Various Tenants of 1058 Bergen St. v 1058 Bergen St., LLC

[*1] Various Tenants of 1058 Bergen St. v 1058 Bergen St., LLC 2006 NY Slip Op 51259(U) [12 Misc 3d 1177(A)] Decided on June 26, 2006 Civil Court Of The City Of New York, Kings County Gonzales, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on June 26, 2006
Civil Court of the City of New York, Kings County

Various Tenants of 1058 Bergen Street, Petitioner

against

1058 Bergen Street, LLC, Respondent



6194/06

Cheryl Gonzales, J.

Petitioners, Heather Brathwaite, Rafael DeLaCruz, Angelo Arroyo and Santiago Castro of Apt. 1E, and petitioners, Kenneth Aguirre, Daniel Goldsmith, Gloria Bushnell and Robin Clary of Apt 1W at 1058 Bergen Street in Brooklyn, commenced this proceeding seeking an order directing respondents to correct certain conditions at the premises. HPD conducted an inspection of the apartments on April 7, 2006, and issued several violations including Class B' violations to discontinue single room occupancy in each of the subject apartments, and a Class C' violation to provide gas to the fixtures at gas range in apartment 1E.

The parties stipulated that respondent would correct the violations of record. However, the parties disagreed on whether respondent was required to provide gas and electric service, and the hearing in this matter was limited to that issue.

Petitioners testified that each of them rented his/her room individually from respondent and its representatives, and paid rent separately to respondent. These claims were also supported by rent receipts and rent statements. In addition, two petitioners testified that respondent expressly promised that gas and electric services were included in the rent. No tenant has ever had an account or paid bills for electric service, and the occupants of Apt. 1E have never had gas service. Petitioners argue that respondent created the illegal rooms and must accept the responsibility for providing these services.

Respondent claims that the occupants are roommates and the situation was created by the tenants. Respondent states that it is only required to provide the services that are included in the DHCR registration report, and argues that the fact that it provided electricity for a short while after the service was terminated by the utility company does not obligate it to continue to provide electricity. In support of its contention respondent presented a DHCR registration report for Apartment 1W, which is registered as a seven room apartment. The report reflects that the apartment's status was rent stabilized from 1984 through 2004 , and also states that the [*2]apartment was reported as being vacant on the last registration statement in July 2005. The report details the apartment and building services provided by the landlord, and they do no include gas or electricity. Respondent also offered the testimony of Winston Barker, who owned the building between 1986 and 2001. Mr. Barker testified that he never provided gas or electric services during the time he owned the building.

Further, respondent contends that petitioners can cure the problem if four of them sign the lease for each apartment. They can then take the lease to the utility companies to open an account for service.

Petitioners credibly testified that they individually paid rent to the landlord for their respective rooms. The testimony of respondent's witness Jacob Berger was evasive and hesitant, and lacked credibility. Mr. Berger claimed that he only had knowledge of when one petitioner moved in to the building, and that the roommates brought others into the apartments. Mr. Berger acknowledged that respondent did not object to the living arrangements. Although respondent asserts that the petitioners are roommates, the record does not reflect who respondent considers to be the prime tenants, and who is considered to be a roommate. Under the Roommate Law, a roommate must contemporaneously occupy or share the apartment with the tenant of record (see Lincoln Gould Housing v Stuckelman, NYLJ, 6/30/93, p21,col 7). RPL § 235-f(b)(1) defines a roommate as an occupant other than the tenant or the tenant's immediate family who occupies the apartment with the consent of the tenant. In contrast, RPL §235(1) (a) states that a tenant is defined as a person who occupies an apartment pursuant to a lease or rental agreement or is a statutory tenant pursuant to the Emergency Rent Control Law, or the City Rent and Rehabilitation Law, or Article 7-c of the Multiple Dwelling Law. Petitioners established that each person had his/her own rental agreement with the landlord and not with each other. Both petitioners and respondent's witness testified that respondent offered a lease to individual petitioners for the entire apartment, but not for the rooms. Respondent's claim that the petitioners are roommates was not supported by any evidence.

Respondent's use of the Roommate Law and the Rent Stabilization Regulations to buttress its claims is ironic. The Roommate Law entitled "Unlawful Restrictions on Occupancy" codified in RPL §235-f was enacted in 1983 for the protection of tenants and occupants, not landlords (Capital Holding Co. v Strarolakes,242 AD2d 240, 1st Dept., 1997). Respondent's attempt to use this as a sword must fail since roommates can only exist in relation to a tenant and respondent failed to identify any petitioner as a prime tenant. The evidence showed that apartments were not being rented as single rent stabilized units, but as rooms. In fact, the last DHCR registration information for apartment 1W, lists the apartment as being vacant. Respondent's attempt to show that Apartment 1W is subject to rent stabilization by producing a six month lease naming Miriam Uti, who respondent claims was the last tenant of record, and who brought in others and subsequently left because she couldn't pay the rent also falls short since the lease does not comply with the requirements of the Rent Stabilization Code §2522.5 (a)(1) which requires a one or two year lease at the tenant's option. In addition, although Mr. Berger testified that respondent rented Apt. 1E to a friend of Miriam Uti the former tenant of apartment 1W, this person was [*3]never identified. Therefore, the Rent Stabilization Law cannot shield respondent from its responsibility as the record shows that respondent rented rooms and did not in any way rent the apartments as rent stabilized units.

Respondent testified that there are sixteen units [FN1] and each unit had one meter to measure gas and electric usage respectively. The evidence showed that petitioners each had exclusive use of specific room(s) in addition to use of shared space in the subject apartments. Therefore, it follows that the electric and gas meters in the subject apartments would measure the combined usage of all the occupants. There was no roommate arrangement among the tenants. It is not possible for each tenant to have an individual meter or to measure individual usage under these living arrangements. Respondent's offer of a lease to one or all four tenants in an apartment would obligate any tenant(s) who signed the lease to be responsible for the rent of all occupants of the apartment. Concomitantly, any tenant(s) who opened a utility account in his/her name would be responsible for usage charges for all occupants in the apartment as measured by the meter and this constitutes a shared meter under the law.

Public Service Law §52(1)(b) defines a shared meter as:

any utility meter for gas electric or steam service provided to a tenant's dwelling

and also to areas outside that dwelling and such tenant pays charges for the service

to the areas outside the dwelling measured through such meter.

A dwelling must be under the exclusive use and control of the occupant, Public Service Law§52(1)( c), and no petitioner can make that claim with regard to the subject apartments. The stated purpose of Public Service Law §52 is to assign responsibility for services charges registered through a shared meter to an owner, Varghese v. Preza, NYLJ 6/5/69, pg. 31, col. 3. Each apartment contains exclusive dwelling areas and shared space. Therefore, the gas and electric meters for the subject apartments would measure services provided to the dwelling of more than one occupant and are shared meters under the law. Pursuant to Public Service Law§52 (2)(a) an owner is required to establish an account in the owner's name for service measured through a shared meter, and Public Service Law §52 (3) provides that these protections granted under this law cannot be waived.

Based on the foregoing, respondent is directed to correct violation no. 6097961, a Class C' violation within 24 hours of service of a copy of this order, and /or be subject to civil penalties pursuant to the Housing Maintenance Code.



Dated: June 26, 2006 [*4]

_________________________

Cheryl J. Gonzales, JHC Footnotes

Footnote 1:The Violation Summary Report which contains the information recorded in the HPD database states that there are eight units in the building .