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 NOS.:
: FI 410362-RT; FI 410386-RT
FI 410387-RT; FI 410388-RT
VARIOUS TENANTS, FI 410389-RT; FI 410390-RT
PETITIONERS : FI 410391-RT; FI 410392-RT
------------------------------------X FI 410393-RT
RENT ADMINISTRATOR'S
DOCKET NO.: DG 430184-OM
ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW
The above-named petitioner-tenants filed timely petitions for Administrative
Review against an order issued on August 23, 1991 by the Rent Administrator,
(Gertz Plaza) concerning housing accommodations known as 207 West 80th
Street, New York, New York, various apartments, wherein the Administrator
granted the owner's application for a rent increase based on the
installation of various major capital improvements (MCI).
The Commissioner has reviewed all of the evidence of record and has
carefully considered that portion of the record relevant to the issue raised
by these administrative appeals.
Nine tenants filed petitions for the administrative appeal against the
Administrator's order. These appeals are consolidated herein for a uniform
determination in this proceeding as all contain common issues of law and
fact.
The owner commenced this proceeding on July 23, 1989 by filing an
application for rent increase due to the installation of major capital
improvements, to wit new roof, water heater and pointing at a total claimed
cost of $22,980.00. The tenants were served with a copy of the application
and afforded an opportunity to respond.
In response to the owner's application, the tenants alleged, in substance,
that the pointing was incomplete; that said work was in the nature of
delayed maintenance and repairs; and that the old roof had been patched up
and thus installation of a new roof was not necessary.
The owner responded, in substance, that a new 90 pound roof was installed in
1988; and that all four sides of the building were pointed.
A physical inspection of the premises was conducted by the DHCR inspectoral
staff on August 16, 1991. The inspector's report confirmed that the
building had been pointed and that a new roof had been installed. The
Administrator issued the order here under review on August 23, 1991
DOCKET NUMBER: FI 410362-RT et al.
wherein an appropriate MCI rent increase was authorized for a new roof,
water heater and pointing. The Administrator determined that $3,782.51
should be deducted from the total approved MCI cost. This amount represents
the share of the cost to be borne by commercial tenant(s).
In these petitions the tenants assert, in relevant part, that 1) a prior
order (Docket # BB 10113-OM) denied the owner's application for an MCI rent
increase for roof insulation; and that the roof installation herein is the
same claim that has been resubmitted; 2) the useful life of the water heater
had not expired; it was necessary to point all sides of the building; and 3)
the owner may have fraudulently mistake in its application that the building
had no commercial tenants.
The owner did not file a response to the petitions.
After careful consideration of the entire record, the Commissioner is of the
opinion that these petitions should be denied.
Rent increases for major capital improvements are authorized by Section
2522.4 of the Rent Stabilization Code and are warranted where the
improvements are building-wide, depreciable under the Internal Revenue Code,
other than for ordinary repair, required for the operation, preservation and
maintenance of the structure, and replace an item whose useful life has
expired.
The record in the instant case indicates that the Administrator's order was
predicated upon a review of full supporting documentation including
contracts, contractor's certification, cancelled checks, and the requisite
governmental approval and sign off of the new hot water system installed in
the subject building. The record further indicates the proceeding under
Docket No. BB 10113-OM differed from that of the herein roof installation.
The Commissioner is of the opinion that the tenants' assertions with respect
to the roof had been installed.
With respect to the new water heater the owner has indicated that the useful
life of the item had expired by 1988. The Commissioner is further of the
opinion that the tenants' allegations with respect to same, devoid of
evidentiary support, should not disturb the Administrator's finding.
It is the established position of the Division that pointing and
waterproofing as necessary on exposed sides of the building constitutes a
major capital improvement for which a rent increase adjustment may be
warranted. A review of the record in the proceeding below discloses that
the contractor submitted a signed statement and a diagram of the building
indicating which exposed sides of the building were found to need pointing.
The Administrator's order was issued after a physical inspection of the
premises which disclosed that various areas of all sides of the building had
been pointed.
The Commissioner notes that the tenants' allegations with respect to the
owner's failure of not listing a commercial tenant(s) in its application are
DOCKET NUMBER: FI 410362-RT et al.
meritless since the Administrator deducted $3,782.51 from the approved cost
of the MCI, reflected the share of the cost of commercial tenant(s).
Based on the entire evidence of record, the Commissioner finds that the
Administrator's order is correct and should be affirmed.
THEREFORE, in accordance with the applicable provisions of the Rent
Stabilization Law and Code, it is
ORDERED, that these administrative appeals be, and the same hereby are
denied; and that 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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