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 NOS.: DC210330RT
APPEALS OF DC210390RT
Marvin Baker and Luther Watts
RENT ADMINISTRATOR'S
PETITIONERS DOCKET NO.: BC230146OM
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ORDER AND OPINION DENYING PETITIONS FOR ADMINISTRATIVE REVIEW
The petitioner-tenants timely refiled administrative appeals
against an order issued on January 13, 1989, by the Rent
Administrator (92-31 Union Hall Street, Jamaica, New York)
concerning the housing accommodations known as 474 East 98th
Street, Brooklyn, New York, apartments A3 and B1, wherein the
Administrator granted major capital improvement (MCI) rent
increases for the controlled and stabilized apartments in the
subject premises.
The owner commenced this proceeding below by filing its MCI
application in March of 1987 for a new intercom system and a new
heating system. In support of its application, the owner submitted
copies of the contracts, the contractors' certifications,
government approvals and cancelled checks.
The owner certified that on April 28, 1987, copies of the MCI
application were served by the owner on all the tenants. Along with
the application was a form to be used by the tenants for their
responses.
The petitioner-tenants did not file an objection to the owner's
application.
The Administrator's order appealed herein authorized an MCI rent
increase for the new intercom and heating systems.
On appeal, the tenant of apartment A3 alleges, in substance, that
repairs only were done on the boiler and there is still no heat at
times; that the intercom system is defective; and that the repairs
performed do not warrant a rent increase.
ADMINISTRATIVE REVIEW DOCKET NOS.: DC210330RT et. al.
The tenant of apartment B1 alleges, in substance, that there are
two buildings involved in the MCI (474 and 476 East 98th Street),
but only one building (474 East 98th Street) is being charged with
the retroactive and monthly increase; and that a previous temporary
fuel rent increase was never removed from his rent.
In response to the tenants' petitions, the owner states, in
substance, he has nothing to do with the address, 476 East 98th
Street, and that heat and hot water are provided to all tenants.
After a careful consideration of the entire evidence of record, the
Commissioner is of the opinion that these administrative appeals
should be denied.
Rent increases for MCIs are authorized by Section 2202.4 of the
Rent and Eviction Regulations for the rent controlled apartments
and Section 2522.4 of the Rent Stabilization Code for the rent
stabilized apartments. Under rent control, an increase is warranted
where there has been since July 1, 1970 an MCI required for the
operation, preservation, and maintenance of the structure. Under
rent stabilization, the improvement must general y 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. It is the established position of the Division that
the installation of the new intercom and heating systems, as in the
instant case, qualifies as an MCI.
The Commissioner notes that the petitioner-tenants did not raise
any objections to the adequacy of the installations while this
proceeding was pending before the Rent Administrator even though
they were afforded the opportunity to do so.
Fundamental principles of the administrative appeal process and
Section 2529.6 of the Rent Stabilization Code prohibit a party from
raising issues on appeal which were not raised below as the
petitioner-tenants could have raised the very issues before the
Rent Administrator which they now seek to raise for the first time
on appeal. Accordingly, the Commissioner is constrained to
foreclose consideration of these issues in this proceeding. The
Commissioner notes, however, that the owner's application and
contract for the work performed are limited only to the subject
building of 474 East 98th Street.
As to the tenants' contention with respect to the maintenance of
services, a review of the Division's records discloses that there
has never been an order outstanding against the subject premises
based on the owner's failure to maintain building-wide services.
ADMINISTRATIVE REVIEW DOCKET NOS.: DC210330RT et. al.
However, the determination herein is without prejudice to the right
of the tenants to file an application for a rent reduction based on
a diminution of services, if the facts so warrant.
With regard to Mr. Baker's allegation about a previous temporary
fuel rent increase which was never removed, the determination
herein is without prejudice to the right of the tenant herein to
file an appropriate complaint of rent overcharge with this
Division, if the facts so warrant.
On the basis of the entire evidence of record, it is found that the
Administrator's order is correct and should be affirmed.
THEREFORE, in accordance with the applicable provisions of the Rent
Stabilization Law and Code, the Rent and Eviction Regulations for
the City of New York, and Operational Bulletin 84-1, it is
ORDERED, that these administrative appeals be, and the same hereby
are denied; and that the Administrator's order be, and the same
hereby is, affirmed.
ISSUED:
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Joseph A. D'Agosta
Deputy Commissioner
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