STATE OF NEW YORK
DIVISION OF HOUSING AND COMMUNITY RENEWAL
OFFICE OF RENT ADMINISTRATION
92-31 UNION HALL STREET
JAMAICA, NEW YORK 11433
IN THE MATTER OF THE ADMINISTRATIVE : ADMINISTRATIVE REVIEW
APPEALS OF DOCKET NOS. DD 120025-RT
: DD 110033-RT
VARIOUS TENANTS OF DD 110170-RT
53-01 32ND AVENUE, DD 110206-RT
WOODSIDE, NY PETITIONERS : DD 120207-RT
------------------------------------X DD 110345-RT
ORDER AND OPINION DENYING ADMINISTRATIVE APPEALS
Various tenants timely filed or refiled Administrative Appeals against an
order issued on March 7, 1989 by a Rent Administrator, 92-31 Union Hall
Street, Jamaica, New York, concerning the housing accommodations known as
53-01 32nd Avenue, Woodside, New York, Various Apartments, wherein the
Rent Administrator determined that the owner was entitled to a rent
increase based on a major capital improvement (MCI). 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.
The Administrative Appeals are being determined pursuant to the provisions
of 9 NYCRR 2202.4 and 9 NYCRR 2522.4.
The issue herein is whether the Rent Administrator's determination was
The Commissioner has reviewed all of the evidence in the record and has
carefully considered that portion of the record relevant to the issues
raised by the petitions for review.
The owner commenced this proceeding on November 13, 1987 by filing an
application for a rent increase based on a major capital improvement, to
wit - replacement windows at a total cost of $120,645.00.
On January 13, 1988, the Division of Housing and Community Renewal (DHCR)
served each tenant with a copy of the application and afforded the tenants
the opportunity to review it and comment thereupon.
Although several tenants in the subject building filed responses, only one
of the nine petitioning tenants herein filed any objections to the owner's
application. Said tenant (Apartment 5H) claimed, in substance that a
"fixtured wall frame" in his apartment was damaged during the installation
of the new windows; that the new windows are just a ploy to increase the
rent; that there is inadequate heat; and that the installation was not
done in a workmanlike manner.
DOCKET NUMBER: DD 120025-RT etal
On March 7, 1989, the Rent Administrator issued the order here under
review finding that the installation qualified as a major capital
improvement, determining that the application complied with the relevant
laws and regulations based upon the supporting documentation submitted by
the owner, and allowing appropriate rent increases for rent controlled and
rent stabilized apartments.
It was noted in the order that the tenant of 5H complained of damage due
to the installation; that on January 20, 1989, the owner advised the
Division that the tenant of Apartment 5H declined repairs; and that the
owner's claim was not challenged by the tenant.
In their petitions for administrative review, the tenants request reversal
of the Rent Administrator's order and allege that the windows are the
owner's responsibility and that the tenants should not have to pay for
them. They assert that the old windows needed replacement, and new
windows constitute maintenance and not an improvement. They further
assert that the replacement windows are of poor quality and were
inadequately installed; that the cost of the improvement seems grossly
overstated; that the rent increase exceeds the 6% annual cap; that the
hallway windows were replaced separately; and that the owner is receiving
a tax abatement.
The tenant of Apartment 1H asserts that the windows were installed prior
to her taking occupancy in June, 1988 and that while there was a clause in
her lease regarding the increase, no one explained to her that there would
also be a retroactive payment. The tenant of Apartment 5H asserts that
the statement pertaining to him in the Rent Administrator's order is
In answer to the tenants' petitions the owner alleges that they are
After careful consideration the Commissioner is of the opinion that these
petitions should be denied.
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 improvement must generally be building-wide;
depreciable under the Internal Revenue Code, other than for ordinary
repairs; required for the operation, preservation, and maintenance of the
structure; and replace an item whose useful life has expired.
The Commissioner notes that none of the objections now being raised for
the first time on administrative appeal by the petitioners other than
those raised by the tenant of Apartment 5H were raised while the owner's
application was pending before the Rent Administrator even though all of
the tenants were afforded the opportunity to do so. Accordingly, the
Commissioner finds pursuant to Section 2529.6 of the Rent Stabilization
Code and pursuant to prior administrative decisions under the Rent and
DOCKET NUMBER: DD 120025-RT etal
Eviction Regulations that these objections may not be considered herein.
The useful life of the old windows had been exceeded and their replacement
constitutes a major capital improvement.
The Commissioner deems it appropriate to note that concerning the affect
of the owner's alleged application for or receipt of J-51 tax benefits
based on the subject improvement, this benefit does not preclude an
owner's entitlement to a major capital improvement rent increase
adjustment therefor. Though rent stabilized tenants may presently share
in the benefits of a tax abatement received by an owner pursuant to J-51
of the Administrative Code, this provision does not apply to the rent
stabilized tenants in the instant matter as the law is applicable to
improvement work commenced after June 28, 1988, and is not retroactive.
However, tenants of rent controlled apartments may be entitled to share in
such tax abatement benefits and should make application to DHCR "Owner
Individual Unit" for such rent adjustment as may be warranted.
The Commissioner deems it appropriate to further note that those
petitioners who claim that the Administrator's decision exceeds the 6%
formula permitted by law have failed to submit any evidence as to the
actual rent increase effected by the owner. As such, there is no basis on
which to determine whether the owner's rent increases as to individual
apartments exceeds the 6% limitation so provided in the order.
Consequently, this order is issued without prejudice for filing of
individual rent overcharge complaints if the facts so warrant.
The record in the instant case indicates that the owner correctly complied
with the application procedures for a major capital improvement and the
Rent Administrator properly computed the appropriate rent increases. The
tenants have not established that the increase should be revoked.
As to the allegations made by the tenant of Apartment 5H regarding the
quality of the installation, the Commissioner notes that this complaint
was raised in the proceeding below but it does not appear that such
complaint was adequately addressed prior to issuance of the
Administrator's order. It is therefore the opinion of the Commissioner
that the tenant of Apartment 5H should be afforded 30 days from the date
of issuance of this order and opinion to notify the owner of specific
problems the tenant may still be experiencing with the windows installed
in his apartment. The owner is hereby directed to effectuate any
necessary repairs or adjustments of the windows within 60 days of receipt
of such specific notice from the tenant. If such work is not performed to
the tenant's satisfaction, the tenant may then file a service reduction
complaint with the Division asserting the problems the tenant may still be
experiencing with his windows. If it is found that a reduction in
services has occurred, then not only would the tenant be entitled to the
standard rent reduction therefor, the MCI rent increase may be suspended
retroactively to its effective date as well.
THEREFORE, in accordance with the Rent Stabilization Law and Code, and the
Rent and Eviction Regulations, it is
DOCKET NUMBER: DD 120025-RT etal
ORDERED, that these petitions be, and the same hereby are, denied and that
the Rent Administrator's order be, and the same hereby is, affirmed.
JOSEPH A. D'AGOSTA
Acting Deputy Commissioner