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.:EA 110266-RT
KATHLEEN O'CONNELL, DOCKET NO.:BG 130352-OM
ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW
On January 29, 1990 the above-named petitioner-tenant timely refiled an
administrative appeal against an order issued on December 1, 1989 by the
District Rent Administrator (Gertz Plaza, Jamaica, New York) concerning the
housing accommodations known as 84-25 85th Road Woodhaven, New York,
Apartment 5A, wherein the Administrator granted major capital improvement
(MCI) rent increases for the controlled and stabilized apartments in the
subject premises based on the installation of apartment windows at the
premises. Said order provided for the payment of temporary arrears by
stabilized tenants to cover the period between the December 1, 1987
effective date and the January 1, 1990 collectibility date set forth in the
The landlord commenced the proceeding below by filing its MCI application
in July 1987. The petitioner, however, did not respond to the application.
The District Rent Administrator's order, appealed herein, stated that two
tenants responded objecting to the rent increase without any complaints
pertinent to the installation.
On appeal, the petitioner-tenant states, in substance, that she objects to
the retroactive increase; and that since rent control tenants are not
subject to paying retroactive rent increases from resolved MCI
applications, the petitioner is of the opinion that occupants of rent
stabilized units also should not be subject to this retroactivity. The
tenant also states she did not consent to the window installation.
In response to the tenant's petition, the owner filed an answer stating, in
substance, that there is no requirement for the owner to obtain the
tenants' written consent.
After a careful consideration of the entire evidence of record the
Commissioner is of the opinion that the administrative appeal should be
Rent increases for major capital improvements are authorized by Section
2522.4(2) of the current Rent Stabilization Code for rent stabilized
apartments. Under rent stabilization, the improvement must generally be
DOCKET NUMBER: EA 110266-RT
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.
Furthermore the Code specifically authorizes retroactive payments which
apply only to rent stabilized tenants and represent a temporary increase
until the full amount of such temporary arrears is paid.
With reference to the DHCR fact sheet cited by the tenant on appeal, the
Commissioner notes that the consent of a tenant in occupancy is required in
order for the owner to be eligible for a rent increase based on the
installation of new individual apartment equipment or services pursuant to
Section 2522.4(a)(1) of the Code. However, tenant consent to a major
capital improvement installation is not required nor is the owners failure
to obtain such consent sufficient to warrant revocation of the
On the basis of the entire evidence of record, it is found that the
Administrator's order is correct and should be affirmed.
THEREFORE, in accordance with the applicable provisions of the Rent
Stabilization Law and Code, the Rent and Eviction Regulations for the City
of New York, and Operational Bulletin 84-1, it is
ORDERED, that the administrative appeal be, and the same hereby is denied;
and that the Administrator's order be, and the same hereby is affirmed.
JOSEPH A. D'AGOSTA
Acting Deputy Commissioner