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 DOCKET NO.: EA110242RT
APPEAL OF EB110362RT, EE130208RT
VARIOUS TENANTS OF
89-07 169TH STREET
JAMAICA, NEW YORK RENT ADMINISTRATOR'S
PETITIONERS DOCKET NO: DA130117OM
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ORDER AND OPINION DENYING PETITIONS FOR ADMINISTRATIVE REVIEW
On various dates the above-named petitioner-tenants timely filed
and refiled administrative appeals against an order issued on
January 19, 1990, by the Rent Administrator 92-31 Union Hall
Street, Jamaica, New York concerning the housing accommodations
known as 89-07 169th Street, Jamaica, New York, various apartments,
wherein the Rent Administrator determined that the owner was
entitled to a rent increase based on the installation of a major
capital improvement (MCI).
The Commissioner deems it appropriate to consolidate these
petitions for disposition since they pertain to the same order and
involve common issues of law and fact.
The Commissioner has reviewed all of the evidence in the record and
has carefully considered that portion of the record relevant to the
issues raised by these administrative appeals.
The owner commenced this proceeding on January 31, 1989 by
initially filing an application for a rent increase based on
repiping and bathroom modernization at a total cost of $173,747.54.
Nineteen tenants responded with specificity to the owner's MCI
application claiming, in substance, the following: low water
pressure; newly installed vanities and toilets are too small; the
bathtub and shower were not replaced; there are cracks in the
bathroom tile; the sewer pipes were not replaced; and miscellaneous
other items of complaints related to the plumbing.
In response to these complaints the owner provided sixteen signed
acknowledgements from tenants of corrective repairs having been
made to their apartments and affidavits by the owner to the effect
that remaining apartments were inspected and the equipment found to
be in working order.
ADMIN. REVIEW DOCKET NO.: EA110242RT et. al.
A physical inspection of the subject premises occurred on
December 28 and December 29, 1989 wherein the inspector found
deficiencies in the bathroom tile work for apartments 1-G, 1-K,
2-F, 5-L and 6-E; and that the sink in Apt. 3-B had not been
replaced.
On January 19, 1990, the Rent Administrator issued the order
(Docket No. AD630168OM) here under review, finding that the
repiping and bathroom modernization qualified as MCIs,
determining that the application to that extent complied with
the relevant laws and regulations based upon the supporting
documentation submitted by the owner, and allowing rent
increases for rent controlled and rent stabilized tenants.
Noted therein were temporary rent increase exemptions for Apts.
1-G, 1-K, 2-F, 3-B, 5-L, 6-E based on DHCR's earlier
inspections.
In the petition (EE130208RT) filed by the tenant of apartment
5-K on his own behalf and various tenants it is alleged, in
substance, the following: the old toilets and sinks were
functional and their replacement unnecessary; the new toilets
and sinks are smaller and not comparable to the old ones; that
although the tenants were ordered to remove their washing
machines due to the deteriorated plumbing condition no
improvement occurred from the new plumbing work; the
installations have resulted in a decrease in service; and that
an inspection should be performed to determine the validity of
their complaints.
The tenant of apartment 3-C, (EB110362RT), and the tenants of
apartments 2-M and 4-M, (EA110242RT), in their petitions
contend in substance, the following: (Apt. 3-C) that a
bathroom vanity was not installed in his apartment; that the
owner's application failed to list apartment 1-H, a doctor's
office, as either commercial or professional; that no rent
increase should be imposed since his November 1988 lease
expired without a lease renewal being offered; and that the
owner failed to file the annual rent registration for 1989 and
is thereby further barred from collecting any rent increases.
(Apts. 2-M and 4-M) that the amount of pipes replaced was
minimal; that repeated flushing is necessary at all times; the
bathroom modernization failed to include the walls and floors,
the latter being in a deteriorated condition; that towel
holders were either removed and not replaced and or remain
broken. Various allegations presented in Tenants' Association
petition are reiterated in the above individually filed
tenant's petition.
2
ADMIN. REVIEW DOCKET NO.: EA110242RT et. al.
