DOCKET NUMBER: BF 110006-RO
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.: BF 110006-RO
DRO DOCKET NO.: ZAA 130240-0M
ORDER AND OPINION REMANDING PROCEEDING TO ADMINISTRATOR
On May 6, 1987 the above named petitioner-owner filed a Petition for
Administrative Review against an order of the Rent Administrator, Gertz
Plaza, 92-31 Union Hall Street, Jamaica, New York issued May 4, 1987. The
order concerned housing accommodations located at 40-39 48th Street
Sunnyside, New York. The Administrator denied the owner's application for
a rent increase based on major capital improvements.
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 administrative appeal.
Petitioner commenced this proceeding by filing an application on January
15, 1986 for a rent increase based on the installation of a major capital
improvement. On April 14, 1986 the owner certified that the tenants had
been served with a copy of Application Form RA-79, a copy of Notice Form
RA-79N and three copies of Answer Form RTP-3. The improvements claimed by
petitioner were: spot pointing, waterproofing and cleaning, lintel and
parapet replacement all done in July and August 1985 at a cost of
The owner's application included a statement by the contractor that all
exposed sides of the building were examined, that only the front needed
spot pointing, that nine lintels needed replacement, that the front of
the building needed cleaning, that all remaining sides needed to be
completely water proofed due to the poor condition of the mortar, and that
twelve square feet of the parapet needed replacement. A diagram of the
building was included showing the areas repaired.
Various tenants objected to the application on the grounds that the
improvements were, in fact, repairs.
The Administrator denied the application, finding that the installation
did not qualify as a major capital improvement. On appeal the petitioner
claims that the contractor examined the entire building and performed all
the required work. The waterproofing was done to 80% of the exterior wall
DOCKET NUMBER: BF 110006-RO
area and the parapet and lintel replacement, spot pointing and cleaning
were done on the front of the building.
Various tenant again responded and requested that the Administrator's
order be affirmed.
The Commissioner has carefully considered the evidence contained in the
record, and is of the opinion that the proceeding should be remanded to
the Administrator for further consideration.
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 law 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 that for ordinary
repairs; required for the operation, preservation, and maintenance of the
structure; and replace an item whose useful life has expired.
According to Division policy, and prior decisions, pointing and
waterproofing as necessary on exposed sides of the building is defined as
a major capital improvement. On remand, the Administrator should
reconsider the owner's application and supporting documentation, including
what was submitted with the petition, and if appropriate, issue a new
order granting a rent increase for pointing, water proofing, cleaning, and
lintel replacement as described in the owner's application.
THEREFORE, in accordance with the Rent Stabilization Law and Code, it is
ORDERED, that this petition be, and hereby is, granted to the extent of
remanding this proceeding to the Administrator for further processing in
accordance with this order and opinion.