Docket Number: DJ-210309-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
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IN THE MATTER OF THE ADMINISTRATIVE : ADMINISTRATIVE REVIEW
APPEAL OF DOCKET NO.: DJ-210309-RO
:
EILAT MANAGEMENT, DRO DOCKET NO.: TC-82276-G
PETITIONER :
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ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW
On October 4, 1989, the above-named petitioner-owner filed a
Petition for Administrative Review against an order issued on
January 31, 1989 by the District Rent Administrator at Gertz Plaza,
Jamaica, New York, concerning the housing accommodations known as
Apartment 5F, 1833 East 12th Street, Brooklyn, New York, wherein the
Administrator determined that the owner had overcharged the tenant.
The petitioner acknowledges that the PAR was filed more than thirty
five days after the date of the Administrator's order but points
out that the order was not correctly addressed to the owner's
registered address. Consequently the PAR shall be deemed to have
been timely filed.
The issue in these proceedings is whether the Administrator's order
was correct.
The applicable law is Section 2520.6(r)(3) and 2526.1 of the Rent
Stabilization Code.
The tenant commenced these proceedings on February 6, 1984,
complaining that the owner had required him to rent a garbage space,
and at an excessive rent, as a condition of renting the subject
apartment. The tenant took occupancy of the subject accommodation
pursuant to a two year lease, at a monthly rental of $498.92,
allocating $348.92 for the apartment and $150.00 per month for the
garage. The tenant alleged that he had no car and had not
requested a garage space.
The owner responded on September 30, 1984 by submitting leases
showing the rental history for the subject apartment from the base
date. The prior tenant's leases did not provide for a garage
rental. The owner asserted that there were no guidelines governing
the allowable decreases for garage rent, but was otherwise silent to
the tenant's claim that he had been compelled to rent a garage space
as a condition of renting the apartment.
Docket Number: DJ-210309-RO
By a letter dated October 12, 1984, the tenant advised that the
owner was attempting to register the apartment rent at $498.92, by
the use of the charge for the garage space, and requested, among
other items, that: a) the current lease be cancelled and replaced
with separate leases for the apartment and garage space, b) that the
garage rent be reduced and c) that the apartment be registered at a
rent of $348.92 per month.
Lease renewals commencing December 1, 1985 also reflected the base
rent as a single combined figure of $498.92 plus the guidelines
increase.
Requests to the owner for the lease history for the garage space
from the base date, and per subsequent renewal leases to the tenant,
were not answered. However, the record does show that the notices
were mailed to the owner's old address and not the then current
registered address.
Based on the record, on January 31, 1989, the Administrator issued
an order determining that the owner had collected overcharges from
the tenant since November 10, 1983, established the legal regulated
rent at $337.19 per month effective November 10, 1983, and ordered a
refund of $8,606.10 through November 30, 1987.
In the petition the owner disputes the allegation by the tenant that
the tenant was compelled to rent a garage space. In support, the
petitioner annexes a copy of a notarized statement by the
superintendent of the subject premises, dated October 2, 1987,
averring that the tenant had a car.
After careful consideration, the Commissioner if of the opinion that
the petition should be denied.
Section 2520.6(r)(3)(i) of the current Rent Stabilization Code,
cited in the determination below, reads, in relevant part:
(3) Ancillary Services.
That space and those required services
not contained within the individual housing
accommodation which the owner was providing
on the applicable base dates set forth
below, and any additional space and services
provided or required to be provided
thereafter by applicable law. These may
include, but are not limited to garage
facilities, laundry facilities, recreational
facilities, and security. Such ancillary
services are subject to the following
provisions:
(i) No owner shall require a tenant or
prospective tenant to lease rent or
pay for an ancillary service, other
than security, as a condition of
renting a housing accommodation...
The owner's answer below, that there were no RSA guidelines then
governing increases for garage rent, was neither responsive nor
sufficient to constitute a denial of the tenant's complaint that the
Docket Number: DJ-210309-RO
owner had compelled him to rent a garage, although he had not
requested one.
The Commissioner is not persuaded by the notarized statement by the
owner's superintendent, setting forth vague and unsupported
allegations to the effect that the tenant had a car in the garage
at one time. It did not indicate, among other items, if, when or
whether the tenant's car had been removed. Such slight evidence,
not supported by any documentation, would have been insufficient to
have warranted a different result had the evidence been submitted
below. The evidence has been admitted on appeal, as the owner may
not have had the opportunity to submit it below.
The Commissioner further notes that the owner, having been put on
notice of the tenant's complaint in 1984, could have reformed the
lease to revoke the parking privileges, or could have revoked the
parking privileges at the lease expiration. Instead, the owner
registered the apartment after 1984 without indicating that a
portion of the rent was allocated to garage rent, and proffered
renewal leases without reflecting any apportionment between the
apartment and garage rent, and without providing the tenant the
option to cancel the garage renewal. Such actions are further
evidence of the owner's attempt to charge excessive rent by the
continued leasing of garage spaces as a condition of the rental of
the subject apartment, in violation of the Rent Stabilization Law
and Code.
Accordingly the Administrator's order is affirmed in its entirety.
THEREFORE, in accordance with the Rent Stabilization Law and Code,
the Emergency Tenant Protection Act 1974, and Chapter 403 of the
Laws of 1983, as amended by Chapter 102 of the Laws of 1984, as
implemented by Operational Bulletin 84-1, it is
ORDERED, that this petition be, and the same hereby is, denied, and
that the District Rent Administrator's order be, and the same
hereby, is affirmed, as amended.
ISSUED:
ELLIOT SANDER
Deputy Commissioner
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