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. BD 110476-RO
DISTRICT RENT ADMINISTRATOR'S
FRANCIS MICALLET DOCKET NO. Q 000328-OM
ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW
On April 29, 1987, the above-named owner filed a petition for
administrative review of an order issued on April 20, 1987, by a District
Rent Administrator concerning various apartments located at 47-30 48th
Street, Woodside, New York, wherein the District Rent Administrator
determined that the owner was entitled to an increase based on a major
capital improvement (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 administrative appeal.
The owner commenced this proceeding on December 2, 1985 by filing an
application for a rent increase based on a major capital improvement,
including the waterproofing of the back and one side of the subject
premises, pointing of the front of the building, installing a new front
sidewalk, and repaving of the backyard at a total cost of $6,900.00.
The owner certified that on February 18, 1986, he 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.
None of the tenants of the subject premises submitted an answer.
On April 20, 1987, the District Rent Administrator issued the order here
under review, finding that the repaving of the backyard was an M.C.I.
However, the Administrator determined that waterproofing and pointing were
not building-wide improvements, and therefore, they were not M.C.I.'s.
Also, the Administrator disallowed the installation of the front sidewalk
on the grounds that it was not an M.C.I.
In the petition for administrative review, the owner asserts that the
waterproofing and pointing were done on three sides of the subject
premises, and that the fourth side of the building is attached to another
building. Also, the owner states that 25 feet by 10 feet of the front
sidewalk is on his property.
DOCKET NUMBER: BD 110476-RO
The tenants did not interpose answers to the owner's petition.
After careful consideration the Commissioner is of the opinion that the
petition for review should be denied.
The Commissioner notes that on November 4, 1991 the rent agency mailed to
the owner a letter requesting proof of ownership of the 25 feet by 10 feet
of the front sidewalk. On November 13, 1991 the owner filed a copy of the
deed and survey of the subject premises. The Commissioner finds that the
aforementioned evidence submitted by the owner does not establish
ownership of the front sidewalk by the owner. Expenditures for sidewalk
work outside the property line are not allowed, as it does not constitute
an improvement to the building or to the building complex. Accordingly,
that portion of the Administrator's order denying an M.C.I. rent increase
for work on the front sidewalk should not be disturbed.
The Commissioner notes that pointing was done to the front of the subject
building, and waterproofing was done to the back and the exposed side of
the subject building.
The Division of Housing and Community Renewal's (D.H.C.R.'s) policy that
was in effect at the time the work was done, upon the filing of the
application for the M.C.I. rent increase, and upon the issuance date of
the Administrator's order, required that pointing be building-wide to
qualify for an M.C.I rent increase, and that waterproofing a side of the
building, without also pointing that same side, did not qualify for an
M.C.I rent increase. As only the front of the subject building had
pointing done to it, and the sides that were waterproofed did not have
pointing done to them, the Commissioner finds that the pointing and
waterproofing do not qualify as an M.C.I. The Commissioner notes that
this would not qualify as an M.C.I. even if this proceeidng were
determined by the policy now in effect. The present policy in such cases
is that in order to qualify for an M.C.I. rent increase, pointing must be
done wherever necessary, and the owner's assertion of where it was
necessary must be adequately proven. In this proceeding, it is highly
unlikely that pointing would be necessary on only one side of the building
where as the owner asserts the two other sides required waterproofing
(Accord: BC 110110-RO). Furthermore, present policy also precludes M.C.I.
rent increases for waterproofing without pointing. Accordingly, the
Commissioner is of the opinion that the Administrator's order should be
THEREFORE, in accordance with 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, affirmed.