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.: EK610363RT
APPEAL OF
PAULINE GRAY
RENT ADMINISTRATOR'S
PETITIONER DOCKET NO.: BK630215OM
------------------------------------X
ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW
On November 29, 1990, the above-named petitioner-tenant timely
refiled a petition for administrative review (PAR) against an order
issued on October 2, 1990 by the Rent Administrator (Gertz Plaza)
concerning the housing accommodations known as 3318 Perry Avenue,
Apartment 1F, Bronx, New York, wherein the Rent Administrator
determined that the owner was entitled to a rent increase based on
various major capital improvements.
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 this Administrative Appeal.
The owner commenced this proceeding on November 30, 1987 by
initially filing an application for a major capital improvement
rent increase predicated on the installation of the following
items:
ITEMS CLAIMED COST
1. Oil Burner/ Boiler $30,000.00
2. Replacement Windows $36,830.00
3. Vestibule Doors $ 2,600.00
4. Intercom $ 2,088.00
TOTAL CLAIMED COST $71,518.00
In support of his application, the owner submitted copies of the
contracts, approvals and cancelled checks.
In answer to the owner's application, several tenants responded
objecting to the increase alleging, in substance, that the
ADMIN. REVIEW DOCKET NO.: EK610363RT
replacement windows and the intercom system were defective; and
that the boiler/burner malfunctioned consistently. Copies of these
allegations were mailed to the owner and by a letter dated June 14,
1990, the owner advised the Division that the necessary repairs had
been effectuated. Physical inspections conducted on July 11, 1990
and July 12, 1990 revealed that the heat and hot water were
adequate; and that there were no defects in the windows, the
intercom system nor the vestibule doors.
On October 2, 1990, the Rent Administrator issued the order here
under review finding that the installations of the boiler/burner,
replacement windows, vestibule doors and intercom system qualified
as major capital improvements, determining that the application, as
it relates to such items, 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
$71,518.00.
In her petition for administrative review, the tenant contends, in
substance, that the subject major capital improvements to the
building were completed before she moved into her apartment on July
1, 1988; that she was never informed of a pending major capital
improvement application; and that her lease made no mention of any
such application or possible rent increase. A copy of the tenant's
lease was also submitted in order to substantiate her claim.
After a careful consideration of the entire evidence of record, the
Commissioner is of the opinion that this petition should be denied.
Rent increases for major capital improvements are authorized by
Section 2522.4 of the Rent Stabilization Code. Under rent
stabilization, the improvement must generally be building-wide;
depreciable under the Internal Revenue Code, other than for
ordinary repairs; be required for the operation, preservation, and
maintenance of the structure; and replace an item whose useful life
has expired.
The Commissioner notes that the replacement of a boiler/ burner,
apartment windows, vestibule doors and an intercom system qualify
as major capital improvements for which an increase may be
warranted, providing the owner otherwise so qualifies. The record
indicates that the owner substantiated his application by
submitting copies of the contracts, approvals, and cancelled
2
ADMIN. REVIEW DOCKET NO.: EK610363RT
checks. The record confirms that the owner correctly complied with
the applicable procedures for a major capital improvement rent
increase. The Commissioner further notes that on appeal, the
tenant does not allege any errors on which the Rent Administrator's
order was based, but rather asserts that the collectibility of the
increase as to the subject apartment is affected by the specific
terms or omissions in her vacancy lease.
The Commissioner notes that where the tenant took occupancy of the
apartment pursuant to a vacancy lease commencing after the owner
had filed its application, as is the case in the instant
proceeding, for the major capital improvement rent increase,
granted by the Administrator's order to be collectible during the
term of the tenant's vacancy lease, such vacancy lease would have
to contain a specific clause advising the tenant of the pending
proceeding and advising that the rent charged was subject to an
additional increase (during the current lease term in effect) as
provided by Section 2522.5 (d) (2) of the Rent Stabilization Code
and established Division precedent. In the absence of same, and in
accordance with Section 2522.4 (a) (5), said increase is not
collectible until the expiration of the lease term in effect at the
time of issuance of the MCI order, providing that the renewal lease
contains a general authorization provision for adjustment of the
rent reserved by the DHCR order.
This order and opinion is issued without prejudice to the tenant's
right to file a rent overcharge complaint with the Division if the
owner has collected any rent in excess of the lawful regulated
amount.
THEREFORE, in accordance with the applicable provisions of the Rent
Stabilization Law and Code, it is
ORDERED, that this administrative appeal be, and the same hereby
is, denied and the Rent Administrator's order be, and the same
hereby is, affirmed.
ISSUED:
JOSEPH A. D'AGOSTA
Deputy Commissioner
|
