AR Docket No. BC 110048-RT
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
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IN THE MATTER OF THE ADMINISTRATIVE ADMINISTRATIVE REVIEW
APPEAL OF DOCKET NO.: BC 110048-RT
MARSHA HABER, DRO DOCKET NOS.:
QS 000609-OM; QS 000612-OM
PETITIONER
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ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW
The above-named petitioner-tenant filed a Petition for Administra
tive Review against an order issued on January 28, 1987 by the
Rent Administrator, 92-31 Union Hall Street, Jamaica, New York
concerning housing accommodations known as 80-08 135th Street, Kew
Gardens, New York, Apartment 605, wherein the Administrator
granted a major capital improvement rent increase.
The owner commenced the proceeding below by filing with the
Administrator applications for a major capital improvement (MCI)
rent increase predicated on the installation of new windows,
boiler/burner and a roof.
The tenant herein responded to the application alleging, in
substance, that the owner has filed two separate MCI applications
in an attempt to evade the 6% cap on the collection of such
increases; that she refused access to her apartment until she
obtained the owner's assurance that the improvements would not
form the basis for a rent increase, which assurance was formalized
in subsequent lease renewal (not submitted); that the owner failed
to comply with service and notice requirements and that the
installation of the new heating system and roof has not resulted
in an improvement in service.
Thereafter the Administrator issued the order appealed herein
finding that the various installations qualified as major capital
improvements. Said order was predicated upon substantiating
documentation submitted by the owner including copies of con
tracts, contractors' certifications, cancelled checks together
with requisite governmental approvals and sign-offs for the
installation and operation of the heating system.
In this petition for administrative review the tenant substantial
ly reiterates her prior allegations and contentions.
After a careful consideration of the entire record, the Commis
sioner is of the opinion that this petition should be denied.
Rent increases for major capital improvements are authorized by
Section 2202.4 of the Rent and Eviction Regulations for rent
controlled apartments and Section 2522.4 of the Rent Stabilization
Code for rent stabilized apartments. Under rent control, an
increase is warranted where there has been since July 1, 1970 a
AR Docket No. BC 110048-RT
major capital improvement required for the operation, preserva
tion, or maintenance of the structure. 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.
The tenant's allegation that the owner failed to comply with
service and notice requirements is not supported by the record as
evidenced by the fact that the tenant actively participated in
the proceeding before the Administrator.
In addition, a check of Division records discloses that no rent
reduction order based on the owner's failure to maintain services
of a building-wide nature was outstanding against the subject
premises as of time of issuance of the Administrator's order nor
have any service complaints been filed by the tenant herein either
prior to or subsequent to the issuance of the order appealed
herein.
The record indicates that the owner correctly complied with the
applicable procedures for a major capital improvement rent
increase and the Administrator properly computed such increase
predicated on substantiated costs in conformance with the 6%
statutory restriction on the collection of increases of the type
involved herein. The owner is cautioned that violation of the 6%
restriction on collectibility as set forth in the order appealed
herein or when combined with other MCI orders may give rise to a
complaint of rent overcharge.
Turning to the tenant's contention that she should be exempted
from the Administrator's order, the Commissioner notes that tenant
consent to a major capital improvement rent increase is not
required. The tenant's conceded refusal to provide access to her
apartment until she extracted an assurance from the owner not to
collect such increase as may be ordered by the Administrator does
not constitute grounds for modification of the Administrator's
order or bar the owner's entitlement to collect the increase
provided for therein. Particularly so in the absence of any
showing before the Administrator that the alleged "assurance" by
the owner was based upon consideration or that the tenant was in
any way prejudiced thereby. The tenant has not established that
the increase should be revoked.
THEREFORE, in accordance with the provisions of the Rent Stabiliz
ation Code, it is
AR Docket No. BC 110048-RT
ORDERED, that this petition be, and the same hereby is denied; and
that the order of the Rent Administrator be, and the same hereby
is affirmed.
ISSUED:
ELLIOT SANDER
Deputy Commissioner
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