CA 110172 RT
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.: CA 110172 RT
CA 130165 RO
Sam & Miriam Kuncman, Tenant, and
Seminole Realty c/o D & M Realty DISTRICT RENT ORDER
Owner DOCKET NO.: ZAF 130143 OM
PETITIONER
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ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW
The above-named petitioners filed Petition for Administrative
Review against an order issued December 10, 1987 by the
Administrator,(Gertz Plaza) concerning the housing accommodations
known as 72-72 112th Street, Forest Hills, New York, various
apartments.
The tenant's and the owner's administrative appeals are
consolidated for uniform disposition herein.
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 appeals.
The owner commenced the proceeding below by filing an application
for rent increases based on various Major Capital Improvements
(MCI).
The Administrator's order appealed herein partially granted the
owner's application and granted MCI increases for various
installations including a new roof, thermal windows, entrance and
vestibule doors, and elevator upgrading. The order denied such
portion of the application as pertained to resurfacing of the
sidewalk, motorized zone valves in boiler room, new mailboxes,
and vestibule panel for intercom system.
On appeal, the petition-tenant alleges, in substance, that the
lease in effect at the time of the issuance of the
Administrator's order did not contain specific information
pertaining to a MCI rent increase adjustment. In response to the
tenant's petition the owner states, in substance, that said
lease had a rider which advised the tenant about a future MCI
rent increase.
In its appeal the petitioner-owner states, in substance, that the
rent increases should be granted for the disallowed items since
they were depreciable and building-wide thus constituting major
capital improvements; and that the mailboxes are located behind
locked doors and thereby qualify for a MCI rent increase. In
response to the owner's petition, various tenants urge, in
CA 110172 RT
substance, that the Administrator's order should be affirmed
since the disallowed items do not meet the definitional
requirement for a MCI.
After careful consideration of the entire record the Commissioner
is of the opinion that the administrative appeals should be
denied.
Rent increases for major capital improvements are authorized by
Section 2202.4 of the Rent and Evictions Regulations for rent
controlled apartments and Section 2522.4 of the Rent
Stabilization Code for rent stabilized units. 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
maintenance of the structure; and replace an item whose useful
life has expired. Piecemeal work or ordinary repairs and
maintenance does not constituted work for which a rent increase
adjustment is warranted under current and past procedure.
At the outset, the Commissioner notes that for the MCI rent
increase granted by the Administrator's appealed herein to be
collectible during the term of the petitioner-tenant's lease is
an issue that must be decided in a separate complaint filed by
the tenant. The Administrator's order dealt with the owner's
general entitlement to an increase for the entire building. If
the tenant took occupancy pursuant to a vacancy lease commencing
after the owner had filed its application, the vacancy lease
would have to contain a specific clause advising the tenant of
the owner's MCI application. If the tenant was already in
occupancy pursuant to a vacancy or renewal lease, that lease
would only have to contain a general clause authorizing rent
adjustments pursuant to orders of the Rent Guidelines Board or
DHCR.
It is established position of the Division that the installation
of a new heating system or major components thereof including all
related work needed for the installation constitute a MCI for
which a rent increase adjustment may be warranted. However, the
installation of Motorized Zone valves in and of itself do not
constitute a MCI but rather a repair for which no rent increase
is warranted. Also, the installation of a vestibule panel for
intercom system would not constituted a major capital improvement
unless it was performed in conjunction with the installation of a
complete intercom system.
A review of the record before the Administrator discloses that
the new mailboxes were reinstalled in the same, location as the
old ones in the inner vestibule area. Accordingly, the
Commissioner is of the opinion and finds that the installation of
the mailboxes do not meet with the additional requirements that
they are relocated from outer vestibule to an area behind locked
doors; thus the Administrator properly denied MCI rent increase
for same.
CA 110172 RT
Concerning the resurfacing of the sidewalk, the Division has
previously held that such item is not eligible for major capital
improvement rent increase (Accord: BJ 40076-RO; AL 430206 RT
through AL 430217-RT, consolidated proceeding).
Based on the entire evidence of record, the Commissioner finds
that the Administrator's order was correct and should be
affirmed.
THEREFORE, in accordance with the applicable provisions of the
Rent Stabilization Law and Code, and the New York City Rent Law
and Regulations, it is
ORDERED, that these administrative appeals be, and the same
hereby are, denied; and that the order of the Rent Administrator
be, and the same hereby is, affirmed.
ISSUED:
ELLIOT SANDER
Deputy Commissioner
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