DHCR Decisions
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
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IN THE MATTER OF THE ADMINISTRATIVE : ADMINISTRATIVE REVIEW
APPEAL OF DOCKET NOS.: EB 230353-RT
: EB 220141-RT; EB 210239-RT;
WEST REALTY CO., & EB 220240-RT; EB 220241-RT
VARIOUS TENANTS OF 1602 EC 220054-RT; EC 220137-RT
WEST 10TH STREET, PETITIONERS :
------------------------------------X DRO DOCKET NO.: ZBC-230244-OM
ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW
NO. EC 220137-RT, AND REMANDING ALL OTHER PROCEEDINGS ON APPEAL
On February 9, 1990 the above-named petitioner-owner, and on February 16,
February 20, February 22, February 26, March 2 and March 12, 1990 the
above-named petitioner-tenants, filed Petitions for Administrative Review
against an order issued on February 5, 1990 by the Rent Administrator, 92
31 Union Hall Street, Jamaica, New York concerning the housing
accommodations known as 1602 West 10th Street, New York, New York,
various apartments, wherein the Rent Administrator granted rent increases
based on the installation of new windows building-wide and a new oil
burner/boiler. The order noted that various tenants had complained of
drafty, inoperable windows; that a July 5, 1989 inspection had found 9
apartments with windows that were difficult to open; that subsequent
inquires mailed to various tenants on September 25, 1989 revealed that
their complaints had not been dealt with; that a re-inspection on January
22, 1990 found the same conditions that existed during the previous
inspection; that the tenants of 2 apartments (3A and 5G both petitioners
herein) failed to keep both appointments; and that the owner was barred
from collecting any windows increases from the tenants of 7 apartments
(including 5G) until satisfactory repairs were made.
These proceedings are being consolidated as they involve common grounds of
law or fact.
The applicable sections of the Law are Sections 2522.4 and 2527.2 of the
Rent Stabilization Code and Sections 2202.4 and 2207.2 of the Rent and
Eviction Regulations for New York City.
The issue herein is whether the Rent Administrator's order was warranted.
In her petition the tenant of apartment 1G (Docket No. EB 220141-RT)
contends in substance that her windows are defective in that she is unable
to move them. She has also enclosed a copy of a service decrease
complaint, bearing the docket number of the Administrator's order and
dated one week prior to the date on her petition, in which she contends
among other things that she had by agreement with the owner been paying
$4.00 per month, compounded by Guidelines increases, since 1957 for storm
DOCKET NUMBER: EB 230353-RO et.al
windows until the total cost was repaid, that this increase was not taken
into consideration for the new windows although she had been assured by a
representative of the owner that it would be, and that the building and
grounds are poorly kept up because the superintendent is rarely available
and performs work only when directed to do so by the owner.
In his petition the tenant of apartment 5E (Docket No. EB 210239-RT)
contends in substance that his windows either stick or fall down; that his
kitchen screen falls down; and that he should not have to pay for
defective windows. In answer, the owner asserts in substance that the
windows are not defective. In response, the tenant contends in substance
that the windows do not operate freely, and that an inspection is
necessary.
In her petition the tenant of apartment 4G (Docket No. EB 220240-RT)
contends in substance that her windows are defective; that her apartment
was originally inspected but not, unlike some other apartments whose
tenants do not have to pay a rent increase for windows until windows have
been repaired, reinspected; and that she should not have to pay a rent
increase for windows. In answer, the owner asserts in substance that the
tenant signed a document stating that all her complaints were taken care
of. With its answer the owner has enclosed an undated document signed by
the tenants of 10 apartments (including 4G, the other apartment that
missed an inspection appointment, and the 7 apartments for which a windows
rent increase could not be collected until repairs were made) that all
complaints under Docket No. BC 230224-OM had been taken care of by the
superintendent. Since the document is undated it is not possible to tell
whether it was signed before or after the tenant filed her petition.
In his petition the tenant of apartment 6A (Docket No. EB 220241-RT)
contends in substance that he originally complained about defective
windows in answer to the owner's application and that, similarly to only
certain other tenants, he should not have to pay a rent increase for
them. With his petition the tenant has enclosed a copy of his December
22, 1988 answer, in which he stated that all 8 windows in his apartment
were drafty, inoperable and of inferior quality. The owner did not submit
an answer to this tenant's petition.
In her petition the tenant of apartment 3A (Docket No. EC 220054-RT)
contends in substance that she is unable to move her windows up or down;
that this was, as noted in the Administrator's order, confirmed by an
inspection; that she was out-of-state during a reinspection; and that she
has filed a service reduction complaint in Docket No. CL 220094-S. (On
March 16, 1990 a $3.00 rent reduction was ordered in that case, based on a
December 5, 1988 complaint and a March 5, 1990 inspection, because of a
living room window that slides down when fully open.)
In her petition the tenant of apartment 5G (Docket No. EC 220137-RT)
contends in substance that the owner is getting reimbursed in several ways
(depreciation deduction, energy deduction, fuel cost savings, and annual
7 1/2% increases on the M.C.I. increases) for an installation which she
did not even request. In answer, the owner asserts in substance that the
tenant's arguments are beside the point, as the requirements for an M.C.I.
increase were met.
