STATE OF NEW YORK
DIVISION OF HOUSING AND COMMUNITY RENEWAL
OFFICE OF RENT ADMINISTRATION
92-31 UNION HALL STREET
JAMAICA, NEW YORK 11433
IN THE MATTER OF THE ADMINISTRATIVE : ADMINISTRATIVE REVIEW
APPEAL OF DOCKET NO. BJ630092RO
: DISTRICT RENT OFFICE
DOCKET NO. AH610504R
Gary Towers Company,
TENANT: Carlos M. Anazgasty
ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW
On October 6, 1987, the above-named petitioner-owner filed a Petition
for Administrative Review against an order issued on September 8, 1987
by the Rent Administrator, 92-31 Union Hall Street, Jamaica, New York,
concerning the housing accommodations known as 3123 Bailey Avenue,
Apartment 5D, Bronx, New York, wherein the Administrator determined that
the installation and use of an air conditioner is a base date service
for which the owner cannot collect a separate charge.
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 appeal.
This proceeding was commenced on August 25, 1986 when the tenant filed
a complaint of rent overcharge. The tenant alleged that the owner was
charging an unauthorized additional charge for air conditioners. The
tenant asserted that the subject air conditioners had previously been
the basis of an overcharge complaint filed with the New York City
Conciliation and Appeals Board (C.A.B. the agency formerly charged with
enforcing the Rent Stabilization Law) and that it had been determined
that the use of air conditioners was a base date required service for
which no additional charge could be made.
In response to the complaint, the owner stated that said air
conditioners were not installed until after October 1, 1985 and that
therefore a $5.00 per air conditioner charge was appropriate pursuant to
Supplement No. 1 to Operational Bulletin 84.4.
In the order herein appealed, the Administrator determined that the
issues raised in the proceeding had previously been resolved and based
upon those orders, directed the owner to cease and desist from billing
the tenant for the air conditioner service charge.
In its appeal, the owner contends that the various opinions cited in the
order do not refer to the instant tenant as he may have installed his
air conditioner subsequent to the cited determinations. Additionally,
the owner asserts that Supplement No. to Operational Bulletin 84-4
supports the charge in that the charge is applicable "regardless of any
prior, differing charges and procedures."
In answer to the appeal, the tenant contends that the regulations cited
by the owner are inapplicable in the instant case because of the prior
determination rendered by the C.A.B.
The Commissioner is of the opinion that this petition should be denied.
The evidence indicates that the installation and use of air conditioners
is a base rent service for which the owner cannot collect a separate
charge. Supplement No. 1 to Operational Bulletin 84-4 is inapplicable
because it governs instances where the installation and use of an air
conditioner is not a required service and is installed initially on or
after October 1, 1985. The owner is estopped from challenging the
determinations made by the C.A.B. in February 1982 in Opinion No.
19,627. Said C.A.B. opinion referred specifically to the tenant herein.
The Commissioner notes that the letter from the Assistant Deputy Counsel
of the D.H.C.R. to the owner submitted supplementally by the owner is
not pertinent to the issues raised in this appeal because it concerns
only the duration of collectibility of an approved air conditioner
THEREFORE, in accordance with the provisions of the Rent Stabilization
Law and Code, it is
ORDERED, that this petition be, and the same hereby is, denied and the
Rent Administrator's order be, and the same hereby is, affirmed.
JOSEPH A. D'AGOSTA