ADM. REVIEW DOCKET NOS.: CB910383RO, EA820342RO

                                  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
          APPEALS OF                              DOCKET NOS.: 
                                                  CB910383RO
                                                  EA820342RO
                                                  
                                                  D.R.O. DOCKET NOS.:
                                                  WWP-86-S-42/R
                                                  WWP-86-C-90/S
              MARIO BRUNI,                        WBK-8-2-0002/AD  
              FRANK CAMPISI,                      
                                   PETITIONERS    Tenant: Geneva Campbell
          ------------------------------------X

          ORDER AND OPINION DENYING ONE PETITION FOR ADMINISTRATIVE REVIEW
                          AND GRANTING ONE PETITION IN PART

               These petitions have been consolidated as they involve common 
          issues of law and fact.

               On February 29, 1988, the above named petitioner-owners timely 
          re-filed a Petition for Administrative Review against an order 
          issued on December 10, 1987 under Docket Numbers WWP-86-S-42/R and 
          WWP-86-C-90/S.  On January 5, 1990 the same petitioners filed a 
          petition against order number WBK-8-2-0002/AD, issued on December 
          5, 1989.  Both orders were issued by the Rent Administrator, 55 
          Church Street, White Plains, New York, concerning housing 
          accommodations known as Apartment 11, 141 Ferris Avenue, White 
          Plains, New York.

               The issues in these appeals are whether the Administrator was 
          correct to find that (a) parking was a required service, (b) 
          $249.28 was the correct rent before a service reduction and (c) the 
          rent should be reduced because of certain alleged reductions in 
          service.

               The applicable sections of the State Rent and Eviction 
          Regulations are Sections 2102.3 and 2102.6.

               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 appeals.















          ADM. REVIEW DOCKET NOS.: CB910383RO, EA820342RO

               The tenant commenced this proceeding by filing an overcharge 
          complaint (WWP-86-S-42/R) and a service complaint (WWP-86-C-49/S) 
          wherein the tenant alleged that the owner had increased her parking 
          rent from $5.00 to $25.00 and then to $50.00 and that the owners 
          were not maintaining services regarding painting/plastering, 
          defects in and around the apartment entrance door, and certain 
          defects in the floors.

               In answer to the overcharge complaint, the owners stated that 
          parking was not a regulated service, i.e., that the parking area 
          was separate and distinct from the apartment building and the fees 
          therefore, which were always collected separately from the 
          apartment rent, were not under the jurisdiction of the DHCR.

               In the Order Numbered WWP-86-S-42/R and WWP-86-C-90/S, issued 
          December 10, 1987, the Rent Administrator determined that parking 
          was a regulated service based on the owners' failure to offer proof 
          that the apartment building and parking facilities were two 
          separate entities.  However, the order neither determined the 
          correct rent for the parking (or the apartment) nor decided whether 
          services had been decreased.  Instead, the order stated that a 
          separate proceeding pursuant to Section 36 (now 2102.6) would 
          determine the rent and the decrease in services, if any, subsequent 
          to an inspection by the Division.

               In petition number CB910383RO, the owner contends that the 
          Rent Administrator's December 10, 1987 Order is incorrect and 
          should be modified because the Administrator based the decision on 
          how the properties are owned rather than upon the separate manner 
          in which the entities are operated, including the fact that the 
          tenant has always been separately charged for parking.  The owners 
          allege that approximately three of the eight parking spaces are 
          rented to tenants whereas the remaining spaces are rented to 
          outsiders.  This arrangement is alleged to also have been followed 
          by the prior owner.

               In addition, the owners allege that the apartment registration 
          form (RR1) "shows that no parking is provided as a building service 
          by the owner."  Furthermore, the initial November 1, 1944 
          registration shows that parking was not a building service under 
          the prior owner.  This is allegedly confirmed by the 
          Administrator's prior order number 4464, issued March 27, 1986,  








          wherein another tenant in the same complex had objected to her 
          building registration in that it omitted parking as a building 






          ADM. REVIEW DOCKET NOS.: CB910383RO, EA820342RO

          service.  The Administrator held therein that "tenant pays $25.00 
          per month for parking but this is not a provided building-wide 
          service."

               Finally, the owners allege that the four lots constituting the 
          subject premises (numbers 84, 85, 86 and 87) under the prior owner 
          were divided into two separate pairs, the building being on 84 and 
          85 and the parking lot on 86 and 87 until refinancing made it 
          necessary for the prior owner to join the lots as a single parcel.

               The Commissioner is of the opinion that petition number 
          CB910383RO should be denied.

