Opinion
901501/2017
01-23-2018
ROYAL TERRACE ASSOCIATES, L.P., Petitioner, v. Bhagwandai SINGH, Respondent.
DANIELS NORELLI CECERE & TAVEL, P.C., BY: ALLISON HEILBRAUN, ESQ., 272 Duffy Avenue, Hicksville, New York 11801, 718.459.6000, Attorneys for Petitioner. BHAGWANDAI SINGH, Respondent Pro Se.
DANIELS NORELLI CECERE & TAVEL, P.C., BY: ALLISON HEILBRAUN, ESQ., 272 Duffy Avenue, Hicksville, New York 11801, 718.459.6000, Attorneys for Petitioner.
BHAGWANDAI SINGH, Respondent Pro Se.
Sabrina B. Kraus, J.
BACKGROUND
This summary nonpayment proceeding was commenced by ROYAL TERRACE ASSOCIATES LP (Petitioner) against BHAGWANDAI SINGH (Respondent) seeking to recover possession of Garage Space 152, at 2020 Grand Concourse, Bronx, NY 10447 (Subject Premises).
PRIOR RELATED PROCEEDINGS
This is the third summary proceeding trial that has taken place between the parties since 2010.
A holdover proceeding under index Number 901819/2010, was tried in April 2011. The trial court awarded Petitioner a judgment of possession. Respondent appealed and the Appellate Term reversed and ordered a new trial, finding the record was insufficient to determine whether the Subject Premises was ancillary service and governed by Rent Stabilization [ Royal Terrace Associates LP v. Singh 39 Misc 3d 135(A) ].
No new trial ever took place under that Index Number.
A prior summary nonpayment proceeding was commenced by Petitioner under Index Number 901746/16, and sought rent arrears in the amount of $137.96 per month. The proceeding was discontinued in December 2016, pursuant to a stipulation providing that the parties agreed to meet and resolve any disputed sums (Ex E–2).
In early 2017, Petitioner commenced a second holdover proceeding (Index Number 900619/17), alleging that Respondent used the Subject Premises to house an unregistered car, that had no license plates or valid inspection, and was used solely for storage of personal items. Petitioner asserted that Subject Premises were exempt from Rent Stabilization because the Subject Premises is "commercial in nature and contained within a parking garage." After a trial in June 2017, this Court dismissed the proceeding holding Petitioner had failed to offer evidence on the issue of whether the space was an ancillary service under Rent Stabilization, and had failed to prove a prima facie case [ Royal Terrace Assocs. LP v. Singh 56 Misc 3d 1203(A) ].
This non-payment proceeding followed.
PROCEDURAL HISTORY
Petitioner issued a rent demand in September 2017, seeking $976.82 at a rate of $137.96 per month. The petition was filed on September 27, 2017. The petition alleges in paragraph 8 that the Subject Premises are not subject to Rent Stabilization, because they are rented for a business purpose.
Respondent appeared pro se on October 11, 2017, and filed an answer asserting two affirmative defenses, that she was not served with the notice of petition and petition, and that Petitioner owes her money because of a rent overcharge. No counterclaim was asserted.
Respondent withdrew the defense regarding service at trial.
On January 10, 2018, the trial took place. The proceeding was adjourned to January 19, 2018 for the submission of post trial memoranda, and on January 19, 2018, the court reserved decision.
Respondent's post trial submission consisted of additional evidentiary documents and was not considered by the court. The court limits its decision to documents entered into evidence prior to the conclusion of the trial.
SUMMARY OF EVIDENCE AT TRIAL
Petitioner is the owner of the subject building, pursuant to a deed dated September 28, 1995 (Ex 1).
Respondent is the rent-stabilized tenant of record for apartment 6B at 2020 Grand Concourse, Bronx, New York, 10457 (the Apartment), pursuant to an initial lease dated November 1, 2001, for at a preferential monthly rent of $900.00 (Ex 2). Respondent's initial lease makes no reference to the Subject Premises, and no reference to garage space being provided in connection with the rental of the Apartment.
The Apartment lease has been renewed in writing several times. The 2003 and 2005 renewals reference garage tax in a handwritten notation (Ex 3 & Ex 4). The handwriting was identified as the writing of the mother of Elysa Halpern. Elysa Halpern (EH) testified that her mother handled all renewal leases for the building and often highlighted important points in red ink.
