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.:DI430092RO
DOMINICK FAZZOLARI, RENT ADMINISTRATOR'S
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
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
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
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.
JOSEPH A. D'AGOSTA
Acting Deputy Commissioner