FE 410129 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
APPEAL OF DOCKET NO.: FE 410129 RT
RUTH FLAXMAN,
DISTRICT RENT ADMINISTRATOR'S
DOCKET NO.: BL 430279 OM
PETITIONER
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ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW
On May 2, 1991, the above-named tenant refiled a petition for
administrative review of an order issued on February 22, 1991, by
a Rent Administrator concerning the housing accommodation, known
as Apartment 15E, 175 West 76th 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 December 31, 1987 by
filing an application for a rent increase based on a major
capital improvement, to wit--new boilers and burners at a total
cost of $107,000.00.
On April 21, 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
thereupon.
The tenant filed an objection to the owner's application
questioning the cost of the boiler and alleging that the
building's elevator was defective.
On February 22, 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 and rent
stabilized apartments.
In her petition for administrative review, the tenant requests
reversal of the Rent Administrator's order and alleges that the
FE 410129 RT
boiler installation constituted maintenance rather than a major
capital improvement and raises the issue of service deficiencies
in her apartment. (hot water temperature and painting).
In answer to the tenant's petition the owner submits the
statements of a plumber and the oil burner company dated June 13
and June 18, 1991 stating that the water temperature is adequate
and the burner is operating properly.
After careful consideration the Commissioner is of the opinion
that this petition should be denied.
Rent increases for major capital improvements 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 the maintenance of the structure;
and replace an item whose useful life as expired.
The Commissioner notes that the tenant did not raise these
objections while this proceeding was pending before the
administrator although afforded the opportunity to do so.
Accordingly, since they are raised for the first time now on
appeal they may not be considered herein.
The record in the instant case indicates that the owner correctly
complied with the application procedures for a major capital
improvement and the Rent Administrator properly computed the
appropriate rent increases. The tenant has not established that
the increase should be revoked.
This order and opinion is issued without prejudice to the
tenant's right to file a complaint based on a diminution of
service if the facts so warrant.
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:
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ELLIOT SANDER
Deputy Commissioner
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