STATE OF NEW YORK
DIVISION OF HOUSING AND COMMUNITY RENEWAL
OFFICE OF RENT ADMINISTRATION
92-31 UNION HALL STREET
JAMAICA, NEW YORK 11433
------------------------------------X S.J.R. NO.: 7392
IN THE MATTER OF THE ADMINISTRATIVE : ADMINISTRATIVE REVIEW
APPEAL OF DOCKET NO.: GG410205RO
JACK ROSENTHAL RENT ADMINISTRATOR'S
DOCKET NO.: EK410152OM
ORDER AND OPINION REMANDING PROCEEDING ON APPEAL
The above-named petitioner-owner timely filed a Petition for
Administrative Review against an order issued on June 19, 1992 by
the Rent Administrator (Gertz Plaza), concerning housing
accommodations known as 155 East 23rd Street, New York, New York,
wherein the Rent Administrator denied the owner's application for
a major capital improvement (MCI) rent increase based on the
installations of a new boiler and a new roof.
Thereafter the owner filed a petition in the Supreme Court pursuant
to Article 78 of the Civil Practice Law and Rules seeking an order
of mandamus. This resulted in a Court ordered stipulation
remitting the proceeding for a determination of the owner's
administrative appeal herein.
In its petition the owner contends, in substance, that the
Administrator incorrectly denied an MCI rent increase for the
installations of the new boiler and the new roof since it submitted
its application in a timely fashion to the Division.
In response to the owner's petition, the tenant of apartment No.
606 asserts, in substance, that since the old boiler and the roof
had exhausted their useful lives, the new installations should be
considered as regular maintenance; and that the owner is not
entitled to an additional increase for same.
The owner responded by stating, in substance, that the tenant's
assertion is meritless.
After careful consideration of the entire record, the Commissioner
is of the opinion that this proceeding should be remanded to the
Administrator for further processing.
Rent increases for MCIs are authorized by Section 252.4 of the Rent
Stabilization Code for Rent Stabilized apartments. Under Rent
Stabilization, the improvement must generally be building-wide;
depreciable under the internal Revenue Code, other than for
ordinary repairs; required for the operation,
ADMIN. REVIEW DOCKET NO.: GG410205RO; SJR 7392
preservation, and maintenance of the structure; and replace an item
whose useful life has expired. Piecemeal work or ordinary repairs
and maintenance does not constitute work for which a rent increase
adjustment is warranted under current and past procedures.
It is the established position of the Division that the
installations of a new boiler and roof constitute major capital
improvements for which rent increases may be warranted, provided
the owner otherwise so qualifies. Section 2522.4(a)(8) of the Rent
Stabilization Code precludes a rent increase for an MCI when the
application is filed more than two years after the completion of
the installation. A review of the record discloses that the boiler
installation was completed on December 14, 1988, and the roof
installation was completed on November 1, 1988, as evidenced by
contractors' certifications and cancelled checks submitted with the
instant application. Furthermore, the record discloses that said
application was initially received by the Division of Housing and
Community Renewal (DHCR) on October 30, 1990. Therefore, the
Commissioner finds that the application was timely filed as
required by Section 2522.4(a)(8) of the Rent Stabilization Code.
In view of the foregoing, the Commissioner deems it appropriate to
remand this proceeding to the Rent Administrator for further
consideration as may be deemed necessary to complete such
processing of the owner's application on its merits.
THEREFORE, in accordance with the applicable provisions of the Rent
Stabilization Law and Code, it is
ORDERED, that this proceeding be, and the same hereby is, granted
to the extent of remanding this proceeding to the Rent
Administrator for further consideration in accordance with this
order and opinion. The Rent Administrator's order of June 19, 1992
is hereby revoked.
JOSEPH A. D'AGOSTA