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.:DI430092RO
                                          :  
         DOMINICK FAZZOLARI,                 RENT ADMINISTRATOR'S
                                             DOCKET NO.:CL430192OM
                            PETITIONER    : 
      ------------------------------------X                             

            ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW

      On July 19, 1989, the above-named petitioner-owner filed an administrative 
      appeal against an order issued on June 12, 1989 by the District Rent 
      Administrator (92-31 Union Hall Street, Jamaica, New York) concerning the 
      housing accommodations known as 134 West Houston Street, New York, New 
      York, Various Apartments.

      This proceeding was commenced on December 21, 1988 by the owner filing an 
      application for Major Capital Improvement (MCI) rent increases for the 
      installation of a new roof and new windows.  The owner indicated in the 
      application that the total number of windows in all apartment in the 
      building is 34, that 23 new windows had been installed in November, 1988 
      and that 11 new windows had been installed the prior year.  The owner 
      submitted documentary evidence in support of the application.

      Two tenants submitted responses to the application objecting to any rent 
      increase.

      On June 12, 1989, the Rent Administrator issued an order granting MCI rent 
      increases for the controlled and stabilized apartments in the subject 
      premises based on the new roof installation and disallowed rent increases 
      for the new window installation based on a determination that said 
      installation did not constitute an MCI.

      In his appeal, the owner contends, in substance, that all of the windows 
      have been replaced and requests a rent increase based thereon.

      One tenant submitted a response to the petition objecting to the rent 
      increase.

      The Commissioner is of the opinion that this petition should be denied.

      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 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 









          DOCKET NUMBER: DI 430092-RO
      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 34 apartment 
      windows at the subject premises, 23 new windows, or 68% were installed in 
      1988 and 11 new windows were installed the prior year, 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.

      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, affirmed.

      ISSUED:






                                                                    
                                           JOSEPH A. D'AGOSTA
                                       Acting Deputy Commissioner




                                                    
       
    

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