ADM. REVIEW DOCKET NOS. FB 210424 RT & FC 210132 RT
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
APPEALS OF DOCKET NOS.
FB 210424 RT
: FC 210132 RT
D.R.O. DOCKET NO.
CB 210006 OM
CORINTHIA A. BERNARD &
ANNETTE JOHNSON
PETITIONERS :
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ORDER AND OPINION DENYING PETITIONS FOR ADMINISTRATIVE REVIEW
The above-named petitioners-tenants filed timely petitions
for administrative review against an order issued on December 20,
1990 by an administrator concerning the housing accommodation
known as 1904 Nostrand Ave., Brooklyn, New York wherein the
Administrator granted the owner's application for a rent increase
based on 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 this proceeding on February 4, 1988 by
filing an application for a rent increase based on the
installation of various major capital improvements (MCI).
Specifically the owner stated that $34,460.00 had been expended
for a new boiler/burner, replacement windows, a new roof, and new
mailboxes.
On June 9, 1988, the Administrator served each tenant with a
copy of the owner's application and the appropriate forms for
filing an answer. No responses were received although three of
the application transmittal envelopes were returned by the Post
Office with the notation that the addressees had moved.
In an order issued December 20, 1990, the Administrator found
that $33,760.00 qualified as approved net costs for Major Capital
Improvements and ordered a rent increase of $12.79 per room per
month.
In one petition for administrative review the tenant objects
to the increase asserting, that since having moved onto the
ADM. REVIEW DOCKET NOS. FB 210424 RT & FC 210132 RT
subject premises in April 1987, there have been no improvements in
the apartment, except the installation of a new door.
In the other petition, the tenant asserts that the owner
received insurance proceeds for a fire in the basement that
affected the boiler, that the owner failed to include commercial
tenants on the first floor, and that the rent increase exceeds 6
percent.
The owner did not submit an answer to either petition.
The Commissioner is of the opinion that the petitions should
be denied.
The scope of review in administrative appeals is limited by
Section 2529.6 of the Rent Stabilization Code to facts and
evidence that were before the Administrator unless it is
established that facts or evidence submitted with the petition
could not have been included in the proceeding prior to the
issuance of the order being appealed. The tenants herein did not
answer the proceeding when it was before the Administrator
although afforded an opportunity to do so. Accordingly, the
issues raised in the petitions are inappropriate matters for
consideration for the first time on appeal.
Moreover, a review of the record in the instant case
indicates that the owner correctly complied with the application
procedures for a Major Capital Improvement and the Administrator
properly calculated the appropriate rent increases. The tenants
have not put forth any arguments or evidence establishing that the
MCI increase should be revoked.
According to Section 2522.4 of the Rent Stabilization Law, an
installation qualifies as a major capital improvement if it is
building-wide; depreciable under the Internal Revenue Code; be
other than for ordinary repairs; required for the operation,
preservation, and maintenance of the structure; and replace an
item whose useful life has expired.
It is also noted that with the exception of windows, the
installations for which the rent increase was granted were not
within individual apartments, and the tenant who moved in in April
1987 may not have been aware that a new roof and a new
boiler/burner had been installed prior to her taking occupancy.
Nevertheless, the owner adequately documented by means of
cancelled checks and contracts that the claimed improvements were
made.
Moreover, the allegation regarding fire insurance proceeds
was not raised below and is not supported by any corroborating
evidence.
The owner also included commercial units in the application,
ADM. REVIEW DOCKET NOS. FB 210424 RT & FC 210132 RT
contrary to the tenant's assertions.
As for the contention that the rent increase exceeds 6%, the
parties are advised that pursuant to the terms of the
Administrator's order, as stated in the portion of the attachment
entitled "Limitations", for any 12-month period, the permanent
increase collectible may not exceed 6% of the rent that was listed
on the Schedule of Monthly Rental income submitted with the
owner's MCI application. The temporary increase for arrears may
also not exceed 6%. Any portion of the increase that exceeds 6%
must be spread forward to subsequent 12 month periods. If the
owner herein demands an increase in excess of the 6% limitation,
the tenant is advised to file an overcharge complaint and the
owner is warned that it may be subject to a penalty of treble
damages if overcharges are determined.
THEREFORE, in accordance with the Rent Stabilization Law and
Code, it is
ORDERED, that these petitions be and the same hereby are
denied and the District Rent Administrator's be and the same
hereby is affirmed.
ISSUED:
ELLIOT SANDER
Deputy Commissioner
ADM. REVIEW DOCKET NOS. FB 210424 RT & FC 210132 RT
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