STATE OF NEW YORK
DIVISION OF HOUSING AND COMMUNITY RENEWAL
OFFICE OF RENT ADMINISTRATION
92-31 UNION HALL STREET
JAMAICA, NEW YORK 11433
IN THE MATTER OF THE ADMINISTRATIVE : ADMINISTRATIVE REVIEW
APPEAL OF DOCKET NO.:BE 610111-RT
BERNICE RUTHERFORD DOCKET NO.: BCS 000239-OM
ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW
On May 12, 1987, the above-named tenant filed a petition for administrative
review of an order issued on April 20, 1987 by a District Rent Administrator
concerning the housing accommodations known as 1295 Grand Concourse, Bronx,
New York, Various Apartments.
The Administrator granted the owner's application for a rent increase based
on the installation of a major capital improvement, to wit: a boiler/burner.
The Commissioner has reviewed all the evidence in the record and has
carefully considered that portion of the record relevant to the issues
raised by the petition for review.
In her petition for administrative review the tenant asserts, in substance,
that the subject premises have not been registered with the agency as
required, that there was no need to replace the boiler/burner as it had been
functioning properly and that she was not given the time to "petition" the
owner's MCI application before the rent increase went into effect. Finally,
the tenant asserts that the current owner is attempting to collect the rent
increase based on the former owner's "status" and the tenant thereby
references an enclosed copy of the first page of the order appealed from, on
which appears typed in as owner: current owner c/o former owner. The tenant
also encloses a letter dated April 29, 1987 from the current owner,
requesting remitter of those rent adjustments implemented with the approval
of the owner's MCI application and a letter dated October 31, 1986, from the
former owner, informing the tenant, among other things, that the building
had been sold on October 29, 1986 to the current owner.
After careful consideration, the Commissioner is of the opinion that this
petition should be denied.
At the outset the Commissioner notes that Division records reveal that the
subject premises are registered with the agency.
Rent increases for major capital improvements are authorized by Section
2522.4 of the Rent Stabilization Law for rent stabilized apartments. Under
rent stabilization, the improvement must generally be building-wide;
DOCKET NUMBER: BE 610111-RT
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. In either
case, the rent increase is computed based on an amortization of the cash
cost of the improvement over five years or sixty months.
The record in the instant case include copies of invoices, cancelled checks,
management approvals and sign-offs, governing agency certificates of
operation, and contractor/vendor signatures for the installation of the
boiler/burner unit. It is further noted that current owner is not precluded
from applying for and collecting MCI rent increases installed by a previous
owner. The Commissioner is therefore of the opinion that the Administrator
properly determined that the owner's boiler/burner installation qualifies as
an MCI and accordingly granted appropriate rent increases.
The Commissioner notes that the petitioner raised no objections to the
quality or adequacy of the installation, nor did she raise the other issues
she now raises on appeal when this proceeding was before the Rent
Administrator although she was afforded ample opportunity to do so; as the
owner's MCI application was filed with the agency and served on all the
tenants almost two years before the issuance of the order herein appealed.
Accordingly, pursuant to Section 2529.6 of the Rent Stabilization Code, the
tenant's allegations may not be considered now when offered for the first
time on administrative appeal.
THEREFORE, in accordance with the provisions of the Rent Stabilization Law
and Code, it is
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.
JOSEPH A. D'AGOSTA
Acting Deputy Commissioner