STATE OF NEW YORK
DIVISION OF HOUSING AND COMMUNITY RENEWAL
OFFICE OF RENT ADMINISTRATION
92-31 UNION HALL STREET
JAMAICA, NEW YORK 11433
------------------------------------X ADMINISTRATIVE REVIEW
IN THE MATTER OF THE ADMINISTRATIVE DOCKET NO.: EH 430252RO
GERALD L. SALZER,
PETITIONER DOCKET NO: BG 410333OM
ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW
On August 22, 1990, the above named petitioner-owner re-filed a
petition for administrative review of an order issued on December
11, 1990, by the Rent Administrator, concerning the housing
accommodation known as 326 West 87th Street, New York, NY, various
apartments, wherein the Administrator denied, in part, the owner's
application for a rent increase based on the installation of
various major capital improvements.
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 administrative appeal.
The owner commenced the instant proceeding on July 2, 1987 by
initially filing an application for a rent increase based on the
installation of an oil burner and combustion chamber, chimney pipe
and damper, public hallway floor, roof and pointing, at a total
claimed cost of $5,508.54.
On December 11, 1990, the Rent Administrator issued the order here
under review, finding that the roof and pointing qualified as MCIs,
determining that the part of the application pertaining to said
installations complied with the relevant laws and regulations based
upon the supporting documentation submitted by the owner, and
allowing rent increases for the rent stabilized tenants. The
Administrator also determined that the oil burner and combustion
chamber, chimney pipe and damper, and public hallway floor did not
meet the criteria of an MCI.
In this PAR, the owner requests modification of the Rent
Administrator's order and contends, in substance, that the oil
burner and combustion chamber were old and needed to be replaced,
the chimney pipe and damper had to be installed in relation to the
ADMIN. REVIEW DOCKET NO. EH 430252RO
burner, and the installation of the tile floor in the public
hallway constituted a substantial improvement to the safety, as
well as the appearance of the building, the cost for which should
not have been excluded by the Administrator.
After careful consideration of the entire evidence of record, the
Commissioner is of the opinion that this petition should be denied.
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 to replace an item whose useful
life has expired.
The Commissioner finds from the evidence of the record that while
the complete replacement of the previously existing boiler would
meet the definitional requirements of a major capital improvement,
the work in question entailed only the partial replacement of the
existing boiler. Replacement of the oil burner and combustion
chamber was merely a repair of the existing boiler and therefore
does not qualify as an MCI. It is noted that the owner did receive
an MCI rent increase based on the installation of a new
boiler/burner in 1988, under Docket No. CC 410095 OM.
Under Section 2522.4(a)(2)(ii) of the Rent Stabilization Code, a
rent increase may be granted if there has been other necessary work
performed in connection with and directly related to an MCI. The
replacement of the chimney pipe and damper was not performed in
connection with or related to an MCI, but was part of the repair
work performed on the existing boiler.
DHCR has ruled in the past that flooring, whether it be carpeting
or tiles, is similar to painting in that it is primarily cosmetic
in nature, non-structural, non-depreciable and not necessary to the
maintenance, preservation or operation of the structure and thus,
is properly disallowed as a basis for an MCI rent increase. The
owner himself characterizes the public hallway tiling as cosmetic.
THEREFORE, in accordance with the Rent Stabilization Law and Code,
ORDERED, that this petition be, and the same hereby is, denied and
that the order of the Rent Administrator, be an the same hereby is,
JOSEPH A. D'AGOSTA