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.: DK430348RO
L & S EQUITIES CO.
DOCKET NO.: ZDA430141OM
ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW
The above-named petitioner-owner timely filed an administrative
appeal against an order issued on September 20, 1989 by the Rent
Administrator (92-31 Union Hall Street, Jamaica, NY) concerning the
housing accommodations known as 162 West 4th Street, New York, NY,
various apartments, wherein the Administrator denied major capital
improvement (MCI) rent increases for the controlled and stabilized
apartments in the subject premises based on the installation of 48
new windows at the premises.
This proceeding was commenced on January 9, 1989 by the owner
filing an application for Major Capital Improvement (MCI) rent
increases for the installation of 48 new windows. The owner
indicated in the application that the total number of windows in
all apartments in the building is 87, that 48 new windows had been
installed in April of 1988, 5 new windows had been installed in
1983 and 34 new windows had been installed in April of 1986. The
owner submitted documentary evidence in support of the application.
Various tenants responded stating, among other things, that they
were already paying a rent increase for windows installed, with
their consent, in 1986.
On September 20, 1989, the Rent Administrator issued an order which
disallowed rent increases for the new window installation based on
a determination that said installation did not constitute an MCI.
On appeal, the owner contends, in substance, that all of the
windows have been replaced; that it was not requesting a rent
increase for the windows which were previously installed; and that
it was moved to make the current installation because of other
exterior work performed at the subject premises.
After a careful consideration of the entire evidence of record the
Commissioner is of the opinion that the administrative appeal
should be denied.
ADMIN. REVIEW DOCKET NO. DK-430348-RO
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 the 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.
It is the established position of the Division that the building-
wide installation of new apartment windows and/or public area
windows to replace windows which are 25 or more years old
constitutes a major capital improvement for which a rent increase
adjustment may be warranted, provided the owner otherwise so
qualifies. In this respect, the Commissioner notes that work of a
piecemeal nature or ordinary repairs and maintenance does not
qualify as a major capital improvement.
However, in recognition of the fact that there are limited
circumstances where the replacement of all windows would be an
unnecessary and unwarranted expense, the Commissioner has adopted
the position that where an owner has earlier installed new windows
the condition of which are such that their replacement is not
required or due to the special characteristics of certain other
windows which are clearly of a distinct and different nature, that
the subsequent replacement of all other apartment windows totalling
at a minimum at least 80% of the total number of apartment windows
in the building as part of a unified plan and consecutively timed
project complete within a reasonable time frame would substantially
comply with the requirement of a major capital improvement.
In this proceeding, a review of the record, including documentation
and information submitted by the owner, indicates that of the 87
apartment windows at the subject premises, 48 new windows or 55%
were installed in 1988 and 39 new windows were installed in 1983
and 1986, according to the owner. Accordingly, the Commissioner
finds that the Administrator properly disallowed rent increases for
the new window installation based upon the fact that the subsequent
window installation (in 1988) consisted of the replacement of less
than 80% of the total number of apartment windows in the building.
ADMIN. REVIEW DOCKET NO. DK-430348-RO
THEREFORE, in accordance with the provisions of the Rent and
Eviction Regulations and the Rent Stabilization Law and Code, it is
ORDERED, that this petition be, and the same hereby is, denied, and
the order of the Rent Administrator be, and the same hereby is,
Joseph A. D'Agosta