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.: BH230059RT
CORNELIUS SHEA DOCKET NO.: KS000894OM
ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW
On August 6, 1987, the above named petition-tenant timely filed a petition
for administrative review (PAR) against an order issued on July 14, 1987 by
a Rent Administrator (Gertz Plaza) concerning the housing accommodations
known as 580 84th Street, Brooklyn, New York, Apartment 2J, wherein the
Rent Administrator determined that the owner was entitled to a rent
increase based on the installation of 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 this administrative appeal.
The owner commenced this proceeding on September 10, 1985 by initially
filing an application for a rent increase based on the installation of roof
repairs; new oil burner and boiler; intercom system; plastering of the
hallways; and painting of the fire escapes.
Various tenants objected to the owner's application, alleging in substance
that the boiler burner breaks down; that the intercom does not work; that
the roof work was only repairs; that the tenants received notice of the
application late; that the owner receives rent increases regularly; and
that there are various individual apartment complaints.
On July 14, 1987, the Rent Administrator issued the order herein under
review, finding that some of the installations qualified as MCIs,
determining that the application complied with the relevant laws and
regulations based upon the supporting documentation submitted by the owner,
and allowing rent increases for rent stabilized tenants.
The order of the Rent Administrator granted, in part, the owner's
application and authorized an increase for the new oil burner and boiler
and intercom system upon finding that said improvements qualified as MCIs.
Disallowed by the Administrator was the claimed cost $10,414.75 for roof
repairs, painting and plastering of hallways and painting of fire escapes
upon a finding that these items did not qualify as MCIs. Costs amounting
to $500.00 were disallowed, having not been substantiated by supporting
documentation for the burner installation.
ADMIN. REVIEW DOCKET NO.: BH230059RT
In this petition, the tenant of apartment 2J contends, in substance, that
his lease runs until September 1988 and he is now paying one of the highest
rents in the building.
After a careful consideration of the entire record the Commissioner is of
the opinion that this petition should be denied.
Rent increases for major capital improvements are authorized by Section
2522.4 of the Rent Stabilization Code for rent stabilized apartments.
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, preservation, and maintenance of the
structure; and replace an item whose useful life has expired.
The Commissioner notes that the petitioner does not question the propriety
of the Administrator's order, but rather questions the owner's entitlement
to collect from him the rent increase before the end of his lease term in
Pursuant to Section 2522.5(d)(2) and (4) of the Rent Stabilization Code, if
the petitioner moved into the subject premises after the instant
application was filed, then the increase shall not be collectible until the
expiration of the lease term in effect at the time of issuance of this
Order and Opinion unless said tenant's vacancy lease contained a provision
stating that the rent may be increased pursuant to an order issued by the
DHCR; that the instant application is pending before the DHCR, including
the docket number and the basis for the requested increase; and that if
granted, the increase may be collectible during the lease term.
If no MCI application was pending when the tenant took occupancy, the owner
was under no obligation to include any specific mention of the
installations which later resulted in the instant rent increase. However,
for the major capital improvement rent increase to be collectible during
the term of the lease in effect at the time of the issuance of the order,
such lease must contain a general lease provision authorizing the
collection of the increase pursuant to a DHCR order.
Since the tenant did not challenge the propriety of the Administrator's
order, and only attacked the owner's right to collect the rent increase,
the tenant's petition is denied. However, this order and opinion is issued
without prejudice to the tenant's right to file a rent overcharge
complaint, if the facts so warrant.
THEREFORE, in accordance with the Rent Stabilization Law and Code, it is
ADMIN. REVIEW DOCKET NO.: BH230059RT
ORDERED, that this petition be, and the same hereby is, denied and that the
Administrator's order be, and the same hereby is, affirmed.
JOSEPH A. D'AGOSTA