Adm. Review Docket No.: BA 430005-RT
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.: BA 430005-RT
JENNIE LEBOWITZ, DRO DOCKET NO.: LCS 000305-OM
ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW
On January 2, 1987 the above-named petitioner-tenant filed a
Petition for Administrative Review against an order of the Rent
Administrator dated December 17, 1986. The order concerned housing
accommodations located at 180 West 93rd Street, New York, NY. The
Administrator granted a rent increase based on the installation of
major capital improvements.
The Commissioner has reviewed the record and carefully considered
that portion relevant to the issues raised by this appeal.
The owner commenced this proceeding on November 11, 1984 by filing
an application for rent increase based on the installation of major
capital improvements to wit - installation of new roof and new
aluminum replacement windows at a total cost of $149,748.00. On
January 11, 1985 the owner certified that all tenants whose
interests might be affected were served with a copy of the
application and answer forms and that a copy of the Tenant Review
Package was placed in the superintendent's office.
Several tenants, of whom petitioner was not one, responded and
objected to the proposed increase. Some complained that the window
installation was defective. A DHCR inspector visited two apartments
on July 18, 1986 and reported that the windows needed recaulking to
stop leaks. The owner advised on November 3, 1986 that when the
superintendent attempted to do the recaulking, the tenants said it
was not necessary.
The Administrator granted the application for all but $12,248.00 of
the total cost for the aluminum replacement windows which the
Administrator ruled had not been properly substantiated.
In her petition the tenant states that she never received the
owner's November 3, 1986 letter and did not consent to the
installation of the windows. The owner did not file a response.
After careful consideration of the evidence in the record the
Commissioner is of the opinion that the petition should be denied.
Adm. Review Docket No.: BA 430005-RT
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
major capital improvement 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, perservation, and maintenance of the structure; and
replace an item whose useful life has expired.
The record in the instant case indicates that the owner correctly
complied with the application procedures for a major capital
improvement and the Rent Administrator properly computed the
appropriate rent increases. The tenant has not established that the
increase should be revoked. Since petitioner did not raise her
objections when the proceeding was before the Administrator they
cannot be considered for the first time in an administrative appeal
which, pursuant to Section 2529.6 of the Rent Stabilization Code, is
limited to facts and evidence that was before the Rent
The Commissioner further notes that the tenant's lack of consent is
irrelevant to the issue of whether the MCI should have been granted.
Consent is not a factor in the determination of MCI applications.
THEREFORE, pursuant to the Rent Stabilization Law and Code, it is
ORDERED, that this petition be, and the same hereby is, denied and
that the Rent Administrator's order be and the same hereby is,