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 410104-RT
:
JEFFERY HEIMAN & RENT ADMINISTRATOR'S
THOMAS DELANEY DOCKET NO.: ZBF 430020-OM
PETITIONER :
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ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW
On December 6, 1989 the above-named petitioner-tenants filed an
Administrative Appeal against an order issued on November 28, 1989 by the
Rent Administrator, Gertz Plaza, Jamaica, New York, concerning housing
accommodations known as 964 Amsterdam Avenue, New York, New York, Apartment
3A, wherein the Administrator granted the owner's application for a rent
increase based on the installation of an oil boiler and burner and a new
roof.
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 appeal.
The issue in this appeal is whether the Rent Administrator's order was
warranted.
The owner commenced this proceeding on June 4, 1987 by filing an
application for a rent increase based upon the installation of several
major capital improvements (MCI's): an oil boiler/burner, roof, mailboxes,
oil tank lining and a cold water line.
None of the tenants responded to owner's application.
On November 28, 1989, the Rent Administrator partially granted the owner's
MCI application, approving a rent increase for the boiler/burner and heat
timer and roof, and denying a rent increase for the mailboxes, oil tank
liner and cold water riser.
In this petition, the tenants of Apartment 3A seek modification of the Rent
Administrator's order to exclude the retroactive increase on the grounds
that the tenants were neither polled as stated in the Administrator's order
nor given notice that the improvements would subject them to a rent
increase. The tenants also objected to the retroactive increase because
the improvements merely added value to the owner's property.
In answer thereto, the owner states that the tenants should be subject to
the retroactive increase because the tenants began occupancy of their
apartment prior to the installation of the improvements. The owner also
states that he will rely on the Division to verify that the tenants were
polled.
ADMIN. REVIEW DOCKET NO.: DL 410104-RT
After a careful consideration of the entire evidence of record, the
Commissioner is of the opinion that this petition should be denied.
Rent increases for major capital improvements are authorized by 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.
The Commissioner notes that for applications filed prior to October 1,
1987, an owner was required to serve a copy of the MCI application, a copy
of Notice Form RA-79N and three copies of Answer Form RTP-3 to all rent
regulated tenants. Upon completion of service, the owner was required to
certify on RA-79 Supplement IV (Certification of Service of Notice to
Tenants of Filing of Application for Rent Increase) that service of these
items was performed. If none of the tenants responded, as the record
indicates in the instant case, the Division would randomly select a sample
of tenants and send them a Notice to Tenant of Opportunity to Respond to
Application along with a copy of the MCI application and answer form. This
last step was known as polling.
The record indicates that the owner substantiated his application in the
proceeding below by submitting to the Administrator documentation in
support of the application, including the contractor's certifications,
copies of contracts, invoices, cancelled checks, and the necessary
governmental approvals for the work in question.
Moreover, the record discloses that on September 22, 1987, the former owner
certified that he served each tenant with a copy of the application and
placed a copy of the entire application, including all required supplements
and supporting documentation, with the resident superintendent of the
subject building. On August 8, 1988, a random polling of tenants was made
by the Division, but none of the tenants responded to such polling.
Based upon the foregoing, the Commissioner finds that the notice
requirements in existence at the time the application was filed were
followed, and that the tenants were given adequate notice of MCI
application.
With regard to the tenant's contentions that the oil boiler/burner and roof
increased value of owner's property, the Commissioner notes that the work
in question meets the criteria for an MCI as stated in Section 2522.4(a)(2)
of the Rent Stabilization Code.
ADMIN. REVIEW DOCKET NO.: DL 410104-RT
THEREFORE, in accordance with the Rent Stabilization Law and Code, and New
York City Rent and Eviction Regulations, it is
ORDERED, that this petition be, and the same hereby is denied and that the
Rent Administrator's order be, and the same hereby is, affirmed.
ISSUED:
JOSEPH A. D'AGOSTA
Acting Deputy Commissioner
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