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 NO.CL 110438-RT &
: CL 110332-RT
VARIOUS TENANTS DISTRICT RENT ADMINISTRATOR'S
PETITIONER : DOCKET NO. BE 130088-OM
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OWNER: DITMAS REALTY
ORDER AND OPINION DENYING PETITIONS FOR ADMINISTRATIVE REVIEW
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
apartments.
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
service.
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
thereof.
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.
ISSUED:
ELLIOT SANDER
Deputy Commissioner
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