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
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
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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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