               At the outset the Commissioner finds that the above referenced 
          registrations, as well as opinion number 4464, are irrelevant to 
          this proceeding.  The tenant herein has not alleged that parking is 
          a building-wide service, i.e., a service provided for all tenants, 
          but merely that she as an individual has been provided that service 
          and that the owner wrongly raised the rent therefor.  (The fact 
          that the tenant herein did not object to the owners' registration 
          of services does not alter this result.  A tenant does not forfeit 
          a provided service by failing to object to its omission on a 
          registration statement.)

               The Administrator's finding in the December 10, 1987 order 
          that parking is a service provided to this tenant and subject to 
          the jurisdiction of the DHCR is clearly correct.  An owner does not 
          become an outside contractor not subject to Rent Control by merely 
          billing separately for the service provided.  To allow an owner to 
          do so would encourage evasion of the rent laws.

               The prior owner was obligated under Section 2102.3 (formerly 
          Section 33) to apply to the Division to establish or approve the 
          rent for the parking space when that service was added for this 
          tenant or her predecessor in or about 1972.  The fact that no such 
          application was made does not remove the service from DHCR 
          jurisdiction.

               Turning to the second appeal, the Section 36 proceeding 
          referred to in the Administrator's December 10, 1987 order received 
          docket number WBK-8-2-0002-AD.  On December 11, 1987 an inspection 
          of the subject premises was ordered.  The inspection report found 
          painting to be necessary near the entrance door to the apartment 
          where a crack had been plastered and further found that the 
          bathroom floor was cracked near the tub and needed repairs.



               On May 3, 1988 the report was served on the owners and the 
          owners were directed to correct all defects stated therein.  In 
          addition, the owners were asked to justify both the increases in 
          parking rent and to explain how the tenant's rent of $194.17 had 












          ADM. REVIEW DOCKET NOS.: CB910383RO, EA820342RO

          been reached.

               In a response received June 30, 1988 the owners stated the 
          necessary repairs would be completed within 7 days.

               Rather than justify the parking rent increases the owners 
          contended they were beyond DHCR jurisdiction for the reasons stated 
          in the prior proceeding and the appeal thereof.

               Regarding the apartment rent, the owners submitted six copies 
          of so-called "60 Day Notices" pursuant to Operational Bulletin 110 
          from 1975 through 1987 whereby the rent was increased from $91.50 
          to $224.38 which the owners contended was the legal rent as of 
          June, 1988.  ($194.17 was the 1986-1987 rent.)

               In a Notice dated October 12, 1988, the owners were advised 
          that failure to make all repairs in a workmanlike fashion would 
          result in a rent decrease.

               In a response received October 27, 1988 the owners alleged all 
          the repairs required by the inspection report had been completed.  
          The owners alleged that the tenant "wants to have her living room 
          floor replaced.  We had the floor checked by a carpenter, he 
          advised us that a new floor was not needed."  

               The living room floor had not been cited as defective on the 
          inspection report.  Nevertheless, a February 15, 1989 notice to the 
          owners stated that the tenant's living room floor must be repaired 
          within 10 days or a rent decrease would be ordered.  No subsequent 
          inspection was made.

               On December 5, 1989 the Administrator issued Order number WBK- 
          8-2-0002/AD wherein the rent (without parking) was established as 
          $224.28 as of May 1, 1988.  The rent for the parking was 
          established as $25.00 per month for a total rent of $249.28.  From 
          this total, 10% was deducted due to the owners' failure "to 
          properly repair the floor in the tenant's living-room and entrance 
          door saddle."  The owners were ordered to refund excess rent for 
          the period commencing two years prior to the Administrator's order.

               In petition number EA820342RO, the owners contend the 
          Administrator's December 5, 1989 order is incorrect and should be 
          modified because the parking rental is not subject to DHCR 
          jurisdiction largely for the reasons stated above in connection 


          with the Administrator's 1987 order and the appeal thereof.  In 
          addition, the owners argue that the Administrator's second order
          itself acknowledged that parking was not part of the rent by 
          computing the lawful rent pursuant to Bulletin Number 110 and then 
          adding the $25.00 per month thereto "for a total rent of $249.28."  
          The owners also cite the definition of "housing accommodation" in 






          ADM. REVIEW DOCKET NOS.: CB910383RO, EA820342RO

          the State Rent Control Law and argue that "the parking lot is not 
          land or a building appurtenant to the premises in which the housing 
          accommodation is located and is not and never has been a building 
          service."

