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.: DD610296RT
APPEAL OF
Juan R. Hernandez
RENT ADMINISTRATOR'S
PETITIONER DOCKET NO.: BA630102OM
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ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW
The petitioner-tenant timely filed an administrative appeal against
an order issued on April 14, 1989, by the Rent Administrator (92-31
Union Hall Street, Jamaica, New York) concerning the housing
accommodations known as 3508 Kings College Place, Bronx, New York,
apartment 2E, wherein the Administrator granted major capital
improvement (MCI) rent increases for the controlled and stabilized
apartments in the subject premises based on the installation of
apartment windows at the premises.
The owner commenced this proceeding below by filing its MCI
application in January of 1987. In support of its application, the
owner submitted copies of the contract, the contractor's
certification, and cancelled checks.
The petitioner-tenant filed an objection to the owner's
application, stating that the installation took place in 1986, not
during May to August 1985 as stated in the owner's application; a
overcharge application had been filed with the agency; and inquired
as to whether it would be necessary to pay the owner this increase
indefinitely.
On appeal, the petitioner-tenant states, in substance, that only
one window in his bedroom was replaced, and therefore, he should
not be responsible for the entire rent increase.
After a careful consideration of the entire evidence of record, the
Commissioner is of the opinion that this administrative appeal
should be denied.
ADMINISTRATIVE REVIEW DOCKET NO.: DD610296RT
Rent increases for MCIs are authorized by Section 2522.4 of the
Rent Stabilization Code for rent stabilized apartments. 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. It is the established position of the Division that
the installation of apartment windows, as in the instant case,
qualifies as an MCI.
The evidence of record in the instant case indicates that the owner
fully substantiated its application and correctly complied with the
application procedures for an MCI, and that the Rent Administrator
properly computed the appropriate rent increase. On the other hand,
the tenant has not submitted any evidence to prove that the
increase should be revoked.
The Commissioner notes that the tenant did not raised these
objections while this proceeding was pending before the Rent
Administrator even though he was 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-tenant could have raised the very issues before the Rent
Administrator which he now seeks to raise for the first time on
appeal. Accordingly, the Commissioner is constrained to foreclose
consideration of these issues in this proceeding.
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, 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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