Netherland Operating Corp. v. Eimicke, 135 A.D.2d 352 (1987) 521 N.Y.S.

2d 245

135 A.D.2d 352 Supreme Court, Appellate Division, First Department, New York. In re Application of NETHERLAND OPERATING CORP., PetitionerAppellantRespondent, For a Judgment etc., v. William EIMICKE, etc., RespondentRespondentAppellant, and Century Towers Associates, Proposed IntervenorAppellantRespondent. Dec. 1, 1987.

[1]

Landlord and Tenant Facilities, Privileges and Services In view of fact that use of garage was a building-wide service, provided to tenants on base date by owner through garage operator as agent, owner was properly directed to continue to provide such required service and could not charge fee in excess of lawful guidelines; although garage operator elected, some six months before base date, to convert agency agreement into lease, such change was nothing more than change in nomenclature, and parties true relationship remained the same. 7 Cases that cite this headnote

Appeal was taken from order of the Supreme Court, New York County, Robert E. White, J., denying intervention in Article 78 proceeding initiated with regard to apartment garage use. The Supreme Court, Appellate Division, held that: (1) in view of fact that use of garage was building-wide service, owner was properly directed to continue to provide such required service and could not charge fee in excess of lawful guidelines, and (2) garage service applied to all tenants of building for whom garage service was provided in connection with leasing or use of their apartment. Affirmed as modified.

[2]

Landlord and Tenant Facilities, Privileges and Services Garage service in connection with leasing of an apartment is in the nature of building-wide service, not a service for individual tenant, and thus applies to all tenants of building for whom garage service was provided in connection with leasing or use of their apartment. 7 Cases that cite this headnote

West Headnotes (2) Attorneys and Law Firms

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Netherland Operating Corp. v. Eimicke, 135 A.D.2d 352 (1987) 521 N.Y.S.2d 245

**246 B. Rothman, New York City, for petitioner-appellant-respondent. I.J. Korman, New York City, respondent-respondent-appellant. for

Before MURPHY, P.J., and SANDLER, SULLIVAN, ELLERIN and WALLACH, JJ. Opinion MEMORANDUM DECISION.

through an agent, the garage operator. The latters election, some six months before the base date, to convert the agency agreement into a lease, pursuant to a clause providing therefor, appears to have been nothing more than a change in nomenclature. The parties true relationship remained the same. Thus, garage service is a required service which the DHCR properly directed the owner to continue to provide and as to which a fee in excess of lawful guidelines could not be charged. For that reason, the petition should be dismissed. [2] We find, however, that there is no need for a remand to the DHCR for a determination as to the identity of the similarly situated tenants. Garage service in connection with the leasing of an apartment is in the nature of a building-wide *353 service, not a service for an individual tenant. Thus, it applies to all tenants of the building for whom garage service was provided in connection with the leasing or use of their apartment. (See, Sovereign Apts. Inc. v. CAB, NYLJ 11/5/79, p. 15, cols. 35, n.o.r., affd., 81 A.D.2d 769, 440 N.Y.S.2d 542, app. dismissed, 54 N.Y.2d 905, 445 N.Y.S.2d 150, 429 N.E.2d 829.) We modify accordingly. Parallel Citations 135 A.D.2d 352, 521 N.Y.S.2d 245
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*352 Order and judgment (one paper), Supreme Court, New York County (Robert E. White, J.), entered May 22, 1986, which, inter alia, denied intervention in this CPLR Article 78 proceeding and remanded solely for the purpose of determining which tenants are similarly situated to the original tenant complainant, unanimously modified, on the law, to the extent of vacating the provision for remand, dismissing the petition and, except as thus modified, affirmed, without costs or disbursements. [1] As this record discloses, there is a rational basis for the Division of Housing and Community Renewals (DHCR) determination, pursuant to section 2(m) of the Rent Stabilization Code, that the use of the garage at the premises in question was a building-wide service provided to the tenants on the base date by the owner
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