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
APPEAL OF DOCKET NO.:DD 410209-RT
: DE 420432-RT
CHRISTOPHER BOGDAN AND
CLINTON SCARICH RENT ADMINISTRATOR'S
PETITIONER : DOCKET NO.: BB 430204-OM
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ORDER AND OPINION GRANTING IN PART PETITION FOR ADMINISTRATIVE REVIEW
AND REMANDING TO THE RENT ADMINISTRATOR FOR FURTHER PROCESSING
The above-named tenants filed petitions for Administrative Review of an
order issued on April 26, 1989 by a Rent Administrator concerning the
housing accommodations known as 206 East 10th Street, New York, New York,
Various Apartments.
On April 4, 1987, the owner commenced this proceeding by filing an MCI rent
increase application with the agency based on the installation of a new
lobby entrance door, intercom, mailboxes, replacement windows and pointing
and waterproofing building-wide.
In response to the owner's application several tenants asserted, in
substance, that the window installation was faulty and the windows
inadequate. One tenant asserted, in substance, that the pointing and
waterproofing had only been completed on the front of the building while
the back and sides' bricks had been coated with a mortar-like substance.
By agency notice dated July 18, 1988, the owner was requested to respond to
the tenants' assertions. By answers dated August 4, 1988 the owner
addressed the tenant's concerns asserting, in substance, that all necessary
corrective measures had been taken and that the installation was proper.
On September 15, and 29, 1988, the agency sent an inspector to the subject
premises. The inspector conducted an inspection of three apartment's
windows and verified a room count for one. By agency notice dated October
25, 1988, the owner was instructed to correct those conditions found
inadequate.
On November 14, 1988 the owner sent to the agency a sworn statement from
the window contractor indicating that necessary corrective measures had
been completed as directed by the agency.
On December 2, 1988 the agency sent the tenants a request for additional
information regarding whether the owner had restored services. One tenant,
a petitioner herein, responded, in substance, that of the several items he
had objected to only two were inspected for. The tenant further asserts
that he had apprised the inspector of this to which the inspector allegedly
DOCKET NUMBER: DD 410209-RT, DE 420432-RT
responded, in substance, that he would only inspect as instructed by the
agency and was thereby limited to a review of the room count and window
installation for this tenant's apartment.
On April 26, 1989 the Rent Administrator issued an MCI rent increase order
based on the owner's installation of new aluminum windows building-wide,
pointing and waterproofing, new intercom system and new lobby entrance
doors. The mailbox installation as completed was found not to qualify as
an MCI installation.
Two tenants timely filed petitions for administrative review. In his
petition one tenant asserts that the order appealed from was issued based
on an incorrect room count. The other tenant asserts, in substance, that
the agency failed to address several pertinent complaints made when the
proceeding was before the Administrator, required services had not been
maintained, the retroactive portion of the rent increase is incorrect and
that the installations do not meet "durability" standards. This tenant
submits two photographs showing areas of the building's walls on which the
mortar-like coating has crumbled revealing bricks and what appears to be
deteriorated mortar underneath.
The owner responds conceding that the MCI rent increase was based on an
incorrect room count but asserts that a larger room count is actually to
the tenants' advantage as it results in a smaller rent increase per room.
The owner further asserts, in substance, that in all other respects he
believes that the MCI rent increase order was properly issued.
After careful consideration of the entire evidence of record, the
Commissioner is of the opinion that this proceeding should be remanded to
the Rent Administrator for further processing.
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 record discloses that the Administrator properly applied these
principles to the owner's MCI rent increase application, and, with the
exception of the pointing and waterproofing installation, those
installations for which rent increases were allowed fit the above
definition and their costs where substantiated by the owner.
Regarding the pointing and waterproofing installation, it is noted that
when this proceeding was before the Administrator below, the petitioner
asserted, in substance, that this installation appeared incomplete and that
although the agency sent an inspector to inspect for the windows and room
count, no inspection was made of the pointing and waterproofing
installation. The record further reveals that after the owner had attended
to that which the agency had directed be corrected, the petitioner again
DOCKET NUMBER: DD 410209-RT, DE 420432-RT
asserted that several installations remained inadequate and added that he
believed that the inspection had not been inclusive. Accordingly, the
Commissioner is of the opinion that this proceeding should be remanded to
the Rent Administrator for further processing including an inspection of
the pointing and waterproofing installation.
Although one petitioner asserts that the retroactive rent computation is
incorrect, the tenant has not explained how it is wrong and after a careful
review of the record the Commissioner finds that, as the retroactive rent
computations appear on the order appealed from, they are correct.
On appeal one petitioner asserts and the owner concedes that there is a
room count discrepancy as reflected in the order appealed from.
Accordingly, the Rent Administrator is urged to consider the room count on
remand.
Regarding the tenant's assertions that the required services have not been
maintained, the Commissioner notes that this order is issued without
prejudice to the tenant's rights to file services complaints if the facts
so warrant.
THEREFORE, pursuant to the Rent Stabilization Law and Code and the Rent and
Eviction Regulations for New York City, it is
ORDERED, that this petition be, and the same hereby is, granted to the
extent of remanding this proceeding to the Administrator for further
processing in accordance with this order and opinion. The order and
determination of the Administrator remains in full force and effect until
a new order is issued on remand.
ISSUED:
JOSEPH A. D'AGOSTA
Acting Deputy Commissioner
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