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
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IN THE MATTER OF THE ADMINISTRATIVE : ADMINISTRATIVE REVIEW
APPEAL OF DOCKET NO.: EH130352RT
:
ELLA GALINSKY RENT ADMINISTRATOR'S
DOCKET NO.: CB130197OM
PETITIONER :
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ORDER AND OPINION GRANTING IN PART PETITION FOR
ADMINISTRATIVE REVIEW
On August 29, 1990, the above named petitioner-tenant timely filed
a petition for administrative review (PAR) against an order issued
on August 2, 1990 by a Rent Administrator (Gertz Plaza) concerning
the housing accommodations known as 141-25 Northern Boulevard,
Flushing, New York, Apartment F-25, wherein the Rent Administrator
determined that the owner was entitled to a rent increase based on
the installation of major capital improvements (MCIs).
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 February 22, 1988, by
initially filing an application for a rent increase based on the
total installation cost of $460,417.00 for the following items:
adequate wiring, replacement windows, mail boxes, new intercom and
asbestos removal.
Four tenants objected to the owner's application, alleging, in
substance, and without substantiation that the owner was limited to
a negotiated 2% increase, they were exempt from the increase as
senior citizens, and raising other non-substantive or unrelated
issues to the MCI installations.
The order of the Rent Administrator issued on August 2, 1990
granted in part the owner's application and authorized an increase
for adequate wiring, replacement windows and a new intercom.
Disallowed by the Administrator was the claimed cost of $16,028.00
for mail boxes (installed in the same location) and asbestos
removal (which did not qualify as a MCI).
In this petition the tenant contends, in substance, the following:
1. The vacant apartments which were offered for cooperative
purchase to outside buyers were upgraded more extensively than
the electrical work performed to other apartments which is the
subject of the instant MCI rent increase. Only one electrical
ADMIN. REVIEW DOCKET NO.: EH130352RT
outlet capable of servicing an air conditioner was installed in
the apartment, and another one is needed in the bedroom for the
tenant's air conditioner.
2. The replacement of the old windows should be considered
ordinary maintenance as they were the original windows and in
dire need of replacement.
3. The new intercom does not function as well as the old one,
often malfunctioning and creating an inconvenience when it
becomes necessary to personally let a visitor in.
4. The asbestos in the subject apartment and basement should be
removed.
5. The room count stated on the owner's application (492) is lower
than the room count stated on Schedule A (660) of the offering
plan and has resulted in a higher MCI rent increase.
The owner in response to the tenant's petition states, in
substance, the following:
1. The petition should be dismissed as the tenant failed to raise
the issues when afforded the opportunity during the processing
of the application.
2. The apartments were adequately rewired as specified by
contract, and the work performed passed inspection under the
J-51 program.
3. The replacement of old windows and an inadequate intercom
system is not a bar to a MCI rent increase.
4. The discrepancy in the room count arises from omitting half
rooms as well as employing a different measure
commonly used in cooperative conversions.
After a 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.
ADMIN. REVIEW DOCKET NO.: EH130352RT
The evidence of record in the instant case indicates that the
petitioner-tenant was served by the Administrator with notice of
the instant application, but failed to register any objections.
Moreover, fundamental principles of administrative appeal process
and the Rent Stabilization Code Section 2529.6 prohibit a party
from raising issues on appeal which were not raised below.
The tenant clearly could have raised the very issues
(malfunctioning intercom, the room count and the asbestos removal)
before the Administrator which they now seek to raise for the first
time on appeal.
The Commissioner however notes that the question of the room count
was fully investigated by the Administrator, and the computation
was adjusted in accordance with Division's "room" definition which
excludes half-rooms.
Furthermore, the requirement for asbestos removal is beyond the
jurisdiction of the Division and does not impact on DHCR's
determination of the instant order. The tenant is advised to seek
assistance with the appropriate governmental agencies-the New York
City Departments of Health and Environmental Protection.
The type of electrical work recognized in the Administrator's order
meets the definitional requirements of an MCI, and the record
discloses that the owner substantiated its application with the
required documentation. However, it does not appear from the
record that the tenants were afforded the option of having
additional air conditioning outlets installed. The owner is not
required to install an outlet in every room for the work to qualify
for an MCI rent increase. However, tenants must be given the
option of having additional air conditioner outlets installed at
cost. Therefore, the Administrator's order should be modified to
add the attached document, entitled "Attachment To The MCI Order
For Rewiring."
THEREFORE, in accordance with the applicable provisions of the Rent
Stabilization Law and Code, and the New York City Rent and Eviction
Regulations, it is
ORDERED, that this administrative appeal be, and the same hereby
is, granted in part; and that the Rent Administrator's order be,
and the same hereby is, modified in accordance with this order and
opinion.
ISSUED:
JOSEPH A. D'AGOSTA
Deputy Commissioner
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