GI110272RT
                                  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





          ----------------------------------x          SJR No.:  6743
          IN THE MATTER OF THE ADMINISTRATIVE          ADMINISTRATIVE REVIEW
          APPEAL OF                                    DOCKET NO.:
                                                       IA110012RP
                                                      (GI110272RT)
            ELI GROSS AND VARIOUS TENANTS, 
                                                       RENT ADMINISTRATOR'S
                                                       DOCKET NO.:
                                   PETITIONER          DJ110039RP 
          ----------------------------------x     



            ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW


          On September 2, 1992, the above-named petitioner-tenant filed a 
          Petition for Administrative Review (PAR) of an order issued on July 
          30, 1992, by the Rent Administrator, concerning the housing accom- 
          modation known as 72-38 113th Street, Forest Hills, New York, 
          building-wide, wherein the Administrator determined that an alleged 
          recreation area is not a required service which must be maintained 
          by the owner.

          This proceeding was commenced by the filing by the tenant of an 
          objection to registration claiming, in substance, that an outdoor 
          recreation area had been omitted from the registration of building 
          services filed by the owner in 1984.  After the Administrator 
          determined that the area did not meet the criteria of a building- 
          wide service, the tenants filed a PAR and on July 29, 1993, the 
          Commissioner issued an order terminating the tenants' PAR finding 
          an owner is required to maintain all required services regardless 
          of whether the services are registered, and that it was unnecessary 
          to decide the issues raised in the PAR.  The Commissioner found 
          that under the Rent Stabilization Law and Code, an owner is 
          required to maintain all required services, the tenant may apply to 
          the Division for a rent reduction, and any dispute as to whether a 
          service is required or has been reduced will be determined in that 
          proceeding.

          Thereafter, the tenant challenged the Commissioner's order in an 
          Article 78 proceeding.  The Court, by order dated November 5, 1993, 
          remanded the proceeding to this Division for a final determination, 












          GI110272RT




          on the merits, of the tenants' objection to registration and the 
          request for a rent reduction pursuant to the complaint of a 
          decrease in building-wide services.

          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 initiated by the filing on September 21, 1984, 
          of an Objection To Rent/Services Registration by tenant 
          Eli Gross alleging as follows:

               Recreational facilities - entire rear of multiple 
               dwelling was originally fenced in recreational area.  
               Landlord removed and made parking lot, omitting reg- 
               istration of original service.  

               Storage space - storage space in basement included as 
               original building service, still being provided but 
               omitted as building service on the registration.

          On August 18, 1987 the owner answered the tenant's complaint saying 
          there was never any recreational area provided as a service.  
          Rather, the owner had converted a side lawn area to a legal parking 
          lot. The issue of storage space was resolved during that proceeding 
          and is of no consequence at present.  The owner also advised that 
          in a stipulation between the owner and tenant made in Civil Court 
          on August 13, 1985 in settlement of a non-payment proceeding,  the 
          tenant agreed to withdraw all complaints concerning the parking lot 
          and any other conditions "filed with any Municipal Department".

          The Administrator's Order and Determination dated December 10, 1987 
          terminated the proceeding on the basis that the tenant had not 
          responded to an agency notice dated September 1, 1987 and, in any 
          event, had withdrawn his objection when he agreed in the Court 
          approved stipulation to withdraw all pending complaints concerning 
          the creation of the parking lot.

          The tenant filed a PAR on January 13, 1988, stating that the Admin- 
          istrator was mistaken in deciding that the tenant had failed to 
          respond to an agency notice, that in fact, the tenant had re- 
          sponded.  He also contended that the August 13, 1985 stipulation 
          only restricted the tenant's filing of complaints with municipal 












          GI110272RT


          i.e., city, agencies and did not prejudice his right to file 
          complaints with state agencies.  In support of his position, the 
          tenant included a portion of a court transcript of a hearing held 
          on December 18, 1985, on a motion to direct the tenant to comply 
          with certain portions of the August 13, 1985 stipulation.  Page 
          three of the transcript contains the following statement of the 
          Judge which refers to a lease that had recently been entered into 
          by the owner and tenant:

               "This is without prejudice to the tenant proceeding 
               before the DHCR  to claim that the period [of the lease] 
               is illegal in that the rental is illegal or an over- 
               charge, anything he wants to do . . . .  This is without  
               . . . prejudice to him to commence such a proceeding 
               before the New York State DHCR."

