Docket Nos.: FF 610597-RT through FF 610607-RT
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
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IN THE MATTER OF THE ADMINISTRATIVE ADMINISTRATIVE REVIEW
APPEALS OF DOCKET NOS. FF 610597-RT
through FF 610607-RT
VARIOUS TENANTS, DRO DOCKET NO. EK 630013-RK
(BI 630158-OM)
OWNER: Stanley Wasserman c/o
PETITIONERS David Shurin
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ORDER AND OPINION DENYING PETITIONS FOR ADMINISTRATIVE REVIEW
The eleven Petition's determined herein are, pursuant to Section
2529.1(c) of the Code, hereby consolidated.
The petitioner tenants timely filed Petitions for Administrative
Review against an order issued on May 9, 1991, by the Rent
Administrator at Gertz Plaza, Jamaica, New York, concerning the
housing accommodations known as various apartments at 222 Bedford
Park Blvd., Bronx, New York wherein the Administrator granted, in
part, the application of the owner to increase the rentals based
on installation of Major Capital Improvements (MCI's).
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 the administrative appeals.
The owner commenced the proceeding below on September 10, 1987 by
filing an application to increase the rentals for rent controlled
and stabilized apartments based on MCI's consisting of thermal
replacement windows, a new heating plant, a new roof and roof
insulation, elevator improvements (including a new controller),
new doors in the public area and steam cleaning the building. The
owner claimed costs of $79,180.00 for the new windows, $42,000.00
for a new heating plant, $11,000.00 for a new roof, $9,000.00 for
roof insulation, $19,305.00 for elevator improvements, $795.60 for
new doors in the public area and $2,700.00 for steam cleaning. In
the application the owner indicated that the building contains 62
apartments.
Approximately half of the tenants individually answered and fifty
tenants signed a joint answer, opposing the owner's application.
In substance, the tenants challenged the application on the
grounds that the stated costs were excessive, the elevator did not
function properly (breaking down often and not leveling properly),
there were leaks in sixth (top) floor apartments and some fifth
floor apartments; the building was infested with vermin; the new
windows are defective and were not properly installed; the front
door of the building was not changed but a flimsy new lock and
metal panel had been installed leaving the lobby an unsecured
area; the heat is lowered at night and at mid-day, so that
apartments get "chilly"; steam cleaning was purely cosmetic; the
Docket Nos.: FF 610597-RT through FF 610607-RT
installation of the elevator door operator (for $3,360.00) was not
done in conjunction with the other elevator work and was work that
has been held by the CAB not to qualify for an MCI; the roofing
work does not qualify as an MCI; tenants who move in after the
work was done should not have to pay the increase on top of their
original rent which included the cost of such improvements. The
tenants also requested that an inspector be sent to examine the
alleged MCI installations.
In reply to the tenants' answers the owner alleged, in substance,
that he believed that the installation of the elevator door opener
qualified for an MCI; that a completely new roof had been
installed with insulation in 1986. The owner submitted a letter
from the contractor which had done that work and later, in 1990,
had inspected the roof to find it in excellent condition. The
owner submitted documentation to show that the elevator had been
inspected and was shown to be in proper working order. The owner
also produced evidence that indicated that it has the elevator
regularly serviced. The owner also submitted letters from
thirteen tenants stating that the problems they had experienced
with the new windows had been corrected. The owner denied that
the claimed costs were excessive. The owner claimed that it
provided adequate heat and hot water. The owner stated that it
did not install new entranceway doors and had not made an MCI
claim for such. The owner asserted however that the lobby doors
and locks were adequate to maintain security. The owner noted
that it had installed a new roof bulkhead door to increase
building security. The owner also noted its installation of a new
fire-rated door from the basement to the backyard to further
enhance security; and that these two doors were the new doors
referred to in its application.
On May 7th and 8th of 1990, a member of the Division's staff
inspected the subject building. In that staff member's report, it
was noted that there was no evidence of water damage to the fifth
floor apartments examined, but there was evidence of such damage
in a number of sixth floor apartments. The report states that no
heat was required at the time of the inspection as the exterior
temperature was 64oF and that the hot water appeared adequate.
