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
APPEAL OF DOCKET NO.: FC 210136-RT,
: FC 210161-RT,FC 210162-RT,
VARIOUS TENANTS, FC 210163-RT,FC 210164-RT,
PETITIONER : FC 210165-RT,FC 210166-RT,
------------------------------------X FC 210167-RT,FC 210168-RT,
FC 210169-RT,FC 210170-RT,
FC 210171-RT,FC 210172-RT,
FC 210173-RT,FC 210174-RT,
FC 210175-RT,FC 210176-RT,
FC 210177-RT,FC 210178-RT,
FC 210179-RT,FC 210180-RT,
FC 210181-RT,FC 210182-RT,
FC 210183-RT,FC 210184-RT,
FC 210185-RT,FC 210186-RT,
FC 210187-RT,FC 210188-RT,
FC 210189-RT,FC 210191-RT,
FC 210192-RT,FC 210236-RT,
FC 210237-RT,FC 210241-RT,
FC 210476-RT,FD 210270-RT,
FD 210378-RT, AMD FE 210026-RT
DRO DOCKET NO.: BL 210064-OM
ORDER AND OPINION REMANDING PROCEEDINGS ON APPEAL
The above-named tenants timely filed or refiled Petitions for
Administrative Review against an order issued February 8, 1991, by the
Rent Administrator at Gertz Plaza, Jamaica, New York, concerning the
housing accommodations known as various apartments at 55 Winthrop Street,
Brooklyn, New York, wherein the Administrator granted the application of
the owner (55 Realty Associates) to increase the rentals based on
installation of Major Capital Improvements (MCIs).
The Commissioner has reviewed all of the evidence on the record and has
carefully considered that portion of the record relevant to the issues
raised in the administrative appeals.
The owner commenced the proceeding below on December 11, 1987, by filing
an application to increase the rentals for stabilized apartments based on
the installation of Major Capital Improvements consisting of a new roof, a
new boiler and aluminum thermal replacement windows. The owner claimed
costs of $10,500.00 for the installation of a new roof, $48,000.00 for the
new boiler and $97,120.00 for the installation of replacement windows. In
the application the owner indicated that the building contains 76 rent
stabilized apartments and the superintendent's apartment.
DOCKET NUMBER: FC 210136-RT; et.al.
In response to the owner's application, the 55 Winthrop Tenants
Association and, individually, the tenants of forty-nine apartments filed
answers in opposition to the application.
The tenants contended, in substance, that the work done constituted
ordinary repairs and not improvements, that some of the replacement
windows do not function properly and were not properly installed, that
window guards were not replaced after the replacement windows were
installed; the building suffers from a substantial infestation of rodents
and cockroaches, that many apartments have water leaks in the walls and
ceilings and, consequently, sections of ceilings (particularly in
bathrooms) have fallen or are about to fall; there is inadequate heat and
hot water; screens were not replaced when the new windows were installed;
there is no resident superintendent; there are no smoke detectors in the
apartments; the intercom system and individual apartment doorbells do not
work; the owner had received a real property tax abatement as a result of
the alleged improvements and the tenants should participate in that
benefit; the building's public areas are not kept clean; the elevators are
not kept clean and elevator service is often disrupted due to poor
maintenance; the mailboxes are not secure; the old boiler was merely
refurbished and not replaced and the old roof was merely patched and not
replaced; and it leaks.
The owner responded, in substance, as follows:
a) there is a resident superintendent
b) a new burner/boiler was installed; it is properly
maintained; and heat and hot water are provided in
accordance with applicable law.
c) the windows were properly installed and the few problems
that have been brought to the owner's attention have either
been corrected or are in the process of being corrected;
d) there is regular monthly exterminator service on the second
Saturday of each month and the tenants are given written
reminders in advance of each visit by the exterminator and
the exterminator is available to the tenants on an
emergency basis.
e) screens are not required to be provided with replacement
windows to entitle the owner to an MCI increase.
f) two tenants have been provided with smoke detectors in the
course of repair work recently done by the owner.
g) the intercom system is being rewired and those complaints
which have not already been corrected are in the process of
being corrected.
h) the building is kept clean by the superintendent and is
otherwise properly maintained.
DOCKET NUMBER: FC 210136-RT; et.al.
i) the owner has spent thousands of dollars repairing the
apartments and either repairing or replacing the equipment
therein.
j) the elevators are properly maintained and regularly
serviced.
k) a new roof was installed and the superintendent inspected
apartments 6B,6C,6D,6G,6H, 6I and 6L and found no evidence
of leaks in any of those apartments.
The owner also submitted a Certificate of Eligibility and Reasonable Cost
issued by the City of New York Department of Housing Preservation and
Development which indicated that the reasonable cost of the subject
improvements was $136,800.00.
In the order below the Administrator granted the requested increase based
on the full, stated cost for installation of a new roof, a new boiler and
replacement windows. Thirty-nine tenants filed the within administrative
appeals against the Administrator's order. Pursuant to Section 2529.1(c)
of the Code, these petitions are consolidated herein.
