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
      APPEAL OF                              DOCKET NO.: DL 410091-RT
                                          :  
         KORNELIA KURBJUHN,                  RENT ADMINISTRATOR'S
                                             DOCKET NO.: BF 410199-OM
                            PETITIONER    : 
      ------------------------------------X                             

            ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW

      The above-named tenant timely filed a petition for administrative review 
      against an order issued on November 2, 1989 by the Rent Administrator, 
      Gertz Plaza, Jamaica, New York, concerning the housing accommodations known 
      as 1427 Second Avenue, New York, New York.  

      The Commissioner notes that this petition is identical to petitions filed 
      under Administrative Review Docket Numbers DL 410092-RT, DL 410111-RT, DL 
      410112-RT, DL 410113-RT and DL 410172-RT which were merged and decided in 
      an order issued on March 24, 1992.

      The Commissioner has reviewed all of the evidence in the record and has 
      carefully considered that portion of the record relevant to the issues 
      raised by this petition.

      The owner commenced the proceeding below by filing an application for a 
      rent increase based on the installation of a major capital improvement 
      (MCI), to wit: new windows.

      The petitioner-tenant objected to the owner's application, claiming tenants 
      would have installed their own windows in lieu of owner's installation, and 
      requested that he be allowed to reimburse the owner for his windows.

      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 rent increases.

      In his petition, the tenant requests reversal of the Rent Administrator's 
      order and alleges, in substance, that many windows are defective, that the 
      windows are unsafe against burglars, that the tenants did not have a choice 
      of having new windows, that the old windows were in bad condition, that 
      there was no indication that the installation could result in a permanent 
      rent increase, and that it is unfair for the tenant to pay in excess of the 
      cost for the improvements.











          ADMIN. REVIEW DOCKET NO.: DL 410091-RT




      The owner interposed an answer to the tenant's petition contending, in 
      pertinent part, that the tenant's petition did not raise any relevant 
      issues and therefore should be denied, that the tenant agreed to be bound 
      by the Administrator's determination by signing his original lease which 
      notes that where an owner upon application to DHCR, is found to be entitled 
      to an increase, such determination is binding on the tenant and the owner.  
      With regard to the tenant's allegation of defective windows, the owner 
      stated that the matter will be investigated by a maintenance person.

      After careful consideration, the Commissioner is of the opinion that this 
      petition should be denied.

      Rent increases for MCI's are authorized by Section 2522.4 of the Rent 
      Stabilization Code for rent stabilized apartments.  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 evidence of record in the instant case indicates that the owner 
      correctly complied with the application procedures for an MCI, and that the 
      Rent Administrator properly computed the appropriate rent increase.  The 
      owner substantiated its application in the proceeding below by submitting 
      to the Administrator documentation in support of the application, including 
      the contractor's certification, an invoice and cancelled checks for the 
      window installation.  On the other hand, the tenant has not submitted any 
      evidence, either during the proceeding before the Administrator or on 
      appeal, to support any of his allegations and has not established that the 
      rent increase should be revoked.

      Section 2522.4 of the Rent Stabilization Code does not require the owner to 
      obtain the tenant's consent for an MCI installation.  With regard to the 
      tenant's contentions concerning the quality of the window installation, the 
      Commissioner notes that these contentions were raised for the first time on 
      appeal, and thus, cannot be considered at this stage of the proceeding as 
      this is not a de novo proceeding.

      As to the tenant's contention pertaining to the permanent nature of the 
      increases granted, the New York Court of Appeals has concluded that the 
      Rent Stabilization Law authorizes this Division to grant permanent rent 
      increases for MCI's and that the law does not limit the time during which 
      the increases can be imposed.  In the Matter of Ansonia Residents 
      Association, et al., v. DHCR, et al., 74 N.Y. 2d 604, 543 N.Y.S. 2d 397 
      (1989).

      With regard to the tenant's claim that the owner is collecting an improper 
      rent, the tenant is advised to file an individual complaint of rent 
      overcharge, if the facts so warrant.  However, such collection does not 
      constitute an error in the Administrator's order here under review.




          ADMIN. REVIEW DOCKET NO.: DL 410091-RT




      This order and opinion is issued without prejudice to the tenant's right to 
      file an application for a rent reduction based upon a decrease in services, 
      if the facts so warrant.

      THEREFORE, in accordance with the Rent Stabilization Law and Code, it is

      ORDERED, that this petition be, and the same hereby is, denied and that the 
      Rent Administrator's order be, and the same hereby is, affirmed.

      ISSUED:






                                                                    
                                           JOSEPH A. D'AGOSTA
                                       Acting Deputy Commissioner




                                                    





    

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