STATE OF NEW YORK
DIVISION OF HOUSING AN 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.: DC430329RT
APPEAL OF
Various Tenants of 23 East 109th
Street, New York, New York RENT ADMINISTRATOR'S
PETITIONERS DOCKET NO.: AG430040OM
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ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW
The petitioner-tenants timely refiled an administrative appeal
against an order issued on February 6, 1989, by the Rent
Administrator (92-31 Union Hall Street, Jamaica, New York)
concerning the housing accommodations known as 23 East 109th
Street, New York, New York, various apartments, wherein the
Administrator partially 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 January of 1986 based on the following
installations: adequate rewiring, apartment windows, boiler/burner,
intercom system, lobby door, mail boxes, fuel computer, and an
elevator cab. In support of its application, the owner submitted
copies of the contracts, government approvals and cancelled checks.
On August 28, 1986, a copy of the MCI application was served by the
owner upon the tenants. Along with the application was a form to be
used by the tenants for their responses.
Only the tenant of apartment 2L objected to the rent increase,
claiming that she couldn't afford a rent increase. No other tenant
filed an objection against the owner's application.
The Administrator's order appealed herein authorized an MCI rent
increase for apartment windows, a boiler/burner, intercom system
and lobby door. Disallowed by the Administrator were the claimed
costs of the mail boxes, fuel computer and elevator cab (not here
at issue) as those items did not constitute MCIs. The owner
withdrew the rewiring work from its application.
ADMINISTRATIVE REVIEW DOCKET NOS.: DC430329RT
On appeal, the petitioner-tenants state, in substance, that A) the
window installation is defective, as evidenced by air and water
leaks; B) the entrance door does not have a lock and the intercom
does not work in every apartment; C) during the summer and spring
seasons, the water is lukewarm and in the winter, the heat is
inadequate, and D) the owner has several violations against the
subject premises.
After a careful consideration of the entire evidence of record, the
Commissioner is of the opinion that this administrative appeal
should be denied.
Rent increases for major capital improvements 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
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 has expired.
It is the established position of the Division that the work
approved by the Administrator meets the definitional requirements
of a major capital improvement for which a rent increase may be
warranted. The record shows that the owner submitted copies of the
contracts, contractors' statements, requisite governmental
approvals and cancelled checks which indicate that the owner
correctly complied with the applicable procedures for a major
capital improvement rent increase; and that the increase was
properly computed based on the proven cost of the installation. The
petitioners herein, on the other hand, have failed to established
either in the proceeding below or on appeal the alleged inadequacy
of the work performed or that services were not being maintained.
The Commissioner notes that the tenants did not raise these
objections while this proceeding was pending before the Rent
Administrator although 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.
ADMINISTRATIVE REVIEW DOCKET NOS.: DC430329RT
As to the tenants' contention with respect to the maintenance of
services, a review of the Division's records discloses that there
were no orders outstanding against the subject premises based on
the owner's failure to maintain building-wide services at the time
the Administrator's order was issued. Furthermore, a current
examination of the records of the New York City Department of
Housing Preservation and Development indicate that no immediately
hazardous violations are on file against the subject premises. 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 building-wide or individual apartment services, 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 this administrative appeal be, and the same hereby is
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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