DOCKET NO.: FG 530297 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   SJR 6143
          IN THE MATTER OF THE ADMINISTRATIVE     ADMINISTRATIVE REVIEW    
          APPEAL OF                               DOCKET NO.: FG 530297 RO   
                   
               A.N.F. Co.                         DISTRICT RENT 
                                                  ADMINISTRATOR'S DOCKET    
                    
                                                  NO.: ED 530060-OM 

                           PETITIONER
          -------------------------------------X
                             
            ORDER AND OPINION GRANTING PETITION FOR ADMINISTRATIVE REVIEW
                      AND REMANDING PROCEEDING TO ADMINISTRATOR

          On July 25, 1991, the above-referenced owner filed a 
          Petition for Administrative Review against an order issued on 
          June 28, 1991, by an Administrator in the Jamaica office of the 
          D.H.C.R., pertaining to the housing accommodations known as 3647  
          and 3657 Broadway, New York, New York, in which order the 
          Administrator had denied the owner's application for a rental 
          increase based on completion of a major capital improvement 
          ("MCI").

          This proceeding originated on April 5, 1990, when the owner 
          filed the aforementioned application, based on the replacement by 
          Ronald Hinderhofer, Inc., of old windows, with new ones supplied 
          by Air-Tite Mfg., Inc.  Several tenants opposed the application; 
          one among them, Juan Bravo, stated that when he took occupancy in 
          1989 the owner had just replaced the windows, raising the rent 
          accordingly.

              On May 1 and May 22, 1991, the Administrator sent the owner 
          requests for additional information, to each of which the  owner 
          responded by letter.  On June 20 the Administrator sent another 
          such request, seeking the following: originals of the pertinent 
          "work orders," as specifically distinguished from contracts and 
          checks; resolution of a discrepancy regarding the number of rooms 
          involved; specifics as to "exempt apartments"; explanation of why 
          an exempt apartment was "being renovated when no rent [wa]s 
          being collected"; the fair-market rent of an apartment occupied 
          by the management; a response as to whether the owner was already 
          collecting a rental increase for windows in one particular 

          apartment; and the name of the occupant of one particular 












          DOCKET NO.: FG 530297 RO

          apartment.

          On June 25 1991, the owner presented originals of the 
          contract and invoice herein to the Administrator.  The record 
          does not reflect that the owner provided any other information or 
          evidence.

          The ensuing order made the following determination.

               "The applicant failed to submit required 
          information/evidence as requested by notices of 5/1/91, 5/22/91 
          and 6/20/91.                                                     
                                                                        
          "Evidence on record indicates that the installer performed 
          an average installation of 174 windows weekly.
                        
          "The Agency requested applicant to submit Work Orders from 
          the window supplier.  However, applicant failed to provide the 
          requested information.

          "Based on the pattern of work progress (174 windows weekly), 
          it appears that the subject installation, which started on [sic] 
          September 1987 and was completed February 1990, was performed on 
          a piecemeal basis.

          "Accordingly, this application is denied."       

           In attacking that order the owner argues as follows.  The 
          only specification therein of any "fail[ure] to submit required 
          information / evidence" is the failure to submit "Work Orders 
          from the window supplier."  "Indeed, all of the Administrator's 
          [other] . . . demands for documentation were met."  Moreover, 
          because the Administrator had never explained the meaning of 
          "work orders," the owner had correctly assumed the phrase to 
          pertain to the contract and invoice that were supplied.  In fact 
          "there are no 'work orders'" herein, so that the denial of this 
          application for failure to submit same is arbitrary and 
          capricious.

          The petition goes on to attack the conclusion that the 
          subject windows were replaced  on a piecemeal basis, arguing 
          inter alia that the dates on the checks written to the installer 
          belie the Administrator's finding that the project was completed 
          in February of 1990.                                   

