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.:
ANTHONY PISANIELLO, RENT ADMINISTRATOR'S
PETITIONER CB 420077-OM
ORDER AND OPINION GRANTING PETITION FOR ADMINISTRATIVE REVIEW
On March 8, 1991, the above-named tenant, refiled a petition for
administrative review of an order issued on January 14, 1991, by
a Rent Administrator concerning the housing accommodation, known
as Apartment 3-R, 257 West 70th Street, New York, New York,
wherein the Rent Administrator determined that the owner was
entitled to a rent increase based on a major capital improvement
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 February 8, 1988 by filing
an application for a rent increase based on a major capital
improvement, to wit - a new roof at a total cost of $1,750.00.
On June 20, 1988, the Division of Housing and Community Renewal
(DHCR) served each tenant with a copy of the application and
afforded the tenants the opportunity to review it and comment
The tenant did not file an objection to the owner's application
although afforded the opportunity to do so.
On January 14, 1991, 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 apartments.
In his petition for administrative review, the tenant requests
reversal of the Rent Administrator's order and alleges that his
apartment contains only one room, not two, and that this has been
decided in a prior docket, 4ADFC448, issued on September 9,
The owner did not interpose an answer to the tenant's petition.
After careful consideration the Commissioner is of the opinion
that this petition should be granted.
The Commissioner notes that the docket cited by the tenant held
that the subject apartment contains one room and that the
determination was based upon the owner's having conceded this
Under the doctrine of res judicta, an existing final judgment
rendered upon the merits without fraud or collusion is conclusive
of rights, questions and facts in issue, as to the parties and
their privies, in all other actions in the same or any other
tribunal of concurrent jurisdiction. The instant matter involves
the same rights, questions and facts in issue (i.e. whether or
not the apartment is a one-room accommodation, and the same
parties as those involved in the docket cited by the tenant.
Therefore, the Commissioner finds that, pursuant to the doctrine
of res judicata, the tenant's apartment contains one room.
The parties are advised that the MCI rent increase granted by the
Rent Administrator should be calculated for the subject apartment
based on its being a one room apartment.
If the tenant has paid excess rent as a result of the issuance of
this order and opinion the owner is directed to refund any such
excess rent to the tenant within thirty days of the issuance of
this order. Should the owner fail to do so, the tenant may
deduct such excess rent as has been paid from his next payment.
THEREFORE, in accordance with the Rent and Eviction Regulations
for New York City, it is
ORDERED, that this petition be, and the same hereby is, granted
and that the Rent Administrator's order be, and the same hereby
is, modified to reflect the fact that the tenant's apartment
contains one room.