DOCKET NO: CG 710049-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 APPEAL
APPEAL OF DOCKET NO. CG 710049-RT
: DRO DOCKET NOS. HAL-7-1-0112/0191-OM
ROBERT FAGAN, HCA-7-1-0003-RP
:
PETITIONER
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ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW
On July 18, 1988, the above-named tenant timely filed a petition for
administrative review of an order issued on July 5, 1988 (amended July 29,
1988 to correct typographical error not germane to this petition)
concerning various housing accommodations including this tenant's unit:
Apt. 7A at 7A Elk Ct., Hempstead, NY, wherein a Major Capital Improvement
increase was granted for the owner's installation of a new boiler and
burner in boiler room #2 in 1986. Said boiler services 80 apartments in
the complex, including the apartment of the petitioner-tenant.
At the District Rent Administrator level various tenant's complained, that
the new boiler installation replaced a five year old installation, and
that therefore the boiler had not expended its useful life.
The Acting District Rent Administrator based on the evidence in the record
determined that the installation of two new burners in boiler room #2
constituted a major capital improvement for which a rent increase is
mandated by both statutes and regulations.
Although the burners replaced were only five years old, the new burners
were more efficient in that they burn #2 oil instead of #6 oil. the
owner's application was granted due to the new burners using a more
efficient and lower sulfur fuel; consistent with the states energy
conservation policy.
After careful consideration, the Commissioner is of the opinion that the
tenant's petition should be denied.
As the tenant raises the issue of the alleged uninsulated underground
boiler room to building complex pipe for the first time upon
administrative review, and the tenant does not explain why he did not
raise the issue in his January 1, 1991 answer to the owner's application
in the proceeding before the District Rent Administrator, this issue is
outside the scope of the Commissioner's review in this proceeding.
The Commissioner further notes that the useful life standard is flexible
enough to allow replacement of equipment of fairly recent vintage, with
equipment that pollutes less, in accordance with the state's energy
conservation guidelines. In the subject installation the replacement of
#2 oil burning burners and boilers for the existing #6 oil burning
DOCKET NO: CG 710049-RT
equipment was properly held by the District Rent Administrator to be less
polluting and more efficient use of fossil fuels.
Accordingly, the Commissioner finds that the Administrator's order should
be affirmed.
THEREFORE, in accordance with the ETPA and Tenant Protection Regulations,
it is
ORDERED, that this petition be, and the same hereby is denied, and that
the District Rent Administrator's order be, and the same hereby is
affirmed.
ISSUED:
JOSEPH A. D'AGOSTA
Acting Deputy Commissioner
Note: This order doesn't bar the tenant from filing a reduction of
services complaint, regarding heat and hot water services of the building
due to the alleged deficient insulation of underground boiler pipes.
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