          The several tenants' answers to the petition state in 
          pertinent part (a) that according to the tenants' records only 
          1566 windows were installed as opposed to the 1769 mentioned in 

          the contract and (b) that (without elaboration) the Administrator 
          was correct regarding the piecemeal nature of the window 
          replacement.






          DOCKET NO.: FG 530297 RO


          Petitioner has replied to the tenants' answers, stating 
          inter alia that they provide no evidence for their assertion 
          regarding the number of windows, in contrast to the documentation 
          thereof that the owner provided below.

          The Commissioner having carefully considered the record as 
          it pertains to this petition, is of the opinion that the same 
          should be granted and the matter remanded for continued 
          processing.

          The order states three reasons for denying the owner's 
          application: that requested information or evidence , in general, 
          was not provided; that "work orders" in particular were not 
          provided; and that the work in question had been performed in a 
          piecemeal manner.  The Commissioner, assuming herein that each of 
          those reasons is intended as an independent ground of the 
          Administrator's determination, will discuss the question of work 
          orders first.

          Here the owner had provided: documents evidencing its 
          agreement with the supplier and the installer; the pertinent 
          cancelled checks; and each contractor's certification that the 
          work had been performed and paid for.  In that context there was 
          no need for work orders to establish that the subject 
          improvement had been performed.  (Insofar as work orders might 
          pertain to the "piecemeal"  issue, see the discussion thereof 
          below.)

          The general failure to provide evidence referred to in the 
          first paragraph of the Administrator's order pertains, in 
          addition to work orders, to the other matters (precise number of 
          rooms, exempt apartments, etc.) mentioned in the aforementioned 
          request of June 20, 1991.  Those matters, however, are 
          insignificant  in the context of a project as big as the subject 
          improvement.  While the precise size of the resulting rental 
          increase may depend on the answers (or absence thereof) to these 
          requests, the very existence of an increase cannot.  Therefore, 
          any general failure of the owner to comply with the requests 
          herein, cannot survive in the instant circumstances as a ground 
          for the Administrator's determination.







          A similar result will obtain regarding the conclusion that 
          the subject window replacements were piecemeal.  That conclusion  
          is based on the following reasoning.  This project--as stated in 
          the application and as shown by the dates of the first and last 












          DOCKET NO.: FG 530297 RO

          checks to the contractors--took 17 months to be completed.  Since 
          the contractors showed themselves capable of replacing 174 
          windows per week, they must have been working sporadically for 
          the job to have taken so long.

          The problem with that reasoning is in its first premise, as 
          to how long the job took.  While the owner's application herein 
          states that the work lasted till "2/90," with Supplement 1 
          thereto reporting that the supplier completed work on 2/6/90 and 
          the last check to the supplier bearing the same date, those facts 
          are not here dispositive.  The front page of that supplement 
          bears a completion date of 4/1/88; but more important the other 
          supplement 1, pertaining to the installer, indicates completion 
          on 7/20/88.  The improvement in question being window replace- 
          ment, the relevant completion date is that of installation, and 
          the best evidence of that date is the one on the last check to 
          the installer, which is precisely, 7/20/88.  Thus the work was 
          not spread over an inordinate length of time, and petitioner is 
          therefore correct in asserting it was not piecemeal.

          The Commissioner has in sum determined: that because work 
          orders were not a necessary accompaniment of this application, 
          their absence should not have caused its denial; that the absence 
          of other requested information was not, in the instant factual 
          context, fatal to that application; and that the work in question 
          was not performed on a piecemeal basis so as to disqualify it as 
          an MCI.

          THEREFORE, in accordance with the Rent Stabilization Law and 
          Code, it is hereby 

          ORDERED, that this petition be, and the same hereby is 
          granted, and that this proceeding be, and the same hereby is 
          remanded to the Administrator, with instructions to process the 
          instant application in accordance with the above.

          ISSUED:


                                   
          JOSEPH A. D'AGOSTA
          Deputy Commissioner






    

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