In 2006, Respondent was unable to pay her rent on the Apartment and Petitioner commenced a summary nonpayment proceeding under Index Number L & T 31156/06. Respondent requested that Petitioner further lower her already preferential rent so she could apply for assistance with the arrears. Petitioner provided Respondent with a new lease, dated July 2006, for a one year term, at a lowered monthly rent of $1000.00 (Ex K) The signatures on the riders are dated October 3, 2006.
Respondent submitted a letter dated July 26, 2006 (Ex I), stating that if Respondent got a roommate and her rent was lowered from $1050.00 per month to $1000.00 per month, then Respondent would qualify for the FEPS
The entire lease does not appear to have been submitted, but the first page was submitted along with riders executed by both parties affirming the amount of the preferential rent.
Respondent testified that EH's father gave her this document, at her request, to support Respondent's application for FEPS to pay the arrears. Petitioner also gave Respondent a letter from stating that she lived at the Apartment with her daughter and that Respondent's was currently $1000.00 per month (Ex J).
The letter is dated January 22, 2006.
Petitioner amended its 2007 registration to provide for a legal rent of $1134.24 and a preferential rent of $1000.00 (Ex C).
Shortly before the July 2006 lease was executed in October 2006, the parties executed the first written agreement for the Subject Premises on September 27, 2006 (Ex 12A). The agreement provides for a one year rental of the Subject Premises from July 2006 through June 2007 at a monthly rent of $102.07, plus tax, and specifies that the charge is in addition to and separate from the rent paid for the Apartment. A second agreement for the Subject Premises was executed by the parties for a two year period, to run concurrent with the 2007 Apartment renewal (Ex 5), at a rate of $109.47 plus sales tax of $11.35 (Ex 12B).
No further written agreements were executed for the Subject Premises.
Respondent was approved for the Disability Rent Increase Exemption (DRIE) program in January 2008. Respondent submitted a document evidencing same (Ex L). Respondent's rent was frozen, pursuant to the DRIE program at $1000 effective August 1, 2007.
A 2009 renewal was executed for the Apartment (Ex 6) for a two year period through June 30, 2011for a rent of $1163.66. A handwritten notation specifies that a separate garage lease expires June 30, 2009.
Three additional Apartment renewals were submitted into evidence for 2013–2015 at a rent of $1264.66 (Ex 7), for 2015–2017 at a rent of 1299.43 (Ex 8), and for 2017 through 2019 at a rent of $1325.42 (Ex 9). None of these renewals make any reference to garage space or charges.
Respondent submitted a building wide registration effective April 1, 2017 into evidence (Ex B). It is a certified DHCR printout which lists the legal registered rent Respondent's rent for Apartment $1473.66, a preferential rent of $1299.43, and actual rent paid as $1145.42.
Respondent also submitted into evidence a 2002 Annual Apartment registration that shows effective February 2002 a $90 charge was being added to the rent in the initial lease and the increase was for garage space (Ex E).
TESTIMONY OF THE PARTIES
Elysa Halpern
EH testified for Petitioner. EH testified that she had been a property manager for the subject building for 10–11 years, and that Respondent's tenancy commenced during a period where EH's father was managing the building. Respondent had been living in the Apartment prior to the execution of the 2001 vacancy lease, but when the tenancy of the prior tenant of record ended, Petitioner agreed to give Respondent a lease in her own name.
EH had no personal knowledge as to when Respondent first began to lease garage space from Petitioner. The first time there was documentation in the tenant file regarding a garage space was in connection with the first lease renewal executed by Respondent for the Apartment which had a reference to parking tax for the garage, and an increase in $90.00 per month for garage space.
The court found EH to be a very credible witness.
EH testified that Respondent had filed a rent overcharge claim with DHCR which was dismissed. A copy of the order denying the complaint was submitted into evidence (EX 10). DHCR found that there was no overcharge. Respondent filed the overcharge complaint on March 6, 2009. DHCR determined that the base date for the complaint would be March 6, 2005 and that the base rent was $1,171.88, but Respondent paid a preferential rent of $1064.25. DHCR did not consider documents prior to the base date, other than the initial lease agreement. Finally the DHCR order contained a note which provided "In regards to the tenant's complaint about the owner's failure to maintain services in the subject apartment, the tenant is advised to file an RA–81 application for a rent reduction based upon decreased service(s)—individual apartment with this agency."