The report confirmed the installation of a door to the roof
bulkhead and that the elevator was working properly. The report
also confirmed the installation of the windows, the new heating
plant, and an additional layer of roofing materi l (to the pre-
existing roof), which had been further patched in four places.
The report also indicated that the inspector could not examine the
elevator controller as he could not gain access to it.
Docket Nos.: FF 610597-RT through FF 610607-RT
On June 13, 1990, the Administrator issued an order wherein the
owner's application was granted in part, crediting the owner with
a rent increase based on the full stated cost of the thermal
replacement windows ($79,180.00), and the new heating plant
($42,000.00). The owner was also granted the cost of the new roof
bulkhead door ($300.00). The owner was denied its application as
to the cost of installing the backyard door ($495.00), steam
cleaning the building ($2,700.00), the new roof ($11,000.00) and
roof insulation ($19,000.00), the elevator controller and related
upgrading ($15,945.00) and the new elevator door operator
($3,360.00).
In a letter dated June 18, 1990, the owner asked the Administrator
to reopen and reconsider the order of June 13, 1990.
The owner noted that the cost of the new roof had been denied
because the new roof consisted of only one ply of roofing cement
and one ply of roofing paper whereas new DHCR regulations [set
forth in Policy Statement 90-6 which was issued in March of 1990]
had required a new roof to be three ply in order to qualify for an
MCI. The owner asserted that it was inequitable for the
Administrator to deny the increase based on a new rule as to which
owners had not had an adequate opportunity to adapt. The owner
further asserted that regardless of whether an MCI increase for
the roof was granted, the cost of insulating the roof should have
been granted. The owner further noted that the elevator upgrading
had been denied because of the fact that it had not been shown
that a new selector had been installed. The owner asserted that
in fact a selector had been installed with the new controller,
that this is usually the case in any new controller installation
and that the owner had not specifically been asked whether the
installation of the new controller included the installation of a
new selector.
On November 26, 1990, the Administrator issued a Notice of
Commencement of Proceeding to Reconsider Previous Order stating
therein that the order of June 13, 1990 was being reopened so that
the Administrator could consider whether an error in a vital
matter had been committed in the denial of the owner's application
insofar as it pertained to the elevator upgrading, the new roof
and the roof insulation. By said notice, the tenants were
afforded an opportunity to file an answer as to the issues the
Administrator proposed to reconsider.
Thirteen individual tenants filed answers. In substance these
tenants alleged that there were still leaks on the 6th floor; the
elevator often broke down and it often did not stop level with
the floor; the elevator floor had a hole in it and the lighting in
the elevator was inadequate; the halls of the building were not
clean; lighting over the entranceway of the building was
inadequate; the electricity in the building often blows out; the
mailboxes are in poor condition; the new roof and insulation for
Docket Nos.: FF 610597-RT through FF 610607-RT
the roof are maintenance and the cost thereof should be borne by
the owner; although the elevator had a floor indicator before the
new controller was installed, now there is no device that tells
the passengers what floor they have arrived at - there is, simply,
an arrow that indicates whether the car is traveling up or down;
and the new roof looks like it could be merely a patch job.
In response to these allegations the owner submitted documentary
evidence to show that the elevator had been checked by three
elevator companies and found to be in good working order; that the
lighting in the elevator has been replaced and the elevator floor
repaired; and that the roof is in good condition but that water
does enter the building through gaps in the masonry around the
parapet wall and the exterior walls below the parapet. The owner
also produced evidence to show that it had contracted to have said
masonry problem corrected. The owner alleged that it had repaired
the exterior lighting problem; and that it had made arrangements
to have the water damage in apartment 6D repaired. The owner also
produced evidence to show that it was installing new mailboxes.
Further, the owner asserted that roof patching had become
necessary because of the damage to the roof caused by tenant
installed T.V. antennae. The owner also noted that new courtyard
lighting had been installed.
On May 9, 1991, the Administrator issued an order of modification
and a modified order herein, wherein it added to the costs
previously allowed $9,000.00 for roof insulation, $11,000.00 for a
new roof and $15,945.00 for installation of a new elevator
controller and selector and for related elevator upgrading. The
modified order continued the previous exclusion of the cost of
steam cleaning ($2,700.00), the installation of a new elevator
door operator ($3,360.00), and the cost of the backyard door
($495.60).
