DIVISION OF HOUSING AND COMMUNITY RENEWAL
OFFICE OF RENT ADMINISTRATION
92-31 UNION HALL STREET
JAMAICA, NEW YORK 11433
------------------------------------X ADMINISTRATIVE REVIEW
IN THE MATTER OF THE ADMINISTRATIVE DOCKET NO.: CB420236RT
PETITIONER DOCKET NO.: AK430159OM
ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW
On February 9, 1988, the above-named petitioner-tenant re-filed a
petition for administrative review (PAR) of an order issued on
November 22, 1987, by the Rent Administrator, concerning the
housing accommodation known as 300 West 49th Street, New York, NY,
Apartment 302, wherein the Administrator granted the landlord's
application for a rent increase which was based on the installation
of various major capital improvements (MCIs).
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.
The landlord commenced the instant proceeding by initially filing
an application for a rent increase predicated on the installation
of a boiler/burner, windows, compactor, roof and an elevator
upgrade at a total cost of $392,578.00.
In Docket No. AK430159OM, issued November 22, 1987, the Rent
Administrator issued the order here under review, approving the
landlord's MCI application by authorizing a rent increase of $13.98
per room, per month for all rent controlled and rent stabilized
apartments in the subject building.
In this petition, the tenant contends, in substance, that all of
the installations are defective in that they do not comply with the
requirements of Rent Control Advisory Sheet 1-33.1(e), section 117
of the Rent Regulations, the decision of the Court in State of New
York v. Winter, wherein it was held that no increase can be imposed
on the tenant if such expenditure was for nothing more than
replacement of a non-functioning service traditionally included in
the apartment rent, and that no bills or cancelled checks were
submitted with the application.
ADMIN. REVIEW DOCKET NO. CB420236RT
The tenant also contends that the installation of the boiler/burner
is defective because the installation was piecemeal based on the
fact that the application was submitted over a year after the work
was commenced, it was not an upgrade, modernization, modification
and/or conversion of an already existing boiler/burner, and the
cost of the installation is excessive; the roof installation was
performed piecemeal based on the fact that the application was
submitted over a year after the work was commenced; the compactor
installation was not an upgrade, modernization, modification and/or
conversion of an existing installation, and the requisite
governmental approvals were not submitted; the upgrading of the
elevator is defective in that the requisite governmental approvals
were not submitted in accordance with Rent Control Advisory Sheet
No. 5, the installation was piecemeal based on the fact that the
application was submitted over a year after the work was commenced,
and no safety mirrors were installed as required by the Multiple
Dwelling Law; the installation of the windows is defective in that
it does not comply with Rent Control Advisory Sheet No. 4, the
window installers were non-union workers and not licensed in the
state of New York, the increase cannot be more than $1.15 per
window according to Rent Control Advisory Sheet No. 4, and the
installation was piecemeal based on the fact that the application
was submitted over a year after the work was commenced.
The tenant further contends that the landlord did not submit any
building plans and was in violation of the Multiple Dwelling Law,
Section 302-A, by allowing rent impairing violations to exist for
more than six months. The tenant submitted two MBR denial orders
that were based on the landlord's failure to remove the required
number of violations.
In response to the petition, the landlord contends, in substance,
that the boiler/burner was a complete replacement and not
"piecemeal"; the roof installed was new; the compactor installed
was a replacement of the existing compactor; the elevator upgrade
work performed included controller/selectors and all components
required; all windows were replaced in all apartments, regulations
in effect at the time of filing did not require tenant consent or
prior written agency approval, there exists no requirement that a
landlord is permitted to collect only $1.15 per window, and the law
does not require Building Department approval for window
installation. In addition the landlord contends that copies of all
contracts, invoices, cancelled checks as well as documentation of
all requisite governmental approvals were submitted with the
After a careful consideration of the entire record the Commissioner
is of the opinion that this petition should be denied.
Rent increases for major capital improvements are authorized by
ADMIN. REVIEW DOCKET NO. CB420236RT
Section 2202.4 of the Rent and Eviction Regulations of New York
City. 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.
The record in the instant case indicates that the Administrator's
order was predicated upon a review of full supporting documentation
including contracts, contractor certifications, cancelled checks
and requisite governmental approvals.
The tenant has misunderstood Rent Control Advisory Sheet 1-33.1(e),
which has to do with concurrent improvements which do not otherwise
qualify as major capital improvements. Rent Control Advisory Sheet
1-33.1(e) and all of its requirements are not applicable to the
present situation because, here, each installation, in and of
itself, qualifies as a major capital improvement.
Contrary to the tenant's assertions, none of the installations were
piecemeal. For rent control apartments, there is no time
limitation for filing an MCI application.
It is not necessary for the boiler/burner or compactor
installations to be upgrades, modifications, modernizations or
conversions of existing installations because these installations
replaced equipment for which the useful life had expired.
The tenant's contention that the holding of State of New York v.
Winter is applicable here is misguided. The decision applies only
to individual apartment services or equipment and not to building-
The Commissioner notes that, contrary to the tenant's assertions,
copies of all contracts, invoices, cancelled checks and requisite
governmental approvals were submitted for all installations with
the landlord's rent increase application.
As to the tenant's complaint regarding the lack of safety mirrors
in the elevators, it is not the obligation or responsibility of the
DHCR to enforce these regulations. Any complaints of the tenant
regarding this matter should be addressed to the elevator division
of the Department of Buildings of the City of New York.
Regarding the window installation, the fact that non-union workers
were employed, even if true, is not a relevant consideration in
determining what constitutes a major capital improvement for which
a rent increase may be granted. The correct computation of rent
increases for MCIs is contained in Operational Bulletin 84-4, which
states that the rent adjustment granted by the District Rent
Administrator applicable to rent controlled apartments shall be
computed based upon a 5 year (60 month) period of amortization of
ADMIN REVIEW DOCKET NO. CB420236RT
the verified cost of the major capital improvement. The Rent
Administrator properly computed the increase in accordance with
this Operational Bulletin which was in effect when the order was
issued and which superceded prior directives regarding rent
adjustments for windows. The Commissioner also notes that the
tenant made no complaint as to the operation or workmanship of the
It is not necessary for the owner to file any building plans in
relation to the installations in order to receive a rent increase.
Any allegation regarding a failure to correct a rent impairing
violation must be raised by the tenant during an MBR proceeding,
not an MCI application. In addition, the MBR denial orders
submitted by the tenant predate the MCI work by several years and
are not relevant to this proceeding.
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
and Eviction Regulations of New York City, it is
ORDERED, that this petition be and the same hereby is, denied; and
that the order of the Rent Administrator be and hereby is,
LULA M. ANDERSON