               (emphasis added)

          The tenant argues that the August 13, 1985 settlement contained his 
          agreement to withdraw complaints that his "rights of health and 
          safety in his apartment were being violated," such as those filed 
          with the Health, Fire and Building Departments, but adds that "at 
          no time . . . did the tenant agree to withdraw the building wide 
          complaint against the owner for a decrease in services of the 
          recreational area".

          On February 1, 1988, the Administrator reopened the proceeding to 
          correct the error in the December 10, 1987 order wherein it was 
          stated that the tenant failed to respond to an Agency notice.

          This was done on notice to all parties and on February 18, 1988, 
          the tenant filed an additional answer, reiterating essentially that 
          the August 13, 1985 stipulation clearly states that "the settlement 
          is without prejudice to the tenant filing complaints before the 
          State DHCR" and that the owner is wrong when he says there was 
          never any recreational area provided as a service.  Included with 
          the answer was a decrease in services complaint joined in by 21 
          other tenants.

          In a reply dated February 26, 1988, the owner contends that the 
          tenant should not be allowed to convert an objection to services 
          registration into a complaint of a decrease in building wide 
          services since a decrease in rent is not an appropriate remedy for 







          an objection to registration; that the tenants who joined in the 












          GI110272RT

          decrease in services complaint in 1987 should not be permitted to 
          join at this late date in the tenant's objection to registration 
          which was filed in 1984, as the statute of limitations has passed 
          for those tenants; that logic dictates that the tenant's delay in 
          filing the decrease in services complaint really indicates there 
          was no issue or service to begin with; and, that the tenant with- 
          drew or was supposed to  withdraw all complaints filed with any 
          municipal department concerning the parking lot or any other 
          conditions in the premises.  The owner includes his attorney's 
          affirmation explaining that the stipulation was intended to include 
          all governmental departments with whom the tenant may have filed 
          such a complaint.  The owner further contends that even if the 
          agency considers the tenants' complaint on the merits, it is 
          completely lacking in merit, that the area was actually a patch of 
          grass surrounding the building, and had no landscaping, no benches, 
          or sitting area provided.

          On March 4, 1988, the Administrator determined that a recreational 
          area was not provided on the base date nor at any time thereafter, 
          and that there was no evidence presented that the owner provided 
          any facilities expected of a recreation area.

          On April 7, 1988, the tenant filed a PAR, containing all his 
          previous submissions to the agency.  The owner's answer 
          substantially reiterates the prior contentions as well.

          The PAR Order of September 29, 1989, remanded the proceeding to the 
          Administrator stating that it appeared that the Administrator's 
          determination was premised on  the ground that only one tenant had 
          objected to the claimed omission of recreational facilities as a 
          base date service, and that it was not until 1987, as part of a 
          reply answer, that the decrease in service complaint form was filed 
          by 21 tenants, and since neither side had submitted evidence of a 
          probative nature, the  Administrator was directed "to consider the 
          tenant's objection to the registration on the merits as it pertains 
          to the claimed omission of recreational facilities and to evaluate 
          on a full record whether or not the area in question was provided 
          for use by tenants on the base date as a rent included service".

          On remand, the tenant submitted an affirmation signed by 14 tenants 
          stating that the area in question was a recreational area, before 
          and after the base date until 1982, an affidavit from a former 
          tenant to the same effect, two photographs taken allegedly during 






          the summer of '51 and '54 of the purported recreational area, a 
          photograph of the area as it looks today, and a list of 52 signa- 
          tures of tenants opposing inadequate electrical service as well as 






          GI110272RT

          the destruction of the recreational area.  The tenant claims that 
          this list of tenants which is undated was submitted to the owner 
          back in 1982.

          The owner contended in its submissions, dated December 12, 1991, 
          the following:  that the burden of proof is on the tenant and that 
          the owner need not prove what never existed; that the statements of 
          the owner's porter, architect and contractor who have nothing to 
          gain in this matter are more reliable than the self serving state- 
          ments of the tenant; that the tenant's complaint was withdrawn with 
          prejudice, under the August 1985 stipulation, and that the tenant 
          received a partial waiver of rent arrears, that the transcript of 
          the December 1985 hearing relates only to reserving the tenant's 
          rights with regard to a complaint of rent overcharge; that the 
          agency at all times has treated this complaint as an objection to 
          registration and not as a building-wide service complaint and that 
          the owner cannot in this type of proceeding be directed to provide 
          a service or reduce the rent.  The owner also claims that the 
          photos submitted are not probative and that the untimely claim of 
          the additional tenants serves to prove that their motivation is not 
          to correct an erroneous registration but to gain an undeserved 
          financial windfall.  

