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 S.J.R. NO.: 7021
IN THE MATTER OF THE ADMINISTRATIVE : ADMINISTRATIVE REVIEW
APPEAL OF DOCKET NO.: FD430069RO
:
HERMAN KAHAN, RENT ADMINISTRATOR'S
DOCKET NO.: DE430158OM
PETITIONER :
------------------------------------X
ORDER AND OPINION GRANTING PETITION FOR ADMINISTRATIVE REVIEW IN PART
The above-named petitioner-owner timely filed a petition for Administrative
Review against an order issued on March 5, 1991 by the Rent Administrator
(Gertz Plaza) concerning the housing accommodations known as 153-155 Essex
Street, New York, New York, various apartments, wherein the Administrator
denied the owner's application for major capital improvement (MCI) rent
increases at the subject sixteen family dwelling.
Subsequent thereto, the petitioner filed a petition in the Supreme Court
pursuant to Article 78 of the Civil Practice Law and Rules requesting that
the "deemed denial" of its Administrative Appeal be annulled.
Pursuant to a stipulation of settlement, so ordered by the Court, which was
entered into by the petitioner and the Division on July 23, 1993, the
proceeding was remitted to the Division for an expeditious determination of
this administrative appeal.
The owner commenced this proceeding on May 22, 1989 by initially filing an
application for an MCI rent increase predicated on the installation of a
boiler/burner at a total claimed cost of $56,000.00. Said application was
denied on the grounds that a requisite certificate of electrical inspection
had not been submitted.
In this petition for Administrative Review, the owner requests reversal of
the Administrator's order and contends, in substance, that the decision to
deny the MCI application was arbitrary since at the time the application
was filed in 1989, the Division never requested the Electrical certificate;
that sufficient time was not given to secure said electrical certificate
when the Division finally requested such; and that the owner should not be
faulted or penalized for this Administrative delay. Submitted with the
petition, is a copy of the permit to perform electrical work at the subject
premises, issued on February 2, 1991.
After a careful consideration of the entire evidence of record, the
Commissioner is of the opinion that this petition should be granted, in
part.
The record discloses that with the exception of a certificate of
electrical inspection all necessary governmental approvals and sign-offs
plus supporting documentation, (contract, contractor's certification and
cancelled checks) had been submitted during the course of the proceeding,
for the boiler/burner installation. In addition, tenants who were served
ADMIN. REVIEW DOCKET NO.: FD430069RO
with notice of the application do not take issue with the quality or
effectiveness of said new heating system which satisfies the requirements
of a major capital improvement.
The record further discloses that on June 7, 1993, the owner submitted a
duplicate copy of the requisite certificate of electrical inspection, the
original of which was issued on May 31, 1991; and that no rent reduction
order based on the owner's failure to maintain services of a building-wide
nature was outstanding nor have any heat/hot water complaints been filed by
the tenants either prior to or subsequent to the issuance of the order
appeased herein.
In view of the fact that the owner has completed the application by virtue
of submitting the missing certificate of electrical inspection from the
Bureau of Electrical Control and taking into consideration the size of the
subject premises and all factors bearing on the equities of this particular
matter, the Commissioner is of the opinion and finds that the owner is
entitled to a rent increase adjustment of $14.18 per room, per month
computed as follows: claimed costs $56,000.00 less commercial tenant's
share $15,176.00 = $40,824.00 - 60 months = $680.40 - 48 rooms = $14.18.
Said increase is effective for rent stabilized apartments as of August 1,
1993, the first rent payment date 30 days after the owner completed the
instant application by virtue of the submission to the Division of the
requisite certificate of electrical inspection and subject to the statutory
limitation of collectibility of 6% (of the April 1989 rent roll).
In the event that any tenant took occupancy pursuant to a vacancy lease
commencing after the owner had filed its application, the Administrator
notes that for the MCI increase granted by the order to be collectible
during the term of such tenant's vacancy lease, such vacancy lease would
have to contain a specific clause advising the tenant of the docket number
of the pending proceeding and advising that the rent charged was subject to
additional increase as provided by Section 2522.4(a) 5 of the Rent
Stabilization Code and established Division precedent. In the absence of
same, said increase will not be collectible until the expiration of the
lease term in effect at the time of issuance of the Commissioner's order,
provided the renewal lease contains a general authorization provision for
adjustment of the rent reserved by DHCR order.
THEREFORE, in accordance with the Rent Stabilization Law and Code, it is
ORDERED, that this petition be, and the same hereby is granted in part;
that the order of the Rent Administrator be, and the same hereby is
revoked; and that the Rent of the rent stabilized apartments be, and the
same hereby is increased as hereinabove provided subject to the limitations
on collectibility set forth herein.
ISSUED:
JOSEPH A. D'AGOSTA
Deputy Commissioner
|
