David v. New York City Conciliation & Appeals Board

— Judgment of the Supreme Court, New York County (Blangiardo, J.), entered April 20, 1982, which denied petitioner’s application to annul the opinion and order of respondent dated July 9.1981, is reversed, on the law and facts and in the exercise of discretion, without costs, and the petition granted. Petitioner tenant took occupancy of the subject apartment in Forest Hills, Queens, on July 15,1978, pursuant to a two-year lease expiring July 30,1980, at a monthly rental of $463. This rental included $50 monthly, plus GCA tax, for the rental of garage space No. 23 in the subject building. The option of renting space in the garage had been offered by landlord to tenant and she had accepted. Upon renewal of the lease, the tenant sought a three-year renewal lease without the garage space since she no longer needed it. The landlord, Thornton Arms, refused to renew the lease without inclusion of the rental of this garage space. The tenant signed a three-year renewal lease, including the garage space, pending the determination by respondent, Conciliation and Appeals Board, of the complaint she had filed on July 7,1980. The board decided that on the basis of the tenant’s decision to opt for the garage space in the initial vacancy lease, the garage rental “became a condition of the vacancy lease which may not be unilaterally altered by the tenant.” The board stated: “There is nothing in the lease that states that the garage rental is to be optional upon subsequent renewals of the vacancy lease.” The board, in its determination dated July 9, 1981, observed, inter alia, that “[required services under the Rent Stabilization Law and Code include services provided on the base date and all additional services provided thereafter. As defined in Section 2 (m) of the Code, services include ancillary * * * garage space.” Subdivision (m) of section 2 of the Code of Rent Stabilization Association of New York City, Inc. (Code), was designed to protect the interests 582 of the tenant, not to give a windfall to the landlord. When the board rejected tenant’s argument that the garage space was to be regarded as a renewable option, it violated its raison d’etre. Its ruling must be deemed arbitrary and capricious. The tenant herein was given an option to rent a garage space with her initial lease. Upon the renewal, this same option was deemed no longer to exist. Interpreting subdivision A of sections 23 and 60 of the Code to comply with the legislative intent of protecting and benefiting tenants (New York City Administrative Code, § YY51-1.0), the option of utilizing or rejecting the available garage space is itself the condition which landlord must offer in each renewal lease. This board has reached the anomalous result of forcing the tenant to pay for garage space she does not need as a condition to renewing the lease for her residence. This is especially ironic since garage space in areas such as Forest Hills is at a premium and presumably the landlord would have no difficulty in renting this space to another. Clearly, it is in the interest of the landlord to increase the base stabilized rent by an additional amount equal to the rent for the garage space. The landlord can use this augmented rental as a springboard for higher increases, especially if the petitioner tenant is pressured into giving up her leasehold. Obviously, this is contrary to the spirit and the letter of the law which brought the Conciliation and Appeals Board into existence. It is inconceivable that the elaborate administrative machinery of the Conciliation and Appeals Board, which was invented to protect tenants, should be converted into an instrument for their exploitation by a landlord. Matter of Century Operating Corp. v Popolizio (90 AD2d 731), relied upon by the dissent, is not inconsistent with the result herein. Respondent’s decision was arbitrary, capricious, irrational and contrary to the express legislative intent of the Code. Concur — Sandler, Carro and Asch, JJ.; Kupferman, J. P., concurs in a memorandum and Markewich, J., dissents in a memorandum as follows: