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 ADMINISTRATIVE REVIEW
IN THE MATTER OF THE ADMINISTRATIVE DOCKET NO.: GE210277RT
APPEAL OF
LEROY WILLIAMS
RENT ADMINISTRATOR'S
PETITIONER DOCKET NO: EA230190OM
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ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW
On May 19, 1992, the above-named tenant filed a Petition for
Administrative Review of an order issued on April 17, 1992 by a
Rent Administrator, Gertz Plaza, concerning the housing
accommodations known as 2511 Newkirk Avenue, Apartment 10B,
Brooklyn, New York, wherein the Rent Administrator determined that
the owner was entitled to a rent increase based on a major capital
improvement.
The Commissioner has reviewed all of the evidence in the record and
has carefully considered that portion of the record relevant to the
issues raised by this Administrative Appeal.
The owner commenced this proceeding on January 25, 1990 by
initially filing a major capital improvement rent increase
application predicated on the installation of a new roof and new
mail boxes. In support of his application, the owner submitted
copies of contracts and cancelled checks.
Five tenants submitted answers objecting to the rent increase but
did not identify any pertinent reason why the increase should not
be granted. The petitioner-tenant herein, did not submit any
response to the application.
On April 17,1992, the Rent Administrator issued the order here
under review finding that the installation of a new roof qualified
as a major capital improvement, determining that the application
with regard to the roof complied with the relevant laws and
regulations based upon the supporting documentation submitted by
the owner and allowing appropriate rent increases for both rent
controlled and rent stabilized tenants. No increase was granted for
the installation of new mail boxes since the location of the mail
boxes was not changed and, therefore, the installation was not
considered a major capital improvement.
ADMIN. REVIEW DOCKET NO.: GE210277RT
In his Petition for Administrative Review, the tenant requests
reversal of the Rent Administrator's order and contends, in
substance, that he lives on the top floor of the building and that
water leaks from the ceiling into the living room whenever there is
a heavy rainfall. He claims that he had brought this to the
superintendent's attention on numerous occasions.
In response to the tenant's allegation, the owner contends, in
substance, that there was one leak which was reported to the
Superintendent and that this was immediately fixed. He pointed out
that this leak resulted from the parapet wall and the outside brick
joints and not from the roof. He further claims that he has spoken
to the tenant on numerous occasions after the repairs had been
effectuated and that no mention was ever made of a continuing
problem.
After a careful consideration of the entire record, the
Commissioner is of the opinion that this petition should be denied.
Rent increases for major capital improvements are authorized by
Section 2522.4 of the Rent Stabilization Code. Under rent
stabilization, the improvement must generally be building-wide;
depreciable under the Internal Revenue Code, other than for
ordinary repairs; be required for the operation, preservation, and
maintenance of the structure; and replace an item whose useful life
has expired.
The Commissioner notes that the replacement of a roof qualifies as
a major capital improvement for which an increase may be warranted.
The record indicates that the owner substantiated his application
by submitting copies of the contract and cancelled checks. The
record confirms that the owner correctly complied with the
applicable procedures for a major capital improvement rent
increase.
Section 2529.6 of the Rent Stabilization Code provides in pertinent
part that the scope of administrative review is limited to such
facts or evidence as was before the Administrator as raised in the
petition unless the petitioner can establish that such issues could
not reasonably have been offered or raised in the proceeding prior
to the issuance of the Administrator's determination.
There is no indication that the tenant could not have raised the
issue as to the leaking roof before the Administrator in the
proceeding below nor has the petitioner submitted any explanation
for his failure to do so. Accordingly, the issue sought to be
raised by this petition is not within the scope of the
Commissioner's review of the proceeding and may not be considered
on the merits. In addition, the Commissioner notes that the tenant
ADMIN. REV. DOCKET NO. GE210277.RT
has not complained of roof leaks in any services complaints filed
with the Division.
This order is issued without prejudice to the tenant's right to
file a service complaint with this Division based on a reduction of
services, if the facts so warrant.
THEREFORE, in accordance with the applicable provisions of the Rent
Stabilization Law and Code, it is
ORDERED, that this administrative appeal be, and the same hereby is
denied, and the Administrator's order be, and the same hereby is
affirmed.
ISSUED:
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JOSEPH A. D'AGOSTA
Deputy Commissioner
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