EH 810238-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.:
                                        EH 810238-RO
       ANTHONY GIANNINI,                DISTRICT RENT
                                        ADMINISTRATOR'S DOCKET
                                        NO.:
                        PETITIONER      YDJ-8-1-0215-R
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  ORDER AND OPINION GRANTING PETITION FOR ADMINISTRATIVE REVIEW
           IN PART AND REMANDING THE PROCEEDING TO THE
                   DISTRICT RENT ADMINISTRATOR
                                
                                
On  August  9,  1990, the above-named owner filed a petition  for
administrative review of an order issued on July 27, 1990,  by  a
District  Rent Administrator concerning the housing accommodation
known  as  2nd Floor, 46 Alta Avenue, Yonkers, New York,  wherein
the  owner was directed to refund overcharges and interest in the
amount of $2,717.38.

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 petition for review.

On  October 16, 1989 the subject tenant filed a complaint of rent
overcharge  with  the Division of Housing and  Community  Renewal
(DHCR)  alleging,  inter alia that garage and  attic  space  were
included  in the apartment rent of $425.00 monthly when  he  took
occupancy in March of 1984.

On  November 10, 1989 a copy of the tenant's complaint was served
on  the  owner who was directed to submit a copy of the  tenant's
lease,  a copy of the lease immediately prior thereto and a  copy
of the most recent apartment registration.  The owner was further
advised:

               "No  guideline increase in rent  may  be
          charged   unless  the  apartment   has   been
          registered  pursuant to the  Omnibus  Housing
          Law  of  1983,  the Landlord certifying  that
          services are being maintained."
          
On  November  15,  1989 the owner interposed  an  answer  to  the
tenant's  complaint alleging that the tenant moved in  without  a
lease  and  that  the garage and attic space  were  not  services
included  in the tenant's rent; the owner stated that  the  first
lease  delivered to the tenant was for the term November 1,  1986
through  October 31, 1989 for a rental of $485.00 which  included
garage  space.  A copy of that lease was attached to the  owner's
answer.  The owner did not submit the tenant's current  lease  or
the most recent apartment registration.

On  November  16, 1989 the tenant submitted a supplement  to  his
original complaint alleging inter alia that on November  1,  1986
his  rent was raised to $485.00 and that by letter dated November
2, 1989, the owner advised the tenant that he had failed to pay a
$100.00  a  month increase for the garage and attic  space  which
were  not included in his lease. The tenant further alleged  that
garage  and  storage space had been included in  the  rent  since
March 1, 1984.  Attached to the tenant's letter was a copy of the
tenant's  November  1,  1986 lease and  a  copy  of  the  owner's
November 2, 1989 letter.

On  November  29,  1989  the  owner filed  the  annual  apartment
registrations for the subject apartment.  The apartment  had  not
previously been registered.

On  December  18,  1989 the tenant filed another overcharge  com-
plaint  objecting to the apartment registration and to the  rents
and  services  stated  therein by the  owner.   Attached  to  the
tenant's complaint were photocopied rent checks dated January  1,
1987,  February  1,  1987 and March 1, 1987  in  the  amounts  of
$425.00,  a  copy  of the owner's November 2,  1989  letter  (cf.
supra).

On  April  6,  1990 the DHCR served upon the owner  a  Notice  of
Pending Default advising the owner;

               "On  November 10, 1989 you  were  served
          with a copy of the tenant's complaint of rent
          overcharge.   At the time you  were  informed
          that  the DHCR required a copy of the present
          tenant's  lease  and  a  copy  of  the  lease
          immediately prior thereto.  You must submit a
          copy of the tenant's initial lease and a copy
          of  the prior tenant's lease.  Also submit  a
          copy  of the 1984 Apartment Registration (RR-
          1) with proof of service or a notarized affi-
          davit  that  it  was served  on  the  subject
          tenants. Failure to submit a response  within
          twenty  (20) days may result in the following
          penalties being imposed:"
          
On  June  27,  1990 the owner was again served with a  Notice  of
Pending Default.

On July 27, 1990 the District Rent Administrator issued the order
here  under review finding that garage and attic space were  ser-
vices  included  in the rent since March 1, 1984  and  thus  were
"essential  services", establishing the legal regulated  rent  at
$425.00 from March 1, 1984 to November 30, 1989, finding that the
tenant had been overcharged since March 1, 1987 through July  30,
1990  and  directing  the  owner to  refund  $2,717.38  including
interest.

In  his  petition  for administrative review the  owner  requests
reversal  of the District Rent Administrator's order alleging  in
substance  that the November 29, 1989 filing of apartment  regis-
trations cured the violation and that rent should be restored  to
$485.00  as of November 1, 1989.  The owner further alleges  that
garage  and attic space were originally given to the tenant  gra-
tuitously and that, later, the tenant was charged a separate  fee
for  them.   The owner also alleges that the tenant  fraudulently
added  the words "garage included" to the November 1, 1986  lease
without  the owner's consent and that the tenant never  protested
the apartment registration.

In  answer  to  the owner's petition the tenant states  that  the
allegations made in the owner's petition are false.

After  careful consideration the Commissioner is of  the  opinion
that  this petition should be granted in part, that the  District
Rent Administrator's order should be affirmed as modified herein,
and   that   the  proceeding  should  be  remanded  for   further
processing.

The Commissioner notes that the City of Yonkers became subject to
the Emergency Tenant Protection Act on July 1, 1974.

