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
APPEALS OF DOCKET NOS.: CI 420020-RT
: CI 420026-RT
VARIOUS TENANTS OF 151 EAST CI 410027-RT
80TH STREET , NEW YORK, NEW YORK, CI 410162-RT
PETITIONERS : CI 420021-RT
DOCKET NO.: AF 430125-OM
ORDER AND OPINION DENYING PETITIONS FOR ADMINISTRATIVE REVIEW
The above-named petitioners timely filed or refiled Petitions for
Administrative Review against an order issued on August 1, 1988 by the Rent
Administrator (Gertz Plaza), concerning housing accommodations known as 151
East 80th Street, New York, New York, various apartments, wherein the
Administrator granted the owner's application for major a capital
improvement (MCI) rent increase.
The Commissioner deems it appropriate to consolidate the administrative
appeals for determination under this order and opinion as they involve
common issues of law and fact.
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.
The owner commenced this proceeding on June 24, 1986 by filing a major
capital improvement rent increase application seeking to increase the rents
of controlled and stabilized apartments based upon the installation of new
replacement windows at a total claimed cost of $78,920.00.
In response to the owner's application, various tenants submitted answers
stating that they were never consulted prior to the installation of the
windows; that the permanent nature of the rent increase sought permits
unjust enrichment of the owner at the expense of the tenants; that the rent
increase will result in undue hardship to tenants; and that the new windows
benefit the owner due to the savings on heating fuel.
In addition two of the tenants (Apt. Nos. 4A and 9A) contended, in
substance, that the windows in their respective apartments are broken.
Also one tenant (apt. 1D) alleged, in substance, that one windows in her
apartment was not replaced.
The Rent Administrator's order, appealed herein, granted the owner's
application, stating that three tenants of Apartment Numbers 4A, 9A, and 1D
complained about various problems with the windows in their respective
apartments; and that the problems were rectified to their satisfaction.
ADMIN. REVIEW DOCKET NO.: CI 420020-RT, et al.
In their petitions, the tenants (Apt. Nos. 2C, 2A, 3C, 6A, and 9A) contend,
in substance, that the Administrator failed to properly address their
complaints with respect to the windows; that the new windows were installed
as a result of delayed maintenance and repairs of the old ones; that the
new windows were built with inferior materials; and that the owner did not
replace all the windows in the subject premises.
In response to the tenants' petitions the owner stated, in substance, that
only one tenant had complained that one window was not replaced in her
apartment and that this problem was rectified during the course of the
After careful consideration of the entire record the Commissioner is of the
opinion that these petitions should be denied.
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. Piecemeal
work or ordinary repairs and maintenance does not constitute work for which
a rent increase adjustment is warranted under current and past procedures.
It is the established position of the Division that the installation of new
thermal replacement windows constitutes a major capital improvement for
which a rent increase adjustment may be warranted. The record in the
instant case indicates that the owner correctly complied with the
application procedures for a major capital improvement and the Rent
Administrator properly computed the appropriate rent increases. The fact
that such an improvement was performed to replace a deteriorating item of
the premises does not constitute a basis for barring the owner's
entitlement to a major capital improvement rent increase to which it is
otherwise entitled. The tenants have not established that the
Administrator's order should be revoked or modified in any way.
Regarding the tenants' allegations of inadequate and faulty windows, the
Commissioner notes that only three tenants (apartment nos. 4A, 9A and 1D)
raised issues of this nature which were resolved during the course of the
proceeding below. Thus, these allegations may not be considered at the
administrative review level pursuant to the provisions of 9 NYCRR 2529.6.
However, this order is issued without prejudice to the tenants' right to
seek a rent reduction by filing a complaint based upon a diminution in
services, if the facts so warrant.
The Commissioner acknowledges that the administrator's order failed to
address the affordability issue during the proceeding below. However, the
Commissioner is constrained by the applicable statutory and regulatory
ADMIN. REVIEW DOCKET NO.: CI 420020-RT, et al.
provisions to grant such increases as are warranted, provided that they do
not exceed the statutory 6% limitation on collectibility. The tenants with
valid senior citizen rent increase exemption orders are exempt from so much
of the increase as would cause their rent to exceed one-third of their
monthly disposable income.
Based on the entire evidence of record the Commissioner finds that the
Administrator's order is correct and should be affirmed.
THEREFORE, in accordance with the applicable provisions of the Rent
Stabilization Law and Code, and the Rent and Eviction Regulations for New
York City, it is
ORDERED, that these petitions be, and the same hereby are, denied; and that
the Administrator's order be, and the same hereby is affirmed.
JOSEPH A. D'AGOSTA
Acting Deputy Commissioner