On appeal, the petitioner-tenants contend, in substance that: 1) no new
boiler was installed (the old one was merely patched up) and there is
inadequate heat and hot water; 2) the roof was not replaced, merely
patched and there are a number of places where it leaks 3) the windows
installed are defective and were not installed in a workmanlike manner so
that they malfunction and cold air comes into the apartments from around
the windows; 4) that all essential services are not maintained at the
subject building; 5) that in the common areas, as well as apartments, the
following conditions can be found, among others: vermin water leaks and
poor elevator service. In addition, the tenant of apartment 5L claims to
have taken occupancy after the improvements had been installed and
therefore assumed that the tenant's vacancy lease rent included the cost
of the improvements.
In its answers to the petitions, the owner, in substance, stated the
following:
1. all improvements were made as set forth in the application
and said improvements are all properly fulfilling their
functions
2. various petitioners failed to raise certain issues below
which they have raised on appeal.
3 various petitioners failed to answer the application below
and, therefore, in accordance with ART 2533-K and ART 04527-K,
those petitions should be dismissed.
The Commissioner is of the opinion that this matter should be remanded to
the Administrator for further, appropriate processing.
The Commissioner finds that the tenants' allegations concerning the
pervasive problems throughout the building with respect to water leaks has
not been addressed by the owner. The Commissioner therefore finds that
DOCKET NUMBER: FC 210136-RT; et.al.
there may be a persistent condition at the subject building which consists
of the invasion of the walls and ceilings of the subject building by water
from one or more sources. The Commissioner further finds that such a
pervasive problem (revealed by, among other things, mold forming on
apartment walls and ceilings falling or deteriorated to the point of near
collapse), if proven would constitute an immediately hazardous condition.
Therefore, the Commissioner believes that it is not necessary to determine
whether this alleged condition stems from defects in the heat/hot water
system, the roof or otherwise in order to reach the determination that
these proceedings should be remanded for further appropriate processing,
including consideration of an inquiry into the source of the alleged water
damage, the extent to which it has impaired the structural integrity of
the subject building and the housing accommodations located therein and
whether or not, after making said inquiry, the Administrator should revoke
the appealed order.
The Commissioner notes that although the owner may enjoy certain tax
advantages as a consequence of installations involved herein, this does
not preclude an owner's entitlement to a major capital improvement rent
increase adjustment therefor. The Commissioner notes that recent
legislation now provides that tenants of rent stabilized apartments may
share in the benefits of tax abatements received by an owner pursuant to
J-51 of the Administrative Code. However, such provision does not apply
to the instant matter since the law is specifically applicable to work
commenced after June 28, 1988.
As to the allegation of Claudette M. Jack (Docket No. FC 210183-RT:
apartment 5L) that since the improvements had been installed before she
took occupancy, she had assumed that any resultant rent increase had
already been included in her vacancy lease rent, the Commissioner notes
that the Division's records indicate that this tenant first took occupancy
under a two year lease whose term commenced on December 1, 1988 and
expired on November 30, 1990. Annexed to the tenant's petition is a copy
of her renewal lease, whose term commenced on December 1, 1990 and will
expire on November 30, 1992. The Commissioner points out that any
increase the owner collected under the tenant's vacancy lease, over and
above the prior tenant's stabilized rent, was limited to what the law
would allow. The owner could not have legally collected an increase based
on the MCIs herein absent a Division order (such as the February 8, 1991
order below) giving the owner the right to do so and prescribing the
precise amount of that increase. Therefore, the law provides that a
tenant who takes occupancy after the installation of the MCIs is subject
to a rent increase based on the cost of said MCIs. Nevertheless, as is
reflected at sub-paragraph A. 2, clause b, on page 3 of the appealed
order, for the increases granted by the Administrator's order to be
collectible during the term of a lease in effect at the time of the
issuance of the order, such lease must contain a provision authorizing the
collection of an increase pursuant to a DHCR order. The owner's
violation of this provision could result in a rent overcharge
determination.
As to the owner's contention that certain of the petitions should be
dismissed based on the holdings in ART 2533-K and ART 04527-K, the
Commissioner finds those two cases distinguishable from the case at hand
and the relief sought by the owner to be inappropriate.
DOCKET NUMBER: FC 210136-RT; et.al.
The two cited cases appear to have involved one petition filed by a tenant
who had not objected to the application. Here there are thirty-nine
petitions, at least twenty-seven of which are filed by tenants who
answered, opposing the application, below. Moreover, in addition to the
those tenants who filed individual objections below, the 55 Winthrop
Tenants Association, speaking on behalf of all of the tenants, interposed
its answer opposing the application. Further, in light of the
consolidation of these appeals and their remand, the owners application
is, for all intents and purposes, moot.
On remand, in addition to the alleged, immediately hazardous condition
which may have been created by water leaks, the Commissioner directs the
Administrator's attention to a re-examination of the tenants' complaints
of inadequate heat and hot water and the tenants' complaints alleging
defective windows and their improper installation.
As to those service items which the tenants have complained of in this
proceeding but as to which the Administrator's attention has not
specifically been directed on remand in this order, the Commissioner
points out that this order is issued without prejudice to the tenants'
filing applications with the Division for rent reductions based on a
decrease in services, if the facts so warrant.
THEREFORE, pursuant to the Rent Stabilization Law and Code, it is
ORDERED, that these petitions be and the same hereby are granted to the
extent of remanding these proceedings to the District Rent Administrator
for further processing in accordance with this order and opinion. The
automatic stay of so much of the District 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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