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



     -------------------------------------X
     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   
     -------------------------------------X   

           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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