GA610013RO
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. GA610013RO
: DRO DOCKET NO. ZAE610155R
3333 OPERATING CORP. TENANT: DAVID BROOKNER
PETITIONER :
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ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW AND
MODIFYING RENT ADMINISTRATOR'S ORDER
On January 2, 1992, the above-named petitioner-garage operator
filed a Petition for Administrative Review against an order issued
on November 29, 1991, by the Rent Administrator, 92-31 Union Hall
Street, Jamaica, New York, concerning the housing accommodations
known as 3333 Henry Hudson Parkway, Bronx, New York, Apartment No.
18K, wherein the Rent Administrator determined that the two garage
spaces utilized by the tenant - space 308 and 109 were subject to
the Rent Stabilization Law, found a rent overcharge, and directed
the owner to roll back the rent to the lawful stabilization rent,
and refund or credit excess rent paid including treble damages on
overcharges collected on and after April 1, 1984. A total
overcharge of $6,345.41 was found for garage space 308 and a total
overcharge of $1,372.73 was found for garage space 109.
The issue herein is whether the Rent Administrator's order was
warranted.
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.
In this petition, the garage operator alleges in substance that
the tenant did not file his overcharge complaint until February,
1987 and that treble damages may not be based upon an overcharge
occurring more than two years before the complaint was filed; and
that the tenant gave up his garage spaces before the deemed leases
for such spaces had concluded so that the tenant should remain
responsible for the garage spaces until the end of the deemed lease
terms. In addition, the garage operator repeated all objections it
made in the previously decided petition - CH610001RO et. al. -
wherein a final order was issued on June 18, 1992.
The Commissioner is of the opinion that this petition should be
denied and that the Rent Administrator's order should be modified.
With regard to the specific allegations raised by the garage
operator in this proceeding, the record shows that the tenant in
GA610013RO
fact filed his overcharge complaint in 1986 and not in 1987 as
alleged by the garage operator so that treble damages were correctly
imposed from April 1, 1984. In addition overcharges were not
imposed for periods after the tenant had vacated the garage spaces
and there is no provision in the Rent Stabilization Law and Code to
impose garage charges for a deemed lease period when the tenant has
already vacated such garage spaces. Accordingly, these contentions
of the garage operator must be denied.
With respect to the other contentions of the garage operator
which were also raised in CH610001RO et. al., the Commissioner will
decide such issues the same as in the determination in that
proceeding. The Rent Administrator's order finding a rent
overcharge and awarding treble damages is modified only to the
extent of deleting reference to the building receiving Section 421
tax benefits and deleting the cooperative corporation as an owner.
In all other respects the Rent Administrator's order is affirmed.
The garage operator's argument that garages are not subject to
regulation is denied based on a finding that from 1973 to 1980 there
was at least indirect ownership between the building owner and the
garage operator and a subsequent transfer of the garage operation to
an independent contractor did not remove the garage from rent
stabilization regulation; that the independent contractor and the
cooperative corporation are not liable for refunding the overcharge
although the current and former owners may seek reimbursement from
the garage operator in an action commenced in a court of competent
jurisdiction; that the former building owner, managing agent, co-op
sponsor and holder of unsold shares are jointly and severally liable
for refunding the overcharge; that the treble damages award is
affirmed on a finding that the overcharges were willful and the
alleged good faith belief that the garage spaces were not subject to
rent stabilization was not reasonable; and that the use of deemed
leases by the Rent Administrator is affirmed because the increases
in the garage rents did not coincide with apartment leases.
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
increases.
The Commissioner has determined in this Order and Opinion that
Ambassador Associates, Hampton Management Corp., and Whitehall
Realty Co. are jointly and severally liable for overcharges of
$7,718.14 ($6,345.41 for garage space 308 plus $1,372.73 for garage
space 109). This Order may, upon expiration of the period for
seeking review of this Order and Opinion pursuant to Article
GA610013RO
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.
THEREFORE, in accordance with the provisions of the Rent
Stabilization Law and Code, it is
ORDERED, that this petition for administrative review be, and
the same hereby is, denied, and, that the order of the Rent
Administrator be, and the same hereby is, modified to delete
reference to the subject building being a Section 421 building and
to remove the "Whitehall Tenants Corporation" as an "owner" from the
caption of the order. It is noted that the garage operator
appealing herein was never included in the caption of the order as
an owner. In all other respects, the Rent Administrator's order is
affirmed.
ISSUED
JOSEPH A. D'AGOSTA
Deputy Commissioner
GA610013RO
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