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
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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
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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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