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

      ------------------------------------X 
      IN THE MATTER OF THE ADMINISTRATIVE :  ADMINISTRATIVE REVIEW
      APPEALS OF                             DOCKET NOS.:CC 410370-RT
                                          :              CD 420001-RT
      VARIOUS TENANTS OF 211 WEST 88TH                   CD 410003-RT
      STREET, NEW YORK, NY,                              CD 420192-RT
                            PETITIONERS   :              CD 410193-RT
      ------------------------------------X                             
                                             RENT ADMINISTRATOR'S
                                             DOCKET NO.: AC 430179-OM

            ORDER AND OPINION DENYING PETITIONS FOR ADMINISTRATIVE REVIEW

      Various tenants timely filed petitions for Administrative Review against an 
      order issued on March 14, 1988 by the Rent Administrator, Gertz Plaza, 
      Jamaica, New York, concerning the housing accommodations known as 211 West 
      88th Street, New York, New York, Various Apartments, wherein the Rent 
      Administrator granted a major capital improvement (MCI) rent increase based 
      on the finding that various installations, with certain exceptions, 
      constituted major capital improvements.

      The Commissioner deems it appropriate to consolidate these Administrative 
      Appeals for determination under this order and opinion as they involve 
      common issues of law and fact.

      In their petitions for Administrative Review, the tenants request 
      modification of the Rent Administrator's order and contend, in substance, 
      that (1) the intercom system is not a MCI; a new intercom was installed by 
      the landlord for his convenience in the process of renovating some vacant 
      apartments; the intercoms in the apartments and in the vestibule were in 
      perfect working order prior to the installation of the new intercom; (2) 
      the front and vestibule doors were not MCI as the old doors were in 
      violation of Real Property Law 235-b, the Warranty of Habitability; in 
      addition, the new doors have been tampered with and are not as secure as 
      when first installed; (3) the owner claims that the apartments contain four 
      rooms, however in January 1972, the Housing and Development Administration 
      determined that Apartment 1B and 2A are three room units; since all the 
      apartments are the same size they should all be designated as three room 
      apartments.

      In response to the tenants' petitions, the owner filed an answer stating, 
      in substance, that the subject building did not have a voice intercom 
      system prior to the one installed in 1985, but instead was equipped with a 
      bell and buzzer system; that the front and vestibule doors that were 
      replaced in the building had seen lengthy service and required frequent 
      repair; that apartment 2A is a four room apartment while the "B" line 
      apartments should be categorized as three room apartments; and that the 
      owner will contact those tenants to make necessary changes of rental 
      payment.









          DOCKET NUMBER: CC 410370-RT, etal.
      After careful consideration of the entire record, the Commissioner is of 
      the opinion that these Administrative Appeals should be denied.

      With respect to the tenants' contentions regarding the intercom and doors, 
      the Division has previously held that these installations may qualify as 
      major capital improvements under the applicable provisions of the Rent laws 
      and codes.  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 improvements must generally be building-wide; 
      depreciable under the Internal Revenue Code, other than for ordinary 
      repairs; required for the operation, preservation and maintanance of the 
      structure, and replace an item whose useful life has expired.

      The record confirms that the prior front entrance doors and intercom system 
      were in excess of their expected useful life of fifteen years at the time 
      of this replacement and the record contains a statement from the tenants in 
      the proceeding below to the effect that the said items were in such 
      defective condition that replacement thereof was required for the proper 
      "operation, preservation and maintenance of the structure."  Furthermore, 
      the record discloses that the owner substantiated its application by 
      submitting to the Administrator documentation in support of the 
      application, including the contractor's certifications, copies of 
      contracts, invoices and cancelled checks for the work in question.

      With respect to the tenants' contentions regarding the room count of their 
      apartments, the Commissioner notes that the Administrator's order was 
      predicated on the number of rooms listed in the owner's application.  The 
      owner is cautioned that it may not collect the per room increase provided 
      for in the Administrator's order appealed herein based on a greater number 
      of rooms, as defined for MCI purposes, as exists in any individual 
      apartment and the determination herein is without prejudice to the right of 
      the tenants filing an appropriate complaint of rent overcharge should the 
      facts so warrant.  As indicated in Policy Statement 90-3, "Any adverse 
      determination stemming from a miscount in rooms which arises after a MCI 
      order is issued becomes the responsibility of the owner."  A room for MCI 
      purposes is defined as follows:

           (1)  A windowless kitchen containing at least 59 square feet.

           (2)  An enclosed area with window containing at least 60 
                square feet.

           (3)  An enclosed area without window containing at least 80
                square feet.

           (4)  Bathrooms, walk-in closets, etc. are excluded.

      THEREFORE, in accordance with the provisions of the Rent Stabilization Law 
      and Code and the Rent and Eviction Regulations, it is





          DOCKET NUMBER: CC 410370-RT, etal.
      ORDERED, that these petitions be and the same hereby are are denied; and 
      that the Rent Administrator's order be, and the same hereby is affirmed.

      ISSUED:
       






                                                                   
                                           JOSEPH A. D'AGOSTA
                                       Acting Deputy Commissioner

                                                    
       





    

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