CI 210196 RO

                                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. CI 210196 RO

                                          :  DISTRICT RENT OFFICE
                                             DOCKET NO. ZAK 210057 R
           Shorehaven Apartments/Trump,      
           Mgmt.,                            TENANT: Norman Feinberg
                                                     Adele Feinberg           
                

                            PETITIONER    : 
      ------------------------------------X                             


          ORDER AND OPINION GRANTING PETITION FOR ADMINISTRATIVE REVIEW
                                     IN PART


      On September 2, 1988, the above-named petitioner-owner filed a Petition 
      for Administrative Review against an order issued on July 29, 1988, by 
      the Rent Administrator, 92-31 Union Hall Street, Jamaica, New York, 
      concerning the housing accommodations known as 2058 Crospey Avenue, 
      Brooklyn, New York, Apartment No. 4G, wherein the Rent Administrator 
      determined that the owner had overcharged the tenant.

      With its petition, the owner simultaneously filed a request to review 
      the docket files in the instant case under the Freedom of Information 
      Law (F.O.I.L.) which was granted during the pendancy of the appeal.

      The Administrative Appeal is being determined pursuant to the provisions 
      of Section 2526.1 of the Rent Stabilization Code.

      The issue herein is whether the Rent Administrator's order was 
      warranted.

      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 originally commenced by the filing in November, 1986 
      of a rent overcharge complaint by the tenants who stated in substance 












          CI 210196 RO

      that due to a break-in of the buildings's garage in November 1985 that 
      they had ceased to use and pay the additional $45.00 plus tax for the 
      garage, but that the owner continued to bill them for the garage space.

      In answer to the complaint, the owner stated in substance that the 
      tenants were aware per their lease rider that the apartment's rent 
      included the garage fee when they leased the apartment and that the 
      owner was entitled to collect the garage fee in each lease renewal.

      The owner was directed to submit prior leases from April 1, 1984 plus 
      bills and checks to substantiate entitlement to increases for vacancy 
      and new equipment but failed to comply. 

      In Order Number ZAK 210057 R, the Rent Administrator established the 
      lawful stabilization rent as $395.72 effective April 1, 1985, determined 
      that the tenant had been overcharged and directed a refund to the tenant 
      of $5,588.42 including interest on that portion of the overcharge 
      collected on and after April 1, 1984.

      In this petition, the owner alleges in substance that it was first aware 
      of the tenants complaint when it was served a copy of the order by the 
      tenants of September 2, 1988; that no copy of the order or pending 
      notices were received from DHCR; that the order did not include a copy 
      of a rent calculation chart explaining the overcharge although the chart 
      was cited in the order as being attached; and that the owner should be 
      granted an extension to submit a supplement to its petition after 
      reviewing the files.

      Subsequently, the owner submitted a supplement to the its petition 
      including the following paid invoices indicating the pro-rated cost of 
      the new equipment and/or renovations for the subject apartment:


           kitchen cabinets/countertops  -    $602.89   prorated cost.
           refrigerator                  -    $410.00        "     "
           stove                         -    $262.11        "     "
           kitchen electrical fixture    -    $ 63.60        "     "
           kitchen sink and faucet       -    $246.00        "     "
           medicine cabinet & lights     -    $260.83        "     "
           hamper and vanity             -    $174.50        "     "
           miscellaneous items           -    $146.49        "     "

           
      These bills equal a total of $2,166.42 in pro-rated costs for the 
      subject apartment.



      Although the owner also claimed additional costs for installation 
      ($575.00); debris removal ($120.00) and sundry plumbing ($23.40) and 
      bathroom supplies ($135.42), these items did not appear on any of the 
      invoices in the submission and therefore may not be considered.






          CI 210196 RO


      In addition, the owner sent copies of rent ledger cards for the subject 
      apartment from 1981-1985; copies of MCI orders KS 000582-OM and 
      KS000224OM and apartmnt and garage leases for the subject apartment from 
      April 1, 1985 through March 31, 1989.

      The owner also noted that notices to the owner in the files indicate 
      that they were addressed to the wrong zip code (11219 or 11214 rather 
      than 11223) and that the order was sent to 2611 - 2nd Street rather than 
      2611 West 2nd Street which may explain why these notices were not 
      received by the owner.

      In answer to the owner's original petition, the tenant stated in 
      substance that the owner failed to allege any error in the order itself 
      and that the order was warranted.  Further, the tenants wish to respond 
      to any supplements to the owner's petition.  However, the tenant failed 
      to interpose a response to the owner's supplementary submission after 
      being served with it.

