DOCKET NUMBER: BF 210190-RT AND BF 230079-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 NOS.: BF 210190-RT
: BF 230079-RT
DISTRICT RENT ADMINISTRATOR'S
JOAN SUNDEN DOCKET NO.: KCS 000817-OM
PETITIONER :
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ORDER AND OPINION GRANTING IN PART THE PETITION FOR ADMINISTRATIVE
REVIEW AND REMANDING THE PROCEEDING TO THE RENT ADMINISTRATOR
The above named tenant filed a petition for administrative review of an
order issued on June 10, 1987, by a District Rent Administrator concerning
the housing accommodation known as Apartment 10-A, located at 90 8th
Avenue, Brooklyn, New York, wherein the District Rent Administrator
determined that the owner was entitled to a rent increase based on a major
capital improvement (MCI).
The Commissioner notes that the petitioner filed two copies of the same
petition and that they were given two different administrative review
docket numbers, BF 210190-RT and BF 230079-RT. The Commissioner is of the
opinion that they should be consolidated for disposition.
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 administrative appeal.
The owner commenced this proceeding on December 10, 1985 by filing an
application for a rent increase based on a major capital improvement,
including the installation of an intercom system and storm and screen
windows, replacing 28 mullions and 17 sills, repair of tank and pump, roof
repair, replacing sidewalk canopy, replacing boiler and burner, and
pointing, at a total cost of $165,475.33.
The owner certified that on December 3, 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.
The tenant, Joan Sunden, objected to the owner's application on December
16, 1985, alleging that the roof and walls leak in many rooms of the
subject apartment, and some of the windows do not close properly.
On June 10, 1987, the District Rent Administrator issued the order here
under review, finding that some of the installations qualified as major
capital improvements and allowing appropriate rent increases for rent
controlled and rent stabilized apartments.
DOCKET NUMBER: BF 210190-RT & BF 230079-RT
In the petition for administrative review, the tenant requests reversal of
the District Rent Administrator's order and alleges that the calculation
for the number of rent stabilized apartments is incorrect; that the Rent
Administrator improperly increased the rent due to the MCI by more than
6% per year; that the building's plumbing and the tenant's toilet are
defective and the roof and walls leak, and that the owner replaced her
screen with a new one.
The owner did not interpose an answer to the tenant's petition.
After careful consideration the Commissioner is of the opinion that this
petition should be granted in part and that this proceeding should be
remanded to the Rent Administrator to calculate the subject tenant's rent
in accordance with this opinion.
As the tenant has not established that the issue concerning the number of
rent-controlled, and rent stabilized apartments in the subject building,
which she raises for the first time upon administrative review, could not
reasonably have been raised in the proceeding before the District Rent
Administrator, it is outside the scope of the Commissioner's review in
this proceeding.
The tenant is mistaken in her assertion that the Rent Administrator
increased the rent by more than 6% per year. Pursuant to the Rent
Administrator's order the maximum rent increase the owner was entitled to
charge was 6% and the amount exceeding the 6% MCI rent increase was spread
out in similar increments and added to the legal regulated rent in future
years. The temporary rent increase of 6%, commencing on March 1, 1987 and
terminating on March 1, 1988, was a retroactive MCI rent increase, for the
period from the February 1, 1986 effective date of the increase to the
June 10, 1987 issuance date of the District Rent Administrator's order.
Since the Rent Administrator did not grant an MCI rent increase for the
repair of the roof and the building's plumbing, the petition's allegations
of a leaking roof and a defective toilet are not relevant to this
proceeding. The Commissioner notes, however, that this order is issued
without prejudice to the right of the tenant to file an application for a
decrease in rent if the facts so warrant.
As the tenant has not established that the issue concerning the screens
which she raises for the first time upon administrative review could not
reasonably have been raised in the proceeding before the District Rent
Administrator, it is outside the scope of the Commissioner's review in
this proceeding. The Commissioner further notes that replacing the screen
was part of the storm window installation qualifying as an MCI.
Therefore, even if the tenant had raised the issue concerning the screens
before the District Rent Administrator, the Commissioner would affirm the
Administrator's determination regarding their replacement.
However, the tenant's uncontested assertion that the walls in her
apartment still leak even after the pointing of the exterior of the
building is sufficient grounds for disallowing the rent increase as to the
petitioner-tenant's apartment only, for pointing done on the building.
DOCKET NUMBER: BF 210190-RT & BF 230079-RT
Accordingly, for all the above-mentioned reasons, the Commissioner finds
that the proceeding should be remanded to the Rent Administrator for a
recalculation of the rent increase for Apartment 10A in view of the
disallowance of that portion of the rent increase for Apartment 10A
attributable to pointing.
THEREFORE, in accordance with the Rent Stabilization Law and Code, it is
ORDERED, that this petition be, and the same hereby is, granted in part,
and that this proceeding be, and the same hereby is, remanded to the Rent
Administrator for the purpose of implementing this order and opinion as
hereinabove provided. The order of the Rent Administrator remains in full
force and effect until a new order is issued upon the remand.
ISSUED:
ELLIOT SANDER
Deputy Commissioner
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