STATE OF NEW YORK
DIVISION OF HOUSING AND COMMUNITY RENEWAL
OFFICE OF RENT ADMINISTRATION
92-31 UNION HALL STREET
JAMAICA, NEW YORK 11433
IN THE MATTER OF THE ADMINISTRATIVE : ADMINISTRATIVE REVIEW
APPEALS OF DOCKET NOS.: FA210027RT/
VARIOUS TENANTS, 991 PRESIDENT FA210153RT/FA210069RT/
STREET, BROOKLYN, NEW YORK FA210067RT/FC210135RT
------------------------------------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
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
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
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.
JOSEPH A. D'AGOSTA