There was no evidence before the court as to whether the issue of the garage rental was addressed within the context of the DHCR complaint.
Petitioner also submitted a rent ledger for the Subject Premises for January 2017 through January 2018 (Ex 11) . The ledger shows monthly charges of $125 plus tax of $12.96, and shows payments by Respondent at said rates through February 2017.
The ledger states that it is for apartment 152, which the court assumes is a typographical error.
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EH testified that the initial lease between the parties did not include garage space and if had been included there would have been a reference to sales tax as all garage rent is subject to New York State Sales tax. EH testified that the first document in the tenant file referencing a garage charge was when the initial lease was renewed. That renewal lease shows that the initial rent was increased by $90.00 for garage space and also has a reference to sales tax.
EH testified that Respondent has been charged a separately for the garage space since 2007. EH testified that she believed the charge for the garage was separated from the monthly rent charge at Respondent's request, because DRIE benefits do not extent to garage charges. EH also testified that Petitioner eventually separate garage fees from the apartment leases because they were trying to be consistent about having separate leases for apartment rentals and garage space.
Respondent paid the charge separately for years. Petitioner increased the rent for the garage space from $109 to $125, on or about July 2009, after the expiration of the 2007 agreement for the Subject Premises (Ex 12B). Petitioner had offered Respondent a lease at said amount, but Respondent never signed the lease. Respondent however did pay a separate charge of $125.00 per month for the Subject Premises through February 2017.
At the close of EH's testimony, Petitioner moved to amend the petition to include all sums due through January 2018. That motion was granted by the court.
Paragraph 8 of the petition alleges that the Subject Premises are not subject to Rent Stabilization because the premises is rented for business purposes.
Petitioner made a motion to amend the pleadings to conform to the proof at trial and specifically, to amend paragraph 8 of the petition to allege that the Subject Premises are subject to rent guidelines increases based on the renewal leases in evidence. Respondent did not oppose said motion, and the court reserved decision on the motion.
Bhagwandai Singh
Respondent testified on her own behalf. Respondent acknowledged she never alleged at DHCR that the rent for the apartment included rent for the garage.
Respondent alleges that the garage is an ancillary service. Respondent testified that she first requested a garage space from Petitioner in 1999, when she alleges she purchased a car from EH's father Alan Halpern (AH). This was prior to the commencement of her tenancy in the Apartment, but not prior to her occupancy in the Apartment. Respondent testified that there were no available spots at that time so she rented garage space elsewhere but that AH promised her when a spot became available he would let her know.
AH did contact her, after the commencement of her tenancy to let her know a spot had become available. They agreed upon a rental of $90 plus tax, for a total of $109.00. This was to be paid over and above the rental amount for the Apartment. Respondent acknowledges that she signed two leases for the Subject Premises, and that she paid the fees without objection for many years.
Respondent's testimony was difficult to follow, at times it was contradictory or incoherent. Respondent testified that she does not owe any monies for the Subject Premises, because it was included in her rent, but she offered no credible explanation for why she payed for years, even while litigating with Petitioner regarding the rent both in housing court and at DHCR, without ever claiming that the Subject Premises was included in the Apartment rent. Respondent testified that she did not raise the issue in the overcharge case because that complaint was based on the Apartment rent not the garage rent. Respondent testified that she made years worth of payments, even though she did not owe the money, because she did not want to be harassed by Petitioner. Respondent testified a few minutes later that she had continued to make the payments because she trusted Petitioner. Respondent testified that she stopped paying because the taxes of the garage rent continued to increase. The court did not find Respondent's testimony credible.
Respondent acknowledged that the car parked in the Subject Premises has not been moved for over four years and that she uses the car for storage purposes. Respondent acknowledged the vehicle has no license plates, is not insured, and can not operate.
