FA 110306-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
----------------------------------x
IN THE MATTER OF THE ADMINISTRATIVE ADMINISTRATIVE REVIEW
APPEAL OF DOCKET NO.:
FA 110306-RT
PAUL FABRIZI,
RENT ADMINISTRATOR'S
DOCKET NO.:
PETITIONER DC 110248-0M
----------------------------------x
ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW
On January 21, 1991, the above-named tenant, filed a petition
for administrative review of an order issued on January 2, 1991,
by a Rent Administrator concerning the housing accommodation,
known as Apartment 1-C, 86-18 Union Turnpike, Glendale, New York,
wherein the Rent Administrator determined that the owner was
entitled to a rent increase based on a major capital improvement
(MCI).
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.
In his petition for administrative review, the tenant requests
reversal of the Rent Administrator's order and alleges that no
provision of a pending increase was contained in his lease.
Attached to the petition is a photocopy of the lease.
In answer to the tenant's petition the owner alleges that the
tenant was advised of the pending MCI application on taking
occupancy and that paragraph 32 of the lease states that DHCR
order may authorize collection of an increase during its term.
After careful consideration the Commissioner is of the opinion
that this petition should be denied.
The Commissioner notes that the tenant's petition against the
Rent Administrator's order concerns not the adequacy f the in-
stallations or eligibility of the owner to obtain a rent increase
based on major capital improvements, rather the tenant objects to
the collectibility of the increase as to him during his current
lease term.
Section 2522.5(d)(4) of the Rent Stabilization Code provides in
pertinent part,
FA 110306-RT
"(d) Limitations: No provision may be made
in any vacancy or renewal lease for
adjustment of the legal regulated rent
reserved in the lease except as follows:
* * *
(4) In the case of a vacancy lease, where an appli-
cation for a rent adjustment pursuant to Section
2522.4(a) (2) or (3), (b) or (c) of this Part
(Major Capital Improvements and Other Adjustments)
is pending before the DHCR, such lease also re-
cites that such application is pending before the
DHCR and the basis for the adjustment, and that
the increase which is the subject of such appli-
cation, if granted, may be effective during the
term of the lease."
The Commissioner notes that the tenant's lease contains no such
recitation. Accordingly, the Commissioner finds that the rent
increase is not collectible from this tenant until the end of his
current lease term.
If the tenant has already paid the increase, the owner is di-
rected to refund any excess rent paid by the tenant within thirty
days of the issuance of this Order and Opinion. Should the owner
fail to do so the tenant may deduct such excess rent from his
next rental payment.
Since the order under review (Page 3, Condition 2(b)) already
contains a provision protecting the tenant from the eventuality
alleged in the petition, there is insufficient reason to disturb
the Rent Administrator's order which, otherwise, was properly
issued
THEREFORE, in accordance with the Rent Stabilization Law and
Code, it is
ORDERED, that this petition be, and the same hereby is, denied
and that the Rent Administrator's order be, and the same hereby
is, affirmed.
ISSUED:
ELLIOT SANDER
Deputy Commissioner
|
