RoxboroughApartmentsCorp. v Becker

[*1] Roxborough Apts. Corp. v Becker 2004 NY Slip Op 50142(U) Decided on March 11, 2004 Civil Court Of The City Of New York, New York County 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 March 11, 2004
Civil Court Of The City Of New York, New York County

ROXBOROUGH APARTMENTS CORP., Petitioner-Landlord,

against

BRUCE BECKER, 251 West 92 Street, Apartment # 3-A, New York, New York 10025, Respondent-Tenant.



NDEX NO. 88508/2001



Green & Cohen, P.C., Attorney for petitioner, 319 East 91st Street, New

York, New York 10704

212.831.4400

Richard Sussman, Esq., Attorney for respondent, 400 Madison Avenue,

Suite 1100, New York, New York 10017 212.756.8602

Cyril K. Bedford, J.

Petitioner, Roxborough Apartments Corp, commenced this proceeding against respondent, Bruce Becker ("Respondent"), seeking possession of the four bedroom Apartment # 3-A located at 251 West 92nd Street, New York, New York 10025 ("Premises"). Petitioner terminated Respondent's tenancy on July 31, 2001 pursuant to a seven day notice of termination dated July 17, 2001, upon the allegation Respondent violated section 2525.7(b) of the Rent Stabilization Code ("RSC") in that he charged his roommates a rental amount which exceeded their proportional share of the legal monthly rent of $1,617.08.

At trial conducted on January 7, 2004 (Tape # 67097; Counter # 0 to 3332), the parties submitted a written stipulation (the "Stipulation") of admitted facts (Court's Exhibit "1") in which Respondent conceded most of the elements of Petitioner's prima facie case. Testimony was also taken of Respondent and Ms. Mary Sheridan of Miracle Maids. The matter was adjourned to January 21, 2004, when both sides submitted post trial briefs.

The issue for the Court to determine is, whether upon the facts presented Respondent violated RSC § 2525.7(b) and profiteered from the Premises.

It is agreed by the parties in the Stipulation at paragraph 12 that, "[a]t all times relevant to this proceeding, the DHCR registered rent for the subject premises has been $1,954.00. The last Renewal Lease form signed by the parties, dated March 1, 1998 for the period ending June 30, 1999, provided that the rent for the subject premises would be $1,617.08 per month." It is unclear from the language contained in the Stipulation whether Respondent was actually paying monthly the registered amount of $1,954.00 or the amount contained in the last signed lease, $1,617.08. The Court finds the proper rent to be $1,617.08 per month as this is the sum reserved in the last lease renewal executed between the parties and is not in excess of the legal registered rent. [*2]Notwithstanding this, for purposes of this decision only, the Court will consider Respondent's argument that the monthly rent is $1,954.00 in determining whether the co-occupants were paying more than their proportional share, rather than the legal rent of $1,617.08.

RSC § 2525.7(b) provides in pertinent part: The rental amount that a tenant may charge a person in occupancy pursuant to section 235-f of the Real Property Law shall not exceed such occupant's proportionate share of the legal regulated rent charged to and paid by the tenant for the subject housing accommodation. For purposes of this subdivision, an occupant's proportionate share shall be determined by dividing the legal regulated rent by the total number of tenants named on the lease and the total number of occupants residing in the subject housing accommodation. However, the total number of tenants named on the lease shall not include a tenant's spouse, and the total number of occupants shall not include a tenant's family member or an occupant's dependent child.

Applying this code section to the case before the Court, the three co-occupants should have been paying no more than seventy-five percent of the $1,954.00 rent per month, or $1,465.50. Respondent's three co-occupants paid him a total of $2,100.00 per month.

