STATE OF NEW YORK
DIVISION OF HOUSING AND COMMUNITY RENEWAL
OFFICE OF RENT ADMINISTRATION
92-31 UNION HALL STREET
JAMAICA, NEW YORK 11433
-------------------------------------X ADMINISTRATIVE REVIEW
IN THE MATTER OF THE ADMINISTRATIVE DOCKET NO.: DK110261RT
DOCKET NO.: BF130068OM
ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW
On November 29, 1989, the above named petitioner-tenant timely
filed a petition for administrative review (PAR) against an order
issued on November 1,1989, by the Rent Administrator (Gertz Plaza)
concerning the housing accommodations known as 41-15 50th Street,
Woodside, Queens, New York, Apt. 4B, wherein the Rent Administrator
determined that the owner was entitled to a rent increase based on
the installation of a major capital improvement (MCI).
The Commissioner has reviewed all of the evidence of the record and
has carefully considered that portion of the record relevant to the
issues raised by this administrative appeal.
The owner commenced this proceeding on June 8, 1987 by initially
filing an application for a rent increase based on the installation
of widows, building-wide, at a total cost of $51,460.00.
Various tenants responded to the owner's MCI application, objecting
to the increase.
On November 1, 1989, the Rent Administrator issued the order here
under review finding that the installation qualified as an MCI,
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 tenants.
In this petition, the tenant of apartment 4B contends, in
substance, that he should not be subject to the retroactive rent
increase for the period prior to his occupancy on March 1, 1988.
In response to the tenant's petition, the owner contends, in
substance, that the tenant in apartment 4B owes him the retroactive
MCI rent increase from the time the tenant occupied the apartment
to the end of the retroactive period, December 1, 1989, plus the
MCI increase for the month of December 1989.
ADMIN. REVIEW DOCKET NO. DK-110261-RT
After a careful consideration of the entire evidence of record, the
Commissioner is of the opinion that this petition should be denied.
The tenant does not question the propriety of the Administrator's
order, which properly found that the building-wide installation of
new windows qualified for an MCI rent increase.
However, where as in the instant case, 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
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 docket number of the pending proceeding and the
nature of the requested increase 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 this provision said increase would not be collectible
until the expiration of the lease term in effect at the time of
issuance (November 1, 1989) of the MCI order, provided the renewal
lease contains a general authorization provision for adjustment of
the rent reserved by the DHCR order. Such tenant would not be
obligated to pay arrears, which in no event would be collectible
for a period prior to the time the tenant took occupancy. The
tenant is advised to refer to his lease which is not attached to
the petition and is not part of the record. This order is being
issued without prejudice to the tenant's right to file a complaint
of rent overcharge , if the facts so warrant.
THEREFORE, in accordance with the provisions of the Rent
Stabilization Law and Code, it is
ORDERED, that this petition be, and the same hereby is, denied, and
the Administrator's order be, and the same hereby is, affirmed.
Joseph A. D'Agosta