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
          APPEALS OF                             DOCKET NOS.: FA210027RT/
                                              :    FB210269RT/FC210131RT/
          VARIOUS TENANTS, 991 PRESIDENT           FA210153RT/FA210069RT/
          STREET, BROOKLYN, NEW YORK               FA210067RT/FC210135RT
                                PETITIONERS   : 
          ------------------------------------X  RENT ADMINISTRATOR'S
                                                 DOCKET NO.: BA230216OM

            ORDER AND OPINION DENYING PETITIONS FOR ADMINISTRATIVE REVIEW

          On various dates, the above-named petitioner-tenants timely filed 
          administrative appeals against an order issued on December 11, 1990 
          by the Rent Administrator (Gertz Plaza, Jamaica, New York) 
          concerning the housing accommodations known as 991 President 
          Street, Brooklyn, New York, various apartments, wherein the 
          Administrator granted in part the owner's major capital improvement 
          (MCI) application.  The Administrator authorized a rent increase 
          adjustment for the installation of apartment entrance doors, 
          aluminum windows, pointing/waterproofing, replaced concrete 
          courtyards, kitchen modernization, adequate wiring, intercom and 
          repiping.  The Administrator denied the owner a rent increase for 
          the following installations: the sealing of dumbwaiters; mailboxes; 
          kitchen switch and light fixtures; smoke detectors; and bathroom 
          work.

          Since these petitions pertain to the same building and involve 
          common issues of law and fact, these appeals have been consolidated 
          for a uniform determination.

          The owner commenced the proceeding below by filing its MCI 
          application in January 1987.

          In response to the application, ten tenants filed answers, four of 
          whom merely objected to the rent increase.  The other six tenants 
          contended, inter alia, that no new tubs were installed; some 
          bathroom tiles were falling out; the newly installed bathroom tiles 
          did not match the remaining old tiles; new steam pipes were needed; 
          sewage lines needed cleaning; the plumbing was unsatisfactory; and 
          leaks existed in the walls and ceilings.

          The Division notified the owner (by mail) of the tenants' 
          allegations and requested the submission of written comments 
          addressing all issues involved.  The owner responded by submitting 
          signed tenant statements from five tenants indicating that repairs 
          had been made.  Additionally, the owner submitted supporting 
          evidence from the building manager stating that repairs were made 
          in the remaining apartment although the tenant had refused to sign 
          the work order.  The owner further stated that no new bath tubs 
          were installed, and that only the bathroom tiles had been replaced.







          ADMIN. REVIEW DOCKET NO.: FA210027RT, et al.

          On March 23, 1990 the Division sent notices to the six tenants who 
          complained of defective installations.  Various tenants responded, 
          still complaining of incomplete or inadequate work.

          The subject premises was physically inspected in August of 1990 
          with the following results:

               Apartment 4E: loose tiles; living room outlet had a short
               Apartment 3A: ceilings cracked; old and new bathroom wall
                             tiles with some tiles missing
               Apartment 3B: no access

          On December 11, 1990, the Rent Administrator issued the order here 
          under review which granted in part the owner's MCI application.  
          (The owner was directed to repair the outlet in apartment 4E).

          On appeal, the tenants (apartment 4F, 2B, 2A, 3H, 3A, 4B, 1C) 
          stated, in substance, that the bathroom work is incomplete as new 
          bathtubs were not installed and the tiles were only partially 
          replaced; the intercom malfunctions; inadequate wiring exists; the 
          courtyard and tennis courts remain inaccessible to the building 
          residents; no repiping was done; there was inadequate drainage of 
          the sewage lines; the dumbwaiters have been sealed for ten years; 
          there were leaks and cracks in the ceilings and walls; and a smoke 
          detector and light fixtures were defective.

          In response to the tenants' petitions, the owner contends in 
          substance, that the tenants have not given any reason for the 
          Administrator's order to be reversed or modified in any way; new 
          bathtubs were not installed, and the tenants were not being charged 
          for bathtubs; the issue of completed bathroom work was irrelevant 
          as the requested rent increase covering this installation was 
          denied; the wiring and repiping work was functioning properly; 
          there is no tennis court on the premises; no new sewer lines were 
          installed; and the damaged ceilings were plastered.

          After a careful consideration of the entire evidence of record, the 
          Commissioner is of the opinion that these administrative appeals 
          should be denied.

          Rent increases for major capital improvements are authorized by 
          Section 2202.4 of the Rent and Eviction Regulation 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 stabilization, the 
          improvement must be generally 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.

          It is the established position of the Division that the work 
          recognized by the Administrator meets the definitional requirements


          ADMIN. REVIEW DOCKET NO.: FA210027RT, et al.

          of a major capital improvement for which a rent increase may be 
          warranted, if the owner otherwise so qualifies.  The record
          shows that the owner submitted copies of the contracts, 
          contractors' certifications and cancelled checks which indicate 
          that the owner correctly complied with the applicable procedures 
          for a major capital improvement rent increase and that the increase 
          was properly computed based on the proven cost of the installation.  
          The tenants, on the other hand, has failed to establish either in 
          the proceeding below or on appeal the alleged inadequacy of the 
          work performed or that services were not being maintained.  In this 
          respect it is significant to note that the records of the Division 
          disclose no rent reduction order has been issued against the 
          subject premises based on the owner's failure to maintain services 
          of a building-wide nature nor was any such complaint pending at the 
          time the order appealed herein was issued.  The tenants have failed 
          to establish that the Administrator's order should be revoked.  
          This order and opinion is issued without prejudice to the tenants' 
          right to file an application for a rent reduction based on a 
          decrease in services, if the facts so warrant.

          The Commissioner further notes, as confirmed by the record, that 
          the tenants of apartments 3H, 4B and 4F were served with notice of 
          the instant application, but failed to respond thereto.  
          Additionally, the remaining tenants' contentions concerning access 
          to the courtyard and the malfunctioning intercom were raised for 
          the first time on appeal.  Fundamental principles of the 
          administrative appeal process and Section 2529.6 of the Rent 
          Stabilization Code prohibit a party from raising issues on appeal 
          which were not raised below.  The tenants could have raised the 
          very issues before the Rent Administrator which they seek to raise 
          for the first time on appeal.  Accordingly, the Commissioner is 
          constrained to foreclose consideration of these issues in this 
          appeal proceeding.

          Finally, the Commissioner notes that the Rent Administrator denied 
          the owner a rent increase for the smoke detectors, light fixtures, 
          sealing of dumbwaiters and bathroom work.  Therefore, the 
          Commissioner rejects as moot the tenants' arguments against these 
          items.

          On the basis of the entire evidence of record, it is found that the 
          Administrator's order is correct and should be affirmed.

          THEREFORE, in accordance with the applicable provisions of the Rent 
          Stabilization Law and Code, and the Rent and Eviction Regulations 
          for the City of New York, it is

          ORDERED, that the administrative appeals be, and the same hereby 
          are 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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