the
Rent Stabilization Law on April 1, 1984 and to include in that
registration all services provided for in the last lease or provided
or required to be provided on the applicable base date or
thereafter. No service may be discontinued except by mutual
agreement between the owner and the tenant and with the approval of
the Division with an appropriate adjustment in the rent.
Required services are defined by Section 2520.6(r) of the Code and
include ancillary services for which there is a separate charge.
Applying these principles to the instant proceeding the Commissioner
finds that garbage removal, electricity for common and exterior
areas and exterminator services are required by law and did not have
to be listed on the registration. Landscaping, security, and a
front desk do not have to be listed on the registration since they
are apartment and building maintenance requirements.
As for toilet seat, parking spaces, and community meeting rooms, the
owner has not denied that these are services provided to the
apartment or building on the applicable base date. The fact that
some of them may be provided by the co-op corporation does not
relieve the owner of the obligation to include these items on the
registration and to assure their continued availability.
Accordingly the registration should be amended to reflect these
facts.
The owner has also not denied that benches, exterior door locks,
linoleum, light fixtures in public areas, outside water spigots, and
clotheslines are provided. However, because of the minor nature of
these items, the Commissioner finds that they do not have to be
specifically listed on the registration statements. They are
required services, though, and any attempt to eliminate these items
will be justification for a rent reduction application. Any prior
order issued by the Commissioner finding that these services had to
be registered were the result of the owner's attempt to disclaim
liability for these items. In order to be consistent with this
order, the prior orders should be construed as finding that these
minor services are required to be provided but need not be
registered.
Docket Number: BC 110383.RT
Section 2529.6 of the Rent Stabilization Code states, in pertinent
part. "Review pursuant to this Part shall be limited to facts or
evidence before a Rent Administrator as raised in the petition."
The record is unclear as to whether the issue of playground areas
was raised in the proceeding below. Accordingly, that issue may not
be raised for the first time on appeal.
THEREFORE, in accordance with the Rent Stabilization Law and Code,
it is
ORDERED, that this petition be and the same hereby is granted in
part and that the Administrator's order be and the same hereby is
modified as provided hereinabove.
ISSUED:
ELLIOT SANDER
Deputy Commissioner
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