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
APPEAL OF DOCKET NO. FJ 420435-RT
:
DISTRICT RENT ADMINISTRATOR'S
MARGARET FRANKLIN, DOCKET NO. EJ 430025-RP
PETITIONER : (AL 430120-OM)
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ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW
On October 30, 1991 the above named petitioner-tenant refiled a Petition
for Administrative Review against an order issued on July 8, 1991 by the
Rent Administrator, 92-31 Union Hall Street, Jamaica, New York concerning
housing accommodations known as 220 West 71st Street, New York, Apartment
73.
The Commissioner has reviewed all of the evidence in the record and has
carefully considered that portion of the record relevant to the issue
raised by the administrative appeal.
This proceeding was commenced on December 24, 1986 by the owner filing on
application for Major Capital Improvement (MCI) increases for the
installation of new aluminum windows. The owner submitted documentary
evidence showing it made expenditures totaling $42,622.00 for said
installations.
On March 30, 1989 the Rent Administrator issued an order denying MCI
increases based on a determination that the windows had been installed in
a piecemeal fashion over a 5 year period and therefore did not constitute
an MCI (DRO Docket no. AL 430120-OM.)
Subsequent thereto, the owner filed a Petition for Administrative Review
(PAR) contending that it was entitled to an MCI increase and asserting
that it had installed windows building-wide except those windows which
were so new they did not require replacement.
On October 10, 1990 the Commissioner issued an order finding that the
owner was eligible for MCI increases based on a determination that 82% of
the total number of windows in the subject building had been replaced.
The proceeding was remanded to the Rent Administrator to ascertain which
apartments received new windows and to grant rent increases for such
apartments. (Administrative Review Docket No. DE 430367-RO.)
On July 8, 1991 the Rent Administrator issued the herein appealed order
determining that of a total of 235 windows at the subject premises 195
were installed in 1986. The Rent Administrator disallowed expenditures of
$8,497.00 for the 40 windows installed prior to 1986 and determined that
the tenants of apartments which received these windows were exempt from
the MCI increase (DRO Docket No. EJ 430025-RP.)
DOCKET NUMBER: FJ 420535-RT
In this petition the tenant contends in substance that the MCI increase is
not warranted because the proposal initially submitted by the owner
indicated that 170 windows had to be replaced, the proof of payment
submitted by the owner is questionable and the owner has not replaced at
least 80% of the windows because the window count total is incorrect.
The Commissioner is of the opinion that this petition should be denied.
Rent increases for major capital improvements are authorized by Section
2202.4 of the Rent and Eviction Regulations for rent controlled apartments
and Section 2522.4 of the Rent Stabilization Code for rent stabilized
apartments. Under rent control, an increase is warranted where there has
been since July 1, 1970 a major capital improvement required for the
operation, preservation, or maintenance of the structure. Under rent
stabilization, the improvement must generally be building-wide;
depreciable under the Internal Revenue Code, other than for ordinary
repairs; required for the operation, preservation, and maintenance of the
structure; and replace an item whose useful life has expired.
It is the established position of the Division that the building-wide
installation of new apartment windows and/or public area windows to
replace widows which are 25 or more years old constitutes a major capital
improvement for which a rent increase adjustment may be warranted,
provided the owner otherwise so qualifies. In this respect, the
Commissioner notes that work of a piecemeal nature or ordinary repairs and
maintenance does not qualify as a major capital improvement.
However, in recognition of the fact that there are limited circumstances
where the replacement of all windows would be an unnecessary and
unwarranted expense, the Commissioner has adopted the position that where
an owner has earlier installed new windows the condition of which are such
that their replacement is not required or due to the special
characteristics of certain other windows which are clearly of a distinct
and different nature, that the subsequent replacement of all other
apartment windows totalling at a minimum at least 80% of the total number
of apartment windows in the building as part of a unified plan and
consecutively timed project completed within a reasonable time frame would
substantially comply with the requirement of a major capital improvement.
In this case a review of the record, including the documentation submitted
by the owner, shows that of the 235 apartment windows at the subject
premises, 195 new windows, or 82%, were installed in 1986 and 40 new
windows were installed earlier, between 1981 and 1984. The Rent
Administrator properly determined that the owner satisfied factual and
procedural requirements for an MCI to the extent recognized by the Rent
Administrator and properly computed the increase based on the proven cost
of the improvement.
With respect to the tenants contention that the windows count total is
incorrect, in that the window total used in this proceeding for the
subject premises is 266 and based thereon the owner only replaced 73% of
the windows and is not entitled to an MCI increase, the Commissioner
finds this contention to be without merit. A review of the record reveals
that the tenant apparently obtained this number from a copy of a
previously issued order with respect to a building other than the subject
DOCKET NUMBER: FJ 420535-RT
premises cited by the owner in its petition; and that this total bears no
relation to the subject building. The calculation to determine whether or
not at least 80% of the apartment windows in a building have been replaced
is performed on an individual case basis.
THEREFORE, in accordance with the provisions of the Rent and Eviction
Regulations and the Rent Stabilization Law and Code, it is
ORDERED, that this petition be, and the same hereby is, denied, and the
order of the Rent Administrator be, and the same hereby is, affirmed.
ISSUED:
JOSEPH A. D'AGOSTA
Acting Deputy Commissioner
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