OFFICE OF RENT ADMINISTRATION
                                    GERTZ PLAZA
                              92-31 UNION HALL STREET
                              JAMAICA, NEW YORK 11433

     APPEALS OF                              DOCKET NO.CL 110438-RT &
                                         :             CL 110332-RT
                           PETITIONER    :   DOCKET NO. BE 130088-OM
                                             OWNER: DITMAS REALTY


     The   above-named   petitioner-tenants   timely   filed   Petitions    for
     Administrative Review against an order issued November  23,  1988  by  the
     Rent Administrator at Gertz  Plaza,  Jamaica,  New  York,  concerning  the
     housing accommodations known as various apartments at 109-05 72nd  Avenue,
     Forest Hills, New York, wherein the Administrator granted, the application 
     of the owner to increase the rentals based on the installation of a  Major
     Capital Improvement.

     Pursuant to Section 2529.1 of the Rent Stabilization Code effective May 1, 
     1987 and Section 2208.1  of  the  Rent  and  Eviction  Regulations,  these
     Petitions have been consolidated into one proceeding  since  they  involve
     common issues of law and fact.

     The Commissioner has reviewed all of the evidence on the  record  and  has
     carefully considered that portion of the record  relevant  to  the  issues
     raised in the administrative appeals.

     The owner commenced the proceeding below on  May  7,  1987  by  filing  an
     application to increase the rentals for  rent  controlled  and  stabilized
     apartments based on  the  installation  of  a  Major  Capital  Improvement
     consisting of new thermal, replacement windows.  In  the  application  the
     owner indicated that the building contains 67  apartments,  including  the
     porter's apartment and another employee apartment.

     In response to the owner's application, the tenants' representative,  Tina
     Getman  (apartment  3-H),  joined  by  other  tenants,  filed  answers  in
     opposition to the application.

     In the appealed order, the Administrator granted the  owner's  application
     based on the full stated cost of the installation.  The  increase  granted
     was $6.21 per room, per month for  rent  controlled  and  rent  stabilized

     In the Petitions the tenants assert, in substance, that the  Administrator
     erred for the following reasons:  The original windows had to be  replaced
     due to the owner's negligence in not maintaining them properly.  The storm 
     windows which were  removed  in  order  to  install  the  subject  thermal
     windows, had generated a rent increase.  The thermal windows should, as 


          DOCKET NUMBER: CL 110438-RT & CL 110332-RT
     the owner has stated [in appealing a rent reduction  order  based  on  the
     removal of said storm windows from one tenant's apartment], be  considered
     substitutes for said storm windows.  Therefore,  the  tenants  should  not
     have to suffer a second  increase  for  what  is,  essentially,  the  same

     In addition, the tenants contend that the total cost allowed included  the
     cost of windows installed in two illegal apartments in  the  basement  and
     that the owner is overcharging tenants based on a discrepancy in the  room
     count.  Specifically, the owner is charging tenants with one  room  and  a
     windowless foyer as if they had a one and one half room apartment; and  as
     to those apartments with two rooms, the owner  is  counting  a  windowless
     cooking alcove as a room.  Also, the owner has a  professional  commercial
     tenant which is not included in the listing of the apartments.

     The tenants further assert that the new  windows  did  not  constitute  an
     improvement in the level of service when compared to the service  provided
     by the pre-existing combination of a casement  window  and  storm  window.
     Therefore, no additional cost should be imposed on the tenants.   Finally,
     in view of the owner's misrepresentations [as noted above],  the  increase
     should have been denied.

     In its answer the owner asserts,  in  substance,  that  the  two  basement
     apartments consisted of the porter's apartment and a helper's locker room; 
     that replacement windows were installed in the former, properly,  but  not
     in the latter.  The  owner  further  claims  that  the  replaced  casement
     windows were twenty-five years old and there should be no set off  on  the
     rent increase generated by the old storm windows.  Any  objection  to  the
     room count should be made by individual tenant challenges.

     The Commissioner is of the opinion that these petitions should be denied.

     It is the established position of the Division  that  an  installation  of
     the type involved herein, new thermal windows on a building-wide basis  to
     replace old windows, constitutes a major capital improvement for  which  a
     rent increase adjustment may be warranted.  In this respect it is conceded 
     by the tenants that the condition of the original windows  was  such  that
     their  replacement  was  required  for   the   continued   operation   and
     preservation of the premises.  The fact  that  such  defective  conditions
     existed  without  prior  correction  does  not  disqualify   the   current
     installation as a Major Capital Improvement.

     The  Commissioner  notes  that  the  owner  had  submitted  substantiating
     documentation  including  the  contract  for  the  work   performed,   the
     contractor's certification,  invoices  and  cancelled  checks  in  payment

     Regarding the claim by the rent controlled tenants that their rent  should
     have been reduced to eliminate a 1965 rent increase for the storm  windows
     which were  removed  as  a  consequence  of  the  window  replacement  the
     Commissioner notes that it is established Division policy not to  allow  a
     rent off-set where, as here, such storm windows are over 15 years old  and
     have exhausted  more  than  75%  of  their  useful  life,  justifying  the
     installation of thermal windows in lieu thereof.  [Accord DA 410092-RT].

          DOCKET NUMBER: CL 110438-RT & CL 110332-RT
     The criteria for the allowance of an MCI  rent  increase  for  replacement
     windows is not whether the apartments where they are installed  are  legal
     residential units, but whether the installation is building-wide.

     The Commissioner points out that if in the MCI application the  owner  had
     reported that the building contains more rooms than it  does,  that  would
     have  been  prejudicial  to   the   owner's   economic   interests.    The
     Administrator calculated the  per  month,  per  room  increase  herein  by
     dividing the total cost by the sixty month amortization  period  and  then
     divided that quotient by the  number  of  rooms  in  the  building  (178).
     Therefore, the higher the number of rooms reported by the owner, the lower 
     the per room, per month, increase would come out to be.

     The Commissioner further points out that the number of rooms  reported  by
     the owner in the MCI application is not binding on an individual tenant in 
     the calculation of the actual increase that tenant has to pay.

     As to the collection of this  increase  from  an  individual  tenant,  the
     number of rooms in each apartment should be determined between each tenant 
     and the owner.  If they cannot resolve this issue, the matter may have  to
     be resolved in a separate proceeding, such as  an  overcharge  proceeding,
     before the Division.  The Commissioner notes that if the  owner  erred  in
     reporting the room count for any one (or  all)  of  the  apartments  at  a
     higher than actual figure, the owner may not seek a  modification  of  the
     order below on that ground, but must bear whatever economic  loss  it  may
     suffer as a result of that error [Accord BC 420076-RO].

     All of the apartments in this building appear to have been  accounted  for
     and included in the owner's application.  Absent a clear demonstration  by
     the tenants that would prove the existence  of  a  professional/commercial
     apartment that was not listed in the application, the  Commissioner  finds
     this allegation to be contradicted by the record herein.

     The Commissioner finds no evidence in this record (nor  any  submitted  on
     appeal) that shows that the owner made any substantive  misrepresentations
     in its application.

     THEREFORE, in accordance  with  the  applicable  provisions  of  the  Rent
     Stabilization Law and Code, and the City Rent Law and Regulations, 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.


                                     ELLIOT SANDER
                                     Deputy Commissioner


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