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.:CA 110251-RO
PERRY FINKELMAN RENT ADMINISTRATOR'S
GMK REALTY, DOCKET NO.:ZAD 110102-R
------------------------------------X TENANT: SAM & ALLA SMOLYAR
ORDER AND OPINION GRANTING PETITION FOR ADMINISTRATIVE REVIEW
On January 28, 1988, the above-named petitioner-owner filed a Petition for
Administrative Review against an order issued on December 28, 1987, by the
Rent Administrator, Gertz Plaza 92-31 Union Hall Street, Jamaica, New York,
concerning the housing accommodations known as 144-80 Sanford Avenue
Queens, New York, Apartment No. 2M, wherein the Rent Administrator
Determined that the owner had overcharged the tenant.
The Administrative Appeal is being determined pursuant to the provisions of
Section 2526.1 of the Rent Stabilization Code.
The issue herein is whether the Rent Administrator's order was warranted.
The Commissioner has reviewed all of the evidence in the record and has
carefully considered that portion of the record relevant to the issue
raised by the administrative appeal.
This proceeding was originally commenced in April, 1986 by the filing of a
rent overcharge complaint by the tenant. In answer to the complaint, the
owner submitted a complete rental history for the subject apartment.
In addition, the owner submitted paid invoices for new equipment installed
in the subject apartment prior to the tenants occupancy but failed to
submit cancelled checks.
In Order Number
AD 110102-R, the Rent Administrator determined that the tenant had been
overcharged in the amount of $1870.84, and directed the owner to refund
such overcharge to the tenant.
In this petition, the owner contends in substance that there is no rent
overcharge in that the Rent Administrator failed to consider the paid
invoices submitted substantiate improvements to the apartment prior to the
occupancy of the complaints. The owner submitted copies of cancelled
checks for the improvements as additional proof.
In answer to the owner's petition, the tenant contends in substance that
they did not request or want new equipment, the windows should be a
building wide increase and questioned why the cancelled checks were not
DOCKET NUMBER: CA 110251-RO
The Commissioner is of the opinion that this petition should be granted.
An examination of the records in this case discloses that the owner is
correct in its contention that the Rent Administrator failed to grant an
increase to the rent Administrator for new equipment pursuant to Section
2522222.4 of the Rent Stabilization Code. Pursuant to DHCR policy
statement 9--10 the paid invoices submitted by the owner to the Rent
Administrator constitute adequate proof of the cost of the new equipment
and should have been considered.
With regard to the tenant's contentions that they did not request or
consent to an increase for the new equipment, it is noted that Section
2522.4(a)(4) of the Code does not require the owner to secure the tenant's
consent for installation of new equipment during a period of vacancy. The
new equipment herein was installed during such a vacancy period.
Further, the Commissioner rejects the tenants' objection to the increase
for new windows because it is a building wide improvement which should be
considered as a major capital improvement (MCI) hereafter.
A review of the agency records reveals that the owner has not filed an
application for a MCI increase based on the installation of new windows.
The owner has documented the cost of the windows in the subject apartment
and the tenant does not dispute the actual installation of same. Therefore
an increase of 1/40 of the pro rated cost of the windows is warranted.
Taking the aforementioned factors in to account the Commissioner has
determined that the following increases pursuant to Section 2522.4(a)(1) be
included in the tenant's vacancy lease rent:
$ 18.13 = 1/40 of the total cost of $ 725.28 for
a new store and refrigerator
$ 17.59 1/40 of the total cost of $ 703.63
for 2 bathroom vanities and a kitchen sink
$ 33.09 (partial increase) = 1/40 of $ 1705.00
for 11 new windows at a cost of $155.00 each
such inclusion calculates the tenant's lawful
initial rent $ 519.54 as charged by the owner.
Accordingly, there was no rent overcharge.
If the owner has already complied with the Rent Administrator's order and
there are arrears due to the owner as a result of the instant
determination, the tenant is u to pay off the arrears in 24 equal monthly
installments. Should the tenant vacate after the issuance of this order or
have already vacated, said arrears shall be payable immediately.
THEREFORE, in accordance with the provisions of the Rent Stabilization Law
and Code, it is
DOCKET NUMBER: CA 110251-RO
ORDERED, that this petition for administrative review be, and the same
hereby is, granted, that the order of the Rent Administrator be, and the
same hereby is, revoked, and it is found that no rent overcharge occurred.
JOSEPH A. D'AGOSTA
Acting Deputy Commissioner