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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.: DD 610219 RO
RIVERDALE ESTATES,
DRO DOCKET NO.: AK 610335 R
TENANT: STANLEY LANGER
PETITIONER
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ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW
On April 12, 1989, the above-named petitioner-owner filed a
Petition for Administrative Review against an order issued on March
14, 1989 by the Rent Administrator, 92-31 Union Hall Street,
Jamaica, New York concerning the housing accommodations known as
3240 Henry Hudson Parkway, Apartment 5E, Bronx, New York wherein
the Rent Administrator determined that the tenant's rented garage
space is subject to the Rent Stabilization Law.
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 appeal.
On November 17, 1986, the tenant commenced this proceeding by
filing a complaint of rent overcharge, alleging that although
garage use was part of the services provided by the owner and thus
subject to the jurisdiction of the Division of Housing and
Community Renewal (DHCR), the owner denied that garage rates were
subject to the Rent Stabilization Law and had increased the garage
rent in contravention of regulations.
A copy of the complaint was served on the owner.
In response to the complaint, the owner asserted, that the
complaint should be dismissed primarily because:
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(1) the garage has been and continues to be
operated by independent operators,
(2) the owner has never included, in registration
statement, the garage as an additional service
for tenants, and
(3) the owner of the subject building and the
owner of the garage are independent economic
entities and as such, the rates charged by the
owner of the garage are not subject to review
by the DHCR.
In reply, the tenant asserted that subsequent to 1948, although
they remained separate in form, the subject building and the garage
had in fact become one entity and that all of his transactions
relating to the garage from the inception of his tenancy had been
managed by the landlord of the building. The tenant included
copies of various letters signed by the managing agent in support
of his assertions.
Thereupon, the owner submitted a history of the subject building,
tracing its ownership from 1977 through the present as proof that
the owner of the building and the owner of the garage are separate
and distinct entities. Moreover, the owner asserted, the issue had
been raised in several prior proceedings by various other tenants
and the DHCR has ruled that it had no jurisdiction.
In the order here under review, the Administrator determined that
the garage space is subject to the Rent Stabilization Law and
directed the owner to offer the tenant a renewal lease for the
garage space.
In its appeal, the owner contends that the Administrator's order
should be reversed because the issue of the separation of interests
between the garage operator and the owner of the subject premises
has been conclusively determined in prior administrative decisions
which have consistently held that the operations of the garage was
an independent service.
The tenant contends that the order should be upheld because the
evidence proved that there is or was common ownership between the
garage operator and the owner of the building and pursuant to
Section 2520.6(r) the garage space is subject to the Rent
Stabilization Law.
After careful consideration, the Commissioner is of the opinion
that this petition should be denied.
The owner herein has urged that prior administrative decisions
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should be determinative of the tenant's rights in this proceeding
and has submitted various documents, including copies of
administrative determinations made in the proceedings which involve
the same issue i.e. ZAG 610606 and ZCJ 620086 R, a 1947 opinion
letter from Ralph Morhard, Chief Area Attorney N.Y.C. Defense
Rental Area, a 1958 opinion letter from Edward J. Mitchell, a Local
Rent Administrator, and a 1987 letter from the Agency's Enforcement
Bureau, all of which had determined, for the particular tenants
involved, that the garage was not subject to rent regulatory laws
based upon a finding that " . . . before and on March 1, 1943,
there was a contractual and economic separation of interests
between the landlord and the independent operator of the garage and
subsequent to March 1, 1943 this separation of operating interests
has continued."
However, these opinions involve rent controlled tenants and are not
binding on the tenant herein who is rent stabilized.
Regardless of the situation as it had been in 1943, the tenant
herein has alleged that the situation has changed and there no
longer exists an economic and contractual separation of interests
between the owner of the building and the garage operation.
Section 2520.6(r)(3) of the Rent Stabilization Code regarding
ancillary servies provides in pertinent part that where on the
applicable base date or at any time subsequent thereto, there is or
was a separate charge, and there is or was common ownership,
directly or indirectly between the operator of such service and the
owner, or the service was provided by the owner, any increase,
. . . shall conform to the applicable rent guidelines rate. The
tenant herein has demonstrated a unity of interest between the
building owner and the garage operator to warrant a finding that
the garage space is subject to rent stabilization. Review of the
record shows that there is an indirect relationship between the
building owner and the company contracted to manage the garage.
The record indicates that both the building management and the
garage management share the same office space and that one
individual acts as agent for both. Accordingly, the Commissioner
finds that the tenant's garage space is subject to rent
stabilization.
THEREFORE, in accordance with the Rent Stabilization Law and Code,
it is
ORDERED, that this petition be, and the same hereby is, denied and
the Rent Administrator's order be, and the same hereby is,
affirmed.
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ISSUED:
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JOSEPH A. D'AGOSTA
Acting Deputy Commissioner
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