Docket No. BI710024RO
                                    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 NO. BI710024RO
            
                                                   
          Arthur T. Mott,                         DISTRICT RENT
                                                  ADMINISTRATOR'S DOCKET
                                                  NO. FBD710012R
                                                  
                                                  Tenant: Nelson Perez       
                                  PETITIONER
          ------------------------------------X


            ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW


              On September 9, 1987, the above-named owner filed a petition 
          for administrative review of an order issued on August 10, 1987 by 
          the Rent Administrator, concerning housing accommodations known as 
          Apartment 3-H, 30 North Long Beach Avenue, Freeport, New York.

              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 petition for review.

              This proceeding was commenced by the filing of a rent 
          overcharge complaint by the tenant, dated April 13, 1987.  The 
          tenant's complaint also asserted that the owner collected $50.00 
          for a new door lock the tenant allegedly never received.  

              To his complaint the tenant attached a copy of the subject 
          apartment's 1986 registration which lists the subject apartment's 
          April 1, 1986 rent as $633.74 per month.

              On April 24, 1987, the Administrator mailed to the subject 
          landlord a copy of the tenant's complaint, and a notice requesting 
          that the landlord submit his answer to the tenant's complaint 
          within twenty days of the above-mentioned date.  The notice also 
          directed the owner to submit to the rent agency a copy of the 
          subject tenant's lease and a copy of the lease effective 
          immediately prior to the subject tenant's initial lease.

              On May 1, 1987 the subject landlord filed his answer which 
          asserted that  the subject tenant's initial rent was computed by 
          adding to the prior tenant's monthly rent of $633.74, a vacancy 
          factor of $52.81 (1/12 of $633.74), and adding $80.00 per month for 












          Docket No. BI710024RO

          the use of a indoor garage.  The owner further asserted that the 
          above-mentioned amounts equal to $766.55, and that the tenant's 
          initial rent was only $750.00 per month.

              Furthermore, the owner alleged that providing garage space was 
          a new service created during a vacancy in the subject apartment, 
          and as such, the owner asserted that he was entitled to add $80.00 
          per month to the tenant's rent, without requiring prior approval of 
          the rent agency or obtaining the written consent of the tenant.  
          The owner also asserted  that renting the garage was a requisite 
          for renting the subject apartment.

              To his answer the owner attached, among other things, a copy of 
          the subject tenant's lease which commenced on December 1, 1986 and 
          expired on November 30, 1987, which listed the monthly rent at 
          $750.00, and a copy of the aforementioned 1986 registration.

              On June 30, 1987 the subject tenant filed a response to the 
          owner's answer which alleged, among other things, that the prior 
          tenant's rent was $633.74 per month including the garage, and that 
          the tenant's lease does not include any mention of the garage 
          space, but only lists the monthly rent as $750.00.

              On July 2, 1987 the Administrator mailed to the owner a notice 
          requesting copies of the subject apartment's 1984 and 1985 
          registration within twenty days of the above-mentioned date.

              Also on July 2, 1987 the Administrator sent a notice to the 
          Rent Registration Unit of the Division of Housing and Community 
          Renewal (DHCR) to request whether the subject apartment's 1984 
          registration lists garage space as a required service.

             On July 31, 1987 the owner submitted an alleged copy of the 
          apartment's 1984 registration which lists the April 1, 1984 rent as 
          $565.00 per month, and lists a stove and refrigerator as services 
          that are included in the rent.  The owner also submitted an alleged 
          copy of the apartment's 1985 registration which lists the April 1, 
          1985 rent as $588.54 per month.

              The Rent Registration Unit of DHCR provided the Administrator 
          with a computer printout of the apartment's required services that 
          are listed in the 1984 registration, which includes a stove, a 
          refrigerator and one garage space.

              In the order under review herein, the Administrator determined 
          that garage service is a required service and is included in the 
          tenant's rent, and that the owner's assertion that the garage space 
          was added as a service while the apartment was vacant is without 
          merit.  The Administrator also determined that the tenant's  legal 
          regulated rent for the lease period commencing on December 1, 1986 
          and expiring on November 30, 1987 is $711.80 per month, and was 
          computed by the Administrator by adding the following: 






          Docket No. BI710024RO


               a)  $633.74-September 30, 1986 rent including garage space;

               b)  $25.35-4% guideline increase for a one-year lease, and 

               c)  $52.81-Vacancy factor

              Furthermore, the Administrator found that there was a rent 
          overcharge of $1,031.40, including treble damages, and that the 
          owner collected $50.00 from the tenant for installing a door lock 
          which was never received by the tenant.  The Administrator directed 
          the owner to refund $1,081.40 to the tenant.

             In this petition the owner asserts that the subject owner was 
          not the registered owner of the subject building in 1984; that the 
          subject owner did not prepare the 1984 registration; that the 
          subject owner did not purchase the subject building until June 3, 
          1986; that the 1984 and 1985 registrations submitted by the owner 
          to DHCR made no reference to garage space as a required service; 
          that the DHCR's computer printout does not constitute sufficient 
          evidence of the subject owner collecting rent in excess of the 
          legal regulated rent; that the owner alleges that, as the 
          petitioner relied on information contained in apartment 
          registrations filed by a prior owner the collection of excess rent 
          by the subject owner could not have been willful, and therefore 
          imposing treble damages was not proper; that the owner denies ever 
          receiving $50.00 for the door lock from the tenant; that the tenant 
          has not proved that he has paid the aforementioned $50.00, and that 
          the Administrator's determination that the owner collected $50.00 
          from the tenant was improper.

