FC 430039-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.: 5955
IN THE MATTER OF THE ADMINISTRATIVE ADMINISTRATIVE REVIEW
APPEAL OF DOCKET NO.:
FC 430039-RO
VIVIAN RINDICK
c/o SUZANNE REALTY ASSOC. RENT ADMINISTRATOR'S
DOCKET NO.:
ZCA 430154-OM
PETITIONER TENANTS: VARIOUS
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ORDER AND OPINION GRANTING PETITION AND REMANDING PROCEEDING
TO ADMINISTRATOR
On March 5, 1991, the above-named petitioner-owner filed a Peti-
tion for Administrative Review against an order of the Rent
Administrator issued on February 14, 1991. The order concerned
housing accommodations located at 20 Clinton Street, New York,
New York. The Administrator granted, in part, an application for
rent increase due to installations of major capital improvements
(MCI).
The Commissioner has reviewed the record and carefully considered
that portion relevant to the issues raised by this appeal.
This proceeding was commenced on January 25, 1988 by the former
owner, Marathon Properties Inc. who filed an application for rent
increase by reason of the installation of major capital improve-
ments. The improvements were - installation of new windows, an
intercom system, a new roof and waterproofing at a total cost of
$61,522.00.
The tenants were served with a copy of the application and
afforded an opportunity to comment thereon.
Various tenants responded objecting to the rent increase. The
tenants alleged that the intercom system was not functioning
properly and that the windows were not properly installed.
The Administrator ordered a physical inspection of the premises
which was conducted January 16, 1991. The inspector found that
the intercom was functioning in four of the seven apartments
whose tenants filed objections. The remaining three were not
home. A follow-up inspection, conducted on January 28, 1991,
also found the three remaining tenants to be away from home. One
of those three tenants had complained additionally, that his
windows were improperly installed.
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The Administrator made the following rulings with regard to the
application: The waterproofing was denied as not constituting an
MCI. The windows were deemed a "piece meal" installation between
1985 and 1990 and also denied in total. The intercom and roof
were granted for rent controlled tenants but not rent stabilized
ones. The Administrator stated that the owner failed to file
the application within two years from the completion date of the
installations.
Pursuant to the Rent Stabilization Code (See: 9 NYCRR 2522.4) an
application must be filed within two years after completion of
the installation in order to qualify for a rent increase.
The successor owner filed an appeal of the above described order
as it pertains to the roof, windows and intercom. The owner
argued that the intercom system and roof were completed less than
two years before the application was filed. The owner also took
issue with the Administrator's characterization of the window
installation as "piece meal". Petitioner made reference to an
earlier letter it sent to the Administrator wherein it sought to
explain the reason for the fact that 22 out of the 403 windows
were installed at a later date. That letter, dated November 28,
1990, stated the reasons as follows:
Ten of t e windows (all bathroom windows) were re-
ordered and installed by Ecker. Ecker had left the
original windows in the basement to be installed at a
later date, never returned, and the windows we e subse-
quently damaged beyond repair in a flood. We then paid
for the replacements (invoice and cancelled checks
enclosed). Ten more windows were for apartment 4-E,
then and still occupied by an elderly woman, who until
earlier this year would only allow access in cases of
extreme emergency. We have since gained her trust, and
all the windows were replaced by County Engineering
(cancelled checks enclosed). The last two windows were
still intact in the basement, and when the tenant in
Apartment 5-D moved out (the tenant was using the
apartment as a photography studio, and the windows were
in the "dark room" and covered with plywood) t e Super-
intendent installed the windows.
Petitioner concluded the appeal by stating that it is imperative
for the continued operation of the building that the order under
review be modified to grant the increases denied by t e Adminis-
trator.
Three tenants responded to the petition. Of the three one did
not respond before the Administrator (Apartment 6-F), one did but
raised no specific objection to the quality of the installations
(Apartment 4-F) and the third, who also replied below, merely
states now for the first time on appeal that the installations
were only done to comply with a court order.
After a careful review of the evidence in the record, the
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Commissioner is of the opinion that this proceeding must be
remanded to the Administrator for further processing.
The record under review indicates that the Administrator's denial
of rent increases for the roof and intercom for rent stabilized
tenants was based on the fact that the contractors involved
failed to sign the portion of the application verifying the
completion dates of the installations. Instead, the former owner
submitted affidavits detailing cost information and completion
dates. Bills and cancelled checks were appended thereto. The
Administrator relied on this information to grant and compute a
rent increase for rent controlled tenants, who are not subject to
the "two year" rule. Based on the Commissioner's study of the
record as it was presented and available to the Administrator,
the Commissioner finds that the Administrator erred in not
accepting the part of the former owner's affidavit stating the
completion dates of the installations. If the contractors'
affidavits are sufficient evidence to establish the cost of the
installations and amount paid then it should also be sufficient
to establish the dates of completion.
The Commissioner finds nothing in the owner's statements
regarding completion dates to be prima facie unreliable and there
are no contradictory assertions or evidence from the tenants dis
proving the dates indicated by the owner. Accordingly, the
Commissioner finds that it was error for the Administrator to
deny the owner a rent increase for the roof and the intercom.
It is the established position of the Division that the instal-
lation of new thermal replacement windows constitutes a major
capital improvement for which a rent increase adjustment may be
warranted. Piecemeal repairs or replacements do not qualify as a
major capital improvement. In determining whether an installation
is piece meal, it is necessary to take into consideration all
factors bearing on the equities, including the size of the sub-
ject premises, the percent of time involved, and the reasons put
forth by the owner as to why the entire installation could not
have been done at one time (Accord: ARL 12446-K).
In this proceeding the former owner replaced all but 22 of the
403 windows. Petitioner subsequently replaced those 22 and
offered satisfactory explanations as to why the entire instal-
lation could not be completed at the same time.
Accordingly, this proceeding is being remanded solely for the
purpose of computing and ordering the appropriate rent increase
for the installation of the roof, intercom, and windows.
The decision herein does not prejudice the tenants rights as they
pertain to filing applications for rent reductions with the
appropriate DHCR unit by reason of decreased apartment or
building-wide services.
THEREFORE, pursuant to the Rent and Eviction Regulations and the
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Rent Stabilization Law and Code, it is
ORDERED, that this petition be, and the same hereby is, granted
to the extent of remanding this proceeding to the Rent Adminis-
trator for further processing consistent with this order and
opinion.
ISSUED:
ELLIOT SANDER
Deputy Commissioner
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