Netherland Operating Corp. v. Eimicke

Appellate Division of the Supreme Court of New York

Netherland Operating Corp. v. Eimicke

135 A.D.2d 352, 521 N.Y.S.2d 245, 1987 N.Y. App. Div. LEXIS 52322

CourtAppellate Division of the Supreme Court of the State of New York

DecidedDecember 1, 1987

StatusPublished

Cited by7 cases

This text of 135 A.D.2d 352 (Netherland Operating Corp. v. Eimicke) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Netherland Operating Corp. v. Eimicke, 135 A.D.2d 352, 521 N.Y.S.2d 245, 1987 N.Y. App. Div. LEXIS 52322 (N.Y. Ct. App. 1987).

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Opinion

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.

As this record discloses, there is a rational basis for the Division of Housing and Community Renewal’s (DHCR) determination, pursuant to section 2 (m) of the Code of the Rent Stabilization Association of New York City, Inc., 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 through an agent, the garage operator. The latter’s 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.

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]*353service, 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. v New York City Rent Conciliation & Appeals Bd., NYLJ, Nov. 5, 1979, at 15, cols 3-5, affd 81 AD2d 769, appeal dismissed 54 NY2d 905.) We modify accordingly. Concur — Murphy, P. J., Sandler, Sullivan, Ellerin and Wallach, JJ.

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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.

As this record discloses, there is a rational basis for the Division of Housing and Community Renewal’s (DHCR) determination, pursuant to section 2 (m) of the Code of the Rent Stabilization Association of New York City, Inc., 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 through an agent, the garage operator. The latter’s 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.

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]*353service, 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. v New York City Rent Conciliation & Appeals Bd., NYLJ, Nov. 5, 1979, at 15, cols 3-5, affd 81 AD2d 769, appeal dismissed 54 NY2d 905.) We modify accordingly. Concur — Murphy, P. J., Sandler, Sullivan, Ellerin and Wallach, JJ.

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Bluebook (online)

135 A.D.2d 352, 521 N.Y.S.2d 245, 1987 N.Y. App. Div. LEXIS 52322, Counsel Stack Legal Research, https://law.counselstack.com/opinion/netherland-operating-corp-v-eimicke-nyappdiv-1987.

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