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 Nos.: BG110271RT,
APPEALS OF BG110272RT, BH130117RT
DONALD RYAN,
MONICA FAYE FELL, & RENT ADMINISTRATOR'S
PATRICIA O'TOOLE, DOCKET NO.: QCS000938OM
PETITIONERS
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ORDER AND OPINION DENYING PETITIONS FOR ADMINISTRATIVE REVIEW
The above named petitioners-tenants timely filed Petitions for
Administrative Review (PARs) against an order issued on July 9,
1987, by the Rent Administrator (Gertz Plaza) concerning the
housing accommodations known as 25-41 30th Road, Astoria, New York,
various apartments, wherein the Rent Administrator determined that
the owner was entitled to a rent increase based on various major
capital improvements (MCIs).
The Commissioner deems it appropriate to consolidate these
petitions for disposition since they pertain to the same order and
involve common issues of law and fact.
The owner commenced this proceeding on December 10, 1985 by
initially filing an application for an MCI rent increase predicated
on the installation of various improvements at a total claimed cost
of $132,500.00.
The Rent Administrator's order appealed herein, granted, in part,
the owner's application and authorized an increase based upon the
installation of a new boiler/burner, new roof and
pointing/waterproofing at a total approved cost of $111,000.00.
Disallowed by the Administrator were the installations of concrete
sidewalk, stoop and fence and painting fire escapes upon finding
that they do not constitute major capital improvements.
On appeal, the petitioners-tenants request reversal of the Rent
Administrator's order and contend, in substance, that the rent
increase granted is unfair and unjust; and that a 12% increase is
out of line based on the past record of tenants' complaints,
violations and summons received (Apt. 1D); that the building is in
serious violations of safety codes, including: elevator,
electrical, fire safety and basic services; that the new oil burner
and boiler fail to deliver adequate heat and hot water throughout
the calendar year; and that the roof was only installed because of
severe leaking forcing the landlord to comply with standard
building codes (Apt. 3H); and that the painting of fire escapes,
stoop and fence and roof were installed several years ago (Apt.
5G).
ADMIN. REVIEW DOCKET NOS. BG-110271-RT, BG-110272-RT, BH-130117-RT
After a careful consideration of the entire evidence of record, the
Commissioner is of the opinion that these administrative appeals
should be denied.
Rent increases for major capital improvements are authorized by
Section 2522.4 of the Rent Stabilization Code for rent stabilized
apartments. Under rent stabilization, the improvement must
generally be building-wide; depreciable under the Internal Revenue
Code, other than for ordinary repairs; required for the operation,
preservation, and maintenance of the structure; and replace an item
whose useful life has expired.
With respect to the contention of the tenant in Apt. 1D that a 12%
increase is out of line, the Commissioner notes that there is a
statutory limitation on collectibility of MCI rent increases of 6%
per year for the permanent, prospective rent increase, and no more
than an additional 6% increase for the temporary retroactive
portion of such rent increase. This determination is without
prejudice to tenants' right to file an individual complaint of rent
overcharge, if the facts so warrant.
Regarding the tenants' contention that the subject building is in
serious violation of safety codes, a review of Division's records
disclose that said violations (59) do not reflect the existence of
any immediately hazardous conditions. In addition, there are no
rent reduction orders based on the owner's failure to maintain
services of a building-wide nature outstanding against the subject
premises.
The Commissioner notes that the objection regarding the adequacy of
the boiler/burner now being raised for the first time on
Administrative Appeal by the tenant in apt. 3H was not raised while
the owner's application was pending before the Rent Administrator
even though the tenant was afforded the opportunity to do so.
Accordingly, the Commissioner finds that the allegation may not now
be considered herein. This determination is without prejudice to
the right of the tenant filing an application with the Division for
a rent reduction based upon a decrease in services, if the facts so
warrant.
As to the contention of the tenant in Apt. 3H that the new roof was
only installed because of severe leaking, it is the recognized
position of the Division that the fact work was performed due to a
necessity does not constitute a bar to an MCI rent increase, if the
owner otherwise so qualifies. Moreover, the record in the instant
case, which includes copies of various proposals, invoices,
contractors' certifications, cancelled checks, governmental
approvals and sign-offs, indicates that the owner correctly
complied with the applicable procedures for major capital
improvements.
ADMIN. REVIEW DOCKET NOS. BG-110271-RT, BG-110272-RT, BH-130117-RT
Turning to the contention of the tenant in Apt. 5G, the
Commissioner notes that no increase was granted for the
installations of painting fire escapes and stoop/fence and that
prior to August 1, 1987, there was no limitation of time to file an
application for an MCI increase.
THEREFORE, in accordance with the Rent Stabilization Law and Code,
it is
ORDERED, that these petitions be, and the same hereby are denied;
and that the Rent Administrator's order be, and the same hereby is
affirmed.
ISSUED:
____________________
Joseph A. D'Agosta
Deputy Commissioner
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