STATE OF NEW YORK
DIVISION OF HOUSING AND COMMUNITY RENEWAL
OFFICE OF RENT ADMINISTRATION
92-31 UNION HALL STREET
JAMAICA, NEW YORK 11433
IN THE MATTER OF THE ADMINISTRATIVE ADMINISTRATIVE REVIEW
APPEAL OF DOCKET NO.:
GUILLERMO ARACIL et al.
and THE TENANTS ASSOCIATION
of 1280 COMMONWEALTH AVENUE RENT ADMINISTRATOR'S
PETITIONER BE 630065-OM
ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW
On August 21, 1990, the above-named tenants and tenants' associa
tion timely refiled a petition for administrative review of an
order issued on June 5, 1990 by a Rent Administrator concerning
various housing accommodations in the premises known as 1280
Commonwealth Avenue, Bronx, New York, wherein the Administrator
granted a major capital improvement rent increase for the
installation of a new boiler-burner and replacement windows
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 review.
The owner commenced this proceeding on July 6, 1987 by filing an
application for a rent increase based on a major capital improve
ment (MCI) at a total cost of $111,700.00.
Various tenants submitted answers alleging that the windows were
not working properly and one tenant added that the hot water was
inadequate for her apartment.
The owner responded stating that the boiler/burner and windows
were in operative working condition.
On May 10 and 11, 1990 a Division of Housing and Community
Renewal (DHCR) inspection was conducted and it was reported that
the windows in apartments 5-B and 6-J were not working properly.
The windows in other apartments were found to be functioning
well. One tenant who had asserted that the windows in his apart-
ment were defective failed to keep an appointment for the
inspection of his apartment. Further, although one tenant had
complained that the hot water was inadequate in her apartment,
the agency inspection revealed otherwise.
On June 5, 1990, the Rent Administrator issued the order here
under review, finding that the installation qualified as a major
capital improvement, determining that the application complied
with the relevant laws and regulations based upon the supporting
documentation submitted by the owner, and allowing appropriate
rent increases for rent-controlled and rent-stabilized apart-
ments, with the exception of Apartments 5-B and 6-J. The Rent
Administrator's order exempted these apartments from the rent
increase until all repairs are corrected.
In the petition for administrative review, several tenants allege
that the boiler/burner is not working properly as on occasion,
they assert, there is a lack of heat and insufficient water
pressure. The tenants further assert that there are water leaks
in certain apartment lines preventing water use. Finally, the
tenants contend that the windows are not working properly in num
After careful consideration the Commissioner is of the opinion
that this petition should be denied.
The Commissioner notes that the owner certified that on September
17, 1987 it served each tenant with a copy of the entire M.C.I.
application including all required supplements and supporting
documentation and filed the same with the resident superintendent
of the subject building. The record reveals that although sev-
eral tenants responded to the owner's application asserting that
the windows were not functioning properly, the agency inspection
conducted subsequent to the tenant's responses indicated but a
few malfunctions. The windows of apartments 5-B and 6-J were
found to be malfunctioning and the Administrator's order issued
exempting these apartments from the rent increase until the
windows are repaired.
According to established principles of the administrative review
appeals process a party may not raise an issue for the first time
on administrative review if that issue could reasonably have been
raised before the administrator. In this proceeding, the record
shows that although several tenants raise the issue of inadequate
hot water in their petition, they did not make this assertion
when this proceeding was before the administrator and the Commis
sioner will not consider this issue for the first time on appeal.
The Commissioner further notes that although one tenant com-
plained of inadequate hot water when this proceeding was before
the administrator, an agency inspection revealed that the hot
water in her apartment was adequate.
Regarding the assertion upon administrative review that there are
water leaks, the Commissioner finds that this is not a complaint
pertinent to the order here under review, and the issue was not
raised before the Rent Administrator. The tenants are advised
that this order is issued without prejudice to their right to
file complaints regarding this and the matter of allegedly insuf
ficient hot water if the facts warrant. Accordingly, the Commis
sioner finds that the Administrator's order should be affirmed.
THEREFORE, in accordance with the Rent Stabilization Law and
Code, the Rent and Rehabilitation Law, and the Rent and Eviction
Regulations for New York City, it is
ORDERED, that this petition be, and the same hereby is, denied,
and that the order of the Rent Administrator be, and the same
hereby is, affirmed.