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
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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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