STATE OF NEW YORK
DIVISION OF HOUSING AND COMMUNITY RENEWAL
OFFICE OF RENT ADMINISTRATION
92-31 UNION HALL STREET
JAMAICA, NEW YORK 11433
-------------------------------------X ADMINISTRATIVE REVIEW
IN THE MATTER OF THE ADMINISTRATIVE DOCKET NO.: DF130100RT
DOCKET NO.: AL130200OM
ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW
On June 5, 1989 the above named petitioner-tenant timely filed a
petition for administrative review (PAR) against an order issued on
May 2, 1989, by a Rent Administrator, 92-31 Union Hall Street,
Jamaica, New York concerning the housing accommodations known as
48-11 45th Street, Woodside, NY, apartment 1C, 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 this administrative appeal.
The owner commenced this proceeding on December 6, 1986, by
initially filing an application for a rent increase based on the
installation of replacement windows at a total cost of $21,015.00.
The tenant did not submit an objection to the owner's MCI
application although afforded the opportunity to do so.
On May 2, 1989, the Rent Administrator issued the order here under
review finding that the replacement windows qualified as an MCI,
determining that the application complied with the relevant laws
and regulations based upon the supporting documentation submitted
by the owner, and authorizing rent increases for rent stabilized
In this petition, the tenant contends, in substance, that the
windows replaced by the owner are not aluminum thermal windows but
vinyl replacement windows. Also the petitioner argues the number
of rooms used by the Administrator in his calculation is incorrect.
It is alleged that the owner has made modifications resulting in a
lower room count.
ADMIN. REVIEW DOCKET NO. DF-130100-RT
In this petition, the tenant lists several other tenants as parties
joining this action, but fails to substantiate his authorization.
In response to the petition, the owner contends, in substance, that
the room count used by the Administrator is correct.
After a 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.
At the outset the Commissioner notes as confirmed by the record
that the tenant was served with notice of the MCI application and
that he failed to respond thereto. Fundamental principals of the
administrative appeal process and Section 2529.6 of the Rent
Stabilization Code prohibit a party from raising issues on appeal
which could have been raised below, but which were not.
The tenant of said apartment could have raised the very issues
before the Rent Administrator which they seek to raise for the very
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
ORDERED, that this petition be, and the same hereby is denied and
that the Administrator's order be, and the same hereby is,
Joseph A. D'Agosta