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. FF 130085-RO
:
RENT ADMINISTRATOR'S
GEORGE SUBRAJ, DOCKET NO. CF 130005-OM
PETITIONER :
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ORDER AND OPINION GRANTING PETITION FOR ADMINISTRATIVE REVIEW
IN PART
On June 5, 1991 the above named petitioner-owner filed a Petition for
Administrative Review against an order of the Rent Administrator issued May
10, 1991. The order concerned housing accommodations located at 88-15
Merrick Blvd., Jamaica, New York. The Administrator granted, in part, the
owner's application for a rent increase due to the installation of major
capital improvements (MCI).
The Commissioner has reviewed the record and has carefully considered that
portion relevant to the issues raised by this appeal.
The owner commenced this proceeding by initially filing, on June 2, 1988, an
application for rent increase based upon the following items: elevator
upgrading, waste compactor and mailboxes at a total cost of $41,024.00. On
December 14, 1988 the DHCR served each tenant with a copy of the application
and notified them of the opportunity to respond thereto.
Several tenants responded to the application complaining of defective
installation and objecting to the proposed increase. The owner submitted a
permit by the New York City Department of Buildings wherein the Queens
Borough Superintendent certified that the elevator had been tested and
inspected and was certified to be operational.
The Administrator issued the order appealed from May 10, 1991. In that
order rent increases for the elevator and waste compactor were granted. No
mention was made of the mailboxes. Appropriate rent increases were ordered
for rent controlled apartments, effective June 1, 1991, and for rent
stabilized apartments, effective February 1, 1989. The tenants were
directed to file service complaints if they believed that problems still
existed with the installations.
The owner has appealed the Administrator's order on two grounds. First,
petitioner states that the Administrator chose the wrong effective date in
granting the rent increase for stabilized apartments. Petitioner argues
that the proper date should be August 1, 1988 and not February 1, 1989. The
owner argues that, pursuant to the Rent Stabilization Code, the increase had
to be effective 30 days after the filing of the application for rent
increase.
DOCKET NUMBER: FF 130085-RO
The petitioner also argues that the Administrator improperly excluded any
mention of the mailboxes in the order here under review. Petitioner argues
that pursuant to DHCR Operational Bulletin 90-2 mail boxes may be the proper
basis for an MCI, if they replace mail boxes whose useful life of 25 years
has expired. The installation herein replaced mailboxes originally
installed in 1957. One tenant filed a response but raised no issue relevant
to the owner's petition.
After a careful review of the evidence in the record the Commissioner is of
the opinion that the petition should be granted in part.
Petitioner is correct in pointing out that the Administrator's order makes
no mention of the mail boxes. The Commissioner, in reviewing the record,
notes that the Examiner's Progress Sheet clearly states that the mailboxes
should be denied. It is the established position of the Division that the
installation of mailboxes per se do not constitute a major capital
improvement but rather their structural relocation to a more secure area
behind locked doors (Accord: Docket No. FA 430216-RO). In this case the
owner's application indicates the new mail boxes are located in the inner
vestibule or lobby, as were the old ones, and thus fail to satisfy the
additional requirement that the mailboxes be relocated to a more secure
inner area from an outer vestibule. The Administrator's order is modified
to state that the mail boxes, with a claimed cost of $3,990.00 have an
approved cost of $0 for the reason stated above.
Concerning the owner's contention with respect to the effective date of the
Administrator's order as it affects stabilized apartments, the Commissioner
notes that prior to the promulgation of the current Rent Stabilization Code
(May 1, 1987) it was the well recognized position of the Division that an
MCI rent increase was effective the first rent payment date 30 days after
the owner completed its application by the submission to the DHCR of a
certification of service of same upon the tenants (Accord: CG 430038-OR).
(With respect to rent controlled apartments, the applicable regulatory
provision provides that an order adjusting a previously established rent
shall not be effective prior to the issuance thereof, with limited exception
not here relevant).
By virtue of the current stabilization Code, service of notice of the
application (as well as other documentation) devolved upon the DHCR. Thus
in conformity with established policy and procedure the application is
deemed completed when notice thereof is given to the affected parties and
such individuals are afforded the opportunity to respond thereto. In this
connection the Commissioner notes that a rent reduction order is made
effective the first rent payment date 30 days after an owner is served by
the DHCR with a copy of the service complaint. In similar vein, a rent
restoration order is effective the first rent payment date 30 days after
tenants are served by DHCR with a copy of the owner's restoration
application.
Turning to the case at hand, the record discloses that the instant
application was initially filed with the DHCR on June 2, 1988; and that
notice of the application was not served on the tenants until December 14,
1988, after the application went through a screening process to
DOCKET NUMBER: FF 130085-RO
ascertain whether all requisite documentation had been submitted. (An
incomplete application could result in the rejection thereof). However, in
view of the inordinate delay in completing the application process by
serving notice of the application upon the affected parties, the
Commissioner deems it appropriate, under the facts and circumstances of this
case, to change the effective date of the increase for stabilized apartments
to October 1, 1988 (rather than February 1, 1989), the first rent payment
date 30 days after when, by the nature of this proceeding, notice of the
application should have been served on the tenants. (The Commissioner notes
that pursuant to an order issued April 19, 1989, Docket No. CH 130037-OR, a
building-wide rent restoration was made effective September 1, 1988, upon a
finding that the owner had restored services for which rents had previously
been reduced under Docket No. AI 13003-RO).
THEREFORE, in accordance with the provisions of the Rent Stabilization Code
and the Rent and Eviction Regulations for New York City, 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 modified as
herein above provided so as to change the effective date as to rent
stabilized apartments to October 1, 1988; and that as so modified, said
order be and the same hereby is affirmed; and it is further
ORDERED, that the tenants may pay any arrears in rent resulting from this
order in three equal monthly installments.
ISSUED:
JOSEPH A. D'AGOSTA
Acting Deputy Commissioner
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