EL-110404-RT, et al.
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
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IN THE MATTER OF THE ADMINISTRATIVE ADMINISTRATIVE REVIEW
APPEAL OF DOCKET NOS.:
EL-110404-RT; EL 110405-RT;
IRENE GERSTEIN, EL 110135-RT
MICHELE CHAFFIN,
DIANNE SCHARFF, RENT ADMINISTRATOR'S
DOCKET NO.:
PETITIONERS BI-110130-OM
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ORDER AND OPINION GRANTING PETITIONS FOR ADMINISTRATIVE REVIEW
IN PART AND REMANDING PROCEEDING TO ADMINISTRATOR
The above-named petitioner-tenants, filed timely Petitions for
Administrative Review against an order of the Rent Administrator
issued September 15, 1987. The order concern d housing accommo-
dations, located at 89-10 63rd Drive, Rego Park, New York. The
Administrator ordered a rent increase based on the installation of
a major capital improvement (MCI).
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 the petition for review.
The owner commenced this proceeding on August 28, 1987 by filing
an application for a rent increase based on a major capital
improvement, to wit - new thermal windows building-wide - at a
total cost of $27,200.00.
Copies of the owner's application were served upon the tenants who
were afforded the opportunity to object thereto and comment there
upon.
Various tenants responded to the application. Two alleged that
new windows in their apartments were installed behind the old
ones.
On August 24, 1990 a physical inspection was conducted. The
windows in the apartments f two complaining tenants were in-
spected and the inspector confirmed that the new windows were
installed behind the old windows and that the top and bottom
sashes of the old windows are stationery and cannot be opened or
closed.
The inspection report was mailed to the owner on September 4, 1990
with a request to rectify the defects in installation that were
EL-110404-RT, et al.
noted by the inspection.
The owner failed to respond.
On October 30, 1990, the Rent Administrator issued the order here
under review finding that the installations qualified as major
capital improvements, determining that the application complied
with the relevant laws and regulations based upon the supporting
documentation submitted by the owner, and allowing appropriate
rent increases for re t controlled and rent stabilized apart-
ments. The two apartments referred to above were exempted from
this order.
Three tenants filed Petitions for Administrative Review against
the Administrator's order. Although none filed an objection
below, all voiced the objection raised before the Administrator
i.e. that the new windows were merely installed behind the old
ones. Petitioner Gertstein also alleged that some of the safety
locks on her windows were not working and that she was never sent
notice of the owner's application.
The owner responded to petitioner Chaffin's allegations. He
stated that the windows were installed pursua t to Building De-
partment standards. He further stated that Building Department
inspector's checked the windows after installation and did not
find violations. The building was then granted J-51 Tax status by
the N.Y.C. Department of Housing Preservation and Development.
After carefully reviewing the evidence in the record, the Commis-
sioner is of the opinion that this proceeding should be remanded
to the Administrator for further processing.
The contract between the owner and contractor clearly called for
the removal of the old windows from ea h apartment. The Admin-
istrator had evidence that this was not done. Nonetheless, the
Administrator granted the rent increase, exempting only the two
tenants who filed objections to the owner's application.
The Commissioner deems the fact that five tenants have now alleged
that the owner improperly installed the windows warrants a re-
examination of the owner's application and a reconsideration of
whether the installation was properly done building-wide. On
remand, the Administrator should order a new inspection of the
various apartments throughout the building, including the
petitioners'. If the inspector finds that in any one of the
petitioners' apartments the new windows were installed next to,
rather than as replacements for, the old windows, the rent in-
crease should be revoked for all tenants.
THEREFORE, pursuant to the Rent Stabilization Law and Code and
Rent And Eviction Regulations, it is
ORDERED, that this petition be and the same hereby is granted to
the extent of remanding this proceeding to the Rent Administrator
EL-110404-RT, et al.
for further processing in accordance with this order and opinion.
The automatic stay of so much of the Rent Administrator's order as
directed a retroactive rent increase is hereby continued until a
new order is issued upon remand. However, the Administrator's
determination as to a prospective rent increase is not stayed and
shall remain in effect until the Administrator issues a new order
upon remand.
ISSUED:
ELLIOT SANDER
Deputy Commissioner
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