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.:ART 13038-U
GLADYS LEDDY AND THE TENANTS OF : BE 430434-RO
707 WEST 171ST STREET
NEW YORK, NEW YORK, AND RENT ADMINISTRATOR'S
MIRLAN REALTY,OWNER PETITIONERS : DOCKET NO.: USC 00217-OM
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ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW UNDER
DOCKET NO. BE 430434-RO AND DENYING PETITION FOR ADMINISTRATIVE REVIEW
UNDER DOCKET NO. ART 13038-U
The above-named petitioners filed and timely refiled petitions for
administrative review of an order issued on May 23, 1986 by a District Rent
Administrator (Gertz Plaza) concerning the housing accommodations known as
707 West 171st Street, New York, New York, various apartments.
The Commissioner has reviewed all the evidence in the record and has
carefully considered that portion of the record relevant to the issues
raised by the petitions for review.
The owner commenced the proceeding before the District Rent Administrator
below by filing an application for a Major Capital Improvement (MCI) rent
increase with the Division claiming total costs of $120,205.00 for the
installation of replacement windows building-wide, a new roof, boiler/burner
and "adequate wiring".
In response to the owner's application the tenants, submitted substantially
identical answers in which they claimed, in substance, that the
installations were inadequate and had been completed in an unworkmanlike
manner. More specifically, the tenants asserted, in substance, that the
windows had been poorly installed and were likely to "fall out of their
frames"; that the electrical installation was minimal and only involved work
in the kitchen and the installation of one "alternating current" outlet per
apartment, which the tenants assert fail to function properly; that the roof
had only been patched and continued to leak, and that the boiler breaks down
on a weekly basis leaving the tenants without heat or hot water.
On May 23, 1986 the District Rent Administrator issued the order here under
review granting in part the owner's MCI application and authorizing an MCI
rent increase for the installation of a new roof, boiler/burner and adequate
rewiring at a total recognized cost of $69,751.00. Disallowed by the
Administrator was the claimed cost for the installation of new windows as
well as claimed costs totalling $50,454.00 for the boiler/burner and roof
installations due to the owner's failure to submit documentation to
substantiate same.
DOCKET NUMBER: ART 13038-U/BE 430434-RO
In his petition the owner states "notice of modification of major capital
improvement application to submit additional proof of payment". The owner
encloses a list of various tenant's signatures and copies of certified
mailing receipts indicating that his petition had been mailed to the agency.
In their petition for administrative review the tenants reiterate, in
substance, their prior allegations.
After careful consideration of the entire evidence of record, the
Commissioner is of the opinion that these petitions should be denied.
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 a major capital improvement 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.
Division policy and precedent require that electrical reqiring include new
copper risers and feeders extending from the property box in the basement to
every housing accommodation in order to qualify as an MCI. The owner must
also establish that there has been a substantial improvement to the kitchen
and apartment wiring and that the wiring in the livingroom and bedrooms is
of sufficient capacity to accommodate the installation of air conditioner
outlets.
The record shows that to the extent recognized by the Administrator, the
owner substantiated its installations with the necessary governmental
approvals including a certificate of electrical inspection which bears a
stamp indicating that the installation had met the requirements of
Administrator's Interpretation #1 which require the addition in the kitchen
areas of a duplex outlet to support the operation of heavy duty appliances,
a sufficient number of outlets in each room, and the upgrading of the risers
and feeders. It is further noted that with the issuance of the
Administrator's order appealed herein the tenants received a rider notice in
which they were apprised of their right to request the installation
electrical outlets of sufficient capacity to support the operation of air
conditioner units in the bedrooms and living rooms of their respective
apartments.
The Commissioner further notes that the tenants, in their answers to the
owner's MCI application, concede that all of the requisite installations
were made including the installation of one heavy duty "alternating current"
outlet.
DOCKET NUMBER: ART 13038-U/BE 430434-RO
With regard to the boiler/burner and roof installations, the owner submitted
copies of proposals for the work performed, paid invoices and cancelled
checks (several copies are illegible) in substantiation of the claimed costs
thereof and, where applicable, certificates of inspection from the
governmental agencies having jurisdiction. The tenants do not deny that
these installations were made, but assert that they are inadequate.
In this respect the Commissioner further notes that the records of the
Division disclose that no orders of rent reduction have been issued based on
the owner's failure to provide services of a building-wide nature nor have
there been any complaints based on the owner's failure to provide heat
and/or hot water. The tenants' unsupported allegations of the inadequacy of
the installation is insufficient to refute the documentation submitted by
the owner.
Regarding the owner's petition in which he states "notice of modification of
major capital improvement application to submit additional proof of payment"
the Commissioner notes that although the agency sent the owner a request for
further information on March 26, 1992 the owner failed to respond. In fact,
the record reveals that when this proceeding was before the Rent
Administrator the owner, by rent agency notice dated July 12, 1985, was
requested to submit copies of contracts for the rewiring, new roof and
boiler/burner installations as well as all copies of legible cancelled
checks for several previously unaccounted for balances relating to the above
installations and to date the owner failed to submit additional information
or to state the approximate age of those windows replaced. Having failed to
do so, the Commissioner is of the opinion that the Administrator properly
denied, in part, the owner's MCI application due to the owner's failure to
adequately substantiate same.
With reference to the tenants' petition regarding the windows, the
Commissioner notes that this item did not result in a rent increase in the
order appealed herein. Accordingly, the tenants are advised that this order
is issued without prejudice to their rights to file appropriate service
complaints if the facts so warrant
It is the established position of the Division that the various improvements
for which rent increase adjustments were authorized, under Docket No. USC
000217-OM, including the installation, of a new boiler/burner, adequate
wiring and a new roof, qualifying as major capital improvements for which
appropriate rent increases were granted.
Based upon the entire evidence of record, the Commissioner is of the opinion
that the Administrator's order was correct when issued and should be
affirmed.
THEREFORE, pursuant to the Rent Stabilization Law and Code and the Rent and
Eviction Regulations for New York City, it is
DOCKET NUMBER: ART 13038-U/BE 430434-RO
ORDERED, that these petition be, and the same hereby are denied, and that
the District Rent Administrator's order be, and the same hereby is,
affirmed.
ISSUED:
JOSEPH A. D'AGOSTA
Acting Deputy Commissioner
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