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. DK 130374-RT
VARIOUS TENANTS, : D.R.O. DOCKET NO.
PETITIONERS : BF-130100-OM
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ORDER AND OPINION DENYING ADMINISTRATIVE REVIEW
The above-named petitioner tenants timely filed a Petition for
Administrative Review against an order issued September 28, 1989, by
the Rent Administrator at Gertz Plaza, Jamaica, New York, concerning
the housing accommodations known as various apartments at 23-14 28th
Street, Astoria, New York, wherein the Administrator granted the
application of the owner (Anastassios S Kassaridis) to increase the
rentals based on installation of Major Capital Improvements.
The Commissioner has reviewed all the evidence in the record and has
carefully considered that portion of the record relevant to the issues
raised in the administrative appeals.
The owner commenced the proceeding below on June 15, 1987 by filing an
application to increase the rentals for rent controlled and stabilized
apartments based on the installation of Major Capital Improvements
consisting of thermal, replacement windows. The owner claimed costs
of $31,662.00 for this installation. In the application the owner
indicated that the building contains 25 apartments, including three
apartments occupied by the owner's employees.
Two tenants, Pennie Fein (apartment C-1) and Brian C. Knight
(apartment C-2) answered the owner's application.
Pennie Fein stated that the replaced windows had been in extremely bad
condition. Therefore, the installation of the replacements should not
be considered a capital improvement, but, merely ordinary repairs and
maintenance. This tenant also asserted that the application, at item
3, contained misinformation in that it did not reflect the fact that
two of the 25 apartments in the building were utilized by the owner
for commercial purposes (a medical office). Brian C. Knight stated
that the MCI installation had been completed on September 1, 1986;
that he had taken occupancy on May 1, 1987 (accepting the apartment in
"as is condition) at a rental of $650.00 per month; and, therefore, it
DOC. NO. DK 130374.RT
would be unjust to impose on MCI rent increase on him four months
after he took occupancy. Mr. Knight also asserted that the subject
installation should be considered ordinary repairs and maintenance for
which the owner, and not the tenants should assume financial
responsibility.
The owner responded to tenant Fein's answer, in substance, by
asserting that the previous windows were in good working order but old
and that the MCI installation and requested increase were appropriate.
The owner did not reply to the tenant Knight's answer.
In the order below the Administrator granted the requested increase
based on the full, stated cost for installation of the replacement
windows.
The tenants from nineteen apartments filed one* Petition for
Administrative Review.
On appeal, the petitioner-tenants contend, in substance, as follows:
1. Certain tenants took occupancy after the installation and no
specific provision advising those tenants of the pendency of
the owner's application was contained in their vacancy
leases;
2. Said tenants took occupancy at market value rents and
therefore the cost of any installed capital improvements
should be deemed to have been included in the calculation of
their initial rents.
3. The windows were not installed properly;
4. The windows malfunction; and
5. Installation has not been completed in that the new wood
trim was not painted and it has subsequently warped and
rotted resulting in improper insulation around the windows.
*The Commissioner received two Petition forms. One contained the
arguments listed below as 1 and 2 and was joined in by five tenants.
The other contained the arguments listed below as 3 through 6 and was
joined in by the same five tenants and fourteen other tenants. Both
of these documents were docketed under one PAR docket number: DK
130374-RT and are hereby consolidated under the aforesaid single
docket number pursuant to Section 2529.1 of the Code.
DOC. NO. DK 130374.RT
6. A hallway window at the fourth floor landing was broken by
the superintendent and it has not been repaired or replaced.
Although afforded the opportunity to do so the owner has not filed an
answer to the tenants' appeal.
A review of the record reveals that the owner properly filed the MCI
application in the proceeding below, and no showing to the contrary
has been made by the petitioners.
Turning to the merits of the subject petition for Administrative
Review, the record in the proceeding below and on this appeal
discloses that the owner substantiated its MCI application by
submitting to the Administrator documentation in support of the
application, including a copy of the contract, the contractor's
certification, and cancelled checks for the work herein.
The Commissioner finds that the petitioner's contentions are not
sufficient to establish that the Administrator abused his discretion
in issuing the order appealed herein.
The Commissioner finds that the tenants' contentions numbered 3
through 6 herein were not raised below and, therefore, are not within
the scope of review on appeal. The Commissioner also finds that
contention 2 is without merit and that contention number one may not
be addressed on this appeal as it is a matter of computing each
stabilized tenant's rent increase and determining when said increase
goes into effect.
The Petitioners should note nevertheless, as stated at paragraph 2. on
the third page of the appealed order, that for the increases granted
by the Administrator's order to be collectible during the term of a
lease in effect at the time of the issuance of the order, such lease
must contain a provision authorizing the collection of an increase
pursuant to a DHCR order; and if such lease is a vacancy lease, that
lease must have contained a clause informing the tenant of the pending
application and stating: (1) such an application is pending; (2) the
docket number of such application; (3) the increase requested; and (4)
a description of the installation. The owner's violation of this
provision could result in a rent overcharge determination.
DOC. NO. DK 130374.RT
Moreover, if a tenant who took occupancy under a vacancy lease while
the application was pending was also the first rent stabilized tenant
to occupy the apartment after it was vacancy decontrolled
(that is, no longer subject to rent control), the initial legal
regulated rent set forth in the vacancy lease is a "negotiated first
rent" which reflects the value of the apartment with the windows and
such stabilized tenants cannot be subject to an MCI increase for the
same windows. However, if such tenant filed a Fair Market Rent
Appeal, a determination of such appeal must include an increase for
the new windows.
Based on the entire evidence of record, the Commissioner finds that
the Administrator was not in error, and the order should be affirmed.
This order is issued without prejudice to the tenants' filing
applications with the Division for rent reductions based on a decrease
in services, if the facts so warrant.
THEREFORE, in accordance with the applicable provisions of the Rent
Stabilization Law and Code, and the City Rent Law and Regulations, it
is
ORDERED, that this Petition be, and the same hereby is denied; and
that the Administrator's order be, and the same hereby is affirmed.
ISSUED:
ELLIOT SANDER
Deputy Commissioner
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