The opinion
Kupferman, J. P. (concurring.)
The petitioner occupied an apartment in Forest Hills, Queens, with a lease expiring July 30,1980, at a monthly rental of $463. The rental included $50 a month for garage space in the building. In accordance with the Rent Stabilization Law (see Matter of Century Operating Corp. v Popolizio, 90 AD2d 731 ), the landlord offered a renewal, including the leasing of the garage space. The tenant no longer desired the garage space and sought to renew the lease without it, contending that originally it was an option which she took, and therefore the option should continue. The lease, however, contained no option, and the landlord insisted on the same terms and conditions applying. The Conciliation and Appeals Board (CAB) determined that the renewal of the garage space became a condition of the léase and could not be altered. The court at Special Term dismissed the petition and denied the application of the petitioner tenant in this CPLR article 78 proceeding to reverse the determination of the CAB. Seemingly, the issue is one of whether the determination of the CAB was arbitrary and capricious. However, while on its face there would not seem to be any problem in the ruling, I believe there is more involved. Among the purposes of the CAB, as can be seen from its name “Conciliation and Appeals Board” (italics added), is that of trying to reconcile differences. (See Note, Recent Statute, New York Rent Stabilization Law of 1969, 70 Col L Rev 156.) It would seem that if the landlord can rent the garage space elsewhere, there would be no need to foist it on the tenant who does not want it. In this case, the CAB has merely applied its rules without any attempt at conciliation or analysis of how to handle the situation. Accordingly, as applied, their action is arbitrary and capricious, and I would modify to remand to the CAB for further consideration.