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
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IN THE MATTER OF THE ADMINISTRATIVE DOCKET NO.: GA210356RT
APPEAL OF
BESSIE JENKINS
RENT ADMINISTRATOR'S
PETITIONER DOCKET NO.: DL230056OM
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ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW
On January 30, 1992 the above-named tenant timely filed a Petition
for Administrative Review of an order issued on January 10, 1992 by
a Rent Administrator, Gertz Plaza, concerning the housing
accommodations known as 101 Lenox Road, Apartment 5C, Brooklyn, New
York, wherein the Rent Administrator determined that the owner was
entitled to a rent increase based on major capital improvements
(MCI's).
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 December 7, 1989 by
initially filing a major capital improvement rent increase
application predicated on the installation of new apartment windows
and a new intercom system at a total claimed cost of $41, 514.00.
In support of his application, the owner submitted copies of
contracts and cancelled checks.
One tenant responded to the owner's application objecting to the
increase but failed to make any complaints pertaining to the
installation. The petitioner-tenant herein, did not submit any
response to the application.
On January 10, 1992, the Rent Administrator issued the order here
under review finding that the installation of new apartment windows
and a new intercom system qualified as major capital improvements,
determining that the application complied with the relevant laws
and regulations based upon the supporting documentation submitted
by the owner and allowing rent increases for both rent controlled
ADMIN. REVIEW DOCKET NO.: GA210356RT
and rent stabilized tenants.
In her Petition for Administrative Review, the tenant requests
reversal of the Rent Administrator's order and contends, in
substance, that the windows need adjusting; that they do not remain
open; and that she cannot afford to pay the increase because of the
limited amount of money she receives per month.
After a careful consideration of the entire evidence of 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 building-wide replacement of
windows and the installation of a new intercom system qualify as
major capital improvements for which an increase may be warranted.
The record indicates that the owner substantiated its application
by submitting copies of the contracts 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 of the defective windows before the Administrator in the
proceeding below nor has the petitioner submitted any explanation
for her failure to do so. Accordingly, the issue sought to be
raised by this petition is not within the scope of the
Commissioner's review and may not be considered on the merits. In
addition, the Commissioner notes that the tenant has not complained
of defective windows in any services complaints filed with the
Division.
2
ADMIN. REVIEW DOCKET NO.: GA210356RT
This order is issued without prejudice to the tenant's right to
file a service complaint with this Division based on reduction of
services, if the facts so warrant.
The Commissioner is not unmindful of the possibility that the rent
increase may prove burdensome to some tenants. However, the
Commissioner is constrained by the applicable statutory and
regulatory provisions to grant such increases as are warranted.
A tenant who has a valid Senior Citizen Rent Increase Exemption
Order (SCRIE) is exempted from that portion of the increase which
would cause the rent to exceed one-third of the tenant's household
monthly disposable income. A tenant who may be entitled to this
benefit may contact the New York City Department of the Aging by
calling (212) 240-7000.
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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