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 110384-RT
:
DRO DOCKET NO.: 35336
CAROLE & RICHARD OBERHAUS,
PETITIONERS :
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ORDER AND OPINION GRANTING PETITION FOR ADMINISTRATIVE REVIEW IN PART
On March 20, 1987 the above-named petitioner-tenants 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 254-26 74th Avenue, Glen
Oaks, New York, Apartment G-12 wherein the District Rent Administrator,
among other things, determined that the owner does provide and must
maintain a stove, refrigerator, window shades, luggage room, and screens,
and ordered that the registration be amended to include these 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 tenants commenced the original proceeding by
filing with the Division a tenants' objection form to the rent/services
registration statement filed by the owner. The tenants alleged, among
other things, that the owner did not include therein a number of apartment
and building services. Specifically, the tenants 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 tenants' 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 110384-RT
In the petition for Administrative Review, the tenants urge 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 tenants' 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 tenants in their
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 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 110384-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 issued 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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