              On December 9, 1987 the tenant filed a response to the owner's 
          petition which asserts, among other things, that the garage space 
          is included in the rent; that he is entitled to treble damages, and 
          that he is submitting proof about paying $50.00 for the door lock.

              To the response the tenant attaches a copy of a check for 
          $1,550.00, which is dated December 2, 1986.  On the lower left-hand 
          corner of the check the words, "Payments of Security, Rent, Keys," 
          are written.

              After careful consideration, the Commissioner is of the opinion 
          that the owner's petition should be denied.

              The Commissioner notes that the subject apartment's 1984 
          registration that was filed with the rent agency by the building's 
          prior owner noted that garage space is included in the building's 
          rent.  The Commissioner further notes that the subject owner's copy 
          of the subject apartment's 1984 registration, which was submitted 
          to DHCR in the proceeding before the Administrator, did not list 
          garage space as being included in the apartment's rent.













          Docket No. BI710024RO

              Accordingly, the Commissioner is of the opinion that the above- 
          mentioned subject owner's copy of the subject apartment's 1984 
          registration is not a true and accurate copy of the subject 
          apartment's 1984 registration.  The Commissioner is also of the 
          opinion that the subject owner's copy of the apartment's 1984 
          registration has no probative value in this proceeding.

              As the rent agency's records show that garage space is a 
          required service to be included in the subject apartment's rent, 
          the Commissioner finds that the Administrator properly calculated 
          the tenant's legal regulated rent based on the applicable rent 
          guidelines, and that the Administrator's finding of a rent 
          overcharge should not be disturbed.

              Even if the owner had in good faith believed that garage 
          service were not a required service, the Commissioner is of the 
          opinion that the Administrator's imposing treble damages would 
          still have been proper.  The Commissioner notes that, by the 
          owner's admission, the acceptance of garage service was a requisite 
          to renting the subject apartment.

              The Commissioner is of the opinion that when a service is not 
          contained within the individual housing accommodation, e.g., garage 
          space, and is not a required service, the owner may not require the 
          acceptance of these types of services as a condition precedent to 
          renting an apartment.

              Assuming arguendo that the subject owner in this proceeding did 
          not known that garage service were a required service, the 
          Commissioner is of the opinion that the subject owner requiring the 
          acceptance of garage service as a condition precedent to renting 
          the subject apartment, and that the tenant's rent was in fact 
          increased by the tenant's use of the garage space, was an attempt 
          by the owner to contravene the provisions of the applicable rent 
          regulations which prohibit the charging of rent in excess of the 
          legal regulated rent.

              Accordingly, the Commissioner finds that the Administrator 
          imposing treble damages in this proceeding should not be disturbed.

              The Commissioner further finds that the owner's assertion that 
          he did not purchase the building until June 3, 1986, and that he 
          did not file the 1984 registration, is irrelevant to this 
          proceeding as the Administrator's finding of a overcharge started 
          with the lease period commencing on December 1, 1986.

               As to the owner's assertion that he did not receive the $50.00 
          for the door lock, the Commissioner finds that the owner raises 
          this issue for the first time upon administrative review.  As the 
          owner has not established that this issue which is raised for the 
          first time upon administrative review could not reasonably have 
          been raised in the proceeding before the Administrator, it is 






          Docket No. BI710024RO

          outside the scope of the Commissioner's review in this proceeding.

              Even if the owner did raise the aforementioned issue in the 
          proceeding before the Administrator, the Commissioner is of the 
          opinion that the aforementioned copy of the tenant's check which 
          was submitted to the rent agency in the amount of $1,550.00, was 
          sufficient to show that the owner unlawfully collected $50.00 from 
          the tenant.

              Accordingly, the Commissioner finds that the Administrator 
          directing the owner to refund $50.00 to the tenant for the door 
          lock was proper.

              Based on the above-mentioned facts, the Commissioner finds that 
          the owner's petition should be denied.

              The owner is cautioned that rents for the period subsequent to 
          November 30, 1987 should be based upon the amount of $711.80 per 
          month including garage service for the lease period of December 1, 
          1986 through November 30, 1987 as determined by the Administrator, 
          and that any demand for and collection of an amount in excess of 
          the lawful amount may give rise to a new overcharge complaint, in 
          which treble damages may be awarded.

              THEREFORE, in accordance with the Emergency Tenant Protection 
          Act of 1974 and the State Tenant Protection Regulations, it is

              ORDERED, that this petition be, and the same hereby is, denied, 
          and that the Administrator's order be, and the same hereby is, 
          affirmed; and it is

              FURTHER ORDERED, that rents after November 30, 1987 shall be 
          based upon the $711.80 monthly rent including garage space; and it 
          is

              FURTHER ORDERED, that the owner shall immediately refund to the 
          tenant all amounts not yet refunded representing overcharges, 
          penalties and treble damages; and it is

              FURTHER ORDERED, that if the owner has refunded no such amounts 
          upon the expiration of the period for seeking judicial review of 
          this order pursuant to Article 78 of the Civil Practice Law and 
          Rules, and the tenant has credited no such amounts, the tenant may 
          file and enforce a certified copy of this order as a judgment for 
          the amount of $1,081.40 against the owner, Arthur T. Mott.

          ISSUED:



                                                                            
                                             Joseph A. D'Agosta






    

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