FG 230010-RO; FG 230011-RO
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.: 6058
IN THE MATTER OF THE ADMINISTRATIVE ADMINISTRATIVE REVIEW
APPEALS OF : DOCKET NOS.: FG 230010-RO
FG 230011-RO
DGJ REALTY CORP., :
DISTRICT RENT ADMINISTRATOR'S
: DOCKET NOS.: EE 230077-OM
FC 230197-OM
PETITIONER :
-----------------------------------X
ORDER AND OPINION GRANTING IN PART PETITIONS
FOR ADMINISTRATIVE REVIEW AND REMANDING PROCEEDING ON APPEAL
This order and opinion is issued pursuant to a stipulation entered
into before Justice Vaccaro of the Supreme Court, Kings County,
remitting an Article 78 proceeding and directing the Division of
Housing and Community Renewal (DHCR) to issue a determination of
the owner's administrative appeals herein.
The Commissioner deems it appropriate to consolidate the owner's
administrative appeals for determination under this order and
opinion as they involve common issues of law and fact.
The owner of the subject premises (two adjacent buildings located
at 8758 Bay Parkway and 159 Bay 29th Street, Brooklyn, New York,
various apartments) initiated the proceedings below by filing
applications for major capital improvement (MCI) rent increases
for the controlled and stabilized apartments in the premises based
on the installation of a new boiler/burner at the premises. The
owner initially submitted its applications to the District Rent
Administrator in August of 1989. In the applications, the owner
stated, among other things, that (a) the new boiler/burner was
installed to serve the two adjacent buildings; (b) the owner acted
as its own general contractor; (c) the new boiler was purchased
from a manufacturer and a new burner was purchased at an auction
sale; (d) the owner used its own labor for some of the work and
used contractors and an engineer for other work; and (e) the new
boiler was put into operation in the fall of 1988. Subsequently,
the Administrator requested the owner to submit further
documentation and the owner replied, submitting various
governmental approvals and sign-offs and bills, invoices, an
affidavit, and cancelled checks in an attempt to substantiate
total claimed costs of $75,000.00.
The District Rent Administrator's orders, appealed herein, denied
the owner's applications, stating that the owner submitted
incomplete information/evidence and failed to comply wi h follow-
up requests for proof of payment, contracts, and vendor
supplements. With respect to the building at 159 Bay 29th Street
(Docket No. FC 230197-OM), the Administrator stated that the owner
failed to file its application within two years from the
FG 230010-RO; FG 230011-RO
completion of installation. In addition, both Administrator's
orders noted that the work start and completion dates could not be
determined due to contradictions.
On appeal, the petitioner-owner contends, in substance, that (I)
it submitted all the documentation required and complied with all
follow-up requests; and (II) the work start and completion dates
were furnished and the owner is not aware of any contradictions.
After a careful consideration of the entire evidence of record the
Commissioner is of the opinion that the administrative appeals
should be granted in part and this proceeding remanded to the
Administrator for further processing in accordance with this order
and opinion.
At the outset, the Commissioner notes that the record discloses
the filing of both MCI applications herein on May 11, 1990. Since
the earliest possible completion date disclosed by the record for
the installation herein is September of 1988, such filing was
timely (well within the two year limitation). Furthermore,
although the owner failed to submit in the proceeding below or on
this appeal any documentation of the alleged purchase of a new
burner at an auction, the petitioner did submit documentation
substantiating the purchase of the new boiler, in addition to
certain other documentation (invoices, bills, and cancelled
checks) showing payments made to various contractors for work
claimed to be done herein. While the costs substantiated by the
owner appear to be far below the total claimed costs of
$75,000.00, the Administrator's denial of the owner's applications
in toto was erroneous. Thus, this proceeding should be remanded
to the Administrator for further processing of the owner's
applications, including consideration of any issues raised by the
tenants upon remand.
THEREFORE, in accordance with the applicable provisions of the
Rent Stabilization Code, the Rent and Eviction Regulations for New
York City, and Operational Bulletin 84-1, it is
ORDERED, that the Administrative Appeals be, and the same hereby
are granted to the extent of remanding this proceeding to the
Administrator for further processing in accordance with this order
and opinion. The orders and determinations of the Administrator
remain in full force and effect until new orders are issued upon
remand.
ISSUED:
----------------------
JOSEPH A. D'AGOSTA
Deputy Commissioner
|
