STATE OF NEW YORK
                      DIVISION OF HOUSING AND COMMUNITY RENEWAL
                            OFFICE OF RENT ADMINISTRATION
                                     GERTZ PLAZA
                               92-31 UNION HALL STREET
                               JAMAICA, NEW YORK 11433

          ------------------------------------X   ADMINISTRATIVE REVIEW
          IN THE MATTER OF THE ADMINISTRATIVE     DOCKET NO.:  BF430191RO
          APPEAL OF           
                    MICHAEL FALCO,                
                                                  RENT ADMINISTRATOR'S
                                                  DOCKET NO.:  QCS000351OM

                                   PETITIONER 
          ------------------------------------X

            ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW

          On June 5, 1987, the above-named petitioner-owner timely filed a 
          petition for administrative review (PAR) against an order issued on 
          May 4, 1987 by a Rent Administrator (Gertz Plaza) concerning the 
          housing accommodations known as 104-50 102nd Street, Ozone Park, 
          New York, various apartments, wherein the Rent Administrator 
          partially denied owner's application for a rent increase based upon 
          the installation of a major capital improvement (MCI) due to the 
          owner's failure to substantiate fully the amount paid for the 
          installations.

          The Commissioner has reviewed all of the evidence in the record and 
          has carefully considered that portion of the record relevant to the 
          issue raised by this administrative appeal.

          The owner commenced this proceeding on December 5, 1984 by 
          initially filing an application for a rent increase based on the 
          installation of the following items at a total cost of $11,950.00: 
          Pointing/Waterproofing and adequate plumbing.

          Two tenants objected to the owner's MCI application each alleging 
          respectively and in substance, that her apartment walls were 
          damaged by water leaks, and that the plumbing work in his apartment 
          consisted of the installation of an unnecessary kitchen pipe. 

          The owner responded to the complaint regarding water damage to 
          walls by submitting a signed statement from the tenant indicating 
          that the condition was remedied.

          On May 4, 1987, the Rent Administrator issued the order here under 
          review, finding that the installations qualified as an MCI and 
          granting, in part, the owner's application.  Disallowed by the 
          Administrator were the claimed costs of $3,850.00 for pointing and 
          waterproofing, and $4,100.00 for adequate plumbing work upon a 
          finding that the owner did not substantiate alleged cash payments 
          made to the contractors.












          ADMIN. REVIEW DOCKET NO. BF-430191-RO

          In his petition, the owner contends, in substance, that the 
          Administrator did not consider documentation of proof of payment 
          submitted by the owner in support of his application; or payments 
          made by the owner for a hot water heater and associated parts and 
          wiring.

          After a careful consideration of the entire record, the 
          Commissioner is of the opinion that this petition should be denied.

          DHCR Policy Statement 90-10 delineates the methods for confirming 
          costs on MCI applications.  Any claimed MCI cost should be 
          documented by at least one of the following:  a cancelled check 
          dated contemporaneous with the completion of the work; an invoice 
          receipt marked "paid in full" dated contemporaneous with completion 
          of work; a signed contract agreement; or a contractor's affidavit 
          indicating that the installation was completed and paid in full.  
          The Policy Statement also states that where an identity of interest 
          between the contractor and the building owner is found, additional 
          proof may be necessary to substantiate payment costs.

          As for the claimed cash payment of $3,850.00 for the 
          waterproofing/pointing work, the owner submitted the following 
          documents:  (1) a letter from the contractor to the owner dated 
          September 10, 1984 that describes the work performed and its cost,  
          stamped PAID, and with the hand written notations "in full" and the 
          date- "9/18/84"; (2) a letter from the contractor to the owner 
          dated August 22, 1985 that describes the work, costs, and certifies 
          that the contractor received two checks of $1,000.00 each and an 
          additional balance of $3,850.00 in cash, stamped "PAID" with the 
          hand written notations "Paid in full 9/18/84" and "The above stated 
          work was done in September 10, 1984", which was notarized on 
          September 7, 1985; and (3) an affidavit dated September 27, 1986 
          from the contractor that describes the work performed and the cost.

          The Commissioner finds that the two letters from the contractor do 
          not serve as "invoice receipts marked paid in full" and therefore, 
          are not adequate documentation of the claimed cash payment.  The 
          letter dated September 10, 1984 does not indicate who stamped PAID 
          or wrote "in full" on September 18, 1984.  It is further noted that 
          the "PAID" stamp from the two different contractors are identical. 
          The letter dated August 22, 1985 was not written contemporaneous 
          with the completion of the work and is therefore not adequate 
          documentation of cash payment.  Lastly, the 1986 form affidavit 
          from the contractor did not indicate the method and dates of 
          payment or that the installation was paid in full.

          The Commissioner finds that the owner's documentation of a cash 
          payment of $3,850.00 for pointing/waterproofing was not properly 
          substantiated and does not meet the requirements of Policy 
          Statement 90-10.  

                                          2






          ADMIN. REVIEW DOCKET NO. BF-430191-RO

          As for the claimed cash payment of $4,100.00 for adequate plumbing 
          work, the owner submitted the following:  (1) a letter from the 
          contractor dated October 29, 1984 that describes the work performed 
          and the cost, stamped "PAID" with a hand written notation "Check 
          $2,000, Cash $4,100" signed by the president of the corporation, 
          Michael Falco (who is also the owner of the building), and 
          notarized August 5, 1985; and (2) an invoice dated September 19, 
          1984 from the contractor describing the work and the cost.

          The Commissioner similarly finds that this documentation does not 
          substantiate the owner's costs and payment as set forth in Policy 
          Statement 90-10.  The acknowledged relationship between owner and 
          contracting company, i.e. President, requires more proof of cash 
          payment than a written notation by the owner that he paid $4,100.00 
          is in cash to said contracting company.

          As for the cost and payments claimed for the installation of a hot 
          water heater and associated parts and wiring, the Commissioner 
          notes that the owner did not include this installation in his 
          original application, and that therefore, the costs of the 
          installation cannot be considered for the first time on appeal as 
          this is not a de novo proceeding.

          The Commissioner finds that the Rent Administrator correctly 
          disallowed cash payments that were not properly substantiated 
          pursuant to Policy Statement 90-10.

          THEREFORE, in accordance with the provisions of the Rent 
          Stabilization Law and Code and the Rent and Eviction Regulations 
          for New York City, it is 

          ORDERED, that the owner's petition be, and the same hereby is, 
          denied; that the Administrator's order be, and the same hereby is, 
          affirmed.

          ISSUED:



                                                                           
                                                         JOSEPH A. D'AGOSTA
                                                        Deputy Commissioner









                                          3






    

TenantNet Home | TenantNet Forum | New York Tenant Information
DHCR Information | DHCR Decisions | Housing Court Decisions | New York Rent Laws
Disclaimer | Privacy Policy | Contact Us

Subscribe to our Mailing List!
Your Email      Full Name