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 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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