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 ADMINISTRATIVE REVIEW
IN THE MATTER OF THE ADMINISTRATIVE DOCKET NO.: DB410270RT
APPEAL OF
ELEANOR ROCCA,
RENT ADMINISTRATOR'S
DOCKET NO.: AF410203OM
PETITIONER
-------------------------------------X
ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW
On February 3, 1989, the above named petitioner-tenant timely filed
a petition for administrative review (PAR) against an order issued
on January 17, 1989, by a Rent Administrator, 92-31 Union Hall
Street, Jamaica, New York concerning the housing accommodations
known as 94 St. Mark's Place, New York, New York, apartment # 5,
wherein the Rent Administrator determined that the owner was
entitled to a rent increase based on 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 the petition for administrative review.
The owner commenced this proceeding on June 13, 1986 by initially
filing a major capital improvement rent increase application
predicated on the installation of replacement windows at a total
cost of $9,300.
The tenant objected to the owner's MCI application, alleging, in
substance, that the windows that were replaced did not meet NY City
Housing Code and that the replacements should be the owner's sole
responsibility.
On January 17, 1989, the Rent Administrator issued the order here
under review finding that the installations qualified as an MCI
based upon the supporting documentation submitted by the owner, and
allowing appropriate rent increases for rent stabilized apartments.
In this petition, the tenant contends, in substance, that
computations used for the rent increase are incorrect. The tenant
alleges that there are only 3 rooms not 4 rooms, as used for the
rent increase calculation of her apartment. The tenant also
alleges only 12 months of arrears exist from the collectible date
February 1, 1988 to the date of the petitioner-tenant's filing of
her administrative review, February 3, 1989.
ADMIN. REVIEW DOCKET NO. DB-410270-RT
In response to the tenant's petition, the owner contends, in
substance, that all 10 apartments are 4 rooms each and in any event
the apartment of the petitioner has 4 rooms. Also the owner
contends that the arrears are from the effective date of the rent
increase November 1, 1986.
After 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 evidence of record in the instant case indicates that the
Administrator did start the retroactive increase from the proper
effective date of November 1, 1986.
The effective date determined by the administrator for the rent
increase is the first rent collection day, that is at least 30 days
after the filing of the Certificate of Service by the owner. The
filing of the Service Certificate is September 2, 1986.
The collectible date determined by the Administrator for the rent
increase is the first date of the rent collection, following the
issuance of the Administrator's order.
The Commissioner notes that the Administrator herein did mistakenly
state the collectible date. However, the computation of the
retroactive rent increase is correct. The Administrator issued the
MCI order on January 17, 1989 therefore the proper collectible date
is February 1, 1989, not February 1, 1988 as stated in the order (a
clear typographical error).
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ADMIN. REVIEW DOCKET NO. DB-410270-RT
The Commissioner further notes that a fundamental principal of the
administrative appeal process and Section 2529.6 of the Rent
Stabilization Code prohibit a party from raising issues on appeal
which were not raised below. The tenant could have raised the very
issues before the Rent Administrator which she seeks to raise for
the first time on appeal. Accordingly, the Commissioner is
constrained to foreclose consideration of these issues in this
appeal proceeding.
THEREFORE, in accordance with the Rent Stabilization Law and Code,
it is
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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