DD 120032-RT, et al.
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.:
DD 120032-RT; DD 130074-RT
DD 110028-RT; DD 110073-RT
VARIOUS TENANTS OF DD 120027-RT; DD 110034-RT
53-01 32ND AVENUE, DD 110026-RT; DD 130114-RT
RENT ADMINISTRATOR'S
DOCKET NO.:
PETITIONERS BK 130072-OM
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ORDER AND OPINION DENYING PETITIONS FOR ADMINISTRATIVE REVIEW
The Commissioner has consolidated these petitions as they
involve common questions of law and fact.
Various tenants filed timely petitions for administrative review
of an order issued on March 7, 1989, by a Rent Administrator
concerning the building known as 53-01 32nd Avenue, Woodside,
New York, wherein the Rent Administrator determined that the
owner was entitled to a rent increase based on a major capital
improvement (MCI).
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.
Five of the petitioning tenants did not file any objections to
the owner's application although afforded the opportunity to do
so. The tenant of apartment 6-R claimed that the windows were
installed prior to her taking occupancy. The tenant of Apartment
3-G claimed that her rent had been increased previously for storm
windows, and the tenant of Apartment 6-G questioned the nature
and duration of the increase.
On March 7, 1989, the Rent Administrator issued the order here
DD 120032-RT, et al.
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 controll d and rent stabilized apart-
ments.
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. The tenant of Apartment 6-R asserts that the
windows were installed prior to her taking occupancy in January
1987 and that her apartment contains 2 1/2 and not 3 rooms.
In answer to the tenants' petitions the owner alleges that they
are without merit.
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 t e Rent Stabiliza-
tion 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, preserva-
tion, 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 no application for an MCI increase
was pending at the time that the tenant of Apartment 6-R took
occupancy in January 1987. The Commissioner further notes that a
copy of the application which was served on this tenant on
January 13, 1988 stated that her apartment contained three rooms
and that she did not object to the room count.
The Commissioner notes that none of the objections now being
raised for the first time on administrative appeal by the peti-
tioners 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
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 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
DD 120032-RT, et al.
appropriate rent increases. The tenants have not established
that the increase should be revoked.
THEREFORE, in accordance with the Rent Stabilization Law and
Code, and the Rent and Eviction Regulations, it is
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.
ISSUED:
ELLIOT SANDER
Deputy Commissioner
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