Docket No.: DF 430031
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 SJR No. 5873
APPEAL OF
ADMINISTRATIVE APPEAL
JOSEPH O. BRUSCO, DOCKET NO. DF 430031 RO
D.R.O. DOCKET NO.
BD 410690-OM
PETITIONER
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ORDER AND OPINION REMANDING PETITION FOR ADMINISTRATIVE REVIEW
On June 13, 1989, the above-named petitioner-owner filed an
Administrative Appeal against an order issued on June 2, 1989, by
the District Rent Administrator, 92-31 Union Hall Street, Jamaica,
New York, concerning the housing accommodations known as 42 West
76th Street, New York, New York.
Subsequent thereto the owner filed a petition in Supreme Court
pursuant to Article 78 of the Civil Practice Law and Rules,
requesting that the court direct the Division to issue a
determination of the owner's administrative appeal.
The issue herein is whether the District Rent Administrator
properly determined the owner's (Major Capital Improvement)
application for a rent increase based upon the installation of a
boiler and heating system.
The owner initiated the proceeding below by filing an application
for MCI rent increases on April 27, 1987.
Four tenants answered the owner's application in September and
October, 1987 alleging, in essence, that the owner's improvements
constituted necessary maintenance, but not a Major Capital
Improvement.
The District Rent Administrator's order, appealed herein, denied
the owner's MCI application for a rent increase because of the
existence of a building-wide service reduction order. The owner
was advised that he may resubmit his application upon restoration.
On appeal, the petitioner-owner contends that, to his knowledge,
there is no building-wide service reduction order and that the
District Rent Administrator's order should be reversed.
After a careful consideration of the entire evidence of record,
the Commissioner is of the opinion that the administrative appeal
should be remanded to the District Rent Administrator for further
processing of the owner's MCI rent application which was filed on
April 27, 1987.
Rent increases for major capital improvements are authorized by
Docket No.: DF 430031
Section 2202.4 of the Rent and Eviction Regulations for rent
controlled apartments and Section 2522.4 of the Rent Stabilization
Code for rent stabilized apartments. Under rent control, an
increase is warranted where there has been since July 1, 1970 a
major capital improvement required for the operation,
preservation, or maintenance of the structure. 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.
However, the DHCR will not grant an owner an increase, in whole or
in part, if the owner is not maintaining all required services or
if there is an outstanding building-wide service reduction, unless
the owner filed for a restoration and the DHCR issued a positive
determination.
The record in the instant case shows that on November 13, 1986,
the tenant in occupancy of apartment 1-B (Miriam Schottland) filed
an individual statement of complaint of decrease in services under
docket no. AK 410266-S and that an order (ZAK 410049-HW) was
issued on December 17, 1986 denying the tenant's application on
the ground that the tenant had subsequently acknowledged that the
conditions in the complaint had been corrected.
On July 1, 1987, however, the District Rent Administrator issued a
second order reducing the rent of apartment 1-B due to t e water-
staining of the rear room based upon an inspection.
The Commissioner notes that on November 20, 1989, the owner was
advised by the District Rent Administrator, that Miriam Schottland
vacated apartment 1-B and that the owner should file a rent
restoration application.
Subsequently, the District Rent Administrator issued two
restoration orders as follows:
(1) March 5, 1990: Docket Nos.: ZDH 410104-OR
ZAK 410266-S
(2) August 15, 1990: Docket Nos.: ZEA 410032-OR
ZAK 410266-S
The March 5, 1990 order was predicated on the tenant's failure to
provide access to the inspector to view the rear room water-stain
damage.
Docket No.: DF 430031
The August 15, 1990 order was predicated on an inspection held on
July 20, 1990, which showed that water-stain repairs had been
completed.
Accordingly, the Commissioner finds that in the instant
proceeding there was no basis for the District Rent
Administrator's denial of the owner's MCI application, which was
predicated on the existence of a building-wide service reduction
order.
The record clearly shows that the rent was previously restored and
that there is no outstanding building-wide service reduction
order.
THEREFORE, in accordance with the provisions of the Rent and
Eviction Regulations for New York City and the Rent Stabilization
Law and Code, it is
ORDERED, that this petition be, and the same hereby is, granted to
the extent of remanding this proceeding to the District Rent
Administrator for further processing in accordance with this order
and opinion.
ISSUED:
ELLIOT SANDER
Deputy Commissioner
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