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   ADMINISTRATIVE REVIEW
          IN THE MATTER OF THE ADMINISTRATIVE     DOCKET NOS.:  EC110302RT
          APPEALS OF                              EC110604RT/   EC130562RT  
                    VARIOUS TENANTS OF            EE110397RT/   EE130390RT
                    30-60 29TH STREET
                    ASTORIA, NEW YORK
                                                  RENT ADMINISTRATOR'S
                                  PETITIONERS     DOCKET NO:  BG130265OM 
          ------------------------------------X

            ORDER AND OPINION DENYING PETITIONS FOR ADMINISTRATIVE REVIEW
           DOCKET NOS.  EC110302RT, EC110604RT, EC130562RT, AND EC110397RT 
               AND REMANDING THE PETITION UNDER DOCKET NO.  EE130390RT

          Various tenants timely filed or re-filed petitions for 
          administrative review (PAR's) against an order issued on February 
          28, 1990, by the Rent Administrator (Gertz Plaza) concerning the 
          housing accommodations known as 30-60 29th Street, Astoria, New 
          York, various apartments, wherein the Rent Administrator determined 
          that the owner was entitled to a rent increase based on 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 owner commenced this proceeding on July 23, 1987, by filing an 
          application for an MCI rent increase predicated on the building- 
          wide installation of new windows.

          The order of the Rent Administrator, appealed herein, granted the 
          owner's application and authorized rent increases for the rent 
          controlled and rent stabilized apartments based upon total approved 
          costs of $79,220.00.  Said order contains the notations that in 
          response to the owner's application several tenants objected to the 
          increase; that the tenants of Apts.  C9, D8, E2, F11 and B6 alleged 
          drafty windows and difficulties in opening and closing windows; 
          that the owner was notified of the tenants' complaints and 
          responded that all necessary repairs were carried out; and that 
          subsequent notices mailed to the tenants elicited two responses 
          (Apts. D8 and F11) advising that the owner made repairs to their 
          windows but that the windows in Apt. D8 need caulking.  The 
          Administrator's order directed the owner to do the necessary 
          caulking of the windows in Apt.  D8. 














          ADMIN.  REVIEW DOCKET NO.  EC110302RT et.  al 

          In their petitions for administrative review, the tenants request 
          reversal or modification of the Administrator's order and contend, 
          in substance, that she is a senior citizen and objects to the 
          amount of the increase (Apt.  A5); that sixty (60) year old windows 
          were replaced with new windows which slide down when they are 
          supposed to be locked (Apt.  B11); that the windows are drafty and 
          they raise and fall by themselves (Apt. D8); that there are water 
          leaks at the top of the windows in two rooms and the owner has done 
          nothing to correct such conditions (Apt.  F10); that the owner has 
          received a tax abatement from the City of New York for the window 
          replacement; that the owner should not be charging rent controlled 
          tenants any retroactive rent increases; that the rent stabilized 
          tenants should benefit from the tax abatement; that the tenants 
          should not have to pay for windows that have been installed in 
          common spaces such as stair towers, lobby and vestibule; and that 
          only the cost of windows in the apartments should be counted 
          (Tenants' Association).  The Tenants' Association also listed 
          specific-window related problems in some apartments which have not 
          been addressed by the owner of the building: Apt.  A9-locks are 
          bent; B3-bedroom window glass is cracked; B6-large bedroom window 
          sash does not lock because upper window sash drops when unlocked; 
          C6-screens are broken on bedroom windows and windows are hard to 
          open; C10-living room window jams; D5-outside of windows cannot be 
          cleaned; E2-bedroom window sash drops by itself when opened; E6- 
          window locks cannot be opened due to excessive pressure on locking 
          mechanism, windows drop on their own after being opened and screen 
          is broken on bedroom window; F2-living room window glass is cracked 
          and window cannot be opened; and F7-window sash is too heavy and 
          the windows cannot be cleaned.

          After a careful consideration of the entire evidence of record, the 
          Commissioner is of the opinion that the administrative appeals 
          under Docket Nos.  EC110302RT, EC110604RT, EC130562RT, and 
          EE110397RT should be denied and the petition under Docket No.  
          EE130390RT should be remanded for further processing. 

