AL 110041 RT, AL 110042 RT, AL 110043 RT, AL 110044 RT
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
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IN THE MATTER OF THE ADMINISTRATIVE ADMINISTRATIVE REVIEW
APPEALS OF DOCKET NOS.: AL 110041 RT,
AL 110042 RT,
JEFFREY FICHTELBERG, CHARLES LAMAR, AL 110043 RT,
JAMES AND EVELYN COLLINS, AL 110044 RT
AND
DIANE KOSIC, DISTRICT RENT ORDER
DOCKET NO.: QS 000274-OM
PETITIONERS
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ORDER AND OPINION DENYING PETITIONS FOR ADMINISTRATIVE REVIEW
On December 1 , 17 and 19, 1986 the above named petitioner-
tenants filed Petitions for Administrative Review against an order
issued on November 17, 1986 by the Rent Administrator, 92-31 Union
Hall Street, Jamaica, New York concerning housing accommodations
known as 33-15, 33-25 and 33-35 81st Street and 33-16 and 33-26
82nd Street, Jackson Heights, New York.
These proceedings have been consolidated pursuant to Section
2529.1(c) of the Rent Stabilization Code (Code) as they involve
common issues of law or fact.
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 the administrative appeals.
The owner commenced this proceeding on November 20, 1984 by filing
an application for Major Capital Improvement (MCI) increases for
the 270 apartments located at the subject premises based on the
installation of the following:
aluminum replacement windows,
water risers and branches,
a new water storage tank,
a hot water heater,
electrical rewiring (including a fire alarm and smoke
detector system),
a new roof,
roof insulation,
masonry,
AL 110041 RT, AL 110042 RT, AL 110043 RT, AL 110044 RT
pointing and waterproofing.
The owner submitted documentary evidence showing it made
expenditures totalling $1,045,277.60 for said installations.
In response to the application, the subject tenants objected to any
MCI increase, asserting, in substance, that the work performed was
in the nature of repair and maintenance or was only cosmetic, that
the work was not performed properly, that certain items were not
installed building-wide and the work was only done for the benefit
of the owner's planned cooperative conversion of the subject
premises. Several other tenants submitted responses objecting to
MCI increases.
The Rent Administrator's order, appealed herein, partially granted
the owner's application. The Rent Administrator approved increases
for the installation of the new storage tank, hot water heater,
aluminum replacement windows, part of the electrical rewiring, new
roof, roof insulation, masonry and waterproofing. The Rent
Administrator disallowed expenditures of $17,741.00 for water
risers and branches and $22,000.00 for the fire alarm and smoke
detector system based on a determination that these installations
did not constitute Major Capital Improvements.
The Rent Administrator further disallowed part of the costs
($10,244.60) for the aluminum replacement windows as not properly
substantiated.
In these petitions, the tenants contend, in substance, that the
work performed was in the nature of repair and maintenance or was
cosmetic only and did not qualify for MCI increases, that the work
was performed to enhance the value of the premises for cooperative
conversion purposes and therefore the costs should not be passed on
to the rental tenants, that the tenants should be entitled to the
benefit of any tax abatements the owner received, and that the MCI
increases were excessive.
Further, two of the petitioner-tenants contend that the walls were
not properly plastered after the rewiring and that the windows are
defective in that they are of poor quality and leak cold air. One
petitioner-tenant contends that the new water storage tank and hot
water heater are not functioning properly, that the water flow is
insufficient and the temperature fluctuates erratically.
The Commissioner is of the opinion that these petitions should be
denied.
Section 9 NYCRR 2522.4 of the Rent Stabilization Code provides, in
pertinent part, that an owner qualifies for a rent increase where
there has been a building-wide major capital improvement which is
deemed depreciable under the Internal Revenue Code, other than for
ordinary repairs. Based on the improvements made herein, i.e., the
installation of a new storage tank, hot water heater, electric
rewiring, new roof, roof insulation, masonry and waterproofing, and
the documentation submitted by the owner to substantiate such
improvements, the Commissioner finds that the Rent Administrator
properly concluded that the owner met the requirements of Section 9
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NYCRR 2522.4 of the Code and properly granted the appropriate rent
increase. Whether or not said improvements were made for purposes
of a plan for the cooperative conversion of the subject premises is
not relevant to this proceeding.
Regarding the tenants' contention that they should be entitled to
the benefits of any tax abatements received by the owner, the
Commissioner notes that the rent stabilized tenants of the subject
premises would not be entitled to rent adjustments based on tax
abatements received by the owner because such adjustments are
available only for work commenced after June 28, 1988 and the
record shows that work on the subject improvements commenced prior
to that date.
With regard to the tenants' allegation that the cost of the
installations was excessive, the Commissioner notes that the owner
submitted documentation substantiating its payment of the actual
cost and that the tenants did not introduce any evidence in support
of this allegation that the costs were excessive. In view of the
foregoing, it is the opinion of the Commissioner that further
investigation by the Division on the matter of cost is not
warranted.
Regarding the petitioner-tenants' contentions concerning the
plasterwork, the water pressure and temperature, and the windows
the record shows that the tenants' complaints are insufficient to
overturn the building-wide order, and that the owner has submitted
sufficient documentary evidence to show the improvements were
completed in a workmanlike manner.
However, this order and opinion is issued without prejudice to the
tenants' right to file applications with the Division for a rent
reduction for any current service decreases including decreases
involving plastering, water pressure or temperature or windows, if
the facts so warrant.
THEREFORE, in accordance with the Rent Stabilization Law and Code,
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,
affirmed.
ISSUED:
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ELLIOT SANDER
Deputy Commissioner
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