BH 810136 RO

                                  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

          ------------------------------------X 
          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.

                                PETITIONER    : 
          ------------------------------------X                             
             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 
          was warranted.

          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 
          of $16,100.00.

          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 
          patches.

          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 
          engineer's report.

          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 
          be denied.

          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 
          warranted.











          THEREFORE, in accordance with the provisions of the Tenant 


          BH 810136 RO
          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.

          ISSUED



                                                                        
                                          JOSEPH A. D'AGOSTA
                                          Deputy Commissioner




                     




































    

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