ADMIN. REVIEW DOCKET NO.: DE210465RT, 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
------------------------------------X
IN THE MATTER OF THE ADMINISTRATIVE : ADMINISTRATIVE REVIEW
APPEALS OF DOCKET NOS.:
: DE210465RT/DF220140RT/
VARIOUS TENANTS OF DG210139RT/DG210275RT/
7609 4TH AVENUE DG210301RT/DG220302RT/
BROOKLYN, NEW YORK DG210320RT/DG210321RT/
PETITIONERS : DG210411RT
------------------------------------X
RENT ADMINISTRATOR'S
DOCKET NO.: BD230268OM
ORDER AND OPINION DENYING PETITIONS FOR ADMINISTRATIVE REVIEW
The petitioner-tenants timely filed administrative appeals against
an order issued on May 10, 1989, by the Rent Administrator (92-31
Union Hall Street, Jamaica, New York) concerning the housing
accommodations known as 7609 4th Avenue, Brooklyn, New York,
various apartments, wherein the Administrator granted major capital
improvement (MCI) rent increases for the controlled and stabilized
apartments in the subject premises based on the installation of a
new intercom system, rewiring, pointing, waterproofing, entrance
doors, boiler, burner, and apartment and public hallway windows.
The owner commenced this proceeding below by filing its MCI
application on April 15, 1987. In support of its application, the
owner submitted copies of the contracts, contractors'
certifications, invoices, government approvals and cancelled
checks.
On appeal, the petitioner-tenants state, in substance, that A) the
work should be considered as repairs and maintenance; B) the MCI
increase should not become part of the base rent; C) the boiler was
installed more than three (3) years prior to the filing date of the
MCI application; D) the work in question was already installed when
the tenant of apartment C4 commenced occupancy and her initial rent
included the improvements.
After a careful consideration of the entire evidence of record, the
Commissioner is of the opinion that these administrative appeals
should be denied.
The record confirms that the MCI application was received by the
Division of Housing and Community Renewal (DHCR) on April 15, 1987.
The undisputed completion date of the boiler and burner, as
indicated on the contractor's certification, is December 28, 1985,
and is further supported by cancelled checks. Therefore, the
Commissioner finds that the owner did file its application within
ADMIN. REVIEW DOCKET NO.: DE210465RT, et al.
two years after the completion of the boiler/burner installation as
required by Section 2522.4(a)(8) of the Rent Stabilization Code. In
any event, the Commissioner notes that Section 2522.4 (a) (8) did
not become effective until August 1, 1987 pursuant to DHCR's
Advisory Opinion 87-1. Additionally, the fact that a prior owner
may have installed the boiler does not prevent the current owner
from collecting the MCI rent increase for the boiler.
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 be generally 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.
It is the established position of the Division that the work
performed meets the definitional requirement of a major capital
improvement for which a rent increase may be warranted. The record
shows that the owner properly substantiated its application in the
proceeding below by submitting copies of the contracts,
contractors' certifications, cancelled checks and government
approvals. On the other hand, the tenants have not established that
the increase should be revoked.
The petitioners' claim that the rent increase should be eliminated
upon the expiration of the amortization period is rejected because
the New York State Court of Appeals in the case of Matter of
Ansonia Residents Association v. DHCR ruled that the rent
regulatory laws mandate that the increase be permanent.
Regarding the contention of the tenant of apartment C4 that she
took occupancy after the installations were completed, the
Commissioner notes that such contention is not sufficient to
obviate the tenant's obligation to pay rent increases duly approved
by the Division. However, since this apartment was previously
occupied as a stabilized unit, the rent increase was not legally
collectible prior to the issuance of the Administrator's order.
Where the tenant took occupancy pursuant to a vacancy lease
commencing after the owner had filed its application, the
Commissioner notes that for the MCI increase granted by the
Administrator's order to be collectible during the term of the
tenant's vacancy lease, such vacancy lease would have to contain a
specific clause advising the tenant of the pending proceeding and
advising that the rent charged was subject to an additional
increase (during the current lease term in effect) as provided by
Section 2522.4(a)(5) of the Rent Stabilization Code and established
Division precedent. In the absence of same, said increase is not
collectible until the expiration of the lease term in effect at the
time of issuance of the MCI order, provided the renewal lease
contains a general authorization provision for adjustment of the
ADMIN. REVIEW DOCKET NO.: DE210465RT, et al.
rent reserved by DHCR order. The owner's violation of Section
2522.4(a)(5) of the Code could result in an overcharge
determination. This order and opinion is issued without prejudice
to the tenant's right to file an individual rent overcharge
complaint, if the facts so warrant.
Finally, the Commissioner notes that, pursuant to Policy Statement
90-8, the owner may not collect any increase provided for in the
Administrator's order with respect to any individual apartment
during the period of time a rent reduction order based on a failure
to maintain services is in effect where the effective dates of such
rent reduction order is prior to the issuance date of the MCI
order, until such time as there is a finding by DHCR that services
have been restored.
On the basis of the entire evidence of record, it is found that the
Administrator's order is correct and should be affirmed.
THEREFORE, in accordance with the applicable provisions of the Rent
Stabilization Law and Code, the Rent and Eviction Regulations for
the City of New York, and Operational Bulletin 84-1, it is
ORDERED, that these administrative appeals be, and the same hereby
are denied; and that the Administrator's order be, and the same
hereby is affirmed.
ISSUED:
Joseph A. D'Agosta
Deputy Commissioner
ADMINISTRATIVE REVIEW
OWNER MULTIPLE BUREAU
COVERING MEMORANDUM
ADMIN. REVIEW DOCKET NO.: DE210465RT, et al.
PAR Docket Nos.: DE210465RT/DF220140RT/DG210139RT/DG210275RT/
DG210301RT/DG220302RT/DG210320RT/DG210321RT
DG210411RT
Rent Administrator's
Docket No.: BD230268OM
Tenant(s): VARIOUS
Owner: CASTLE COURT PARTNERS
Code Section: RENT STABILIZATION CODE; 2522.4
RENT AND EVICTION REGULATIONS; 2202.4
Premises: 7609 4TH AVENUE, BROOKLYN, NEW YORK
ORDER AND OPINION DENYING PETITIONS FOR ADMINISTRATIVE REVIEW
THE COMMISSIONER NOTES THAT THE INSTALLATION OF A NEW INTERCOM
SYSTEM, ELECTRICAL REWIRING, POINTING, WATERPROOFING, ENTRANCE
DOORS, BOILER, BURNER, APARTMENT AND PUBLIC HALLWAY WINDOWS
QUALIFIES FOR A MAJOR CAPITAL IMPROVEMENT RENT INCREASE.
APPROVED:
Processing Attorney:
Supervising Attorney:
Director:
Bureau Chief:
Deputy Commissioner:
Mailed copies of Order and Determination to:
Tenant(s)
Owner
Tenant's Atty
Owner's Atty
Date: : by
signature
|
