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 NOS.: HB210009RT
APPEALS OF HB210185RT
HB210201RT
Various Tenants of 1535 East 14th HB210245RT
Street, Brooklyn, New York HB210251RT
RENT ADMINISTRATOR'S
PETITIONERS DOCKET NO.: FB210135OM
-----------------------------------X
ORDER AND OPINION DENYING PETITIONS FOR ADMINISTRATIVE REVIEW
The petitioner-tenants timely filed administrative appeals against
an order issued on January 21, 1993 by the Rent Administrator (92-
31 Union Hall Street, Jamaica, New York) concerning the housing
accommodations known as 1535 East 14th Street, Brooklyn, New York,
various apartments, wherein the Administrator granted major capital
improvement (MCI) rent increases for the stabilized apartments in
the subject premises.
The owner commenced this proceeding below by filing its MCI
application in February of 1991 for the installation of a heating
system, intercom and windows building-wide. In support of its
application, the owner submitted copies of the contracts,
contractors' certifications, government approvals and cancelled
checks.
Two of the petitioner-tenants responded to the application and
stated, in substance, as follows:
Apartment 1E
Hot water is insufficient; windows were not installed properly,
causing drafts and cold air to come into apartment; windows were
supposed to be adjusted but up until the present time nothing has
been done.
Apartment 1B
The rent has been increased for the upgrading of the incinerator,
for the cost of fuel, and, a few years ago, for storm windows; the
water heater is not effective; the new windows require adjustment
as promised when they were installed.
ADMINISTRATIVE REVIEW DOCKET NOS.: HB210009RT et. al.
The owner responded to the tenants' objections by alleging that all
of the defective windows were repaired.
In rebuttal, the tenants confirmed that repairs have been
completed; however the windows do nothing to prevent the cold air
from seeping in.
On January 21, 1993 the Rent Administrator issued the order here
under review, finding that the installations qualified as MCIs,
determining that the application complied with the relevant laws
and regulations based upon the supporting documentation submitted
by the owner, and authorizing a rent increase of $10.70 per room,
per month (based on a total revised room count of 233) for the
stabilized apartments. The Administrator reduced the claimed cost
of the heating system and the window installation based on a MCI
rent increase (Docket Number OM-4090) issued in July of 1983. The
increase was further reduced to $9.17 per room per month to reflect
a tax abatement offset for the life of the abatement.
On appeal, the petitioner-tenants contend, in substance, as
follows:
Apartment 1L
According to the order issued, apartment 2L has one room; and
apartment 1L is identical in size and layout but it has been
allocated two rooms.
Apartment 1E
The windows are unsatisfactory, they are very draughty and the cold
air continues to come through.
Apartment 6G
According to the order issued, apartments 2G and 5G contain two
rooms; the order should be modified to include my apartment as
having two rooms; and the hot water temperature fluctuates.
Apartment 1B
According to the order issued, apartment 2L has one room; and
apartment 1B is the mirror image of apartment 2L.
Apartment 1G
According to the order issued, apartments 2G and 5G contain two
rooms; apartments 1G, 2G, 3G, 4G, 5G, and 6G are all identical in
size and layout; and apartment 1G has been allocated three rooms in
error.
ADMINISTRATIVE REVIEW DOCKET NOS.: HB210009RT et. al.
In response to the tenants' petitions, the owner stated the
following:
Apartment 1L
The owner claimed that a copy of the floor plan for apartment 1L
which was submitted clearly indicates that it is a two room
apartment. According to DHCR definition of a room for MCI
processing, a windowless kitchen containing at least 59 square feet
constitutes a room. While the owner asserts that the floor plan for
apartment 1L indicates that the kitchen area is 7'4" by 9'0", the
Commissioner notes that those dimensions actually relate to the
dining alcove and the windowless kitchen is shown as being 7' 4" by
7' 4" or approximately 53 square feet.
Apartment 1E
A copy of a letter submitted by the owner during the proceeding and
on appeal, dated September 24, 1992 and signed by the tenant in
apartment 1E, states that the window repairs have been completed.
Apartment 6G
Heat and hot water are supplied as prescribed by law.
Apartment 1B and 1G
The rent for these tenants shall be adjusted to reflect the correct
number of rooms for these units (one room).
After a careful consideration of the entire evidence of record, the
Commissioner is of the opinion that these administrative appeals
should be denied.
At the outset the Commissioner notes, as confirmed by the record,
that the tenants of apartments 1L, 6G and 1G 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 as the petitioner-tenants could have
raised the very issues before the Rent Administrator which they
seek to raise for the first time on appeal. Accordingly, the
Commissioner is constrained to foreclose consideration of these
issues in this proceeding.
ADMINISTRATIVE REVIEW DOCKET NOS.: HB210009RT et. al.
Rent increases for major capital improvements are authorized by
Section 2522.4 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,
preservation, and maintenance of the structure; and replace an item
whose useful has expired.
With regard to the contention of the tenant of apartment 1E, the
Commissioner requested that an inspection of the windows in this
unit be conducted on appeal. On December 10, 1993 the tenant
contacted the inspector and canceled the appointment for the
inspection. The tenant stated a written notification will follow
but to date no further communication has been received.
With regard to the petition filed by the tenants of apartments 1B,
1G and 1L to the effect that the amended room count is incorrect,
the Commissioner notes that the prior room count determination is
not, under the circumstances of this case, binding upon the
Administrator and that the Administrator properly used a reduced
room count in accordance with Policy Statement 90-3 (February 8,
1990) then in effect which defines a room for MCI purposes as
follows:
1) A windowless kitchen containing at least 59 square feet.
2) An enclosed area with window containing at least 60 square
feet.
3) An enclosed area without window containing at least 80
square feet.
4) Bathrooms, walk-in closets, etc. are excluded.
The owner has stated that the room count for apartment 1B and 1G
has been corrected. On June 3, 1993, the tenant in apartment 1G
confirmed that the room count has been adjusted accordingly. The
tenant of apartments 1L and 6G may commence a proceeding for rent
overcharges if the owner is collecting an increase which does not
correspond to the number of rooms in said apartment.
With regard to the petition filed by the tenants of apartment 6G,
a review of Division records discloses that there were no orders
outstanding against the subject premises based on the owner's
failure to maintain building-wide or individual apartment service
of heat and hot water at the time the Administrator's order was
issued. The determination herein is without prejudice to the right
of the tenants to file an application for a rent reduction based on
a diminution of services, if the facts so warrant.
ADMINISTRATIVE REVIEW DOCKET NOS.: HB210009RT et. al.
On the basis of the entire evidence of record, it is found that the
Administrator's order is correct and should be affirmed.
THEREFORE, in accordance with the applicable provisions of the Rent
Stabilization Law and Code, it is
ORDERED, that these administrative appeals be, and the same hereby
are, denied; and that 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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