DL 110241 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 REVIEW
APPEAL OF : DOCKET NO. DL 110241-RT
:
CHITA REYES, : DISTRICT RENT ADMINISTRATOR'S
: DOCKET NO. AA 130500 OM
PETITIONER :
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ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW
On December 20, 1989, the above-named tenant filed a Petition for
Administrative Review of an order issued on November 16, 1989 by a
Rent Administrator concerning the housing accommodations known as
Apartment 1W, 92-42 52nd Avenue, Elmhurst, New York.
The Commissioner has reviewed all 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 issue herein is whether the Rent Administrator properly
determined the owner's application for a rent increase based upon
a claimed major capital improvement (MCI).
The Rent Administrator's order appealed herein, increased the
rents of all apartments by $5.90 per room, per month, based upon
the completion of pointing and waterproofing building-wide.
On appeal the petitioner-tenant alleges, in substance, that
despite the MCI installation the premises' basement is not
waterproof and she therefore objects to the accompanying rent
increase. The tenant encloses a copy of a correspondence letter
from the owner's managing agent, dated September 13, 1989 and
copies of two letters that the tenant sent to the owner, one dated
September 25, 1989. These letters reveal that the owner had
directed that the tenant, in her absence from the subject
apartment, lock her windows as the owner asserted that when her
windows are left open, to any degree, during a rainstorm, water is
permitted into the apartment which then seeps into the basement
and that the tenant has observed the owner's husband sweeping
excess rain water down the stairs leading to the basement.
In response, the owner asserts, in substance and pertinent part,
that the bricks of the entire front of the subject building were
pointed and waterproofed, and that the subject tenant never once
complained to her about water seepage or moisture coming from the
DL 110241 RT
outside walls into her apartment. The owner further asserts that
any water seepage into the basement is attributable to the
tenant's permitting her apartment windows to remain open during
rainstorms and that this was confirmed by a contractor.
The tenant submits a detailed response in which she asserts, in
substance and pertinent part, that she moved into the subject
premises after the MCI installation was completed and therefore
cannot personally ascertain whether the installation had actually
been done but asserts that if it had been done properly there
should not exist any water seepage into the basement. The tenant
further asserts that any water seepage is not due to her apartment
windows being open during rainstorms.
After careful consideration, the Commissioner is of the opinion
that the petition should be denied.
The Commissioner notes at the outset that to qualify for an MCI,
an installation must be (a) building-wide; (b) deemed depreciable
under the Internal Revenue Code; (c) structural in nature; (d) an
improvement to the building or to the building stock; and (e)
required for the operation, preservation or maintenance of the
structure. In addition, the cost of the installation must be
adequately substantiated by submission of copies of contracts,
other invoices, cancelled checks, and other pertinent
documentation.
The record discloses that the Administrator properly applied these
principles to the owner's application. The installations for
which increases were allowed fit the above definition and their
costs were substantiated by the owner.
It is further noted that the tenant has not asserted water
penetration or leak damage to her apartment since the pointing and
waterproofing installation. The tenant merely offers the owner's
assertion that water seepage sometimes occurs in the basement for
alleged reasons unrelated to the subject MCI. Therefore, the
tenant has not presented any relevant objections to the processing
of the MCI order with her petition. Accordingly, the Commissioner
finds no reason to disturb the Administrator's order appealed
herein.
THEREFORE, in accordance with the provisions of the Rent
Stabilization Law and Code, 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
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