OFFICE OF RENT ADMINISTRATION
                                    GERTZ PLAZA
                              92-31 UNION HALL STREET
                              JAMAICA, NEW YORK 11433

     APPEAL OF                              DOCKET NO.: ED 110388-RO
                                            DRO DOCKET NO.: BE 110117-R
                           PETITIONER    : 


     On April 6, 1990, the above-named petitioner-owner filed  a  Petition  for
     Administrative Review against an order issued on March  6,  1990,  by  the
     District Rent Administrator, 92-31 Union Hall Street, Jamaica,  New  York,
     concerning the garage space rented by the tenant of apartment 4E at 103-19 
     68th Road, Forest Hills, New York, wherein the District Rent Administrator 
     determined that the tenant had been overcharged.

     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 by the filing of a rent overcharge complaint 
     by the tenant, wherein the tenant challenged  the  legality  of  the  rent
     being charged for her garage space.

     The tenant took occupancy of her  apartment  in  June  1974.   The  tenant
     first rented the garage space pursuant to a one-year lease  commencing  on
     August 1, 1975 and expiring July 31, 1976, at a  monthly  rent  of  $35.00
     plus tax.

     In its answer, the owner contended, among other things, that, pursuant  to
     Section 2520.6 of the Rent Stabilization Code, the garage leases  are  not
     subject to the Rent Stabilization Code because, even if  common  ownership
     exists, it is not  a  service  provided  primarily  for  the  use  of  the
     building's tenants.

     In Order Number BE 110117-R the Administrator found that the garage  space
     was subject to the Rent Stabilization Law; determined that the  base  rent
     for the garage space was $74.20 (inclusive of $4.20 tax)  for  the  period
     February 1, 1984 through January 31, 1985; computed  subsequent  increases
     above that base rent; and computed the total overcharge, inclusive  of  an
     assessment of treble damages on overcharges since April  1,  1984,  to  be

     In its petition, the owner alleges that the subject garage is not  subject
     to rent stabilization because it is not provided primarily for the use  of
     tenants, the garage leases do not run concurrently with apartment 

          DOCKET NUMBER: ED 110388-RO
     leases the tenants are neither required to execute  nor  to  renew  garage
     leases and the garage is separate and apart  from  the  subject  building,
     i.e., separate entrance ways; that the garage lease gives  the  owner  the
     option to terminate on five days' notice, and was therefore  not  intended
     to be subject to rent stabilization; and that since the owner was required 
     to pay taxes on the garage to the Department of Consumer  Affairs,  it  is
     reasonable for the owner to believe that the garage is not subject to rent 

     The owner further contended that  the  tenant's  complaint  concerned  the
     garage space rental only, and the initial legal registered  rent  for  the
     apartment should not have been determined.

     The Commissioner is of the opinion that this petition should be denied.

     Section 2520.6(r)(3), of the Rent Stabilization Code states, in  pertinent

          [An  ancillary  service  is]  "That  space  and  those   required
          services   not   contained   within   the   individual    housing
          accommodation which the owner was  providing  on  the  applicable
          base date..., 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...."

     Section 2520.6(r)(4) of the Rent Stabilization Code states:

          (xi)  A service as defined in paragraph (3) of  this  subdivision
          (r) for which there is or was a separate  charge,  shall  not  be
          subject to the provisions of this Code where no common  ownership
          between the operator of such service  and  the  owner  exists  or
          existed on the applicable base date, or at  any  time  subsequent
          thereto, and such service is or was provided  on  the  applicable
          base date and all times thereafter by an  independent  contractor
          pursuant to a contract  or  agreement  with  the  owner.   Where,
          however, 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, other than the charge  provided  in  the
          initial agreement with a tenant to lease, rent or  pay  for  such
          service, shall conform to the applicable  rent  guidelines  rate.
          However,  notwithstanding  such  common  ownership,  where   such
          service was not provided primarily for the use of tenants in  the
          building or building complex on the applicable base  date  or  at
          any time subsequent thereto, such increases shall not be  subject
          to any guidelines limitations.

     Regarding the petitioner's argument that the  garage  is  not  a  required
     service under the Rent Stabilization Code,  because  it  is  not  provided
     primarily for the use of tenants, the Commissioner notes that  a  majority
     of the parking spaces are leased to tenants of the building; that  on  the
     base date, it is likely that more stabilized tenants held parking  spaces;
     and that the proximity of the garage to  the  subject  building  militates
     towards its being predominantly  for  the  use  of  the  tenants  of  that

          DOCKET NUMBER: ED 110388-RO
     Additionally, the owner lists the garage as  a  service  provided  by  the
     owner and lists the rent and lease  term  for  the  garage  space  on  the
     apartment's initial registration of services.  The petitioners' assertions 
     regarding the absence of a requirement to execute or renew garage  leases,
     and that those leases are not concurrent with the  apartment  leases,  and
     that the owner is required to pay taxes on the garage, are  irrelevant  to
     the  stabilization  status  of  the  garage  spaces.    Accordingly,   the
     Commissioner finds that the garage space is subject to rent stabilization, 

     With regard to the "option to terminate on five days' notice" acknowledged 
     by the owner: the Commissioner cautions that such provision  is  void  and
     unenforceable under Section 2520.12 of the Rent Stabilization Code,  which
     states in pertinent part: "No renewal lease or vacancy lease offered to  a
     tenant shall contain any right of cancellation or eviction  by  the  owner
     during the term thereof except as provided for by the  ETPA,  the  RSL  or
     this Code."

     Concerning the petitioner's contention of lack  of  notice  regarding  the
     possibility of treble damages being assessed, the Commissioner notes  that
     the evidence of record indicates that such notice was sent to the owner on 
     December 14, 1989, January 31, and February 21, 1990.  Section  2526.1  of
     the Rent Stabilization Code states in pertinent part; "any  owner  who  is
     found by the DHCR, after a reasonable opportunity to  be  heard,  to  have
     collected any rent or other consideration in excess of the legal regulated 
     rent should be ordered to pay to the tenant a penalty equal to three times 
     the amount of such excess...  If the owner establishes by a  preponderance
     of the evidence that the  overcharge  was  not  willful,  the  DHCR  shall
     establish the penalty as the amount of the overcharge  plus  interest...."
     The Commissioner finds that the owner has failed  to  establish  that  the
     overcharge was not willful.  Accordingly, the Administrator was correct in 
     applying treble damages.

     It appears from the record that the tenants  intended  to  challenge  only
     their garage rent.  However,  it  is  noted  that  the  Administrator,  in
     reviewing the tenants' apartment rent, found that the rent was lawful, and 
     there was no overcharge.  The Commissioner finds that the  owner  was  not
     harmed by the Administrator's determination that  the  tenant's  apartment
     rent was lawful and therefore no modification of the Administrator's order 
     is warranted.

     The Commissioner notes that  the  tenant,  on  June  16,  1990,  requested
     withdrawal of the proceeding, stating that she only  intended  to  inquire
     about her garage lease.  This attempt to withdraw, following  issuance  of
     the order, is not acceptable, as not only the rights of this  tenant,  but
     the rights of future tenants who rent the subject garage spaces,  will  be
     affected.   The  Commissioner  notes  that  the  tenant  made  a  specific
     allegation of overcharge on her garage rent in her initial complaint.     

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


          DOCKET NUMBER: ED 110388-RO
     ORDERED, that this petition be and the  same  hereby  is  denied  and  the
     Administrator's order be and the same hereby is affirmed.


                                             ELLIOT SANDER
                                          Deputy Commissioner


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