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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
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 :
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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
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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.
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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
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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.
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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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