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
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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
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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,
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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
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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
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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
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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
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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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