Docket No. BJ220194RT
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
APPEAL OF DOCKET NO.: BJ220194RT
DISTRICT RENT
ADMINISTRATOR'S DOCKET
Tom Kijewski NO.: AJ220067OI
PETITIONER
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ORDER AND OPINION GRANTING PETITION FOR ADMINISTRATIVE REVIEW IN
PART
The above-named tenant filed a timely petition for
administrative review of an order issued concerning the housing
accommodations known as 83 Calyer Street, Top Floor, Brooklyn,
New York.
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 petition.
The owner commenced these proceedings by filing an Application
for Rent Increase with the Administrator. In the Application the
owner stated that the increased service would consist of "6 new
windows..." Neither the total cost of the new windows, nor the
monthly rent increase to be borne by the tenant in consideration of
the new windows was stated in the Application. The owner later
submitted cancelled checks and a paid bill for 14 windows which
were installed in the subject building.
The Administrator issued the above-cited order, in which the
tenant's rent was increased by $70 per month in consideration of
the installation of "6 new windows".
On appeal, the tenant makes various contentions. Firstly, the
tenant contends that since the improvement was of a building-wide
nature it constitutes a Major Capital Improvement (MCI) and the
landlord is thus barred from seeking rent increases from individual
tenants. Tenant then contends that the owner had informed him
orally that the rent increase wouldn't be more than $30 per month.
Finally, the tenant contends that the Administrator erred by not
Docket No. BJ220194RT
giving him an opportunity to reply to the owner's Application.
The Commissioner is of the opinion that this petition should be
granted in part.
As for tenant's contention on appeal that the rent increase
ordered by the Administrator is too high, an examination of the
record reveals that the paid bill from Polar Systems, Inc noted
that 14 new windows were to be installed in the building, at a
total price of $2,800. A recalculation of the rent increase
formula ($2,800/40 months=$70) reveals that the Administrator
assigned the entire price of the new windows to the tenant, instead
of prorating the tenant's share (6 tenant windows/14 new windows X
$2,800/40=$30), an amount equal to the owner's alleged "not more
than $30 per month" statement to tenant. The Commissioner hereby
reduces the monthly increase for the windows from $70.00 to $30.00.
It is undisputed that the tenant agreed to a rent increase of
$30.00 for the 6 windows. Nor is there a dispute as to the cost of
the windows or that they were installed. Therefore, while the
Administrator erred by not serving the tenant with the owner's
application, since the Commissioner has reduced the increase to the
agreed upon and proven amount, the Commissioner holds that the
tenant is no longer prejudiced by that failure and therefore a
remand is not necessary.
As to the tenant's unsupported allegation that the owner should
have applied for a Major Capital Argument (MCI) increase rather
than an increase for an individual apartment, the tenant is correct
that where an owner installs windows on a building wide basis
(including exempt units) he or she must apply for a rent increase
of 1/60th of the cost per month as an MCI increase, rather than
1/40th of the cost as an individual apartment improvement. (The
MCI rate has been reduced to 1/84th rather than 1/60th, but the
1/60th rate was in effect at the time of this owner's application.)
DHCR records indicate that the owner has not applied for any
other increase based on the installation of windows. City rent
records indicates the building has four units. The evidence in the
record indicate that only 14 windows were installed, 6 of which
were for the petitioner's apartment. Accordingly, there is no
evidence that the installation was building-wide. The fact that
windows were installed in more than one apartment does not make the
installation building-wide. (The Commissioner notes that the owner
lives in the subject building.)
Accordingly, the $70.00 per month rent increase is hereby
reduced to $30.00. The owner is hereby ordered to immediately
refund any rent increase collected for the windows in excess of
$30.00 per month as compounded by any applicable MCR (maximum
collectible rent) increases. If the owner fails to refund the
excess rent, the tenant may deduct the amount of the refund from
Docket No. BJ220194RT
his rent upon the expiration of the period in which the owner may
institute a proceeding pursuant to Article 78 of the Civil Practice
Law and Rules at a rate not in excess of twenty percent of the
total refund due per month until the refund has been totally
offset.
THEREFORE, in accordance with the provisions of the Rent and
Eviction Regulations, it is
ORDERED, that this petition for administrative review be, and
the same hereby is granted to the extent that the Administrator's
order be modified so that the rent increase for the tenant be
reduced from $70.00 to $30.00 per month.
ISSUED:
Joseph A. D'Agosta
Deputy Commissioner
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