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.: GC110360RT
APPEAL OF
LINDA FOLEY
RENT ADMINISTRATOR'S
PETITIONER DOCKET NO: DL130140OM
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ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW
On March 3, 1992 the above-named tenant timely filed a Petition for
Administrative Review of an order issued on February 10, 1992 by
a Rent Administrator, Gertz Plaza, concerning the housing
accommodations know as 24-26 29th Street, Apartment 1A, Long Island
City, New York, wherein the Rent Administrator determined that the
owner was entitled to a rent increase based on a major capital
improvement (MCI).
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 22, 1989 by
initially filing a major capital improvement rent increase
application based on the installation of a new boiler/burner, at
the subject premises, at a total claimed cost of $13,000.00. In
support of his application, the owner submitted copies of permits,
contracts, approvals 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 February 10, 1992, the Rent Administrator issued the order here
under review finding that the installation of a new boiler/burner
qualified as a major capital improvement, 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 and rent
stabilized apartments.
ADMIN. REVIEW DOCKET NO.: GC110360RT
In her Petition for Administrative Review, the tenant requests
reversal of the Rent Administrator's order and contends, in
substance, that the owner has had a separate boiler/burner
installed in each of the three buildings involved, where as in the
past, one boiler/burner had serviced all the buildings; that the
heat supplied by the new boiler/burner is inadequate; and that at
times, no heat is supplied.
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 installation of a new boiler/burner
qualifies as a major capital improvement for which an increase may
be warranted, providing the owner otherwise so qualifies. The
record indicates that the owner substantiated his application by
submitting copies of permits, contracts, approvals 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 inadequate heat 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 inadequate
heat in any services complaints filed with the Division and the
record does not support the tenant's assertion regarding the number
of boiler/burners installed.
ADMIN. REVIEW DOCKET NO. GC110360RT
This order is issued without prejudice to the tenant's right to
file a service complaint with this Division based on reduction of
services, it the facts so warrant.
THEREFORE, in accordance with the applicable provision 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:
JOSEPH A. D'AGOSTA
DEPUTY COMMISSIONER.
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