STATE OF NEW YORK
DIVISION OF HOUSING AND COMMUNITY RENEWAL
OFFICE OF RENT ADMINISTRATION
92-31 UNION HALL STREET
JAMAICA, NEW YORK 11433
-------------------------------------X ADMINISTRATIVE REVIEW
IN THE MATTER OF THE ADMINISTRATIVE DOCKET Nos.: EG210360RT
APPEALS OF EH210066RT EH210104RT
VARIOUS TENANTS OF EH210318RT EH210341RT
100, 110, 210 CATON AVENUE EH210479RT EJ210284RT
AND 333 MCDONALD AVENUE
BROOKLYN, NEW YORK RENT ADMINISTRATOR'S
DOCKET NO.: ZDC210149OM
ORDER AND OPINION REMANDING PROCEEDING ON APPEAL
The petitioner-tenants timely filed or re-filed petitions for
administrative review against an order issued on July 20, 1990 by
the Rent Administrator (92-31 Union Hall Street, Jamaica, New York)
concerning the housing accommodations known as 100, 110 and 210
Caton Avenue and 333 McDonald Avenue, Brooklyn, New York, various
apartments, wherein the Rent Administrator granted major capital
improvement (MCI) rent increases for the stabilized apartments in
the subject premises based on the installation of new windows at
The owner commenced this proceeding below by filing its MCI
application in March of 1989. In support of its application, the
owner submitted copies of the contract, the contractor's
certification and cancelled checks.
Several tenants objected to the owner's MCI application and
contended, in substance, that the new windows were defective; that
the former windows were not properly maintained; and that their
rents had been increased for storm windows which were installed two
years prior to the thermal window installation.
On May 21, 1990 the Rent Administrator forwarded to the owner
copies of only three tenant responses which dealt with the issue of
the replaced storm windows.
On May 29, 1990 and June 27, 1990, the owner submitted statements
admitting that 1/40th of the cost of the storm windows had been
added to the rents of those tenants who had received storm windows,
but that the storm window increase would be deducted from the
tenants' rents when the MCI was approved.
ADMIN. REVIEW DOCKET NO. EG-210360-RT
On July 20, 1990, the Rent Administrator issued the order here
under review finding that the installation qualified as an MCI,
determining that the application complied with the relevant laws
and regulations based upon the supporting documentation submitted
by the owner, and allowing rent increases for rent stabilized
The Administrator also directed the owner to stop collecting the
increase of 1/40th of the cost for storm windows from those tenants
who were paying for the same.
On appeal, the petitioner-tenants allege, in substance, that A)
their original complaints concerning defects with the new window
installation were ignored; B) one tenant stated she paid for the
replaced storm windows and should be reimbursed; C) the replaced
windows were so deteriorated that the new windows were a necessity;
D) the rent increase should not be permanent; and E) the new
windows are still defective.
In response to the tenants' petitions, the owner contended, in
substance, that it responded only to the tenant responses which it
received from DHCR; this is the first time that it received
complaints about the windows; and the new windows are of high
After a careful consideration of the entire evidence of record, the
Commissioner is of the opinion that this proceeding should be
remanded to the Rent Administrator for further consideration.
Rent increases for major capital improvements are authorized by
Section 2522.4 of the Rent Stabilization Code for rent stabilized
apartments. Under rent stabilization, the improvement must
generally be 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.
The petitioners' claim that the rent increase should be eliminated
upon the expiration of the amortization period is rejected because
the New York State Court of Appeals in the case of Matter of
Ansonia Residents Association v. DHCR ruled that the rent
regulatory laws mandate that the increase be permanent.
It is the established position of the Division that the building
wide installation of new windows, to replace windows which are 25
or more years old, constitutes an MCI for which an increase may be
warranted, provided the owner otherwise so qualifies.
In this respect, the evidence of record in the instant case
indicates that numerous tenant objections concerning the
defectiveness of the new windows, made in response to the owner's
MCI application, were not considered by the Administrator.
ADMIN. REVIEW DOCKET NO. EG-210360-RT
Since the quality of the window installation is very much in
dispute, and since the Administrator failed to adequately address
this issue, the Commissioner deems it appropriate that this
proceeding should be remanded to the Administrator for further
processing of the owner's MCI application, which processing should
consider the issue of the quality of the installation raised by the
tenants during both the proceeding before the Administrator and on
Finally, the Commissioner notes, and it is undisputed from the
record, that the owner installed storm windows in several
apartments two to five years prior to the subject thermal window
installation, for which the affected tenants received a rent
increase. It is obvious that the useful life of the storm windows
had not expired when they were unilaterally removed by the owner.
Accordingly, should it be found by the Administrator upon the
remand that the owner is entitled to an MCI rent increase, then the
owner should be directed to refund to the tenants any increase
collected for the storm windows after the effective date of said
MCI increase, if the owner has not already done so.
The order herein is issued without prejudice to the tenants' right
to file individual complaints of rent overcharge, if the facts so
THEREFORE, in accordance with the Rent Stabilization Law and Code,
ORDERED, that these petitions be, and the same hereby are, granted
to the extent of remanding this proceeding 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.
Joseph A. D'Agosta