The  owner  has  asserted that the services of garage  and  attic
space  were  not included in the rent when the tenant took  occu-
pancy  in  March of 1984 but that these services  were  added  in
November  1986.   In  support  of  this  proposition  the   owner
submitted  the  lease  for the period November  1,  1986  through
October  31,  1989  which bears the notation (in  two  locations)
"with  garage included."  The Commissioner notes that  the  owner
signed this

lease  and accepted a rent of $485.00 thereunder.  The owner  has
alleged that the sixty dollar increase in rent was based  on  the
inclusion  of these services (cf. owner's answer of November  15,
1989).  Accordingly, the Commissioner rejects the owner's con-
tention, made for the first time on administrative appeal and  in
contradiction of his original answer, that the words "with garage
included" were added by "the tenant without the landlord's
consent,"  and, therefore, also finds that the lease  was  not  a
fraudulent document.

If,  as  the  tenant contends, the services of garage  and  attic
space  were included in the rent when he took occupancy on  March
1,  1984,  then, the owner's sixty dollar per month increase  for
their inclusion in the 1986 lease is an overcharge.

If, on the other hand, garage and attic spaces were not essential
services, and the owner in 1986 wished to include these  services
in  consideration of an increased rental, then the collectibility
of  that increase (and any other increase in rent) depended  upon
the  owner's  compliance with Sections 2509.1 and 2509.2  of  the
Tenant  Protection Regulations (Registration of Housing  Accommo-
dations).  It is undisputed that prior to November 29,  1989  the
owner had not complied with these sections.

Section 2509.3 of the Tenant Protection Regulations provides:

               "Penalty  for  failure to register.  The
          failure  to file a proper and timely  initial
          or  annual  rent  registration  statement  as
          required by this part shall, until such  time
          as  such registration statement is filed, bar
          an  owner from applying for or collecting any
          rent in excess of the legal regulated rent in
          effect  on  the  date of the  last  preceding
          registration  statement  or,   if   no   such
          statements   have  been  filed,   the   legal
          regulated rent in effect on the date that the
          housing accommodation became subject  to  the
          registration requirements of the  part.   The
          filing of a late registration shall result in
          the    prospective   elimination   of    such
          sanctions."
          
Accordingly, the Commissioner finds that for the period March  1,
1984  through November 30, 1989 the owner did not have the  right
to  increase  the rent for any reason and that the District  Rent
Administrator's calculations of overcharge and interest for  that
period are correct and should be affirmed.  ($485.00 - $425.00  =
$60.00 x 33 months + interest = $2,237.10.)


In  regard  to  the  period subsequent to December  1,  1989  the
District Rent Administrator's overcharge determination should not
be  affirmed  because  the owner cured the violation  of  Section
2509.1  by  his  late  filing of the apartment  registrations  on
November  29, 1989.  Pursuant to Section 2509.3 this resulted  in
the   prospective  elimination  of  the  sanctions.   During  the
proceeding under review the tenant alleged that garage and  attic
space  were  included in his rent on March 1,  1984.   The  owner
denied that these were included essential services.  Although the
administrator  found  them to be services, the  Commissioner,  by
this order, vacates that finding.  Neither party established by a
preponderance of the evidence that these were essential services.
Furthermore, the administrator's determination was without  legal
basis.

Section 2500.3(d) of the Tenant Protection Regulations provides:

          (d)  "Essential  services."   Those  services
          which  the landlord was maintaining, or which
          he  was  obligated to maintain,  on  May  29,
          1974. These may include, for example, any  or
          all  of  the  following:  repairs, decorating
          and  mainten-ance, heat, hot and cold  water,
          telephone,   elevator  service,  removal   of
          refuse, and garage and parking facilities."
          
The  Commissioner  notes  that  the District  Rent  Administrator
conducted  no fact-finding whatsoever on the issue of whether  or
not  garage  and  attic space were essential services  consistent
with this definition.

It  is  additionally  noted  that  the  tenant's  submissions  of
November  16, 1989 and of December 18, 1989 were not served  upon
the owner thereby depriving the owner of his due process right to
reply thereto or to submit further evidence.

Accordingly,  the Commissioner, while affirming that  portion  of
the  overcharge determination mentioned hereinabove,  is  of  the
opinion  that this proceeding should be remanded to the  District
Rent Administrator for the purpose of determining whether or  not
garage  and attic space are essential services within the meaning
of  the  Regulations.  On remand the administrator  should  serve
each party with all submissions of the other.

If  it  is  determined that garage and attic space were essential
services included in the rent according to the definition of same
in the Regulations, then the administrator should continue to


process the tenant's overcharge complaint as it pertains  to  the
post  December 1, 1989 period.  (Clearly the owner would not have
had  the right to collect an increase for adding the services  if
they already were included.)

If, on remand, the administrator determines that garage and attic
space  were  not  essential services, then, clearly,  the  owner,
having  cured the violation by registering the apartment, was  no
longer  barred  from collecting increases and  could  begin  col-
lecting an increased rental on December 1, 1989.  If such is  the
case,  further examination of the tenant's overcharge allegations
is not necessary.

In  either  event, the overcharges and interest  for  the  period
March  1,  1984 through November 30, 1989 ($2,237.10)  were  cor-
rectly  calculated and the owner is directed to refund or  credit
the tenant with this amount.


THEREFORE,  in accordance with the Tenant Protection Regulations,
and the Emergency Tenant Protection Act of 1974, it is

ORDERED, that this petition be, and the same hereby is granted in
part and that the District Rent Administrator's order be, and the
same hereby is modified and it is further

ORDERED, that this proceeding be, and the same hereby is,
remanded to the District Rent Administrator for further
processing in accordance with this order and opinion.


ISSUED:




ELLIOT SANDER
                                         Deputy Commissioner
    

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