The court recalled EH, after Respondent's testimony, in order to try and amplify the record. In response to the court's questions EH testified that there are approximately 69 apartments in the subject building, and 15 garage spaces. EH testified that 11 of the spaces are rented to tenants in the building and three spaces are rented to people who do not live in the building. EH testified that approximately half of the building tenants who rent spots are rent stabilized tenants, and that three or four of the rent stabilized tenants do have the charge for parking incorporated in their leases.
Based on the foregoing, the court finds that the Subject Premises was not part of the parties' original lease agreement, but was rented one year after the commencement of the tenancy. The parties always intended to have the rental of the Subject Premises be over and above the Apartment rental, although in some early few years, the renewal leases did reference the garage space. Respondent needed to have the amounts separated to qualify for programs like FEPS and DRIE. Petitioner accommodated her request. Two separate lease agreements for the Subject Premises were executed in 2006 and 2007. After the expiration of the 2007 lease, Petitioner offered a renewal at $125 per month, plus tax. While Respondent did not sign the renewal she has paid said amount from that date through February 2017.
DISCUSSION
The provision of a parking space can be considered an ancillary service for rent stabilized tenants, where parking is provided in connection with the leasing or use of their apartment (110–15 71st Road Associates, LLC v. DHCR 54 AD3d 679 ).
§ 2520.6 (r)(3) of the Rent Stabilization Code defines Ancillary Services as services not contained within the individual housing accommodation which the owner was providing on the applicable base dates plus and any additional space and services provided thereafter including garage facilities.
Rent Stabilization Code § 2520.6(r)(4)(xi) further provides in pertinent part:
Where ... 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 ..... between the operator of such service and 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.
Where a service is provided primarily for the use of the tenants, it is a required ancillary service ( Matter of Bruckner Realty LLC v. Cruz 139 AD3d 413, 413 ; aff'd, 28 NY3d 1138 ).
The court finds, based on the credible evidence at trial, that the rental of the Subject Premises is an ancillary service provided to Respondent in connection with the rental of her apartment and is subject to Rent Stabilization. The garage is owned and operated by Petitioner, that there is a separate charge for the service, and that such service is provided primarily for the use of the tenants of the subject building ( Netherland Operating Corp. v. Eimicke 135 AD2d 352 )..
Therefore any rent increases for the Subject Premises are limited by Rent Stabilization Guidelines. In making said determination, the court has considered all of the evidence admitted at trial, as events and the rental history may be considered going back beyond four years for the purpose of determining whether the Subject Premises is subject to rent stabilization [ 9 NYCRR 2526.1(a)(iii) ; East West Renovating Co. v. New York State Division of Housing and Community Renewal 16 AD3d 166,167 ].
Petitioner's motion to conform the pleadings to the proof is therefore granted, on consent of Respondent, and based on the court's finding that the Subject Premises are subject to Rent Stabilization.
While the regulatory status of a premises may be challenged at any time during a tenancy, challenges to the level of rent charges must be limited to a four year period ( Taylor v. 72A Realty Associates, LP 151 AD3d 95 ). Having determined that the Subject Premises is subject to Rent Stabilization, the legal rent for the Subject Premises is the rent charged and paid on the base date, plus any lawful increases. For the purposes of this proceeding, the base date is October 2013, four years prior to the date Respondent filed her answer asserting rent overcharge as an affirmative defense ( Grimm v. DHCR 15 NY3d 358, 365 ; 9 NYCRR 2526.1 [a][3][i] ). The court may not consider any documents prior to said date in determining the legal rent (Id ; CPLR 213–a ).
Petitioner sues for $137.16, which is arrived at by a rent charge of $125.00, plus $12.96 tax. This is the same amount Respondent has been paying since 2009, when Petitioner last increased the rent for the Subject Premises. As a result the rent sought is a legal rent and Respondent's affirmative defense of rent overcharge is dismissed.
The evidence at trial shows Respondent failed to pay rent for the Subject Premises for March 2017 through January 2018, a total of eleven months (Ex 11). Petitioner is entitled to a final judgment of money and possession in the amount of $1375.00 for the monthly rent. Issuance of the warrant is stayed five days for payment. Petitioner is further entitled to a money judgment in the amount of $142.56 for the tax due on the garage rental for said months.