          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 and replace an item whose useful life has expired.
          Operational Bulletin 84-4 provides, in pertinent part, that the


          ADMIN.  REVIEW DOCKET NO.  EC110302RT et. al.







          building-wide installation of windows whose useful life has expired 
          constitutes a major capital improvement for which a rent increase 
          would be warranted.  The record discloses that the owner 
          substantiated its application by submitting to the Administrator a 
          copy of the proposal, invoice, contractor's certification and 
          cancelled checks for the work in question.

          With respect to some of the tenants' contentions regarding defects 
          with the windows, the Commissioner notes that the following 
          petitioners (Apts A5, A9, B3, B11, C6, C10, D5, F2, F7, F10, and 
          E6) raised no objections to the quality or adequacy of the window 
          installation while this proceeding was before the Administrator 
          although afforded the opportunity to do so.  Accordingly, pursuant 
          to Section 2529.6 of the Rent Stabilization Code and the principles 
          of administrative law and due process, the tenants' allegations may 
          not be considered now when offered for the first time on 
          Administrative Appeal.  However, the owner is directed to correct 
          any defective conditions with the windows brought to its attention 
          in writing, if it has not already done so.  The determination 
          herein is without prejudice to the rights of the tenants filing 
          appropriate applications with the Division for a rent reduction 
          based upon a decrease in services, if the facts so warrant.

          As to the contention of the tenant in Apt. D8, the record discloses 
          that such tenant failed to keep two appointments on May 26 and June 
          15, 1994 with the Division's inspector to determine whether the 
          windows are defective.

          Regarding the contentions of the tenants in Apts B6 and E2 with 
          respect to window defects, the record discloses that prior to the 
          issuance of the Administrator's order, the Division sent inquiries 
          regarding windows to these tenants and they did not submit 
          responses.
            
          Turning to the contention that the tenants should not have to pay 
          for windows installed in common spaces, the Commissioner notes that 
          Policy Statements 89-6 states, in pertinent part, that when an 
          owner replaces either all the windows in a building or all 
          apartment windows or all hallway and common area windows, the cost 
          is allowed to be passed on to the tenants under the MCI program.

          The Commissioner is not unmindful of the possibility that the rent 
          increase may prove burdensome to some tenants.  However, the 
          Commissioner is constrained by the applicable statutory and 
          regulatory provisions to grant such increases as are warranted and  
          the Commissioner notes that if the MCI increase caused the rent of 
          any Senior Citizen to exceed one third (1/3) of his or her total 



          ADMIN.  REVIEW DOCKET NO.  EC110302RT  et. al

          disposable household income, such tenant may apply for a Senior 
          Citizen Rent Increase Exemption (SCRIE) to the NYC Department of 












          the Aging by calling (212) 240-7000. 

          Concerning the contention that tax abatements which were granted 
          for the subject improvement should have been taken into account, 
          the record indicates that the owner was granted a tax abatement for 
          windows as evidenced by a Certificate of Eligibility dated October 
          26, 1989, which was issued by the Department of Housing 
          Preservation and Development.  The Commissioner notes that the  
          owner's application for or receipt of a J-51 tax benefit based on 
          the subject improvement does not preclude the entitlement to a 
          major capital improvement rent increase therefor.  Though rent 
          stabilized tenants may presently share in the benefits of a tax  
          abatement received by an owner pursuant to J-51 of a the 
          Administrative Code, this provision does not apply to the rent 
          stabilized tenants in the instant matter as the law is applicable
          to improvement work commenced after June 28, 1988, and is not 
          retroactive.  However, tenants of rent controlled apartments are 
          entitled to share in such tax abatement benefits.  Accordingly, the 
          Commissioner deems it appropriate to remand the petition under 
          Docket No.  EE130390RT to the Administrator for the sole purpose of 
          computing such  tax abatement benefits. 

          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 petitions under Dockets Nos.  EC110302RT, 
          EC110604RT, EC130562RT, and EE110397RT be, and the same hereby are 
          denied; and that the petition under Docket No.  EE130390RT be, and 
          the same hereby is granted to extent of being remanded to the Rent 
          Administrator for further processing in accordance with this order 
          and opinion.  The order and determination of the Administrator 
          remains in full force and effect until a new order is issued on 
          remand.  

          ISSUED:




                                                                          
                                                  JOSEPH A. D'AGOSTA
                                                  Deputy Commissioner







































































































































    

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