STATE OF NEW YORK
DIVISION OF HOUSING AND COMMUNITY RENEWAL
OFFICE OF RENT ADMINISTRATION
92-31 UNION HALL STREET
JAMAICA, NEW YORK 11433
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
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
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.
JOSEPH A. D'AGOSTA
Acting Deputy Commissioner