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
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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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