501 East 87th Street Realty Co., L.L.C. v. New York State..., 22 A.D.3d 294 (2005) 804 N.Y.S.

2d 20, 2005 N.Y. Slip Op. 07473

22 A.D.3d 294 Supreme Court, Appellate Division, First Department, New York. In re 501 EAST 87TH STREET REALTY COMPANY, L.L.C., PetitionerAppellant, v. NEW YORK STATE DIVISION OF HOUSING AND COMMUNITY RENEWAL, RespondentRespondent. Oct. 11, 2005.

West Headnotes (2)

[1]

Landlord and Tenant Changes in Facilities or Services Swimming pool on roof of apartment building was provided primarily for use of tenants in building, and therefore a required ancillary service, for purposes of Rent Stabilization Code; pool was reached by residential elevators, pool was listed as first amenity in rental brochure for building, pool was made available to tenants at reduced membership rate, and pools membership consisted of 60% tenants. Rent Stabilization Code, 2520.6, McK.Unconsol.Laws. 3 Cases that cite this headnote

Synopsis Background: Landlord brought petition to annul determination of state division of housing and community renewal finding that swimming pool and parking garage were required ancillary services. The Supreme Court, New York County, Harold B. Beeler, J., denied petition and landlord appealed. [2] Holdings: The Supreme Court, Appellate Division, held that: [1] swimming pool was a required ancillary service, and [2] parking garage located beneath apartment building was required ancillary service. Affirmed.

Landlord and Tenant Changes in Facilities or Services Parking garage located beneath apartment building was provided primarily for use of tenants in building, and therefore a required ancillary service, for purposes of Rent Stabilization Code, even though 57% of users of garage were non-tenants; garage was advertised in rental literature as linked to internal direct-dial communication system connecting apartments to
1

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501 East 87th Street Realty Co., L.L.C. v. New York State..., 22 A.D.3d 294 (2005) 804 N.Y.S.2d 20, 2005 N.Y. Slip Op. 07473

various locations on premises. Rent Stabilization Code, 2520.6, McK.Unconsol.Laws. 3 Cases that cite this headnote

Attorneys and Law Firms **20 Rosenberg & Estis, P.C., New York (Jeffrey Turkel of counsel), for appellant. David B. Cabrera, New York (Dawn Ivy Schindelman of counsel), for respondent. TOM, J.P., MARLOW, WILLIAMS, McGUIRE, JJ. Opinion *295 Judgment, Supreme Court, New York County (Harold B. Beeler, J.), entered August 20, 2004, which, inter alia, denied petitioner landlords application to annul respondent DHCRs determinations finding that a swimming pool and parking garage are required ancillary services, and dismissed the petition, unanimously affirmed, without costs. [1] [2] DHCRs finding that the swimming pool was provided primarily for the use of tenants in the building, and is therefore **21 a required ancillary service, is rationally supported by evidence that the pool is located on the roof of the building, reached by residential elevators, listed as the first amenity in the rental brochure for the building, made available to tenants at a ELLERIN,

reduced membership rate, and had a membership consisting of 60% tenants over the relevant period of time. The finding that the parking garage was provided primarily for the use of the tenants in the building, and is therefore a required ancillary service, is rationally supported by evidence that the garage is located beneath the building and was advertised in rental literature as linked to an internal direct-dial communication system connecting the apartments to various locations on the premises. The finding is not rendered irrational by the fact that in recent years an average of 57% of the users of the garage have been non-tenants (see Matter of Lyndonville Props. v. DHCR, 287 A.D.2d 413, 732 N.Y.S.2d 331 [2001], affg. N.Y.L.J., Feb 23, 2000, at 25; see generally Matter of Howard v. Wyman, 28 N.Y.2d 434, 438, 322 N.Y.S.2d 683, 271 N.E.2d 528 [1971] ). The governing provision of law focuses on whether the service was provided primarily for the use of the tenants, not whether the service was used primarily by the tenants. Thus, the Commissioners finding cannot be annulled simply because the percentage of users of the garage fell below 50 percent in certain years. In view of the foregoing, any error by the IAS court in invoking Multiple Dwelling Law 60, which was not invoked by DHCR, to sustain the determination with respect to the garage (see Matter of Scherbyn v. WayneFinger Lakes Bd. of Coop. Educ. Servs., 77 N.Y.2d 753, 758, 570 N.Y.S.2d 474, 573 N.E.2d 562 [1991] ), was of no consequence. Parallel Citations 22 A.D.3d 294, 804 N.Y.S.2d 20, 2005 N.Y.
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501 East 87th Street Realty Co., L.L.C. v. New York State..., 22 A.D.3d 294 (2005) 804 N.Y.S.2d 20, 2005 N.Y. Slip Op. 07473

Slip Op. 07473

End of Document 2012 Thomson Reuters. No claim to original U.S. Government Works.

2012 Thomson Reuters. No claim to original U.S. Government Works.