STATE OF NEW YORK
DIVISION OF HOUSING AND COMMUNITY RENEWAL
OFFICE OF RENT ADMINISTRATION
92-31 UNION HALL STREET
JAMAICA, NEW YORK 11433
IN THE MATTER OF THE ADMINISTRATIVE ADMINISTRATIVE REVIEW
APPEAL OF DOCKET NO.:
PEGGY MAGIDSON and CATHY WHITEHEAD,
PETITIONERS QCS 000905-OM
ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW
On April 30, 1987, the above-named tenants filed a petition for
administrative review of an order issued on March 26, 1987 by a
District Rent Administrat r concerning various housing accom-
modations in the premises known as 41-41 41st Street, Sunnyside,
New York, wherein the Administrator granted the owner s applica-
tion for a rent increase based on a major capital improvement.
The Commissioner has reviewed all of the evidence in the record
and has carefully considered that portion of the record relevant
to the issue raised by the administrative appeal.
The owner commenced this proceeding by filing an application for
a rent increase on the ground that there had been a major capital
improvement (MCI) at the premises, required for the operation,
preservation or maintenance of the structure. Specifically, the
owner stated that it had expended $88,040.00 for the installation
of windows building-wide.
On December 12, 1985, the owner certified that all tenants were
served with a copy of the application, Notice Form RA-79N, and
answer forms, and that a copy of the tenant review package had
been placed in the superintendent's or resident manager's office.
Of the six tenants who submitted answers to the owner's applica-
tion, one said that the windows had indeed been installed; one
consented to the increase; one tenant said that the installation
was done properly; two objected to the provision allowing the
cost of the windows to be passed on to the tenants, and one
tenant was silent.
In an order dated March 26, 1987, the District Rent Administrator
granted the owner's application and ordered appropriate rent
increases for rent-controlled and rent-stabilized apartments.
In their petition for administrative review, the tenants request
reversal of the administrator's order and allege, in substance,
that they were not given proper notice f the owner's applica-
tion; that the windows installed were defective and/or installed
in an unworkmanlike manner, and that although the District Rent
Administrator granted the MCI rent increase for aluminum windows,
vinyl windows were in fact installed.
The owner answered that, as prescribed by the Division of Housing
and Community Renewal (DHCR), all the tenants were served with
the necessary papers on December 11, 1985, and that it was
willing to make any necessary repairs and adjustments and in fact
had sent a certified letter to the Tenant Committee representa-
tive requesting a list of windows to be repaired or adjusted.
The owner enclosed a copy of the letter along with a copy of a
bill attesting to the fact that as of June 24, 1987, the windows
of five apartments had been serviced.
The Commissioner is of the opinion that the tenants' petition
should be denied.
Rent increases for major capital improvements are authorized by
Section 2202.4 of the Rent a d Eviction Regulations for rent-
controlled apartments and Section 2522.4 of t e Rent Stabiliza-
tion 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, preserva-
tion, 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,
and be required for the operation, preservation, and maintenance
of the structure, and it must replace an item whose useful life
The District Rent Administrator correctly applied the foregoing
criteria for major capital improvements to the owner's appli-
cation and determined that the work described in the contract for
the installation of windows qualified for a rent increase. The
owner submitted bills and cancelled checks for a total of
$88,040.00 and this amount was used to compute the increase.
The commissioner notes that vinyl windows are acceptable as an
The argument that the tenants were not notified of the owner's
application is belied by the fact that several tenants did in
fact file answers to the application, confirming the owner's
statement that it did properly serve the tenants with the
application and its contents, in accordance with its certified
The Commissioner notes that the petitioners herein raised no
objections to the quality or adequacy of the installations while
this proceeding was before the Rent Administrator, although they
were afforded the opportunity to do so. Accordingly, pursuant to
prior administrative decisions under the Rent and Eviction Regu-
lations and pursuant to Section 2529.6 of the Rent Stabilization
Code, the tenants' allegations may not be considered now when
offered for the first time on administrative appeal.
The determination herein is without prejudice to the right of the
tenants or any one of them to file an appropriate application for
a reduction in rent based on the owner's subsequent failure to
maintain services, if the facts so warrant.
THEREFORE, in accordance with the Rent Stabilization Law and
Code, the Rent and Rehabilitation Law, and the Rent and Eviction
Regulations for New York City, it is
ORDERED, that this petition be, and the same hereby is, denied,
and that the District Rent Administrator's order be, and the same
hereby is, affirmed.
JOSEPH A. D'AGOSTA