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

      ------------------------------------X 
      IN THE MATTER OF THE ADMINISTRATIVE :  ADMINISTRATIVE REVIEW
      APPEALS OF                             DOCKET NO.: BK 430138-RT
      THE TENANTS' ASSOCIATION OF 19      :              BL 410180-RT
      HAMILTON TERRACE, MARY HINES, AND                  CB 410056-RO
      HAMILTON HEIGHTS ASSOCIATES,           
                            PETITIONER    :  RENT ADMINISTRATOR'S
      ------------------------------------X  DOCKET NO.: AD 510077-OM   

         ORDER AND OPINION DENYING PETITIONS FOR ADMINISTRATIVE REVIEW UNDER
          DOCKET NUMBERS BK 430138-RT AND BL 410180-RT AND GRANTING IN PART
                      PETITION UNDER DOCKET NUMBER CB 410056-RO

      The above-named tenants and owner filed petitions for administrative review 
      of an order issued on September 30, 1987 by a Rent Administrator concerning 
      the housing accommodations known as the housing accommodations known as 19 
      Hamilton Terrace, New York, New York, Various Apartments.

      The Commissioner notes that with regard to the tenants' petitions under 
      Docket Number BK 430138-RT and BL 410180-RT, that they were not filed 
      within 35 days after the issuance date of the order appealed from as 
      required by the applicable Regulations and Operation Bulletin 84-1, which 
      provide that a petition for Administrative Review must be filed within 35 
      days after the date such order is issued.  The Administrator's order was 
      issued on September 30, 1987; the tenants' petition (Apt. 5M) was received 
      by the Agency on November 5, 1987 and the tenants' Association petition was 
      received by the Agency on December 4, 1987.

      There is no provision under the applicable Regulations permitting an 
      extension of time for the filing of a PAR.  The Commissioner finds that the 
      tenant petitioners have failed to comply with the requirements set forth 
      above and that these PARs must be dismissed (Docket Numbers BK 430138-RT 
      and BL 410180-RT).

      The owner commenced this proceeding by the filing of an application for a 
      rent increase based on the installation of several MCI's at a total cost of 
      $551,566.00.

      By agency notice dated October 6, 1986 the owner was requested to submit 
      further evidence regarding more detailed contractor and/or vendor 
      information for several of the contractors' installations and to submit 
      proof the agency form on which the owner certificate service of notice to 
      the tenants of filing the application for a rent increase based on the MCI 
      installation, as well as complete copies of cancelled checks for the work 
      done by the contractors who had restored the walls and painted.  On 
      December 8, 1986 the owner was again requested to submit proof of payment 
      for the work done by those contractors who had restored the walls and 
      painted.










          ADMIN. REVIEW DOCKET NO.: BK 430138-RT




      On November 18, December 1, and January 2, 1986 an agency inspector visited 
      the premises to inspect apartments 26, 3A and 6A.  The report of agency 
      inspection for apartments 2G and 3A indicates that various MCI apartment 
      installations were completed in an unworkmanlike manner, had already begun 
      to deteriorate or the work had not been completed at all.  Further the 
      refrigerator in apartment 3A was found to have been purchased by the 
      tenant.

      Various tenants responded to the owner's application asserting, in 
      substance and pertinent part, that the installations were unworkmanlike or 
      had not been completed as stated on the owner's application.

      On September 30, 1987 the Rent Administrator issued an order in which  the 
      owner was granted an MCI rent increase for several of the installations.  
      However costs were not granted for several installations, as they did not 
      constitute MCI's to wit: painting and repairs in the amount of $49,750.00; 
      pointing and waterproofing where necessary, completed after the issuance of 
      Operational Bulletin 84-4, in the amount of $29,000.00; the installation of 
      shower bodies to existing pipes in the amount of $13,545.00; resurfacing of 
      bathtubs, in the amount of $17,160.00; wallpaper for public halls, in the 
      amount of $1,200.00; kitchen modernization (was not building-wide), in the 
      amount of $99,275.00.  Further, it was found that several installation 
      costs had not been properly substantiated, to wit: refurbished elevator 
      cab) in the amount of $4,500.00; restoration of walls, in the amount of 
      $7,500.00; boiler and burner installation, in the amount of $3000.00; and 
      a mathematical error of $300.00 was noted.

      In its petition the owner contends, in substance and pertinent part, that 
      new kitchens were installed in each apartment and therefore the kitchen 
      modernization was building-wide.  It submits an affidavit from the 
      contractor in which the contractor asserts, in substance, that various 
      kitchen equipment was installed in all seventy-eight apartments on the 
      subject premises and a list, including costs of those items purportedly 
      purchased for the kitchen renovation.  The owner further asserts that the 
      refurbished elevator cab costs were properly substantiated and qualify as 
      an MCI.  The owner enclosed a copy of the cab refurbishing proposal per CAB 
      decision 24,642; that the boiler/burner installation costs qualify as an 
      MCI per CAB decisions 19,317; 22,478; 25,780; and that the pointing and 
      waterproofing qualifies as an MCI as it was completed as necessary on 
      exposed sides of the building, the owner encloses a letter signed by the 
      waterproofing company's president in which the president asserts, in 
      substance, that all pointing and waterproofing had been completed where 
      necessary; a diagram indicating which walls had been attended to, and an 
      affidavit from the man who supervised the pointing and waterproofing work 
      attesting to the fact that, based on his personal physical examination of 
      the work performed, all exposed sides of the building had been pointed and 
      waterproofed where necessary.  Finally, the owner asserts that the painting 
      and plastering work, in the amount of $20,750.00 qualifies as an MCI as 
      this was work performed in conjunction with the adequate wiring (in the 
      amount of $9,750.00) and new windows (in the amount of $11,000.00).




