STATE OF NEW YORK
DIVISION OF HOUSING AND COMMUNITY RENEWAL
OFFICE OF RENT ADMINISTRATION
92-31 UNION HALL STREET
JAMAICA, NEW YORK 11433
IN THE MATTER OF THE ADMINISTRATIVE ADMINISTRATIVE REVIEW
APPEALS OF DOCKET NOS.:
VARIOUS TENANTS OF 2402 63 STREET RENT ADMINISTRATOR'S
BROOKLYN, NEW YORK DOCKET NO.:
ORDER AND OPINION DENYING PETITIONS FOR ADMINISTRATIVE REVIEW
The above-named petitioner-tenants filed petitions for
administrative review of an order issued on September 8, 1992 by a
Rent Administrator (Gertz Plaza), concerning the housing
accommodations known as various apartments, 2402 63rd Street,
Brooklyn, New York.
Since these petitions involve common issues of law and fact, they
have been consolidated for a uniform disposition.
The Commissioner has reviewed all the evidence in the record and
has carefully considered that portion of the record relevant to the
issues raised by the petitions for review.
The owner of the subject premises commenced this proceeding by
filing a major capital improvement (MCI) rent increase application
with the Administrator based on the installation of an intercom
(installation completed March 1988); mailboxes and entrance door
(installation completed July 1987); and door-lock repair, at a
total claimed cost of $14,330.00.
In response to the owner's application, one tenant confirmed that
the items for which the owner applied for an MCI rent increase
had been installed.
On September 9, 1992, the Rent Administrator issued the order
appealed herein in which the owner's MCI application was granted in
part permitting a rent increase based on the intercom and entrance
door installations at a total cost of $11,910.00.
In their petitions the tenants assert, in substance, that although
completed, the installations have since become "defective"; that
the intercom system is defective providing easy access to the
ADM. REVIEW DOCKET NOS.: GJ210087RT ET AL.
subject premises; and that the entrance door glass and lock are
In response to the petitions, the owner states, in substance, that
the intercom and door are not broken and work properly. The owner
encloses a copy of an agency order dated November 6, 1991 in which
the tenants' building-wide complaint of, among other things, a
inoperative vestibule door lock was denied based on a report of
agency inspection conducted on September 24, 1991 indicating, among
other things, that the buzzer is located at the vestibule door,
therefore, it is not required that the entrance door be locked, and
that the vestibule door lock is operative.
After a careful consideration of the entire evidence of record, the
Commissioner is of the opinion that these petitions should be
Rent increases for major capital improvements are authorized by
Section 2202.4 of the Rent and Eviction Regulations for rent
controlled apartments and Section 2522.4 of the Rent Stabilization
Code for rent stabilized apartments. Under rent control, an
increase is warranted where there has been since July 1, 1970 an
MCI required for the operation, preservation or maintenance of the
structure. 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,
preservation, and maintenance of the structure; and replace an item
whose useful life has expired.
At the outset the Commissioner notes, as confirmed by the record,
that the petitioners herein were served by the Administrator with
notice of the instant application and that they failed to respond
thereto. Fundamental principles of the administrative appeal
process and Section 2529.6 of the Rent Stabilization Code prohibit
a party from raising issues on appeal which were not raised below.
The tenants of said apartments could have raised the very issues
before the Rent Administrator which they now seek to raise for the
first time on appeal. Accordingly, the Commissioner is constrained
to foreclose consideration of these issues in this appeal
The Commissioner does, however, note that the evidence of record in
the instant case indicates that all complaints regarding the
installations herein were addressed appropriately in the proceeding
below. In this connection the Commissioner notes that physical
inspections were conducted by the Division in 1989, 1991 and 1993
in connection with rent restoration applications and tenant service
complaints, the reports of which disclose that the vestibule door
lock was operating properly in connection with the buzzer system;
ADM. REVIEW DOCKET NOS.: GH210087RT ET AL.
that the entrance door was not reported to be defective; and that
no rent reduction orders based on the owner's failure to maintain
services of a building-wide nature were in effect as of the
effective date for stabilized apartments (February 1, 1989) of the
Administrator's order appealed herein.
However, as provided in the Administrator's order, if a rent
reduction was in effect for any apartment(s) in the building due to
the owner's failure to provide or maintain services, any rent
increase affecting such apartment(s) which was granted on or after
the effective date of the rent reduction order, is not collectible
from such apartment(s) until a rent restoration order has been
issued, and will only be collectible from the effective date of the
rent restoration. The tenants, however, are obligated to pay that
portion of the rent increase which was effective prior to the
effective date of the rent reduction.
The determination herein is without prejudice to the tenants filing
a complaint of rent overcharge, if the facts so warrant.
THEREFORE, in accordance with the Rent Stabilization Law and Code
and the Rent and Eviction Regulations for New York City, it is
ORDERED, that these petitions be, and the same hereby are, denied,
and that the Rent Administrator's order be, and the same hereby is,
JOSEPH A. D'AGOSTA