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.: ED230248RO
APPEAL OF
CHESTER GARBACZ
RENT ADMINISTRATOR'S
DOCKET NO.: BC210351OM
PETITIONER
-------------------------------------X
ORDER AND OPINION GRANTING IN PART PETITION FOR ADMINISTRATIVE
REVIEW
On April 23, 1990, the above-named petitioner-owner timely filed a
petition for administrative review (PAR) against an order issued on
March 28, 1990, by a Rent Administrator, 92-31 Union Hall Street,
Jamaica, NY, concerning the housing accommodations known as 227/229
Kingsland Avenue, Brooklyn, NY, Various apartments.
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 the petition for administrative review.
The owner commenced this proceeding on March 16, 1987 by initially
filing a major capital improvement (MCI) rent increase application
based on the installation of the following:
Item Claimed Cost
(1) Boiler $14,300.00
(2) Apartment doors $ 6,800.00
(3) Rewiring $11,000.00
(4) Intercom system $ 1,540.00
(5) Smoke detectors $ 540.00
(6) Re-piping $10,000.00
(7) Bathroom /Kitchen Fixtures $ 6,241.41
(8) Sidewalk $ 936.96
(9) Paint Cornices $ 2,500.00
(10) Roof $ 3,000.00
(11) Replacement windows $ 9,000.00
For a total claimed cost of $65,858.37
ADMIN. REVIEW DOCKET NO. ED-230248-RO
On March 28, 1990, the Rent Administrator issued the order here
under review finding that only the new roof, the re-piping, the
boiler and the apartment doors qualified as MCIs. Also only part
of the cost for the boiler and apartment doors were allowed. The
Rent Administrator determined that the items recognized in the
order as qualifying complied with the relevant laws and regulations
based upon the supporting documentation submitted by the owner, and
authorized rent increases for rent controlled and rent stabilized
apartments the expiration date for the latter being November 1,
1989.
In this petition, the owner contends, in substance, that the Rent
Administrator erred in its determination of the effective date of
the MCI for rent stabilized apartments.
After careful consideration of the entire record, the Commissioner
is of the opinion that this petition should be granted in part.
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.
At the time the instant application was initially filed, the normal
effective date of a rent increase for rent stabilized apartments is
the first rent payment date at least 30 days after the owner
completes its filing of the application by the filing with the
Division of a Certificate of Service of same upon the tenants.
The evidence of the record in the instant case indicates that the
owner certified, that he had completed service of notice of the MCI
application on the tenants on September 25, 1987. However, the
owner did not file said completed certification with the Division
until September 19, 1989. No satisfactory explanation is given by
the owner for this delay.
As of October 3, 1988 no responses from the tenants were received
by the Division, whereupon the Division served notice to the
tenants of the MCI application.
Following the notice by the Division the tenants responded stating,
in substance, that the Division's notice was the first notice that
was received.
The Commissioner finds that the owner has failed to substantiate
that service was completed in September of 1987. The record shows
that the filing processing was completed on October 3, 1988 by the
Division.
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ADMIN. REVIEW DOCKET NO. ED-230248-RO
In light of the foregoing, the Commissioner is of the opinion and
finds that the effective date of the rent increase for stabilized
apartments should be December 1, 1988 (the first rent payment date
at least 30 days after notice to the tenants was completed by the
Division), rather than November 1, 1989.
The tenants may pay any arrears in rent arising as a result of this
order and opinion in twelve equal monthly installments, subject to
the 6% maximum on collectibility of the temporary retroactive
increase.
THEREFORE, in accordance with the Rent Stabilization Law and Code,
and the Rent and Eviction Regulations, it is
ORDERED, that this petition be, and the same hereby is granted in
part; and that the Administrator's order be, and the same hereby is
modified, to revise the effective date of the increase for rent-
stabilized tenants as provided herein above. The order and
determination of the Division is hereby affirmed in all other
respects.
ISSUED:
____________________
Joseph A. D'Agosta
Deputy Commissioner
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