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. 6417
IN THE MATTER OF THE ADMINISTRATIVE : ADMINISTRATIVE REVIEW
APPEAL OF DOCKET NO.FL 430143-RO
:
RENT ADMINISTRATOR'S
SULZBERGER-ROLFE DOCKET NO. CF 430032-OM
PETITIONER :
------------------------------------X
ORDER AND OPINION GRANTING PETITION FOR ADMINISTRATIVE REVIEW
IN PART REMANDING THE PROCEEDING TO THE RENT ADMINISTRATOR
On December 6, 1991 the above named petitioner-owner filed a Petition for
Administrative Review against an order issued on November 1, 1991 by the
Rent Administrator, 92-31 Union Hall Street, Jamaica, New York concerning
housing accommodations known as 229 and 230 West 79th Street, New York, New
York, various accommodations, wherein the Administrator authorized a major
capital improvement rent increase based on the installation of new water
tanks. Said order was issued after a review of the supporting documentation
submitted by the owner and the tenant responses received in response to the
MCI application.
The Rent Administrator disallowed expenditures made for
pointing/waterproofing and the installation of a new parapet wall and a new
roof based upon a determination that the costs were not properly
substantiated and the owner had failed to submit executed contracts for said
work.
Subsequent thereto, the petitioner-owner filed a petition in the Supreme
Court pursuant to Article 78 of the Civil Practice Law and Rules requesting
that the "deemed denial" of the petitioner's administrative appeal be
annulled. The proceeding was then remitted, by Court order, to the Division
for consideration of the petitioner's administrative appeal.
In this petition the owner contends, in substance, that it had submitted
executed contracts for the disallowed improvements and that it had
substantiated the costs for said improvements.
The Commissioner is of the opinion that this petition should be granted in
part and remanded to the Administrator for further consideration.
Rent increases for major capital improvements are authorized by Section
2202.4 of the Rent and Eviction Regulations for rent controlled apartments
and Section 2522.4 of the Rent Stabilization Code for rent stabilized
apartments. Under rent control, an increase is warranted where there has
been since July 1, 1970 a major capital improvement required for the
operation, preservation, or maintenance of the structure. Under rent
DOCKET NUMBER: FL 430143-RO
stabilization, the improvement must generally be building-wide; depreciable
under the Internal Revenue Code, other than for ordinary repairs; required
for the operation, preservation, and maintenance of the structure; and
replace an item whose useful life has expired.
The record in this case reveals that the owner submitted copies of one
proposal for the claimed parapet work, and one for the new roof and the
claimed pointing/waterproofing, both of which were accepted by the owner as
evidenced by his signature on same. The Commissioner is of the opinion that
this documentation is sufficient evidence that agreements existed between
the contractor and the owner for the work to be performed. However, the
Commissioner notes that the owner did not submit a copy of an executed
contract for the erection and maintenance of the scaffolding which was
listed separately in the MCI application and which the owner indicated on
appeal was contracted for separately with a different contractor. Based
thereon, the Commissioner finds that the Rent Administrator properly
disallowed scaffolding related expenses.
With regard to the parapet, the roof and the pointing/waterproofing, the
record is unclear as to the extent of the work performed. In view of the
owner's submission of various other documentation which included but was not
limited to copies of invoices, contractor's certifications and cancelled
checks, the Commissioner deems it appropriate to remand this proceeding for
such further processing as may be deemed necessary, including a physical
inspection to ascertain, among other things, the extent and
comprehensiveness of the work claimed to have been performed and to consider
such allegations as may have been raised in the proceeding below with
respect to the quality of the claimed improvements. While the Administrator
properly disallowed such portions of the application as relates to the
claimed scaffolding expense, in view of the fact that this proceeding is
being remanded for further processing, the Commissioner is of the further
opinion that the owner should be afforded a final opportunity to establish
the validity of this claimed expenditure.
THEREFORE, in accordance with the Rent and Eviction Regulations of New York
City and the Rent Stabilization Law and Code, it is
ORDERED, that this petition be, and the same hereby is, granted in part and
the proceeding is hereby remanded to the Rent Administrator for further
consideration in accordance with this order and opinion.
ISSUED:
JOSEPH A. D'AGOSTA
Acting Deputy Commissioner
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