DHCR Decisions
DOCKET NUMBERS: EB-130359-363 - 130421-RO
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 : S.J.R. 5483
APPEALS OF :
: ADMINISTRATIVE REVIEW
: DOCKET NUMBERS:
: EB-130359-RO, EB-130360-RO
: EB-130361-RO, EB-130362-RO
: EB-130363-RO, EB-130404-RO
: EB-130405-RO, EC-130213-RO
: EC-130215-RO, EC-130420-RO
: EC-130421-RO
PAMENAR REALTY, :
: DISTRICT RENT ORDER
: DOCKET NUMBERS:
: CC-130118, 130115,
: CC-110149, 110171,
: 130117, 110151,
: 130155, 130153,
: 130164, 130170 and
: 130169-OM
:
PETITIONER :
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ORDER AND OPINION DENYING PETITIONS FOR ADMINISTRATIVE REVIEW
On February 7 and March 8, 1990, the above-referenced owner filed
petitions for administrative review of orders issued on January 9,
16 and 18 and February 26, 1990 concerning the housing
accommodations known as 145-10 and 145-26 20th Avenue, 20-10,
20-14, 20-18 and 20-20 146th Street, 145-05 21st Avenue and 20-05,
20-11, 20-21 and 20-31 Parsons Boulevard, all in Whitestone,
Queens, in which orders the Administrator had denied the owner's
requests to raise maximum legal rents pursuant to claimed major
capital improvements ("MCIs") to the aforementioned premises.
The owner later filed a petition under Article 78 of the Civil
Practice Law and Rules, in which it requested the Supreme Court to
direct the above-referenced Division expeditiously to determine
the owner's administrative appeal.
On May 7, 1991 an order was signed by Justice H.A. Posner so
directing the Division.
The proceedings were commenced on March 18 and 21, 1988, when the
owner filed applications for rental increases based on major
capital improvements, to wit: gas boilers with the piping,
electrical work and other labor pertaining thereto. In denying
DOCKET NUMBERS: EB-130359-363 - 130421-RO
the increases, the Administrator stated in pertinent part that gas
burners had been installed in 1980 and new oil boilers in 1986,
for both of which the above-referenced Division h d granted MCI-
based rent adjustments, and that the "useful life" of those
improvements had not expired when the owner replaced them with the
boilers that form the subject of this proceeding.
In appealing that order the owner states that the appurtenant gas,
water and plumbing lines are new and were not previously applied
for; that the aforementioned new oil-fired boilers were replaced
because, compared to gas, the supply of fuel oil was so unreliable
as to cause tenants hardship during the winter, and because the
price of oil is erratic; and therefore that "at least partial
allowance should be given for the boiler(s) because as you
mentioned the useful life of the previous boiler(s) w[ere] not
realized."
After careful consideration of the record as it pertains to those
assertions, the Commissioner is of the opinion that this petition
should be denied.
If a major capital improvement is to lead to an increase in the
legal regulated rent, that improvement must have replaced an item
the "useful life" of which had expired. As petitioner explicitly
acknowledges, that useful life had not expired when the subject
improvements were made.
Petitioner argues that due to the above-quoted reasons for
changing fuels, a "partial" increase should be allowed for this
improvement despite nonfulfillment of the useful life requirement.
The law, however, allows for no such partial increase. All the
criteria for an MCI-based increase must be met. If they are not,
as in the instant proceeding, no increase at all is warranted.
The Division's Operational Bulletin 90-2 provides for waiver of
the useful-life requirement. Such waiver must be requested, at
the latest, when the application is submitted, and can only be
granted, moreover, where the need to replace was clear. The
instant improvement, a voluntary change based on mere preference,
meets neither criterion.
In addition, the installation of the various items which are
merely appurtenances to the new gas boilers do not qualify as
improvements which would entitle the owner to rental adjustments.
THEREFORE, in accordance with the Rent Stabilization Code and the
Rent and Eviction Regulations for New York City, it is
ORDERED, that these petitions be, and the same hereby are denied,
and that the decisions of the Rent Administrator be, and the same
hereby are, affirmed.
ISSUED:
DOCKET NUMBERS: EB-130359-363 - 130421-RO
ELLIOT SANDER
Deputy Commissioner
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