STATE OF NEW YORK
DIVISION OF HOUSING AND COMMUNITY RENEWAL
OFFICE OF RENT ADMINISTRATION
92-31 UNION HALL STREET
JAMAICA, NEW YORK 11433
------------------------------------X S.J.R. NO. 6346
IN THE MATTER OF THE ADMINISTRATIVE : ADMINISTRATIVE REVIEW
APPEAL OF DOCKET NO. FD 430108-RO
BENENSON FUNDING DOCKET NO. CA 430225-OM
ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW
This order and opinion is issued pursuant to an order of the Supreme
Court, New York County, remitting the proceeding and directing the
Division of Housing and Community Renewal (DHCR) to issue a determination
of the owner's administrative appeal herein.
The owner of the subject premises (located at 332 East 84th Street, New
York, various apartments) initiated the proceeding below by filing an
application for major capital improvement (MCI) rent increases for the
controlled and stabilized apartments in the premises based on the
installation of a new roof, intercom and landscaping.
The owner submitted documentation in support of the application, including
copies of contracts, contractors' certifications, and cancelled checks for
the work herein.
Various tenants filed answers objecting to the application. The tenants
assert that the roof was not replaced but only repaired, the intercom
installation consisted of using the existing wiring while installing a new
panel at the entrance and all boxes within each apartment. Regarding the
landscaping, the tenants assert that several plants were placed at the
entryway but have since been stolen leaving holes where these plants once
On March 6, 1991 the Rent Administrator issued the order here under
review. The order denied that portion of the owner's application which
sought an MCI rent increase for landscaping as this type of installation
does not qualify as an MCI. The "roof" installation costs were denied as
the Administrator determined that this was not a new installation. That
portion of the owner's application as requested an MCI rent increase for
the intercom installation was granted in the amount of $4,965.00.
On appeal, the owner contends, in substance that they inadvertently
completed the MCI application by indicating that a roof had been installed
when they actually had replaced the parapet walls.
DOCKET NUMBER: FD 430108-RO
The owner further asserts that the diagram submitted with its MCI
application clearly shows that the work completed was for the parapet
walls. The owner urges that once having recognized this discrepancy, the
Administrator below should have inquired further as to the exact nature of
the work completed. The owner encloses a statement from the
waterproofing contractor in which the contractor indicates that the tar
was removed from the interior of the parapet walls, these interior areas
then "cut" and pointed, new flashing was installed around the entire
perimeter of the roof, and the entire northwest corner of the building was
demolished and rebuilt.
Various tenants filed answers to the owner's petition stating, in
pertinent part, that the parapets were not replaced but were repaired in
conjunction with a roof repair.
After careful consideration of the entire evidence of record the
Commissioner is of the opinion that the administrative appeal should be
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 replaced an item whose useful life has expired.
The Commissioner is of the opinion and finds that the work on the parapet
amounts to a repair, not an MCI. To be considered an MCI, the entire
parapet must be replaced (Accord CK 530022-RO). Neither can the pointing
and waterproofing of the parapet be considered an MCI. It is the
position of the Division that pointing/waterproofing (where necessary)
constitutes an MCI for which a rent increase may be warranted. The
evidence submitted with the owner's MCI application indicates that only
the parapet wall areas were pointed and waterproofed. The record reveals
that the owner has failed to establish that the pointing and
waterproofing work performed at the subject premises was comprehensive
enough to qualify for treatment as a major capital improvement under the
standards enunciated by the Division. Accordingly, the Commissioner is of
the opinion that this petition for administrative review should be denied.
THEREFORE, in accordance with the Rent Stabilization Law and Code, and the
Rent and Eviction Regulations for New York City, it is
ORDERED, that this petition be, and the same hereby is, denied, and that
the order of the Rent Administrator be, and the same hereby is, affirmed.
JOSEPH A. D'AGOSTA
Acting Deputy Commissioner