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 NO.: EK110353RT
APPEALS OF EK110355RT
OLIVER WOLF &
JOANNE BREITMAN
RENT ADMINISTRATOR'S
PETITIONERS DOCKET NO.: DB130031OM
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ORDER AND OPINION DENYING PETITIONS FOR ADMINISTRATIVE REVIEW
The above-named petitioner-tenants timely refiled petitions for
administrative review (PARs) against an order issued on August 30,
1990 by the Rent Administrator (Gertz Plaza) concerning the housing
accommodations known as 123-60 80 Avenue, Kew Gardens, New York,
various apartments, wherein the Rent Administrator determined that
the owner was entitled to a rent increase based on a major capital
improvement.
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. Furthermore, 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 February 28, 1989 by
initially filing an application for a major capital improvement
rent increase predicated on the installation of new replacement
windows at a total claimed cost of $201,188.00. In support of his
application, the owner submitted copies of the contract and
cancelled checks.
Various tenants submitted responses objecting to the owner's
application but failed to make any complaints pertinent to the
installation.
On August 30, 1990 the Rent Administrator issued the order here
under review, finding that the installation of new replacement
windows qualified as a major capital improvement, 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 both rent controlled and rent
stabilized apartments based upon an approved cost of $201,188.00.
ADMIN. REVIEW DOCKET NO.: EK110353RT; EK110355RT
In his petition for administrative review, under docket number
EK110355RT, the tenant of apartment 4J contends, in substance, that
he signed a lease in April 1989; that said lease made no mention of
a pending major capital improvement application; and that he was
unaware of the possibility of an increase for new windows that were
already installed when he moved into the apartment in May 1989.
In answer to the tenant's petition, the owner argues that the
tenant's complaints are unfounded and should, therefore, be
dismissed; that the statement made by said tenant is false; and
that the tenant's vacancy lease did contain specific reference to
the pending application under docket number DB130031OM. A copy of
said lease was also submitted by the owner to justify its position.
No response was received with respect to the owner's answer, a copy
of which was served on the tenant.
In the petition, under docket number EK110353RT, the tenant of
apartment 11R contends, in substance, that the rent increase and
retroactive amounts were calculated for her apartment based on a
four-room room count while her apartment only has two rooms; that
she was not given an option regarding the installation; that she
was not given adequate information by the owner with regard to the
requested increase; and that the installation of the windows would
not have been necessary if the old windows were properly
maintained.
After a careful consideration of the entire evidence of record, the
Commissioner is of the opinion that these petitions should be
denied.
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 Commissioner notes that the installation of new replacement
windows qualify as a major capital improvement for which an
increase may be warranted, providing the owner otherwise so
qualifies. The record indicates that the owner correctly complied
with the applicable procedures for a major capital improvement.
With regard to the claim made by the tenant of Apt. 4J under docket
number EK110355RT to the effect that the first lease he signed made
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ADMIN. REVIEW DOCKET NO.: EK110353RT; EK110355RT
no mention of a pending major capital improvement application, the
Commissioner notes that Sections 2522.5(d) (2) and (4) of the Rent
Stabilization Code provide that when an application for a rent
increase for an MCI is pending before the agency, the vacancy lease
must provide that the rent may be increased pursuant to an order
issued by the Division including the basis for the requested
increase, and that if granted, the increase may be effective during
the lease term. In the absence of the same then in accordance with
Section 2522.4 (a)(5) of the Code, no increase shall be collectible
until the expiration of the lease term in effect at the time the
order is issued. The evidence of record in the instant case
confirms that the vacancy lease executed by the tenant of apartment
4J contained the required information concerning the pending
proceedings.
With regard to the room count discrepancy raised by the tenant of
Apt. 11R, under docket number EK110353RT, the Commissioner notes
that a room for MCI purposes is defined as follows:
1) A windowless kitchen containing at least 59 square feet:
2) An enclosed area with window containing at least 60 square
feet;
3) An enclosed area without window containing at least 80
square feet;
4) Bathroom, walk-in-closet, etc. are excluded.
In this connection, the Commissioner notes that any adverse
determination stemming from a miscount in rooms which arises after
the MCI order is issued becomes the responsibility of the owner.
The Commissioner further notes that the owner may not charge the
tenant based on a greater number of legal rooms for MCI purposes.
This order is issued without prejudice to the tenant filing a
complaint with this Division based on a rent overcharge, if the
facts so warrant.
Based upon the entire record the Commissioner finds that the
Administrator's order is correct and should be affirmed.
THEREFORE, in accordance with the Rent Stabilization Law and Code,
it is
ORDERED, that these petitions be, and the same hereby are, denied
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ADMIN. REVIEW DOCKET NOS.: EK110353RT; EK110355RT
and that the Rent Administrator's order be, and the same hereby is,
affirmed.
ISSUED:
JOSEPH A. D'AGOSTA
Deputy Commissioner
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