Respondent's justification of the excess sum of $634.50 charged to and paid by the co-occupants amounts to numerical gymnastics. Respondent claims the co-occupants were provided full access to and use of Respondent's furnished living room, dining room, fully equipped kitchen, two bathrooms, extensive book collection and artwork. He analogizes this co-occupancy situation to a sublet which permits a ten percent surcharge when subletting a furnished apartment (RSC § 2525.6(b)). This would allow an additional $146.55 [$146.50][FN1] to be charged to the $1,465.55 [$1,465.50] bringing the co-occupants combined proportional share of the rent to $1,612.10 [$1,612.00]. Additionally, Respondent points out that at paragraphs 14 & 15 of Stipulation and found by another judge after a prior trial, Respondent expends $20.00 per month on cleaning, maintenance supplies and paper products, and an additional $200.00 per month on necessary legal expenses to prevent the eviction of himself and his roommates, adding an additional $165.00 to the proportional share of rent due from the co-occupants bringing the total to $1,777.70 [$1,770.00]. Lastly, Respondent indicates that it was found at a prior trial and stipulated in this proceeding, that Respondent spends two hours per day cleaning the shared living spaces. Respondent at the very least presumes a minimum wage for this service of $5.15 per hour which adds another $231.75 to the proportional share of the co-occupants rent for a total of $2,008.85 [$2,008.75]. But Respondent urges the Court to accept Respondent's witness's testimony that the minimum charged by a cleaning service would be $8.00 to $10.00 per hour. At $8.00 per hour the co-occupants proportional share for cleaning would be $360.00 per month for a grand total of $2,137.70 [$2,137.00]. At $10.00 per hour for the cleaning, the co-occupants proportional share would be $450.00 per month for a grand total of $2,227.60 [$2,227.00] which is well over the actual $2,100.00 charged. Therefore, Respondent argues no profiteering has occurred. [*3]

Even were the Court to entertain the notion that certain costs, services, or amenities can properly be charged as a surcharge above a co-occupant's proportional share of the legal regulated rent, the underlying basis for the surcharge in this case are beyond and exceed any reasonable interpretation of what may be properly apportionable.

Respondent made no showing that there was an agreement negotiated between himself and his co-occupants as to what costs, services or amenities would be included in their rent as a surcharge above their proportional share of the legal regulated rent or the basis for their inclusion. Specifically, with regard to the cleaning service provided by Respondent, there was no showing that at the time of the rental to the co-occupants he had predetermined the value of his cleaning services or knew how many hours per week he would spend cleaning the shared space giving him a basis to apportion three quarters of this cost of the service into the rent charged the co-occupants. There was no indication that this was agreed to by the co-occupants or that they had any choice in the matter.

Respondent's attempt to justify the apportioning of the $200.00 per month into the co-occupants rent, representing what Respondent paid in legal expenses, as a necessary cost associated with living in the Premises to stave off eviction is nonsensical. Applying such logic would allow a tenant to charge his/her co-occupants virtually any sum with impunity under the guise of being a necessary cost.

Clearly there may be costs associated with living in a premises over and above the legal regulated rent which can be fairly apportioned among co-occupants, such as utility bills and cable television bills. However, they cannot be grouped in with the rent and made part of the rent as they are ancillary to the rent and separate from it. Additionally, co-occupants may also make agreements among themselves as to who cleans, shops for food prepares the meals and the like for which one occupant may compensate another. But again these collateral expenses to living in a premises cannot be grouped into the rent and must maintain their character separate and apart from the rent a tenant charges a co-occupant. A separate agreement among the co-occupants for the sharing of these expenses can be for a set amount to be paid each month, or varied according to that month's expense.

In this case, it is clear the additional rent charged to the co-occupants over their proportional share of the legal rent was not specifically identified, determined or calculated at the time of rental, and bears no reasonable relationship to additional expenses of living at the Premises. It is only now faced with this proceeding that Respondent posthumously is attempting and creating any possible explanation to justify the disproportional amount of the rent being charged to the co-occupants.

Respondent charged the co-occupants the amount he did because he found willing co-occupants who would pay what he was asking, and not because they were proper ancillary expenses to the rent to be properly shared among co-occupants. Respondent utilized the Premises for commercial exploitation. While the Petitioner was constrained to charge only what the law allowed, Respondent freely charged what his co-occupants were willing to pay to the point where Respondent was living rent free collecting more than 100% of the stabilized rent, even assuming the rent paid by Respondent was $1,954.00 and not lesser amount of $1,617.08. This is not the purpose of rent stabilization. As was stated in the case of Continental Towers Ltd Partership v Freuman, 128 Misc 2d 680 (App Term 1st Dept), [t]he integrity of the rent stabilization scheme is [*4]obviously undermined if tenants, who themselves are beneficiaries of regulated rent, are free to sublease their apartments at market levels and thereby collect the profits which are denied the main landlord".

