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.: EA430035RT
VARIOUS TENANTS, RENT ADMINISTRATOR'S
DOCKET NO.: BD410513OM
ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW
The above named petitioner-tenants filed a Petition for
Administrative Review against an order issued on December 1, 1989
by the Rent Administrator, (Gertz Plaza) concerning housing
accommodations known as 231-237 Second Avenue, New York, various
apartments, 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 a
boiler/burner, a new roof and an intercom system at the premises.
The owner commenced the proceeding below by filing its MCI
application in April, 1987.
In response to the application, various tenants (3) filed answers
alleging the following: (a) the boiler/burner was improperly
maintained; and (b) it is the responsibility of the owner to
provide an operative intercom system and a non-leaking roof. The
tenants also stated that renovations to an apartment attributed to
the intercom damage.
On December 1, 1989 the Administrator issued the order appealed
herein granting, in part, the owner's application. Denied was the
claimed cost for steam cleaning of the building, not qualifying as
a major capital improvement.
On appeal, the petitioner-tenants reiterate, in substance, prior
allegations to the effect that a dormant intercom was merely
repaired not replaced and several "long term" tenants recall that
the intercom had been damaged by workmen; the replacement of the
heating system was due to improper maintenance; and the roof was
only covered with tar paper. Furthermore, the tenants question the
total room count used for computing the rent increase.
In response to the tenants' petition, the owner filed an answer
stating, in substance, that the roof and boiler/burner allegations
stated by tenants does not prejudice the owner's right to collect
an MCI rent increase; that the record already contains evidence
such as a sworn statement from the contractor certifying the scope
of the intercom replacement, an invoice from the contractor, and
the Supplement I portion of the application signed by the
ADMIN. REVIEW DOCKET NO.: EA430035RT
contractor; and that the rent increase of each apartment was based
upon room count information already on file with the DHCR as part
of the building registration data.
After a careful consideration of the entire evidence of record, the
Commissioner is of the opinion that the administrative appeals
should be denied.
Rent increases for major capital improvements are authorized by
Section 2202.4 of the Rent and Eviction Regulations for rent
controlled apartments and Section 2522.4 of the Rent Stabilization
Code for rent stabilized apartments. Under rent control, an
increase is warranted where there has been since July 1, 1970 a
major capital improvement required for the operation, preservation,
or maintenance of the structure. 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.
It is the established position of the Division that the type of
work recognized in the Administrator's order meet the definitional
requirement of a MCI for which a rent increase may be warranted if
the owner otherwise so qualifies. In this respect the Commissioner
notes that it was the policy of the DHCR that a roof cap sheet of
the type involved herein qualified as a new roof at the time the
work in question was performed. It further appears from the record
that the prior heating system had exhausted its useful life and
that intercom and roof were in such condition that their
replacement was required for the continued operation, preservation
and maintenance of the structure.
The record discloses that the owner's application complied with all
procedural and factual requirements for a MCI, including the
submission of contracts, contractor's certifications, cancelled
checks, and requisite government approvals and sign-offs for the
boiler/burner installation. The tenants' unsubstantiated
allegations regarding the prior intercom are insufficient to refute
the supporting documentation submitted by the owner.
With respect to the tenants' allegation concerning excessive room
count, the Commissioner notes that the Administrator made specific
inquiry of the owner, as to this issue and the owner is cautioned,
in accordance with Policy Statement 90-3, that it may not collect
an increase based on a greater number of rooms as defined for MCI
purposes as exist in any individual apartment, and that any
miscount of rooms is the responsibility of the owner.
Pursuant to Policy Statement 90-3, a room is defined as follows:
a) A windowless kitchen containing at least 59 square
ADMIN. REVIEW DOCKET NO.: EA430035RT
b) An enclosed area with window containing at least 60
square feet, or
c) An enclosed area without window containing at least
80 square feet. Bathroom, walk-in closets, etc., are
The tenants are advised that the determination herein is without
prejudice to the right to file complaints with this Division based
on a rent overcharge, if the facts so warrant.
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
JOSEPH A. D'AGOSTA