STATE OF NEW YORK
DIVISION OF HOUSING AND COMMUNITY RENEWAL
OFFICE OF RENT ADMINISTRATION
92-31 UNION HALL STREET
JAMAICA, NEW YORK, 11433
-----------------------------------X ADMINISTRATIVE REVIEW
IN THE MATTER OF THE ADMINISTRATIVE DOCKET NOS.: HD130206RT
APPEALS OF HD130260RT
Various Tenants of 89-24 and 89-34 HE130020RT
164th Street, Jamaica, New York HE130068RT
PETITIONERS DOCKET NO.: EJ130094OM
ORDER AND OPINION DENYING PETITIONS FOR ADMINISTRATIVE REVIEW
The petitioner-tenants timely filed administrative appeals against
an order issued on April 6, 1993 by the Rent Administrator (92-31
Union Hall Street, Jamaica, New York) concerning the housing
accommodations known as 89-24, 89-34 and 89-38 164th Street,
Jamaica, New York, various apartments, wherein the Administrator
granted major capital improvement (MCI) rent increases for the
controlled and stabilized apartments in the subject premises.
The Commissioner notes that the petition filed by the tenant of
89-24 164th Street, apartment 5E, was incorrectly assigned two
docket numbers (HD130366RT and HD130287RT).
The owner commenced this proceeding below by filing its MCI
application in October of 1990 for the installation of compactors
and elevator upgrading at 89-24 and 89-34 164th Street; and
pointing and waterproofing at 89-38 164th Street. In support of its
application, the owner submitted copies of the contracts,
contractors' certifications and cancelled checks.
On April 6, 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 rent increases.
ADMINISTRATIVE REVIEW DOCKET NOS.: HD130206RT et. al.
On appeal, the petitioner-tenants contend, in substance, as
89-24 164th Street, Apartment 2A
The replacements were required because of management's neglect over
89-24 164th Street, Apartment 5E
The elevator and the compactor do not operate properly.
89-24 164th Street, Apartment 5C
The elevator service for the fifth (5) floor has been out of order
and the compactor has been wired shut.
89-34 164th Street, Apartment 6G
There is no compactor in her building as garbage is pushed down a
chute to the basement and then placed in bags.
89-34 164th Street, Apartment 5B
We have not been served with an RR-1 application prior to the
issuance of the Administrator's order.
89-34 164th Street, Apartment 6F
Only cosmetic work was performed in the elevator, he is not aware
of any other installations, and building services are not being
After a careful consideration of the entire evidence of record, the
Commissioner is of the opinion that these administrative appeals
should be denied.
Rent increases for major capital improvements are authorized by
Section 2202.4 of the Rent and Eviction Regulations for the rent
controlled apartments and Section 2522.4 of the Rent Stabilization
Code for the 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, and 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 has expired.
ADMINISTRATIVE REVIEW DOCKET NOS.: HD130206RT et. al.
With regard to the contention of the tenant of 89-34 164th Street,
apartment 6G, that there was no compactor in her building, the
evidence of record, including a physical inspection of the
premises, indicates that the compactor was working properly.
The record further reveals that on December 14, 1990, copies of the
owner's MCI application was served by the Division on all the
tenants. Along with the application was a form to be used by the
tenants for their response. The Commissioner notes that the
remaining petitioner-tenants did not raised any objections while
this proceeding was pending before the Rent Administrator even
though they were afforded the opportunity to do so.
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.
As to the tenants' contention with respect to the owner's failure
to provide and/or maintain services, 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
services either at the time the Administrator's order was issued or
thereafter. 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.
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, the Rent and Eviction Regulations for
the City of New York, and Operational Bulletin 84-1, 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.
Joseph A. D'Agosta