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.: DB410273RT
APPEAL OF
THEA GELLER,
RENT ADMINISTRATOR'S
DOCKET NO.: BG430180OM
PETITIONER
-------------------------------------X
ORDER AND OPINION GRANTING PETITION FOR ADMINISTRATIVE REVIEW
The above named petitioner-tenant timely filed a petition for
administrative review (PAR) against an order issued on January 18,
1989, by the Rent Administrator (Gertz Plaza) concerning the
housing accommodations known as 348 East 66th Street, apartment 8,
New York, New York, wherein the Rent Administrator determined that
the owner was entitled to a rent increase based on the installation
of 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 this Administrative Appeal.
The owner commenced the proceeding below by filing its MCI
application in July of 1987. In response to the owner's MCI
application, the petitioner filed an answer, stating, in substance,
that her original lease for Apt. 8 started from March 1, 1986 which
was over one year after the installation of the boiler; that there
is a pending rent overcharge complaint under Docket No. AL410625R
since the rent was raised 992% between the prior tenant's vacancy
and this occupancy; and that it should be presumed that the
landlord would have calculated into the new rent any improvements
performed on the subject building one year prior to the signing of
the said lease.
The owner responded to the tenant's objections by contending, in
substance, that the tenant's initial lease did not reflect any
increase due to the subject MCI; and that the tenant's fair market
appeal was denied. In support of its contention, the owner
submitted a copy of the initial lease.
The Rent Administrator's order, appealed herein, granted a major
capital improvement rent increase predicated on the installation of
a new boiler/burner at a total approved cost of $30,390.00.
ADMIN. REVIEW DOCKET NO. DB-410273-RT
In this petition for administrative review, the petitioner-tenant
requests reversal of the Administrator's order and contends, in
substance, that Apt. 8 was initially rented to her on March 1, 1986
which was over one year after the installation of the new
boiler/burner; that it was understood that the boiler improvement
was figured into the 992% rent increase charged by the landlord in
the lease dated March 1, 1986; that paying an additional $3.39 per
month as the order suggests is paying for same boiler improvement
twice; and that in a building with 39 apartments, the current
monthly rent for Apt. 8 of $781.17 represents over 6«% of the
yearly residential rent receivable.
After a careful consideration of the entire evidence of record, the
Commissioner is of the opinion that the Administrative Appeal
should be granted, as provided herein below.
Regarding the petitioner's contention that she took occupancy after
the installation was completed, the Commissioner notes that such
contention is not sufficient in itself to obviate the tenant's
obligation to pay rent increases duly approved by the Division.
The Commissioner further notes that in this proceeding it is clear
that the owner's application was not pending before the Division
when the petitioner took occupancy of the apartment since the
petitioner's initial lease began on March 1, 1986 while the owner
did not file the application for a rent increase until July of
1987.
However, as to the petitioner's contention that the boiler
improvement was already figured into the new rent charged in the
initial lease, the Commissioner notes that the petitioner is the
first tenant to occupy Apt. 8 after it became subject to Rent
Stabilization jurisdiction; and that since the free market rent
charged to the first stabilized tenant included any and all
services then being provided, the MCI rent increase provided for in
the Rent Administrator's order is not collectible from the first
stabilized tenant or any subsequent tenant of said apartment.
THEREFORE, in accordance with the Rent Stabilization Law and Code,
it is
ORDERED, that this petition be, and the same hereby is granted; and
that the Rent Administrator's order be, and the same hereby is,
modified to provide that the subject apartment is exempt from the
increase. The Administrator's order is hereby affirmed in all
other respects. The owner is directed to refund to the tenant all
excess rent collected from the tenant arising as a result of the
order and opinion within 30 days from the issuance date indicated
herein below.
ISSUED: ____________________
Joseph A. D'Agosta
2 Deputy Commissioner
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