The owner responded to each petition separately and states, in
substances, the following: the old pedestal sinks were 50 years
old and wasted space in contrast to the new sinks and vanity
tops which, although smaller, hold about the same amount of
water and provides storage space; the tenants' leases contain
a provision precluding the use of washing machines and no
promises were made to tenants concerning the use of their
washing machines following the repiping; new vanities were
installed in all apartments including apartment 3-C; Apt. 1-H
is a legal rent stabilized apartment, registered annually,
however it is being used as a professional office by a doctor;
renewal leases were offered to the tenant of apartment 3-C; the
subject premises is registered for 1989 (proof of registration
was attached); the tenants were afforded an opportunity to
object to the MCI application prior to the rent increase taking
effect; the bathroom modernization was an improvement
benefitting the tenants; and the petition filed for apartment
4-M lists an individual who is not a tenant of said unit.
After a careful consideration of the entire record the
Commissioner is of the opinion these petitions should be
denied.
It is the established position of the division that the
installation of new copper plumbing an a building-wide basis as
well the installation of new bathroom equipment performed in
conjunction therewith, is a major capital improvement for which
a rent increase adjustment may be warranted, if the owner
otherwise so qualifies.
A review of the record in this proceeding discloses that the
scope of the repiping work as described in the plumbing
contract (Parkset Plumbing Inc, Co.) more than satisfied the
minimum requirement prescribed by DHCR for this type of
installation. The record further discloses that the owner
submitted to the Administrator various substantiating
documentation including copies of the contract, contractor's
certification, cancel checks and governmental sign-off from the
agency having jurisdiction thereof.
The Administrator's order was issued after a physical
inspection and review of tenant objections to the application.
In this connection the Commissioner notes that an attempt was
made to inspect apartment 5-K and the tenant advised that he
had "no complaints" with respect to the subject installations;
and that the tenants of apartments 3-C, 2-M and 4-M failed to
respond or raise any material objection to the owner's
application, although afforded the opportunity to do so.
ADMIN. REVIEW DOCKET NO. EA110242RT
Fundamental principals of the administrative appeal process
precludes a party from raising on appeal issues for the first
time on appeal which could have been raised before the
Administrator.
Nevertheless, the Commissioner deems it appropriate to note
that the gravamen of the tenants' complaints appear to pertain
to size of the newly installed bathroom fixtures. In this
respect the Division has recognized that a bathroom vanity
(which affords additional storage space) may be installed in
lieu of a sink; and that the smaller toilet tanks appear
consistent with the generally accepted public policy of
conserving water resources.
The records of the Division show that apartment 1-H has been
registered with the Division as a stabilized unit on an annual
basis and that the rental value of such apartment is such as to
not materially impact upon the Administrator's determination
and the rent increase provided for therein. Moreover, a review
of Division records confirm that the subject premises including
apartment 3-C was and is registered with the Division.
The records of the Division further discloses that various
services complaints filed by tenants shortly after the
Administrator's order was issued were found not to warrant
relief and the report of a physical inspection conducted on
July 25, 1991, with respect to apartment 6-E, disclosed that
the toilet flushes properly, the bathroom sink is properly
mounted and does not leak; and that water pressure throughout
the apartment is adequate.
Based upon the entire record, the Commissioner finds that the
Administrator's order is correct and should be affirmed.
The owner is hereby directed to install a new bathroom vanity
in apartment 3-C, if it has not already done so, and the
determination herein is without prejudice to the right of the
tenants or any one of them filing an appropriate complaint with
the Division based on the owner's failure to maintain services,
if the facts now so warrant.
THEREFORE, in accordance with the provisions of the Rent
Stabilization Law and Code and the Rent and Eviction
Regulations for New York City, it is
ADMIN. REVIEW DOCKET NO. EA110242RT
ORDERED, that these petitions for administrative review be, and
the same hereby are denied; and that Administrator's order be;
and the same hereby is affirmed. Tenants who owe the
retroactive portion of the rent increase which was stayed by
the filing of these petitions for Administrative Review may pay
such retroactive increase in installments from the issuance
hereof subject to the terms and restrictions on collectibility
contained in the Administrator's order.
ISSUED:
JOSEPH A. D'AGOSTA
Deputy Commissioner
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