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.: BH230059RT
                                          :  
                                             RENT ADMINISTRATOR'S
       CORNELIUS SHEA                        DOCKET NO.: KS000894OM
                            PETITIONER    : 
      ------------------------------------X                             

            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 
      September 1988.

      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.

      ISSUED:



                                                                    
                                           JOSEPH A. D'AGOSTA
                                           Deputy Commissioner




                                                    





    

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