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.: DA430081RO
APPEAL OF
POMEROY COMPANY
RENT ADMINISTRATOR'S
PETITIONER DOCKET NO: BH430079OM
------------------------------------X
ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW
On January 11, 1989, the above named petitioner-owner timely filed
a petition for administrative review (PAR) against an order issued
on December 7, 1988, by a Rent Administrator concerning the housing
accommodations known as 524 West 123rd Street, 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 this proceeding on August 7, 1987, by filing an
application for a rent increase based on the installation of the
following MCIs at a total cost of $ 3,057.00:
a) new sidewalk;
b) pressure-wash facade; and
c) paint and/or repair
1. cornice
2. bay windows
3. floor and stoop
On December 7, 1988, the Rent Administrator issued the order here
under review finding that the installations did not qualify as MCIs
as they are considered to be ordinary repairs and/or maintenance of
the structure.
In this petition, the owner contends, in substance, that according
to DHCR precedent set by administrative appeal Docket No. CPTA
22,191 which denied a tenant's PAR against an order granting an
increase for a new sidewalk, the installation herein should also
qualify for a rent increase; and that DHCRs departure from said
precedent is arbitrary and capricious.
ADMIN. REVIEW DOCKET NO. DA430081RO
After a careful consideration of the entire evidence of record, the
Commissioner is of the opinion that this petition should be denied.
The evidence of record indicates that, with respect to the sidewalk
installation, this item was properly disallowed since it does not
qualify as an MCI under the present Rent Stabilization Code
(CJ230108RO). The DHCR has previously ruled (as early as 1985,
prior to the time the work in question was performed) that such
item, as distinguished from resurfacing the entire court yard and
walkways within the property line, is not a depreciable expense
and does not qualify as an MCI (BJ430076RO; ARL1810Q; BJ430022RO).
The Commissioner further notes that in the proceeding under Docket
No. CPTA 22,191, cited by the owner on appeal, the Rent
Administrator's order referred to therein and the administrative
appeal was filed well before the effective date of Operational
Bulletin 84-4, which established certain uniform standards
applicable to both rent controlled and rent stabilized buildings,
including the requirement that an installation be deemed
depreciable under the Internal Revenue Code in order to constitute
an MCI. Similarly, the facade work does not constitute an MCI but
is considered to be ordinary repairs and/or maintenance of the
structure for which an MCI rent increase is not warranted.
THEREFORE, in accordance with the Rent Stabilization Law and Code,
and the New York City Rent and Eviction Regulations; and
Operational Bulletin 84-4, it is
ORDERED, that this petition be, and the same hereby is, denied and
that the Administrator's order be, and the same hereby is,
affirmed.
ISSUED:
JOSEPH A. D'AGOSTA
Deputy Commissioner
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.: DA430081RO
APPEAL OF
POMEROY COMPANY
RENT ADMINISTRATOR'S
PETITIONER DOCKET NO: BH430079OM
------------------------------------X
ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW
On January 11, 1989, the above named petitioner-owner timely filed
a petition for administrative review (PAR) against an order issued
on December 7, 1988, by a Rent Administrator concerning the housing
accommodations known as 524 West 123rd Street, 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 this proceeding on August 7, 1987, by filing an
application for a rent increase based on the installation of the
following MCIs at a total cost of $ 3,057.00:
a) new sidewalk;
b) pressure-wash facade; and
c) paint and/or repair
1. cornice
2. bay windows
3. floor and stoop
On December 7, 1988, the Rent Administrator issued the order here
under review finding that the installations did not qualify as MCIs
as they are considered to be ordinary repairs and/or maintenance of
the structure.
In this petition, the owner contends, in substance, that according
to DHCR precedent set by administrative appeal Docket No. CPTA
22,191 which denied a tenant's PAR against an order granting an
increase for a new sidewalk, the installation herein should also
qualify for a rent increase; and that DHCRs departure from said
precedent is arbitrary and capricious.
ADMIN. REVIEW DOCKET NO. DA430081RO
After a careful consideration of the entire evidence of record, the
Commissioner is of the opinion that this petition should be denied.
The evidence of record indicates that, with respect to the sidewalk
installation, this item was properly disallowed since it does not
qualify as an MCI under the present Rent Stabilization Code
(CJ230108RO) and the DHCR has previously ruled that such item,
outside the property line, is not a depreciable expense pursuant to
Operational Bulletin 84-4 effective as of November 13, 1984
(approximately 4 years prior to the date the owner's appeal was
filed). (BJ430076RO; ARL1810Q; BJ430022RO). Similarly, the facade
work does not constitute an MCI but is considered to be ordinary
repairs and/or maintenance of the structure for which an MCI rent
increase is not warranted.
THEREFORE, in accordance with the Rent Stabilization Law and Code,
and the New York City Rent and Eviction Regulations; and
Operational Bulletin 84-4, it is
ORDERED, that this petition be, and the same hereby is, denied and
that the Administrator's order be, and the same hereby is,
affirmed.
ISSUED:
JOSEPH A. D'AGOSTA
Deputy Commissioner
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