DOCKET NUMBER: CD 110165-RT
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
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IN THE MATTER OF THE ADMINISTRATIVE : ADMINISTRATIVE REVIEW
APPEAL OF DOCKET NO.CD 110165-RT
:
THOMAS FAVATA RENT ADMINISTRATOR'S
& VARIOUS TENANTS DOCKET NO. AB 130149-OM
PETITIONER :
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ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW
On April 18, 1988 the above named petitioner-tenants filed a Petition for
Administrative Review against an order issued on March 21, 1988 by the
Rent Administrator, 92-31 Union Hall Street, Jamaica, New York concerning
housing accommodations known as 86-20 Park Lane South, Woodhaven, New
York, various apartments, wherein the Rent Administrator authorized a
major capital improvement rent increase for the installation of a new
roof, adequate wiring and a new burner at the subject premises. The
Administrator disallowed expenditures for several other items (not the
subject of this proceeding) based upon a determination that the items did
not constitute major capital improvements. Said order was issued after a
review of the supporting documentation submitted by the owner, the tenant
responses thereto and an inspection of the subject premises.
The Commissioner notes that although the record shows that only a new
burner was installed at the subject premises, said installation is
referred to below as the "boiler/burner" installation.
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.
In the petition, the tenants contend that the roof was leaking in various
top floor apartments (6A,6B,6D,6G and 6H) and there was leaking in various
other apartments; that the inspector was not qualified; that the
electrical wiring was improperly performed and old fuse boxes were not
removed; that the heating system was being operated manually and heat was
not provided on a regular basis; and that the owner is not maintaining
services.
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 record in the instant case, which includes copies of proposals,
invoices, contractors' certifications, cancelled checks for the work
DOCKET NUMBER: CD 110165-RT
performed and governmental approvals and sign-offs for the installation of
the heating system and the adequate wiring, indicates that the owner
correctly complied with the applicable procedures for a major capital
improvement; and that the Rent Administrator correctly computed the
appropriate rent increases based on the proven cost of the various
improvements. The tenants have not established that the increase should
be revoked.
Regarding the tenants' contention that the roof is leaking, the
Commissioner notes that on February 19, 1988, this Division conducted a
physical inspection of the subject roof, which revealed that the old roof
was replaced and that the new roof appeared in good shape. Furthermore,
as to the top floor apartments listed in the petition as having roof
related leaking problems, the tenants of these apartments did not raise
the issue of current leaks during the proceeding before the Rent
Administrator although they were afforded the opportunity to do so.
Accordingly, pursuant to Section 2529.6 of the Rent Stabilization Code the
tenants' allegations may not be considered now when offered for the first
time on Administrative appeal.
Regarding the tenants' contention that the adequate wiring was not
properly performed, the record indicates that in addition to upgrading the
capacity of the wiring at the subject premises, the owner installed
circuit breakers/panels, air conditioner outlets, heavy duty outlets in
each kitchen and wire risers and that said installation met the
definitional requirements of an MCI. The tenants unsupported contentions
regarding the adequacy of wiring installation are insufficient to warrant
revocation of the MCI increase.
Regarding the tenants' contention that the heating system is not being
operated properly, the record shows that on November 18, 1987 a physical
inspection of the subject premises was conducted by a staff member of the
DIvision who reported that adequate hot water was being provided and that
heat was not required at the time of the inspection. In addition a review
of Division records reveals that no heating complaints have been filed by
any tenants since the new burner was installed. The tenants have not
established that the MCI increase should be revoked. However, this Order
and Opinion is issued without prejudice to the tenants' right to file the
appropriate application for decrease in rent based on any current service
decreases, if the facts so warrant.
THEREFORE, in accordance with the provisions of the Rent Stabilization Law
and Code, it is
ORDERED, that this petition 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
Acting Deputy Commissioner
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