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.: FB 230316-RO
:
RENT ADMINISTRATOR'S
MARTIN LOB DOCKET NO.: ZDE 230272-OM
PETITIONER :
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ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW
On February 19, 1991, the above named petitioner-owner timely refiled a
petition for administrative review (PAR) against an order issued on
November 26, 1990, by the Rent Administrator, 92-31 Union Hall Street,
Jamaica, New York, concerning the housing accommodations known as 155 Ross
Street, Brooklyn, New York, various apartments.
The owner commenced this proceeding on November 16, 1988, by filing an
application for a rent increase based on the installation of a new
elevator, none before.
On March 1, 1989, the Rent Administrator denied the application due to the
owner's failure to submit: a complete application; contracts; proof of
payment; permits; and approvals.
On May 25, 1989, the owner refiled the application for a rent increase.
On November 26, 1990, the Rent Administrator denied the application based
on the owner's failure to submit a complete application; the necessary
governmental approvals and permits; an itemization of the work; and an
updated rent roll. The Administrator noted discrepancies in the claimed
cost, the room count and the number of apartments. Furthermore, no
apartment registrations were filed for 1984, and the owner's application
was filed more than two years after the completion of the installation of
the elevator which is prohibited by Section 2522.4(a)(8) of the Rent
Stabilization Code.
In his petition for administrative review, the owner contends, in
substance, that the elevator in the subject premises had been installed due
to the request of 95% of the tenants; the proper plans by the architect
were filed and approved by the Building Department; the elevator was
finished in December 1985; the owner did furnish the Division with a copy
of the 1984 registration and the necessary permits; it paid $120,000.00 for
the elevator and it still owes some of this amount; and it is entitled to
this well deserved rent increase.
In response to the owner's petition, twenty two tenants filed answers
stating, in substance, that the installation of the elevator was greatly
appreciated.
ADMIN. REVIEW DOCKET NO.: FB 230316-RO
After a careful consideration of the entire evidence of record, the
Commissioner is of the opinion that this administrative appeal should be
denied.
At the outset, the Commissioner finds that the subject new elevator
installation does not fit within the definition of a major capital
improvement. Since the subject five story building containing both
controlled and stabilized apartments did not contain an elevator for many
years prior to the installation in question, it is clear that the new
elevator was not required for the operation, preservation or maintenance of
the structure nor did it replace an item whose useful life has expired.
Section 2522.4(a)(2)(iv) of the Rent Stabilization Code and Section
2202.4(d) of the Rent and Eviction Regulations provide that the Division
may grant a rent increase for other improvements made with the express
consent of the tenants in occupancy of at least 75% of the housing
accommodations. However, in the instant case the owner did not submit to
the Administrator in either his original application or in his refiled
application proof that 75% of the tenants in occupancy had consented to the
elevator installation.
Section 2528.4 of the Rent Stabilization Code, along with Policy Statement
90-9, provide that an owner's failure to comply properly and timely with
the initial rent registration shall, until such time as such registration
is completed, bar the owner from applying for or collecting any rent in
excess of the legal regulated rent in effect on the date the housing
accommodation became subject to the registration requirement.
A thorough search of the Division's records indicates that no initial
apartment registrations were filed by the owner for the year 1984.
Accordingly, the owner is barred from applying for or collecting any rent
increase in excess of the legal regulated rent in effect on April 1, 1984.
Section 2522.4(a)(8) of the Rent Stabilization Code states that no rent
increase "shall be granted by the Division of Housing and Community Renewal
(DHCR), unless an application is filed no later than two years after the
completion of the installation or improvement unless the applicant can
demonstrate that the application could not be made within two years due to
delay, beyond the applicant's control, in obtaining required governmental
approvals for which the applicant has applied within such two year period."
The owner admitted on appeal that "the elevator was finished December
1985". The Commissioner notes that the owner's original MCI application
was not filed until November 16, 1988 - almost three years after the
completion of the installation.
The evidence of record in the instant case also discloses that the owner's
application is replete with omissions and inconsistencies. Specifically,
the owner failed again to submit the necessary permits and governmental
approvals for the elevator; failed to provide an itemization for the work
ADMIN. REVIEW DOCKET NO.: FB 230316-RO
in question; and failed to submit an update rent roll for the subject
building, but instead just resubmitted a copy of the prior rent roll which
was originally submitted with its first application on November 16, 1988.
The owner's application failed to list all of the contractors involved and
the supplement to the application was incomplete: question #4 of Section A
of RA-79 Supplement III; and Section B of RA-79 Supplement III.
Several discrepancies exist with regard to the total claimed cost for the
elevator: the application (RA-79) lists the total cost as $110,000.00;
Supplement I lists the total cost as $120,000.00; and the cost breakdown
submitted by the owner lists a total of $109,704.06. Moreover, the owner
has not submitted cancelled checks to substantiate the total cost for the
installation, regardless of which of the three amounts is used. The owner
submitted copies of twenty-one cancelled checks which total $56,440.00.
Partial copies of four other checks were submitted: #4714 in the sum of
$3000.00; an unknown check # in the sum of $1500.00; and check #'s 4700 and
4471 in unknown amounts. Additionally, in Supplement I, the owner states
that only $100,000.00 had been paid for the elevator with the remainder
payable "when we get the increase".
Discrepancies were also found with regard to the room and apartment counts:
the owner's application states that the subject premises contains 34
apartments and 132 rooms, yet Supplements IIA and III list 33 apartments
and 144 rooms.
Based on the foregoing, the Commissioner finds that the Rent Administrator
correctly denied the owner's application.
THEREFORE, in accordance with the applicable provisions of the Rent
Stabilization Law and Code, the Rent and Eviction Regulations for the City
of New York, and Operational Bulletin 84-1, it is
ORDERED, that the administrative appeal be, and the same hereby is denied;
and that the Administrator's order be, and the same hereby is, affirmed.
ISSUED:
JOSEPH A. D'AGOSTA
Deputy Commissioner
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