DOCKET NUMBER: EB 230353-RO et.al
In its petition (Docket No. EB 230353-RO), the owner asserts in substance
that it is a DHCR rule that minor defects not involving matters of safety
are not a bar to an M.C.I. rent increase, and that it is enclosing a
letter signed by the tenants stating that repairs were made. While the
file for this appeal does not contain such a letter, it is presumed that
the letter is the same as the undated letter submitted by the owner in its
answer in Docket No. EB 220240-RT.
In answer to the owner's petition, the tenant of apartment 3C contends in
substance that he has been informed that he does not have to pay an
increase for windows; that he has had two inspections; and that he
believes the windows will never work correctly, since they have been
sprayed and are still impossible to work.
The Commissioner is of the opinion that the petition in Docket No. EC
220137-RT should be denied, and that all the other proceedings should be
remanded to the Rent Administrator.
Sections 9 NYCRR 2202.4 of the Rent and Eviction Regulations for New York
City and 9 NYCRR 2522.4 of the Rent Stabilization Code provide, in
pertinent part, that an owner qualifies for a rent increase where there
has been a building-wide major capital improvement which is deemed
depreciable under the Internal Revenue Code, other than for ordinary
repairs. Based on the improvements made herein consisting of the
installation of a new boiler and burner and vinyl thermal replacement
windows and the fact that the cost of such installations were
substantiated by the owner, the Rent Administrator concluded that the
owner met the requirements of the Regulations and the Code and granted
rent increases for the improvements. However, to warrant rent increases,
improvements must be installed in a workmanlike manner using materials of
adequate quality. In the proceeding before the Administrator
approximately one-fourth of the tenants in the building complained of
problems with their new windows. An inspection of the 10 apartments whose
tenants were home on June 30 or July 5, 1988 revealed problems with one or
more windows in all 10 apartments. The tenants of 8 of those apartments
were available for another inspection in January,1990. While there was
some improvement in most apartments, enough problems remained in 7 of the
8 apartments that the Administrator disallowed a rent increase for those
based on the installation of new windows in them until the windows were
repaired. A March 5, 1990 inspection of Apartment 3A (which was not
reinspected in January, 1990) in a service decrease proceeding found a
defective window. An inspection of apartment 5E (whose tenant was not
home for the 1988 inspection) on May 31, 1991 revealed a need of caulking,
one warped screen, and the inability to lock one window. Given the
results of these inspections there is some question as to whether the
quality of the windows and/or their installation was adequate enough such
as to justify a rent increase for new windows in the building. This
proceeding is being remanded for a new determination as to whether the
owner should have been granted a building-wide increase for new windows.
While only some of the tenants raised objections concerning the windows,
the Administrator may reconsider the rent increase for all apartments by
virtue of the authority granted by Section 2527.2 of the Rent
Stabilization Code and Section 2207.2 of the Rent and Eviction Regulations
for New York City. An inspection should be made of the windows in at
least a sampling of apartments, which should include at least those
DOCKET NUMBER: EB 230353-RO et.al
apartments whose tenants complained about the windows either in the
earlier proceeding or on appeal: namely, Apartments 1E,1G,2H, 3A,3C,
4E,4G, 5A, 5D, 5E, 5G, 6A, 6F, and 6G.
The petition in Docket No. EC 220137-RT is being denied because the tenant
is not complaining about the functioning of the windows but only about the
owner being compensated for the cost of the windows by fuel cost savings,
depreciation deductions, energy deductions and annual 7 1/2% increases.
While the Rent Stabilization Code and the Rent and Eviction Regulations do
recognize a limited number of financial factors which may affect an
owner's entitlement to an M.C.I. increase (such as payment being made from
the reserve fund of a cooperative), the factors cited by the tenant are
not among those that might affect the owner's entitlement to a rent
increase.
The Commissioner does not consider the undated letter signed by the
tenants of 10 apartments (referred to by the owner in its petition [Docket
No. EB 230353-RO] and enclosed in answer to Docket No. EB 220240-RT) to be
determinative of the question of whether the owner should be entitled to a
building-wide rent increase for new windows, particularly since 3 of those
tenants (Apartments 3A, 3C and 4G) claim in petitions or in answer to the
owner's petition that their windows are still defective, and 3 other
tenants (Apartments 1G, 5E and 6A) have also filed petitions alleging
defective windows. Two of the apartments (3A and 5E) have been inspected
since the owner submitted the letter; both were found to have defective
windows.
THEREFORE, in accordance with the Rent Stabilization Law and Code and the
Rent and Eviction Regulations for New York City, it is
ORDERED, that the petition in Docket No. EC 220137-RT be, and the same
hereby is, denied and that all other petitions be, and the same hereby
are, granted to the extent of remanding these proceedings to the Rent
Administrator for further processing in accordance with this order and
opinion. The automatic stay of so much of the Rent Administrator's order
as directed a retroactive rent increase is hereby continued until a new
order is issued upon remand. However, the Administrator's determination
as to a prospective rent increase is not stayed and shall remain in effect
until the Administrator issues a new Order upon remand.
ISSUED:
ELLIOT SANDER
Deputy Commissioner
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