In their Petitions, the tenants assert, in substance, that the
elevator continues to malfunction; the door buzzer breaks down and
the new intercom is inaudible; the electrical system in the
building continues to cause fuses to blow and leaves tenants
without electricity; the building is not exterminated and rodents
and roaches run through the hallway; the owner has rented an
apartment to an herbalist whose practice (she identifies herself
to her customers as a physician) has compromised the security of
the building and the tenants' quiet enjoyment of their leased
housing accommodations since the "patients" begin congregating in
the lobby at 6 A.M., disturb other tenants, pound on their doors
and enter their apartments. The Petitioners assert that this
renting to the herbalist is not correct in a residential building.
The tenants also allege that there is a bad smell in the elevator;
that tenants below the sixth floor should not have to pay for roof
insulation and the floor indicator was wrongfully taken away when
the new controller was put in; there is inadequate hot water; and
trash is allowed to accumulate in the backyard.
Docket Nos.: FF 610597-RT through FF 610607-RT
Although afforded the opportunity, the owner has not interposed an
answer to the tenants' Petitions.
The Commissioner is of the opinion that the Petitions should be
denied.
A review of the record reveals that the owner properly filed the
MCI application in the proceeding below, and no showing to the
contrary has been made by the petitioners. The record in the
proceeding below and on these appeals discloses that the owner
substantiated its MCI application by submitting to the
Administrator documentation in support of the application,
including copies of contracts, contractors' certifications,
specifications, and cancelled checks for the work herein.
The Commissioner finds that the petitioners' contentions are not
sufficient to establish that the Administrator erred in issuing
the order appealed herein. The Commissioner finds that the
Administrator gave due consideration to the various issues raised
below; as an example of that, the Commissioner notes that the
Administrator disallowed the entire cost of the elevator door
opener. Moreover, the Division has long held, as did its
predecessor, the Conciliation and Appeals Board, that the
installation of a new elevator controller and selector and related
upgrading constitutes an MCI. The Commissioner finds that based
on the record below, the changeover from a floor indicator to an
arrow indicating the direction of the cab's movement, does not,
in and of itself, warrant the disallowance of the cost of the new
controller from the MCI increase granted herein.
Likewise the Commissioner finds that the Administrator did not
err in granting an increase based on the cost of the new roof and
its insulation. As to the evidence of water damage on the 6th
floor found subsequent to the installation of the new roof, the
Commissioner finds that the owner has established that said damage
was caused by the penetration of water through defects in the
masonry of the upper portion of the exterior brick wall and
parapet of the building. The Commissioner notes the owner's
submission of the favorable reports as to the condition of the
roof by Triboro Insulating and Roofing Co., Gloryall Roofing and
Sheet Metal Works, Inc. and Vacca Bros. Contractors, Inc. The
Commissioner also notes that Vacca Bros's observation that the
water was penetrating through the exterior wall (and not the roof)
was somewhat corroborated by the statement of the tenant of
apartment 6D, Agatha Priano, who said that she did "not know if
the roof was correctly repaired. Exterior building wall still
leaks on stormy days." Further, the Commissioner notes that the
owner appears to have taken steps to remedy these masonry
problems.
The Commissioner further finds that it was appropriate to grant
an increase for the roof where the new roof had been installed
Docket Nos.: FF 610597-RT through FF 610607-RT
several years before the issuance of Policy Statement 90-6 (which
was later modified by Policy Statement 91-2), at a time when a one
ply roof would have provided the basis for an MCI increase.
[Accord: EG 930369-RT]
Based on the entire evidence of record, the Commissioner finds
that the Administrator was not in error, and the order should be
affirmed.
The Commissioner notes that this order and opinion is issued
without prejudice to the tenants filing an application for a
decrease in rent based on a decrease in services, if the facts so
warrant.
THEREFORE, in accordance with the Rent Stabilization Law and Code,
and the City Rent Law, and the Rent and Eviction Regulations, it
is
ORDERED, that these petitions be, and the same hereby are, denied,
and that the District Rent Administrator's order be, and the same
hereby is, affirmed.
ISSUED:
ELLIOT SANDER
Deputy Commissioner
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