DOCKET NO.: BD 130189 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.: BD 130189 RT
Mark Stein RENT ADMINISTRATOR'S
DOCKET NO.: ZQCS 886 OM
PETITIONER
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ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW
On April 6, 1987, the above-named petitioner timely refiled
a petition for administrative review of an order issued on
January 29, 1987 by a Rent Administrator concerning the housing
accommodation located at 83-15 116th Street, Richmond Hill, New
York, wherein the Rent Administrator determined that the owner
was entitled to a rent increase based on Major Capital
Improvements (MCI).
The Commissioner has reviewed all of the evidence in the
record and has carefully considered that portion of the record
relevant to the issues raised by the petition for review.
The current owner, by its agent, commenced this proceeding
on August 16, 1985 by filing an application for a rent increase
based on Major Capital Improvements consisting of a new oil
burner and boiler, installed in 1984 by the previous owner.
In response to a DHCR request, the owner certified that on
December 10, 1985 it served each tenant with a copy of the
application and placed a copy of the entire application including
all required supplements and supporting documentation with the
resident superintendent of the subject building.
Although the tenants were afforded the opportunity to
respond to the owner's application, no responses were filed by
the tenants.
DOCKET NO.: BD 130189 RT
On January 29, 1987 the Rent Administrator issued the order
here under review, finding that the installations qualified as
major capital improvements, determining that the application
complied with the relevant laws and regulations based upon the
supporting documentation submitted by the owner, and allowing
appropriate rent increases for rent-controlled and rent-
stabilized apartments.
In his petition for administrative review, the tenant
objects to the Rent Administrator's order, alleging, among other
things, that he was not notified that work had been completed
which could result in this application; that the improvement was
made in 1984 before he moved in in February, 1985; that he was
not informed that this application was pending; and that in
February and March 1985 there occurred repeated breakdowns of the
heating system resulting in no heat or hot water for days at a
time.
In answer to the tenant's petition, the owner alleges, among
other things, that all tenants were afforded an opportunity to
respond to the application; that it was legally entitled to apply
for the rent increase, and has presented the proper documentation
for the increase; that it is continuing to provide all essential
and/or required services.
After careful consideration the Commissioner is of the
opinion that this petition should be denied.
Rent increases for major capital improvements are authorized
by Section 2204. of the Rent and Eviction Regulations for rent
controlled apartments and Section 2522.4 of the Rent
Stabilization Law for rent stabilized apartments. Under rent
control, an increase is warranted where there has been since July
1, 1970 a major capital improvements required for the operation,
preservation, 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
mainenance of the structure; and replace an item whose useful
life has expired.
The record in the proceeding below discloses that the
instant application was filed by an agent on behalf of the
current owner, predicated on work performed in 1984 by a previous
owner; and that a Certification of Notice of the application on
the tenants had been submitted.
The Administrator's determination was rendered after full
DOCKET NO.: BD 130189 RT
consideration of documentation submitted by and on behalf of the
owner herein including the contract for the installation of a new
oil burner and boiler, paid invoices and cancelled checks in
substantiation of the cost of said improvement. In addition, the
record contains copies of all necessary governmental approvals
for the installation as well as the operation of the new heating
system. Accordingly, the Commissioner finds that the
Administrator properly determined that there was an MCI of a new
oil burner and boiler and the appropriate rent adjustment
therefor.
The Commissioner further finds that the tenant's contention
that he should have been afforded notice prior to the filing of
the owner's application is without merit: the tenant was served
with notice at the same time that all the building's tenants were
served, and was given the opportunity to respond to the owner's
application and to participate in the proceeding. The tenant had
the benefit of the new heating system throughout his tenancy. The
Commissioner finds that allegations made for the first time on
appeal are insufficient to bar the MCI increase.
The determination herein is without prejudice to the right
of the tenant to file an application with the DHCR for a
reduction in rent if the owner is not now maintaining all
required services.
THEREFORE, in accordance with the Rent and Eviction
Regulations for New York City, and the Rent Stabilization Law and
Code, it is
ORDERED, that this administrative appeal 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
DOCKET NO.: BD 130189 RT
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