ADM. REVIEW DOCKET NO. FA 630192 - RO
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 S.J.R. NO. 5798
IN THE MATTER OF THE ADMINISTRATIVE : ADMINISTRATIVE REVIEW
APPEAL OF DOCKET NO. FA 630192 - RO
: D.R.O. DOCKET NO.
DD 630141-OM
212 EAST 182ND ST. CORP.
PETITIONER :
------------------------------------X
ORDER AND OPINION REMANDING PETITION FOR ADMINISTRATIVE REVIEW
On January 23, 1991 the above-named petitioner-owner filed a
Petition for Administrative Review against an order issued on
December 18, 1990 by the Rent Administrator, 92-31 Union Hall
Street, Jamaica, NY concerning housing accommodations known as 212
East 182nd Street, Bronx, New York, various apartments, wherein
the Administrator authorized a major capital improvement rent
increase based on the installation of new windows. Said increase
was applicable solely to rent controlled apartments.
Thereafter the owner commenced a proceeding in the Supreme
Court pursuant to Article 78 of the Civil Practice Law and Rules,
having deemed its petition denied by operation of law. This
resulted in a court ordered stipulation remanding this proceeding
to the Division for further consideration.
The instant matter stems from an application refiled with the
Division on April 24, 1989 predicated upon the installation of
various claimed major capital improvements including elevator
upgrading and new windows stated to be completed in March 1987.
In support of the application the owner submitted various
documentation including contractor's certifications, cancelled
checks and various invoices for the elevator work, to wit:
June 11 - Emergency Call - Replace intra selector to existing
circuits ($1,586.13)
June 19 - Respond to emergency call - Replace new magnetic
unit ($789.34)
June 14 - Replace shaftway vanes and magnetic unit
($2,565.53).
The order of the Administrator appealed herein determined
that the claimed elevator upgrading did not qualify as a major
capital improvement; and that the window installation did not
qualify for a rent increase with respect to rent stabilized
apartments since the application was not filed within two years of
ADM. REVIEW DOCKET NO. FA 630192 - RO
the completion date. A rent increase was granted for rent
controlled apartments since the two year restriction does not
exist under the Rent and Eviction Regulations for New York City.
Other claimed work, disallowed by the Administrator, is not here
at issue.
In this petition for administrative review the owner
contends, in substance, that it entered the wrong completion date
with respect to the windows; and that while most windows were
installed by March 1987, the installation was not completed until
June of that year due to the lack of access and the need to make
final repairs and adjustments as reflected in an attached
statement from the contractor dated January 18,1991. In addition
the owner questions why an increase was disallowed for the
elevator upgrading which entailed, among other things the
installation of a new selector to the existing controller, since
the work was completed within the two year time limit.
After a careful consideration of the entire record, the
Commissioner is of the opinion that this proceeding should be
remanded to the Rent Administrator for further processing in
accordance with this order and opinion.
Regarding the claimed elevator upgrading, it is the well
established position of the Division, as it was the policy of the
Conciliation and Appeals Board and the New York City Office of
Rent Control, the predecessor agencies charged with the
administration of the Rent Laws, Code and Regulations, that for a
partial elevator modernization (upgrading) to qualify as a major
capital improvement the installation must include a new
controller/selector, the electronic brain of the elevator.
(Accord: ARL 9558-Q). The replacement of the selector alone as
well as various hoistway vanes and magnets, as evidenced by three
separate invoices, constitute repairs items which the
Administrator properly found not to qualify as a major capital
improvement. It is significant to note that neither the
contractor nor the owner considered these elevator repairs a major
capital improvement since sales tax was both charged and paid
thereon.
With respect to the windows, the owner specified in its
application and the invoices submitted in support thereof provide
that the work was "completed" in March 1987. An installation such
as windows is considered completed when the old windows are
actually replaced and not when all defects are corrected.
(Accord: EL 630365-RO).
While the disallowance of this item appears to be predicated
on the fact that the instant application was filed on April 24,
1989 (beyond the two year limit for stabilized apartments) the
record discloses that the instant application was initially filed
with the Division on March 22, 1989; and that said application was
rejected, on other grounds, by notice dated April 7, 1989 with the
proviso that "You have twenty (20) days to refile your application
without prejudice to any filing deadlines." Since the record
discloses that the instant application was refiled on April 24,
1989, within the 20 day grace period, the Commissioner deems it
ADM. REVIEW DOCKET NO. FA 630192 - RO
appropriate to remand this proceeding to the Rent Administrator
for such further processing as may be deemed necessary with
respect to such portion of the application as pertains to windows.
Upon the remand the Administrator should consider such allegations
and contentions of the tenants as were raised in the proceeding
below and such allegations as may be raised upon the remand with
respect to the quality of the work performed.
THEREFORE, in accordance with the provisions of the Rent
Stabilization Law Code and the Rent and Eviction Regulations for
New York City, it is
ORDERED, that this petition be, and the same hereby is
granted to the extent of remanding this proceeding to the Rent
Administrator for further processing in accordance with this order
and opinion. The order of the Rent Administrator remains in full
force and effect until a new order is issued upon the remand.
ISSUED:
ELLIOT SANDER
Deputy Commissioner
ADM. REVIEW DOCKET NO. FA 630192 - RO
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