Notwithstanding the foregoing analysis into Respondent's justification for the additional amounts charged and paid by the three co-occupant's in excess of their proportional share of the rent, it is this Court's opinion that such an analysis is not required in determining a violation of RSC § 2525.7(b). There is nothing in RSC § 2525.7(b) suggesting that the Court consider anything other than the legal regulated rent in determining whether as tenant has violated the section. The express language of this code section is clear as written.[FN2] There is no basis for the Court to append nuances onto RSC § 2525.7(b). Had the drafters of RSC § 2525.7(b) wished to include surcharges for costs, services provided or included amenities in determining the proportional share of the rent among co-occupants they could have done so, as was done for RSC § 2525.6(b) which permits a 10% surcharge to the legal rent of a subtenant who sublets a furnished apartment.

For the Court to take upon itself to embark on a analysis of costs, services rendered or amenities provided which are included in the rent charged a co-occupant is a slippery slope. Teasing apart the amount for services rendered, amenities provided or other costs from the rent charged to determine whether the tenant has violated RSC § 2525.7 opens a pandora's box. People reside together for a plethora of reasons be it for economic, companionship, love or safety among other reasons. To have to pull back the veil and peer into the personal lives of the occupants, examining their interpersonal relationship, becoming the arbiter of who provided what to whom, determining whether the charges for services or amenities provided between co-occupants was reasonable or whether any other costs included into the rent charged the co-occupant was justifiable is not something courts should necessarily be involving themselves in. It is precisely for this reason as indicated earlier that these collateral or ancillary expenses or costs not be made part of and included in the rent, but rather be part of a demonstrable separate agreement made between the co-occupants in which they are specifically identified.

Accordingly, it is found that for the relevant time period, Respondent was charging his co-occupants more than their proportional share of the legal rent for the Premises. Although RSC § 2525.7(b) in and of itself does not provide that an owner may terminate the tenancy of a tenant who violates the section, the Appellate Term, First Department has held that the violation of section RSC § 2525.7(b) gives rise to a possessory cause of action. Ram 1 LLC v Mazzola, NYLJ, January 1, 2002 at 18, col 1. As it is clear that Respondent has been charging his roommates more than their proportional share of the rent in contravention of RSC § 2525.7(b), Petitioner has sustained its burden of proof in its cause of action.

A final judgment of possession is awarded to Petitioner. Issuance of the warrant of [*5]eviction shall be forthwith and execution stayed until May 31, 2004 conditioned on Respondent paying any outstanding use and occupancy due through March 31, 2004 within ten days and future use and occupancy as it accrues by the 10th of each month during the stay period. Use and occupancy is established by the Court to be the sum agreed upon in the last executed lease between the parties of $1,617.08. Respondent is assessed costs in the sum of $45.00.

The Court finds the balance of Respondent's claims raised in his answer to be without merit.

This constitutes the decision and order of ths Court.

Dated: March 11, 2004

New York, New York

Cyril K. Bedford

Judge, Housing Part

Decision Date: March 11, 2004 Footnotes

Footnote 1:The numbers contained within "[ ]" represent corrected math, as Respondent has made minor mathematical errors in some of the calculations.

Footnote 2:When a statute is free from ambiguity, a court must construe it so as to give effect to its plain meaning. Doctor's Council v New York City Employees' Retirement Sys., 71 NY2d 669. "[T]he plain and obvious meaning of a statute is always preferred to any curious, narrow or hidden sense that nothing but a strained interpretation of legislative intent would discern. ***[C]ourts may only look behind the words of a statute when the law itself is doubtful or ambiguous". Finger Lakes Racing Assn. v New York State Racing & Wagering Bd., 45 NY2d 471, 479-480.