BH 810136 RO
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. BH 810136 RO
: DRO DOCKET NO.WY86S-623-
HUDSON VIEW ASSOCIATES 670-O.M.
ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW
On August 5, 1987, the above-named petitioner-owner filed a
Petition for Administrative Review against an order issued on July
10, 1987, by the Rent Administrator, White Plains, New York,
concerning the housing accommodations known as 560 Warburton Avenue,
Yonkers, New York, Various Apartments, wherein the Rent
Administrator determined that the owner was not entitled to a rent
increase based on a major capital improvement (hereafter MCI).
The Administrative Appeal is being determined pursuant to the
provisions of Section 2502.4 of the Tenant Protection Regulations.
The issue herein is whether the Rent Administrator's order
The Commissioner has reviewed all of the evidence in the
record and has carefully considered that portion of the record
relevant to the issue raised by the administrative appeal.
The owner commenced this proceeding in January 1986, by
filing an application for a MCI rent increase based on the
installation of a new roof in the subject premises at a total cost
In response to the owner's application, several tenants
alleged in substance that the installation was defective as roof
leaks were still occurring.
On March 10, 1987 and April 2, 1987, inspections were
conducted at the subject premises. Such inspections disclosed
that a completely new roof surface had been installed, but that
the new surface has bubbled areas and open holes and various
On June 3, 1987, the owner was served with a copy of the
inspection report and afforded an opportunity to respond. In an
answer dated June 5, 1987, the owner stated in substance that the
patched areas in the roof are a result of the owner's maintenance
program and that the bubbles and open holes have been eliminated
BH 810136 RO
since the date of the inspector's report and that "there are no
bubbles nor open holes as of today's date".
On June 30, 1987, a re-inspection of the roof at the subject
premises was conducted. Such inspection disclosed that the roof
surface was still bubbled and blistered with open holes.
In Order Number WY86S-623-670-O.M., the Rent Administrator
denied the owner's application for a MCI rent increase on the
basis that the physical inspections disclosed that the
installation of the new roof was done in an unworkmanlike manner.
In this petition, the owner alleges in substance that it is
contesting the DHCR inspectorial findings in that it retained the
services of a consulting engineer who inspected the roof and found
that all work was done in a professional workmanlike manner. In
support of its contention, the owner submitted a copy of the
In response to the owner's petition, the tenants stated in
substance that the Rent Administrator's order was warranted.
The Commissioner is of the opinion that this petition should
Section 2502.4 of the Tenant Protection Regulations provides
in pertinent part that a landlord may file an application to
increase the legal regulated rent where there has been since
January 1, 1974, a MCI required for the operation, preservation,
or maintenance of the structure.
In the instant case, the evidence of record including two
physical inspection reports disclose that the new roof has bubbled
areas and open holes. The record further indicated that the owner
was advised of these conditions after the first inspection and
stated that the problem had been corrected. However, the second
inspection revealed that the bubbled areas and open holes continue
to exist. The Commissioner notes that the owner did not raise the
issue of an engineer's finding that the roof installation was
performed in a workmanlike manner in the proceeding before the
Rent Administrator. This contention cannot properly be considered
for the first time on appeal since this is not a de novo
proceeding. Moreover, the Commissioner is of the opinion that the
physical inspection reports prepared by DHCR staff inspectors are
of more probative value than the report of the engineer retained
by the owner. Accordingly, the Rent Administrator's order was
THEREFORE, in accordance with the provisions of the Tenant
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Protection Regulations, it is
ORDERED, that this petition for administrative review 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