STATE OF NEW YORK
DIVISION OF HOUSING AND COMMUNITY RENEWAL
OFFICE OF RENT ADMINISTRATION
92-31 UNION HALL STREET
JAMAICA, NEW YORK 11433
IN THE MATTER OF THE ADMINISTRATIVE : ADMINISTRATIVE REVIEW
APPEALS OF DOCKET NOS.: FB510382RT
VARIOUS TENANTS FB510384RT
------------------------------------X RENT ADMINISTRATOR'S
DOCKET NO.: DE5302610M
ORDER AND OPINION DENYING PETITIONS FOR ADMINISTRATIVE REVIEW
UNDER DOCKET NUMBERS FB510382RT; FB510384RT; AND FB510385RT
AND GRANTING IN PART PETITION FOR ADMINISTRATIVE REVIEW
UNDER DOCKET NUMBER FB510383RT
The above-named petitioner-tenants timely filed petitions for
administrative review (PARS) against an order issued on January 23, 1991 by
the Rent Administrator (Gertz Plaza) concerning the housing accommodations
known as 351 Wadsworth Avenue, New York, 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 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 May 30, 1989 by initially filing an
application for a major capital improvement (MCI) rent increase predicated
on the building-wide installation of aluminum windows, at the subject
premises, at a total claimed cost of $42,064.00. The owner submitted
various supporting documentation, including copies of contracts, proposals
and cancelled checks, substantiating those costs associated with the window
installation. In response to the owner's application, two tenants filed
answers but failed to identify any pertinent reason why the rent increase
should not be granted. The petitioner-tenants herein did not respond to
the owner's application.
The Rent Administrator's order, appealed herein, granted the owner's
application and authorized a rent increase for the rent controlled and rent
stabilized apartments at the subject premises.
In their petitions for administrative review two of the tenants, Docket
Numbers FB510382RT and FB510384RT, contend in substance, that the windows
were drafty, defective and improperly installed. In addition, it is
claimed that the locks on the windows are inoperable. One tenant also
alleges that she was not served with a copy of the owner's application. In
the petition filed under Docket No. FB510383RT, the tenant contends that
there was no mention of a pending MCI in his first lease, signed in
ADMIN. REVIEW DOCKET NO.: FB510382RT et al.
September 1990, and that after living in the apartment for five months,
his rent was increased because of the granting of the owner's
application. In another separately filed petition (Docket No. FB510385RT),
the tenant wrote "see attached" in Section 14 of the RAR 2 form but failed
to submit any attachment. By a notice dated August 31, 1993, she was
afforded the opportunity to submit the said document but failed to do so.
In response to the tenants' allegations, the owner contends, in substance,
that no complaints were ever made by the petitioner-tenants about the
windows being inoperative and defective. The owner further claims that it
has complied with all the necessary requirements with regard to the window
installation and that no defects were found by the Superintendent when the
windows were inspected. With regard to the allegation made by the tenant
in the petition under Docket No. FB510383RT, the owner claims that he could
not respond since the package he received from the DHCR did not contain the
attachment on which the reasons for the appeal were written. On August 31,
1993, the complete petition with answer forms was mailed to the owner but
this failed to elicit any response from him.
After a careful consideration of the entire evidence of record, the
Commissioner is of the opinion that the petitions under Docket Nos.
FB510382RT; FB510384RT and FB510385RT should be denied and the petition
under Docket No. FB510383RT should be granted in part.
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
installation involved herein qualifies as a major capital improvement
pursuant to long established Division policy and the owner substantiated
its claims with the required supporting documentation.
The Commissioner notes that on August 8, 1989 each tenant was served by the
DHCR with a copy of the owner's application, including all the required
supplements and supporting documentation. The record confirms that the
package was received by the tenants as evidenced by the responses to the
application from two of the tenants of the subject premises as well as the
fact that there was no returned mail on file.
With regard to the appeal made by the tenant under Docket FB510385RT, the
Commissioner notes that no pertinent objection to the Administrator's order
Section 2529.6 of the Rent Stabilization Code provides in pertinent part,
that the scope of administrative review is limited to such facts or
evidence as was before the Administrator as raised in the petition unless
the petitioner can establish that such issues could not reasonably have
been offered or raised in the proceeding prior to the issuance of the
ADMIN. REVIEW DOCKET NO.: FB510382RT et al.
With regard to the tenants' allegations that the windows were defective and
inoperable, the Commissioner notes that there is no indication that the
said tenants could not have raised this issue before the Administrator in
the proceeding below; nor have the petitioners submitted any explanation
for their failure to do so. Accordingly, this issue sought to be raised by
the petitioners is not within the scope of the Commissioner's review of
this proceeding and may not be considered on the merits. This order and
opinion is issued without prejudice to the right of the tenants to file
complaints of service reduction with the Division, if the facts so warrant.
Regarding the contention of the tenant of apartment 25 (FB510383RT) that
there was no mention of a pending MCI application in the first lease that
he signed, the Commissioner notes that the owner was afforded the
opportunity to respond to the tenant's allegation but failed to do so. The
tenant's claim is therefore deemed admitted. For the MCI increases granted
by the Administrator's order to be collectible during the term of any
tenant's vacancy lease, such vacancy lease would have to contain a specific
clause advising of the pending docket number and nature of the installation
and that the rent charged was subject to an additional increase (during the
current lease term in effect) as provided by Section 2522.4(a)(5) of the
Rent Stabilization Code and established Division precedent. In the absence
of the same, said increase is not collectible until the expiration of the
lease term in effect at the time of issuance of the MCI other, provided the
renewal lease contains a general authorization provision for adjustment of
the rent reserved by DHCR order. The owner's violation of this provision
could result in a rent overcharge determination.
THEREFORE, in accordance with the provisions of the Rent Stabilization Law
and Code, it is
ORDERED, that the tenants' petitions, under Docket Nos. FB510382RT;
FB510384RT; and FB510385RT be, and the same hereby are, denied, and it is
ORDERED, that the tenant's petition under Docket No. FB510383RT be, and the
same hereby is, granted in part and the Rent Administrator's order be, and
the same hereby is, modified to exempt said apartment from the increase
until the expiration of the lease term in effect at the time the
Administrator's order was issued. The order and determination of the
Administrator is hereby affirmed in all other respects.
JOSEPH A. D'AGOSTA