          ADMIN. REVIEW DOCKET NO.: BK 430138-RT




      The owner also submits copies of several checks, one in the amount of 
      3,000.00 uncancelled, in proof of the fact that several of the 
      installations denied unsubstantial costs were paid for and asserts that 
      these copies were submitted when this proceeding was before the 
      Administrator below as well as affidavits from the contractor who painted 
      the hallways and "closed the apartment walls after the wiring 
      installation".

      In response to the owner's petition several tenants assert, in substance 
      and pertinent part, that their bathrooms were not completely 
      rehabilitated/modernized, that their individual apartments had not been 
      painted and that the common areas were not painted building-wide; that 
      several of their apartments had malfunctioning electrical outlets or 
      contained exposed wiring; that the existing mail boxes had been reinstalled 
      in another area but not replaced.  A few tenants complained of leaks in 
      their apartments and evidence of water seepage in the common area hallways.

      After careful consideration, the Commissioner is of the opinion that this 
      petition should be granted in part.

      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.

      The Commissioner is of the opinion that the Administrator properly denied 
      to the owner those costs associated with the kitchen modernization as the 
      installations were not completed building-wide or in some instances were 
      not completed at all.  This is corroborated by the report of agency 
      inspection, dated January 2, 1986, for apartment 2G, on which the inspector 
      notes that the kitchen stove has not been replaced and another report, 
      dated November 18, 1986, for apartment 3A, on which the inspector notes 
      that the areas around the newly installed kitchen cabinets and sink had not 
      been completed.

      It is the established position of the Division that pointing and 
      waterproofing performed where necessary and also comprehensive in nature 
      constitutes an MCI for which a rent increase adjustment may be warranted, 
      provided the owner otherwise so qualifies.  It is also the general rule 
      that administrative determinations shall be in accord with the law as of 
      the time of determination.  Accordingly, the owner's pointing and 
      waterproofing installation, completed as necessary on the exposed sides of 
      the building is an installation for which an MCI rent increase is 
      warranted.









          ADMIN. REVIEW DOCKET NO.: BK 430138-RT




      In view of the foregoing the Commissioner finds that the owner's petition 
      should be granted in part and that the owner is entitled to a rent increase 
      for the pointing and waterproofing installation at a cost of $29,000.00.  
      To determine the dollar amount of the rent increase, the rent charged for 
      each apartment as submitted in the rent roll dated March 1986 must be 
      multiplied by 2.04 percent.

      The tenants shall be permitted to pay any arrears to the owner in 36 equal 
      monthly installments retroactive to September 30, 1987, the date on which 
      the Administrator issued the order herein appealed.

      With regard to the elevator refurbishing costs in the amount of $14,500.00.  
      The Commissioner notes that the copies of checks for their installation, 
      which are a part of the record below, failed to adequately substantiate 
      $4,500.00 in costs and the only new evidence that the owner submits with 
      its petition substantiates another $2,000.00 in costs.  However, the 
      Commissioner will not accept evidence when submitted for the first time on 
      appeal.  Accordingly, the Commissioner is of the opinion that the 
      Administrator correctly disallowed costs, in the amount of $4,500.00 for 
      elevator cab refurbishing.


      With regard to the painting and plastering of the subject premises 
      apartments in the amount of $9,500.00, which the owner asserts was 
      necessitated by the rewiring installation, the Commissioner notes that the 
      record below contains an adequate rewiring contract to which is appended a 
      statement which appears to indicate that the restoration of walls for all 
      apartments "caused by electrical installing" rewiring would be at a cost of 
      $7,500.00; this "invoice" however, is not signed, nor are there any 
      cancelled checks in the record which would indicate that this amount was 
      ever expended.  Furthermore, the report of agency inspection, dated 
      November 18, 1986, for apartment 3A, indicates that the Foyer area had been 
      plastered but not painted,  accordingly had the apartment painting costs 
      been substantiated there would remain a question as to whether the work had 
      been completed.  the Commissioner also notes that although the owner 
      asserts that costs of $9,750.00 in wall renovations are attributable to the 
      rewiring installation, attached to the rewiring contract is the 
      abovementioned statement by a general contractor which appears to indicate 
      that the restoration of walls (plastering and painting), due to the 
      electrical rewiring, was completed at a cost of $7,500.00, which costs 
      remain unsubstantiated despite two agency notices (dated October 20, 1986 
      and December 8, 1986) sent to the owner requesting that proof of payment 
      for this work be sent to the agency.  Accordingly, the Commissioner is of 
      the opinion that the Administrator's order, denying the alleged $7,500.00 
      in costs for the restoration of walls is correct as is the determination 
      regarding the painting and repair costs and thus should be affirmed.



          ADMIN. REVIEW DOCKET NO.: BK 430138-RT




      Accordingly, the Commissioner is of the opinion that the costs of the 
      pointing and waterproofing should be granted but that in all other respects 
      the Administrator's order was correct when issued and should be affirmed.

      THEREFORE, in accordance with the Rent Stabilization Law and Code, it is

      ORDERED, that this petition under Docket Numbers BK 430138-RT and BL 
      410180-RT, be, and the same hereby are, denied, and that the petition under 
      Docket Number CB 4100056-RO be and the same hereby is granted in part, and 
      that the maximum collectible rents of the subject premises be increased in 
      the manner and to the extent hereinabove directed.

      ISSUED:


                                                                    
                                           JOSEPH A. D'AGOSTA
                                       Acting Deputy Commissioner




                                                    





    

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