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 
      IN THE MATTER OF THE ADMINISTRATIVE :  ADMINISTRATIVE REVIEW
      APPEALS OF                             DOCKET NOS.: FB510382RT
                                          :               FB510383RT
          VARIOUS TENANTS                                 FB510384RT
                                                          FB510385RT
                            PETITIONERS   :  
      ------------------------------------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 
      was raised.

      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 
      Administrator's determination.



          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 
      further

      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.

      ISSUED:






                                                                    
                                           JOSEPH A. D'AGOSTA
                                           Deputy Commissioner




                                                    





    

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