OFFICE OF RENT ADMINISTRATION
                                     GERTZ PLAZA
                               92-31 UNION HALL STREET
                              JAMAICA, NEW YORK  11433

          APPEALS OF                               DOCKET NO.: ART11925Q

                 MICHAEL PISTILLI 
                 VARIOUS TENANTS OF                RENT ADMINISTRATOR'S
                 25-90 35TH STREET                 DOCKET NOs.: 
                 ASTORIA, NEW YORK                          QCS000527OM




          The above named owner and tenant filed petitions for administrative 
          review (PARs) of orders issued under Docket Numbers QCS000527OM and 
          QCS000043OM on June 19, 1986 by a Rent Administrator concerning the 
          housing accommodations known as various apartments, 25-90 35th 
          Street, Astoria, New York.
          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 these PARs.

          The owner commenced these proceedings on July 23, 1984 by filing a 
          major capital improvement (MCI) rent increase application (Docket 
          Number QCS0000430OM) based on the installation of a boiler/burner, 
          a new roof, and waterproofing at a total claimed cost of 

          The tenants responded by questioning the veracity of the owner's 

          On March 12, 1985, the owner filed a separate MCI application 
          (Docket Number QCS000527OM) based on the installations of pointing 
          and waterproofing, a front door with glass guards, and a wrought 
          iron fence at a total claimed cost of $35,530.00. No tenant 
          responses were received concerning this application.


          ADM. REV. DOCKET NO.: ART11925Q

          On March 29, 1985, the Division requested a clarification from the 
          owner as to whether there was any overlap between the $15,000.00 
          waterproofing work done under Docket Number QCS0000430OM and the 
          $30,000.00 pointing/waterproofing work done under Docket Number 

          The owner responded by stating that the total cost for the two- 
          stage waterproofing work was $45,000.00, and requested that this 
          work be merged into one docket.

          On June 19, 1986, the Rent Administrator issued the two orders 
          being appealed herein.  In Docket Number QCS000043OM, the 
          Administrator determined that the installation of a 
          boiler/burner ($47,800.00), a new roof ($16,000.00), and 
          waterproofing ($15,000.00), in the total amount of $78,800.00 
          qualified as an MCI and allowed rent increases for the rent 
          stabilized and controlled apartments. The claimed costs in the 
          amount of $200.00 were denied as unsubstantiated.
          In Docket Number QCS000527OM, the Administrator determined that the 
          installation of a front door with glass guards in the amount of 
          $5,000.00 qualified as an MCI, allowing rent increases for the rent 
          stabilized and controlled apartments. The claimed costs in the 
          amount of $530.00 for a fence installation and $30,000.00 for a 
          pointing/waterproofing installation completed in two stages were 

          In their petition the tenants assert, in pertinent part, that they 
          were not notified of or afforded an opportunity to respond to the 
          owner's application under Docket No. QCS000527OM while the 
          proceeding was pending before the Administrator; that the front 
          door installation is defective as the frames were not changed, and 
          the wrought iron and plexiglass covering can be removed causing a 
          lack of security; that the installation is in the nature of a 
          repair rather than an improvement; and that the rent increase based 
          on the door installation should only be retroactive to the date 
          when the installation was actually completed (late 1985).  

          In its petition, the owner contends, in substance, that it went 
          ahead with a contract agreement to complete a two-stage 
          waterproofing and pointing installation at the subject premises, 
          wherein the subject building was completely re-pointed and 
          waterproofed; and that the Division was aware of the two-stage 
          installation combined under Docket Numbers QCS000043OM and 


          ADM. REV. DOCKET NO.:  ART11925Q

          After a careful consideration of the entire evidence of record, the 
          Commissioner is of the opinion that this proceeding should be 
          remanded for further processing as provided for herein.

          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.

          The evidence of record indicates that despite the Division's 
          request for clarification to which the owner responded requesting 
          a merger of his two MCI applications with regard to the 
          pointing/waterproofing installations, the Administrator incorrectly 
          adjudicated the two applications separately.  Accordingly, the 
          Commissioner deems it appropriate to remand both proceedings 
          (Docket Numbers QCS000043OM and QCS000527OM) to the Rent 
          Administrator to determine whether the two-stage exterior 
          weatherization work as claimed by the owner qualifies as an MCI.  
          The Commissioner notes that waterproofing without pointing does not 
          qualify as an MCI.  The Commissioner further notes that both MCI 
          applications failed to include the requisite diagram indicating 
          with clarity the areas of the subject building which were pointed 
          and/ or waterproofed and a contractor's statement advising that all 
          exposed sides of the building were examined prior to the work being 
          performed and that based on such examination, the sections 
          waterproofed and pointed were all areas where it was required.
          The evidence of record further indicates that the tenants of the 
          subject premises may not have been afforded an opportunity to 
          respond to the owner's MCI application under Docket Number
          QCS000527OM. Accordingly, upon the remand the Administrator should 
          consider the tenants' comments as to the nature and quality of the 
          front door installation.

          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, granted 
          to the extent of remanding these proceedings to the Rent 
          Administrator for further consideration in accordance with this 
          order and opinion. 


          ADM. REV. DOCKET NO.: ART11925Q

          The automatic stay of so much of the Rent Administrator's orders as 
          directed retroactive rent increases for the rent-stabilized tenants 
          (which stay took effect upon the filing of the petitions for 
          administrative review) is hereby continued until a new order is 
          issued upon the remand. However, the Administrator's determination 
          as to prospective rent increases is not stayed and shall remain in 
          effect until the Administrator issues a new order upon the remand.

                                              JOSEPH A. D'AGOSTA
                                              Deputy Commissioner



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