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.CC410167RO
Glenwood Management Corp. : DISTRICT RENT OFFICE
TENANT: Joseph Ancis
ORDER AND OPINION GRANTING IN PART PETITION FOR ADMINISTRATIVE REVIEW
On March 14, 1988, the above-named petitioner-owner filed a Petition for
Administrative Review against an order issued on February 18, 1988, by
the Rent Administrator, 10 Columbus Circle New York, New York,
concerning the housing accommodations known as 1385 York Avenue, New
York, garage space Apartment No.17B, wherein the Rent Administrator
determined the lawful stabilization rent for the garage as of September
11, 1985 and directed the owner to refund $3294.29 including interest on
the overcharge occurring on or after April 1, 1984.
Said appeal was denied by the Commissioner in an order issued on March
Subsequent thereto, the owner filed a request for reconsideration which
was granted in an order issued on April 26, 1993.
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 February 22, 1984 when the tenant filed
a rent overcharge complaint in which he alleged that during a period of
only four apartment leases there had been nine garage rent increases.
The tenant requested that garage rent increases be made to coincide with
apartment rent increases.
In response, the owner asserted that it had recalculated the garage
leases to conform with apartment leases, that it had voluntarily reduced
the garage rent and that it had offered the tenant a refund in the
amount of $3,161.28.
In reply, the tenant confirmed the rent reduction but stated that it had
rejected the owner's refund offer and preferred to wait for the DHCR
In Order Number CDR32,675, the Administrator established the lawful
stabilized garage rent at $126.55 plus applicable sales tax effective
September 1, 1985.
In the appeal, the owner contends that the Administrator's order should
be modified because the calculations used are unfair in that the
Administrator made no provision for equalizing the permissible rent
increase for 1982 and 1983. The problem arises because the tenant
executed a three year renewal lease for the apartment in September 1982
but did not renew the garage until September 1983. The ensuing garage
lease term was for only two years to make the termination date of both
terms coincide. Because of significant differences in rates between
guidelines #13 and guidelines #14, the percentage increase for the
garage in 1983 is much lower than the percentage increase for the
apartment. The owner contends that the garage rent should be increased
at the same rate as the apartment. The owner further contends that the
tenant provided inaccurate information-which may represent fraud-in that
the tenant did not pay for the garage space for the period May 1, 1979
through September 1, 1983 and the overcharge should be recalculated in
view of this non-payment.
The tenant contends that the owner knowingly and deliberately misled and
overcharged the tenant, attempting initially to conceal its garage
ownership by billing under different names, and that treble damages,
based upon the willfulness of the overcharge, should be imposed. The
tenant submits cancelled checks showing payment to Glenwood Management
for garage rent for the entire period, placed in issue by the owner
except for September, 1982 through August 31, 1983, the period when the
tenant, as stated in the complaint, did not use the garage.
In reply, the owner contends that the garage rent payment checks show
that the tenant paid for space in another garage managed by the owner
but did not pay for space in the particular garage. Therefore, the
owner argues, the tenant should be unable to bring an overcharge
complaint concerning the instant garage and the overcharge found should
be modified. In the interest of fairness, the owner contends, it should
be entitled to a rent increase for the garage space at either the same
percentage as the apartment or a one year vacancy increase under
guideline #13 for the year when the space was unoccupied by the tenant.
Alternatively, the owner contends that pursuant to the Rent
Stabilization Code, it was entitled to a free market rent in September
1983 when the tenant again began to use the garage facilities.
The commissioner is of the opinion that this petition should be granted
Pursuant to Code Section 2520.6(r)(3) an owner must provided those
ancillary services, including garage facilities, which it was providing
on the applicable base date. Where an ancillary service is provided
pursuant to a lease or rental agreement separate and apart from the
lease or rental agreement for the housing accommodation, the tenant is
not required to renew the lease or rental agreement upon its expiration.
In the instant case, the tenant opted not to renew the garage lease in
1982 but, after a one year hiatus rerented garage facilities in
September 1983, with the attendant effect of changing the base date of
the ancillary service to September 1, 1983.
Section 2520.6(r)(4)(xi) of the Code entitles an owner to charge a
market rent for an ancillary service in an inital agreement with a
tenant to lease such service. Since the agreement in September 1983
was, in essence, an initial agreement, the owner could charge a market
rent ($193.50) for the lease term. The record indicates that the owner
voluntarily reduced the rent, effective November 1, 1984, to $143.48,
thereby waiving the higher rent. Accordingly, the Commissioner has
modified the Administrator's rent calculation chart to reflect the
corrections made herein.
Lease term Rent Effective : Explanation: Lawful : Overcharge
charged Date Rent -0-
9/1/83-8/31/85:$193.50: 9/1/83 Base Rent $193.50
$204.00 4/1/84 Owner raised $193.50 $10.50 X 7
rent mos +
$143.48 11/1/84 Owner $143.48 -0-
9/1/85-8/31/87 $156.40 9/1/85 Guideline $156.40 -0-
for a 2
through 8/31/82 = $1920.46
9/1/83 - 8/31/87 $ 75.71
Total Overcharges $1996.17
The lawful garage rent as of August 31, 1987 is $156.40.
The Commissioner finds that the owner's allegation of tenant fraud is
entirely without merit. The garage facilities provided herein is an
attended garage without assigned spaces. The record shows that the
owner provided such facilities as a base date ancillary service from
September 1, 1973 through August 31, 1982 and then again from September
1, 1983 through August 31, 1987. The evidence of record shows that the
tenant paid and the owner received payment for garage facilities
provided by the owner as a service ancillary to the tenant's rental of
a rent stabilized apartment for the time period claimed by the tenant.
Since the tenant did not file his own Petition for Administrative
Review, his request for treble damages and additional relief cannot be
The Commissioner has determined in this Order and Opinion that the owner
collected overcharges of $1996.17. This order may, upon expiration of
the period for seeking review of this Order and Opinion pursuant to
Article Seventy-eight of the Civil Practice Law and Rules, be filed and
enforced as a judgment or not in excess of twenty percent per month of
the overcharge may be offset against any rent thereafter due the owner.
Where the tenant credits the overcharge, the tenant may add to the
overcharge, or where the tenant files this order as a judgment, the
County Clerk may add to the overcharge, interest at the rate payable on
a judgment pursuant to Section 5004 of the Civil Practice Law and Rules
from the issuance date of the Rent Administrator's order to the issuance
date of the Commissioner's order.
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
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, granted in part
and the Rent Administrator's order be, and the same hereby is, modified
in accordance with this order and opinion.
JOSEPH A. D'AGOSTA