BJ 130200-R0, et al.
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 NOS.:
BJ 130200-RO; BJ 130216-RO;
BJ 130215-RO; BJ 130213-RO;
BJ 130212-RO; BJ 130207-RO
GEORGE MALLIS, DRO DOCKET NOS.:
AA 100212-OM; AA 100207-OM;
AA 100208-OM; AA 100209-OM;
PETITIONER AA 100210-OM; AA 100211-OM
ORDER AND OPINION GRANTING PETITIONS FOR ADMINISTRATIVE REVIEW
IN PART AND REMANDING PROCEEDINGS TO ADMINISTRATOR
The Commissioner has consolidated these petitions as they involve
common questions of law and fact.
On October 2, 1987, the above-named petitioner-owner filed peti-
tions for administrative review against orders issued by the
Rent Administrator on September 3, 1987. The orders concerned
housing accommodations located at 21-14, 21-24, 21-32, 21-38, 21
54 and 21-62 Crescent Street, Astoria, New York. The Adminis-
trator granted, in part, the owner's applications for a rent
increase based on the installation of major capital improvements
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 the administrative appeals.
Petitioner commenced this proceeding by filing an application for
each building for a rent increase based on the installation of a
major capital improvement. On March 21, 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:
replacement of prime windows, pointing and water proofing,
replacement of basement and roof doors, new intercom, painting
the hallways and masonry repair. The tenants who responded
objecting to the proposed increase either objected to the amount
of the increase or alleged that the windows were in such bad
condition that replacement was mandatory.
The Administrator granted the applications for all items except
the pointing and waterproofing, hallway painting and masonry
repair. The pointing and waterproofing were specifically denied
BJ 130200-R0, et al.
because the Administrator found that all exterior walls were not
pointed and waterproofed.
On appeal, the owner argues that the buildings were water proofed
on all their exposed sides. A diagram is annexed to the peti-
tions indicating the areas of the buildings which were water-
The Administrator was supplied with this informatio . The con-
tractor submitted material to the Administrator indicating that
5,000 square feet of each building were pointed and 10,000 sq.
feet waterproofed. The contractor affirmed that, in order to
preserve the structure of the buildings all sides f the build-
ings needed to be waterproofed and the fronts pointed. This
affirmation was submitted to the Administrator as well.
Petitioner argues that, since the work was building-wide, the
Administrator erred in denying an increase in rent. No tenant
filed a response to the petition.
The Commissioner has carefully considered the evidence contained
in the record, and is of the opinion that the proceedings 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 t e Rent Stabiliza-
tion 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, 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;
required for the operation, preservation, and maintenance of the
structure; and replace an item whose useful life has expired.
It is the policy of the DHCR to grant MCI increases for pointing
and waterproofing when such work is done to an entire building,
as necessary. The owner must file with his MCI application a
certification (with diagram) by the contractor indicating that,
based upon examination, the sections waterproofed and pointed
were all areas where it was required.
In these proceedings the owner did, in fact, file such a certi-
cation. Substantial sums totaling $11,250.00 were spent in
pointing and waterproofing the buildings. The Administrator
erred in not processing that part f the petitioner's applica-
THEREFORE, in accordance with the Rent Stabilization Law and
Code, and the Rent and Eviction Regulations, it is
ORDERED, that these petitions be, and the same hereby are,
BJ 130200-R0, et al.
granted to the extent of remanding these proceedings to the
Administrator for further processing in accordance with this
order and opinion.
JOSEPH A. D'AGOSTA