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

      An examination of the records in this case discloses that the owner is 
      correct in its contention that the copy of the Rent Administrator's 
      order was addressed to the owner at the wrong address; and that an 
      erroneous Postal Zip Code was used on the Rent Administrator's notices 
      to the owner.  

      Therefore, the owner's supplementary submission to its petition, 
      submitted after a review of the docket file pursuant to a F.O.I.L. 
      request, will be considered on appeal.

      Sections 2520.6(r)(3)(i) and (ii)  of the Rent Stabilization Code 
      provide in pertinent part that a tenant shall not be required to pay for 
      an ancillary service as a condition of renting a housing accommodation 
      subject to the Rent Stabilization Law and that where such ancillary 
      service is provided pursuant to a separate rental agreement or lease, 
      the tenant shall not be required to renew such lease or rental agreement 
      upon its expiration.

      In the instant case, although the lease rent of $542.95 stated in the 
      tenant's vacancy lease included $45.00 for a garage (excluding $2.70 
      tax) the tenants had in fact executed a separate garage lease in March 
      1985 for a 2 year term prior to the commencement of their apartment 
      lease in April 1985 and therefore, in accordance with Section 
      2520.6(f)(3)(ii) of the RSC, were not obliged to renew such garage lease 
      upon its expiration.  In this case the evidence of record including the 
      tenants' original complaint which was filed prior to the expiration for 
      their vacancy lease discloses that the tenants had given up their garage 
      space and did not wish to renew their garage lease.

      Therefore, although the owner could legally collect the garage rent for 












          CI 210196 RO

      the duration of the garage lease term from March 1985 through April 
      1987, upon its expiration the rent for the ancillary service could no 
      longer be included in the legal collectible rent for the subject 
      apartment.

      The Commissioner notes that although the owner billed the tenants for 
      the garage rent, the tenants ceased to pay the garage rent effective 
      December 1, 1985 while their garage lease was still in effect and 
      therefore the owner is entitled to recover arrears for the period 
      December 1, 1985 through March 31, 1987 for the garage space.  As to the 
      tenants' contentions that the garage was unsafe and therefore they 
      refused to use it this order is issued without prejudice to any actions 
      the tenants may pursue in support of their contentions in a court of 
      competent jurisdiction.

      Further, the owner has substaniated entitlement to both a vacancy 
      allowance of 7.5% pursuant to Rent Guidelines Board Order #16 (in 
      addition to the 9% guideline allowance) as well as an increase of $54.16 
      for new equipment computed at 1/40 of the verified costs of $2,166.42.

      The Commissioner, however, rejects the additional claimed increases for 
      which no bills were submitted either below or on appeal by the owner.

      Taking the above factors into account, the Commissioner has recalculated 
      the lawful stabilization rents and amount of rent overcharge for the 
      subject apartment, including interest on the overcharge occurring on and 
      after April 1, 1984.  The lawful stabilization rents and amount of rent 
      overcharge are set forth on the amended rent calculation chart attached 
      hereto and made a part hereof.

      The owner is directed to reflect the findings and determinations made in 
      this order on all future registration statements, including those for 
      the current year if not already filed, citing this order as the basis 
      for the change.  Registration statements already on file, however, 
      should not be amended to reflect the findings and determinations made in 
      this order.  The owner is further directed to adjust subsequent rents to 
      an amount no greater than that determined by this order plus any lawful 
      increases.

      Upon the expiration of the period in which the owner may institute a 
      proceeding pursuant to Article 78 of the Civil Practice Law and Rules, 
      not in excess of twenty percent per month of the overcharge may be 
      offset against any rent thereafter due the owner.


      If the owner has already complied with the Rent Administrator's order 
      and there are arrears due to the owner as a result of the instant 
      determination, the tenants shall be permitted to pay off the arrears in 
      twenty four equal monthly installments.  Should the tenants vacate after 
      the issuance of this order or have already vacated, said arrears shall 
      be payable immediately.







          CI 210196 RO

      THEREFORE, in accordance with the provisions of the Rent Stabilization 
      Law and Code, it is

      ORDERED, that this petition for administrative review be, and the same 
      hereby is, granted in part, and, that the order of the Rent 
      Administrator be, and the same hereby is, modified in accordance with 
      this order and opinion.  The lawful stabilization rents and the amount 
      of the rent overcharge are established on the attached chart which is 
      fully made a part of this order.  The amount of the rent overcharge 
      through July 30, 1988 is $757.22 minus $424.41 arrears for garage fees 
      not paid from December 1, 1985 through March 31, 1987 while a valid 
      garage lease was in effect results in a remaining overcharge of $332.81. 



      ISSUED:



                                                                    
                                      JOSEPH A. D'AGOSTA
                                      Deputy Commissioner






    

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