DIVISION OF HOUSING OF 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 NO.: ART11925Q
MICHAEL PISTILLI
AND
VARIOUS TENANTS OF RENT ADMINISTRATOR'S
25-90 35TH STREET DOCKET NOs.:
ASTORIA, NEW YORK QCS000527OM
QCS000043OM
PETITIONERS,
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ORDER AND OPINION REMANDING PROCEEDING ON APPEAL
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
$79,000.00.
The tenants responded by questioning the veracity of the owner's
application.
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.
(1)
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
QCS000527OM.
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
denied.
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
QCS000527OM.
(2)
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.
(3)
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.
ISSUED:
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JOSEPH A. D'AGOSTA
Deputy Commissioner
(4)
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