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.: FB 230316-RO
                                          :  
                                             RENT ADMINISTRATOR'S
          MARTIN LOB                         DOCKET NO.: ZDE 230272-OM
                            PETITIONER    :                           
      ------------------------------------X                             

            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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