          On July 30, 1992, the Administrator issued an order again dismis- 
          sing the tenant's complaint.  The Administrator determined that the 
          area in question was an open area with grass and trees and a bench, 
          but that the area did not meet the criteria of a building wide 
          service.

          In the current PAR dated September 2, 1992, the tenant contends 
          that the Administrator failed to consider the overwhelming evidence 
          consisting of affidavits, affirmations, photographs and the peti- 
          tion signed by the tenants, that the statements of the owner's 
          contractor, et al. were false, and that the administrator's finding 
          that the area had grass and trees is consistent with its being a 
          recreational area.  In the PAR, the tenant also contends that a 
          complaint of a decrease in building-wide services including an 
          application for rent reduction had previously been submitted, that 
          his filing of the original tenant objection to registration was not 
          intended to be a single objection but a complaint intended to 
          include all the tenants later joining in the complaint.






          A copy of the tenants' PAR was served on the owner.  By letter of 
          February 25, 1993, the owner's attorney requested additional time 
          to answer until May 26, 1993, however, no further reply was 
          received.













          GI110272RT

          After careful consideration in accordance with the order of the 
          Court to decide the tenants' PAR on its merits, the Commissioner is 
          of the opinion that the petition should, again, be denied.

          The Commissioner finds that a rational reading of the August 13, 
          1985 stipulation indicates by its language that it was intended to 
          put to rest all of the tenant's complaints regarding the creation 
          of the parking lot.  It expressly required the tenant to withdraw 
          all pending complaints, and, although they were described as 
          complaints filed with municipal departments, the intent is clear.  
          The stipulation cannot be read to mean that the tenant could not 
          complain to the City agencies about the parking lot but could 
          complain to the State agency about it.  The Commissioner notes that 
          the term "municipal", in general, and in this case, does not refer 
          only to city.  The word is defined in Webster's New Collegiate 
          Dictionary, G. & C. Merrian Co., 1956, as "pertaining to internal 
          or government affairs of a state, kingdom, or nation.  It is 
          described in Black's Law Dictionary as follows: 

               "In its broader sense, it means pertaining to the public 
               or governmental affairs of a state or nation or of a 
               people."

          The Commissioner rejects the tenant's alternative rationale that 
          the pending complaints refer to the parking lot issue and thus 
          should not act to bar a complaint relating to the recreation area 
          issue.  They are, after all, the same issue.

          After the August 13, 1985 stipulation was signed, the record 
          reflects that the owner and tenant entered into a renewal lease.  
          The Judge's statements at the December 18, 1985 hearing deal with 
          the tenant's right to file an overcharge complaint or complaint 
          concerning the lease period with DHCR.  There is no indication that 
          the parties intended to preserve the parking lot issue.

          In addition, the tenants have not shown that the area functioned as 
          a recreational area on the base date despite the affirmation of 14 
          tenants.  The tenants' statements describe the area only in the 
          most general terms, e.g. "seating and play areas", without a true 






          description of what made it a recreation area.  There has been no 
          showing that the owner provided equipment or facilities expected of 
          a recreation area.  One of the photos which dates back to the early 
          1950's, submitted in the proceeding below, shows the side facade of 
          the building, and not the rear facade, which is where the tenant 
          alleges the recreational area was, and there is no evidence of a 
          playground.  The photo submitted which allegedly shows the area 






          GI110272RT

          today is no evidence of whether a recreation area was a base date 
          service. 

                         
          THEREFORE, in accordance with the provisions of the Rent Stabili- 
          zation Law and Code and the Emergency Tenant Protection Act of 
          1974, it is 

          ORDERED, that the Commissioner's Order and Opinion terminating 
          proceeding dated July 29, 1993, is revoked, that this petition be, 
          and the same hereby is, denied, and that the Rent Administrator's 
          order be, and the same hereby is, affirmed in accordance with this 
          Order and Opinion.
           

          ISSUED:





                                                                                                                         
                                                       LULA M. ANDERSON  
                                                       Deputy Commissioner








    

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