               However, the owners do not argue that even if the parking lot 
          were subject to Rent Control the Administrator's figure of $25.00 
          was incorrect or in any way incompatible with the Rent Control Law 
          itself. 

               Regarding the rent reduction for reduced services, the owners 
          argue that all repairs, including the living room floor and the 
          door, were done expeditiously, a March 8, 1989 invoice for same 
          being submitted as Exhibit B. 

               Regarding the rent levels established by the Administrator, 
          the owners argue that they were attributed to the wrong years by 
          the Administrator.

               In response the tenant argues that the Administrator's order 
          was correct and should be affirmed, alleging, in part, that her 
          door had not been properly repaired in that there is a one inch gap 
          in the door saddle and wooden blocks were used for curtain rods.

               In addition she alleges the 1989 rent increase had not been 
          filed with or approved by the DHCR as of May 7, 1990.

               The Commissioner is of the opinion that petition number 
          EA820342RO should be granted in part.

               Parking is a service under Rent Control for this tenant for 
          the reasons stated above in the first appeal   The Administrator's 
          December 5, 1989 order in no way contradicts that fact.  As noted 
          above, the prior owner should have applied for an individual 
          apartment rent increase when adding the parking service in 1972.  
          The Administrator herein properly established a lawful rent for 
          that service and added that to the rent as established pursuant to 
          Operational Bulletin 110.  The order refers to this sum as the 
          "total rent."  Furthermore, when the Administrator deducted 10% for 
          reduced services the deduction and the 10% were based on this same 
          "total rent."  Thus, the Administrator's order clearly treated the 
          parking fee as part of the rent.


               Furthermore, the Commissioner finds that the parking service 
          herein, being located on a contiguous lot, commonly owned and 
          operated by the owners, is clearly included in the definition of 
          "housing accommodation" found in the State Rent Control Law:  "Any 
          building...occupied...as a residence,...together with the land and 
          buildings appurtenant thereto, and all services, 
          privileges...supplied in connection with the occupation thereof."













          ADM. REVIEW DOCKET NOS.: CB910383RO, EA820342RO

               The owners' allegations that the rent values were attributed 
          to incorrect years, is simply wrong.  For example, the owners state 
          in paragraph 9 of their appeal:

                    "For example, the order appealed from
                    states that the permissible increase 
                    for the year 5/1/83 is $20.87, 
                    resulting in a rent of $160.02.  This
                    is incorrect.  In fact, $160.02 was 
                    the amount filed pursuant to 
                    permissible guidelines for the year
                    commencing on the calendar month 
                    next succeeding 60 days after the
                    filing date of 2/8/83."
                                           '     
          But 5/1/83 is precisely that date.  The other rents were also 
          correctly attributed to their correct years.

               However, the owners are correct that the 1988-1989 figure 
          (without parking) should be $224.38, rather than the $224.28 stated 
          in the Administrator's order.

               The 1989-1990 and subsequent figures were not submitted by  
          the owners to the Administrator or addressed by the Administrator.  
          They are therefore beyond the scope of this review.  However, this 
          order is without prejudice to the owner's right to any increase 
          subsequent to the rent established by the Administrator as modified 
          herein.

               Finally, the owners are correct that the Administrator should 
          not have reduced the rent for the living room floor and the 
          apartment door. These items were not cited as defective in the 
          inspection report submitted to the owner, nor were they verified by 
          any subsequent DHCR inspection.  This order is without prejudice to 
          the tenant's right to file a subsequent service complaint if the 
          facts so warrant.






               Accordingly, the Administrator's order is hereby modified to 
          eliminate the 10% service decrease and to establish the 1988-1989 
          cycle rent as $249.38, including parking.  Subsequent Bulletin 110 
          increases should be based on this amount.

               THEREFORE, in accordance with the State Rent and Eviction 
          Regulations, it is 

               ORDERED, that petition CB910383RO be, and the same hereby is, 
          denied, and Rent Administrator's order number WWP-86-S-42/R-WWP-86- 






          ADM. REVIEW DOCKET NOS.: CB910383RO, EA820342RO

          -C-90/S be, and the same hereby is, affirmed; and it is further

               ORDERED, that petition EA820342RO be, and the same hereby is, 
          granted in part and the Rent Administrator's order be, and the same 
          hereby is, modified in accordance with this Order and Opinion to 
          eliminate the 10% service reduction and to establish the 1988-1989 
          cycle rent as $249.38, including parking.

          ISSUED:




                                                                          
                                             JOSEPH A. D'AGOSTA
                                             Deputy Commissioner 






    

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