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.: GE620199RT
APPEAL OF
IRVING MORGENSTERN
RENT ADMINISTRATOR'S
PETITIONER DOCKET NO.: EJ630163OM
------------------------------------X
ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW
On May 20, 1992, the above-named tenant filed a Petition for
Administrative Review of an order issued on April 10, 1992 by a
Rent Administrator, Gertz Plaza, concerning the housing
accommodations known as 161 East 206 Street, Apartment 1C, Bronx,
New York, wherein the Rent Administrator determined that the
landlord 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 landlord commenced this proceeding on October 26, 1990 by
initially filing a major capital improvement rent increase
application predicated on the installation of new apartment windows
at a total claimed cost of $51,500.00. In support of his
application, the landlord submitted copies of the contracts and
cancelled checks.
Three tenants submitted answers objecting to the rent increase.
The petitioner-tenant herein also submitted an answer but did not
object to the increase. Instead, he supported the application
claiming that the windows, in his apartment, Apt. 1C, were replaced
and that they were in working condition. None of the responses
cited any pertinent reason why the increase should not be granted.
On April 10, 1992, the Rent Administrator issued the order here
under review finding that the installation of new apartment windows
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 landlord and
allowing appropriate rent increases for both rent controlled and
rent stabilized tenants.
ADMIN. REVIEW DOCKET NO.: GE630163RT
In his Petition for Administrative Review, the tenant requests
reversal of the Rent Administrator's order and contends, in
substance, that all the windows in his apartment are not in working
order. He claims that some do not close properly while the top
part of others come down by themselves. He further states that the
windows are drafty and that dust comes through.
In response to the tenant's allegations, the landlord contends, in
substance, that he has complied with all the requirements to be
eligible for a major capital improvement rent increase. He further
states that the tenant did not make these claims upon receiving the
application and, therefore, may not present these complaints on
PAR.
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 2202.4 of the Rent and Eviction Regulations for rent
controlled 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.
The Commissioner notes that the building-wide replacement of
apartment windows qualifies as a major capital improvement for
which an increase may be warranted. The record indicates that the
landlord substantiated his application by submitting copies of the
contract and cancelled checks. The record confirms that the
landlord correctly complied with the applicable procedures for a
major capital improvement rent increase.
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
issues of the defective and drafty windows before the Administrator
in the proceeding below nor has the petitioner submitted any
explanation for his failure to do so. Accordingly, the issues
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. The Commissioner notes that the petitioner had
responded to the landlord's application stating that the replaced
windows in his apartment were in working condition.
ADMIN. REVIEW DOCKET NO.: GE620199RT
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 Rent and Eviction Regulations for
New York City, it is
ORDERED, that this petition be, and the same hereby is, denied, and
the Rent Administrator's order be, and the same hereby is,
affirmed.
ISSUED:
------------------------
JOSEPH A. D'AGOSTA
Deputy Commissioner
|