DOCKET NO.: CE 210088-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.: CE 210088-RT
: DISTRICT ADMINISTRATOR'S
MAE McCARTHY, DOCKET NO. ZCB 220073-OI
: PREMISES: 929 71ST ST., APT. D1
PETITIONER BROOKLYN, NY
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ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW
The above-named tenant filed a timely petition for administrative review
of an order issued concerning the housing accommodations described above.
The Commissioner has reviewed all the evidence in the record and has
carefully considered that portion of the record relevant to the issues
raised by the petition.
The owner commenced these proceeding by filing before the Administrator an
Application for Increase based upon owner's installation of thermal
windows to replace the original windows in the apartment. In
consideration of this change in services, the owner requested a rent
increase of $16.08 per month.
The Administrator issued an Order granting the rent increase in
consideration of the changes in service.
In her petition, the tenant argues that the new windows were installed
"for the purpose of replacing old windows which were in bad condition",
and therefore do not represent a change in service which according to the
tenant's argument is prerequisite to the owner receiving a rent increase.
The tenant also argues that the Administrator improperly granted the Order
as the owner was only entitled to a rent increase based on a Major Capital
Improvement (MCI). Tenant further argues that she did not give her
consent to the rent increase freely. The tenant goes on to state that at
the same time the owner installed the new windows, it removed the bathroom
window.
The Commissioner is of the opinion that this petition should be denied.
The tenant makes four arguments in support of her petition. The
Commissioner will proceed to answer those arguments, individually and
collectively.
As to tenant's argument on appeal that the new windows were merely a
necessary replacement of old windows, and as such not a change in
services. The owner, in it Application stated that it would replace the
"original windows installed...in 1928" with "insulated glass windows" and
encloses documentation that this type of window was installed. Thus the
change in services was not merely a "replacement", and thus, according to
9 NYCRR Section 2202.4 (Section 2202.4 of the Rent and Eviction
DOCKET NO.: CE 210088-RT
Regulations) the Administrator was correct in granting the owner's
Application for Rent Increase.
As to tenant's argument on appeal that the owner in this case could only
obtain a rent increase via an MCI application. An examination of the
record reveals that, in the instant case the owner sought the tenant's
consent as part of a building-wide window replacement program. This
examination also reveals that the owner allegedly sought apartment-by-
apartment consent, rather than an MCI rent increase, on the advice of the
DHCR Brooklyn, Rent Office. An examination of the Rent and Eviction
Regulations reveals that either method of seeking a rent increase
(tenant's consent on an apartment by apartment basis, or application for
a rent increase based on an MCI) may have been available to the owner in
the instant case. The Commissioner feels that the tenant contradicts
herself in her appeal by first arguing that the owner wasn't entitled to
a rent increase, and by then arguing that the owner was entitled to an MCI
rent increase.
As for tenant argument on appeal that she didn't give her consent to the
change in service. An examination of the record reveals that the
Application for Rent Increase is signed by the tenant, whose signature is
witness by her daughter. The tenant also signed an Addendum to an
Agreement between the owner and the tenant, said Agreement signed by
tenant's daughter as tenant's authorized representative. The Commissioner
thus feels that the tenant signed the agreements voluntarily, and not
under duress.
As for tenant's introduction on appeal of the issue of the removal of the
bathroom window. The Commissioner feels that the tenant has attempted to
collaterally introduce another issue into the proceedings. Tenant
concedes that she filed a Complaint of Service Reduction under Docket
Number "220486-S" (no prefix given) in regard to the removal of the
bathroom window. An examination of the record reveals that a complaint
with the Docket Number AI 220486-S, concerning the subject premises, was
filed by the tenant with the Division on or about September 25, 1986, and
was denied by the Administrator on May 19, 1987.
As for all four of tenant's arguments made on appeal and enumerated above.
The tenant makes these arguments for the first time on appeal although she
was able to make any and all of them before the Administrator. The
Commissioner cannot consider such argument made for the first time on
appeal.
THEREFORE, in accordance with the provisions of the Rent and Eviction
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
Acting Deputy Commissioner
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