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 ADMINISTRATIVE REVIEW
IN THE MATTER OF THE ADMINISTRATIVE DOCKET Nos.: FL110157RT
APPEALS OF FL120155RT/ FL120349RT
VARIOUS TENANTS OF GC110089RT/ GC110551RT
83-57 118TH STREET
QUEENS, NY RENT ADMINISTRATOR'S
DOCKET NO.: EL130004RP
PETITIONERS
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ORDER AND OPINION DENYING PETITIONS FOR ADMINISTRATIVE REVIEW
The above-named petitioner-tenants timely filed or re-filed
Petitions for Administrative Review (PARs) against an order issued
under Docket No. EL130004RP on December 6, 1991, by the Rent
Administrator (Gertz Plaza) concerning the housing accommodations
known as 83-57 118th Street, Queens, New York, various apartments,
wherein the Rent Administrator revoked the denial order issued on
March 22, 1989 under Docket No. CL130236OM and granted rent
increases based on the installation of various major capital
improvements (MCIs).
The Commissioner deems it appropriate to consolidate these
petitions for disposition since they pertain to the same order and
involve common issues of law and fact.
On April 25, 1989 the owner filed a Petition for Administrative
Review (Docket No. DC130238RO) against the order issued under
Docket No. CL130236OM which denied the owner's application and
terminated the proceeding for an MCI rent increase adjustment on
grounds that the application was incomplete at the time of filing.
The Commissioner's determination of said appeal remanded the
proceeding to the Rent Administrator for further processing. On
remand, it was determined that the installations of boiler/burner,
concrete catwalk, repiping and replacement windows constitute major
capital improvements and warrant a rent increase; and that the
mailboxes did not qualify as an MCI. The claim for the compactor
was withdrawn by the owner by letter dated August 29, 1991.
On remand, the Division served the tenants with a copy of the
owner's MCI application for the first time. In response to the
owner's application, several tenants filed answers, contending, in
substance, that there is an inadequate supply of hot water; that
the heat is erratic; that the concrete work was improperly done
since it floods whenever it rains; that the new windows are
difficult to open; that there are violations against the subject
building; and that there is asbestos in the basement.
ADMIN. REVIEW DOCKET NO. FL-110157-RT
Based on the tenants' allegations, physical inspections were
conducted on November 15 and 18, 1991. The inspector reported that
the concrete work was done in a workmanlike manner; and that
heat/hot water was found to be adequate in Apts. 4F and 5C. The
inspector also reported that access could not be gained to Apts. 1D
and 6P on either of the two inspection dates.
In their petitions for Administrative Review, the tenants contend,
in substance, that the landlord is overcharging (Apt. 1D); that the
landlord has decreased services by refusing to provide a working
oven (Apt. 1D); that the old boiler/burner was fifty years old and
needed repairs since it broke down frequently (Apt. 4F); that since
the new boiler/burner was installed there is an inadequate supply
of hot water (Apt. 4F); that the old windows were fifty years old
and needed replacement for several years before they were finally
replaced (Apt. 4F); that the type of locks on the windows are
unsafe (Apt. 4F); that the present intercom system is not adequate
since communication is difficult (Apts. 4F and 5N); that there is
poor drainage of the catwalk (Apts 4F and 5N); that the windows are
difficult to operate (Apt. 5N); that the storm windows have been
replaced but the tenant is still paying for them (Apt. 5N); that
there is inadequate heat/hot water (Apt. 5C); that the type of
locks on the windows are unsafe (Apt. 5C); that the original notice
to the tenants which stated that the proposed increase was $17.30
per room, per month was erroneous and misleading since the actual
increase granted was $17.89 per room, per month (Apt. 6P); that the
Administrator's order was sent to an incorrect address, 85-87 118th
Street (Apt. 6P); that the subject building has over eighty
violations on record with the City of New York H.P.D. (Apt. 6P);
that the landlord has failed to maintain essential services (Apt.
6P); and that the landlord has failed to remove life threatening
asbestos (Apt. 6P).
After a careful consideration of the entire evidence of record, the
Commissioner is of the opinion that these Administrative Appeals
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. The
installations involved herein, to replace old items the useful
lives of which have expired, meet the definitional requirements of
major capital improvements.
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ADMIN. REVIEW DOCKET NO. FL-110157-RT
The record in the instant case, which includes copies of various
proposals, invoices, contractors' certifications, cancelled checks,
governmental approvals and sign-offs, indicates that the owner
correctly complied with the applicable procedures for major capital
improvements.
Regarding the contentions of the tenant in Apt. 1D that she is
being overcharged and that the landlord has decreased services by
refusing to provide a working oven, the Commissioner notes that
these allegations do not constitute grounds to bar an owner from
obtaining a rent increase for major capital improvements that is
otherwise warranted. However, the tenant may file an individual
rent overcharge complaint and/or an application with the Division
for a rent reduction based upon a decrease in services if the facts
so warrant.
As to the allegations of the tenants in Apts. 4F, 5C and 5N
regarding the deficiency of the boiler/burner and the quality of
the catwalk work performed, the record discloses that an inspection
conducted by the Division revealed that the heat/hot water was
found to be adequate in Apts. 4F and 5C; and that the concrete
catwalk was done in a workmanlike manner.
With respect to the contentions of the tenants in Apts. 4F, 5C and
5N regarding the window locks and operation of the windows, the
Commissioner notes that windows were installed in 95 apartments in
the subject building and the fact that a limited number of tenants
(3) may have experienced minor difficulty with said installation is
not sufficient grounds to conclude that the owner is not entitled
to the MCI rent increase adjustment authorized by the
Administrator. However, the owner is hereby directed to correct
any defective condition brought to its attention in writing, if it
has not already done so and the determination herein is without
prejudice to the right of the tenant filing an appropriate
application for a reduction in rent, if the facts so warrant.
Regarding the tenants' contention about the inadequacy of the
present intercom system, the record discloses that no MCI rent
increase was granted for such installation in the order, appealed
herein.
As to the contention of the tenant in Apt. 5N that although the
storm windows were replaced she is still paying for them, Policy
Statement 89-5 states where an owner received an MCI rent increase
for installing storm windows prior to 1984, then installs new
replacement windows, a full MCI increase will be granted provided
that a minimum of fifteen (15) years has transpired between the
installation of the storm windows and the replacements. The tenant
has not submitted any evidence either at the time the proceeding
was before the Administrator or on appeal to substantiate such
allegation nor has the tenant alleged that the storm windows did
not exhaust their useful lives. 3
ADMIN. REVIEW DOCKET NO. FL-110157-RT
Turning to the contentions of the tenant in Apt. 6P, the
Commissioner further notes that the difference between the proposed
increase listed on the owner's application and the actual increase
granted by the Administrator's order resulted because of a revision
of the actual room count of the subject building; that although the
petitioner is correct about the Administrator's order being sent to
an incorrect address, it appears that the tenant still received
said order in a timely fashion; and that a review of the violation
report submitted discloses that the said violations do not reflect
the existence of any immediately hazardous conditions. In
addition, there are no rent reduction orders based on the owner's
failure to maintain services of a building-wide nature outstanding
against the subject premises; and the owner's failure to remove
asbestos, if there is any, does not constitute grounds to bar an
owner from obtaining a rent increase that is otherwise warranted.
This determination is without prejudice to the right of the tenants
filing an application with the Division for a rent reduction based
upon a decrease in services or filing appropriate complaints with
the Division alleging that the owner is not maintaining all
required services, if the facts so warrant.
THEREFORE, in accordance with the Rent Stabilization Law and Code
and Rent and Eviction Regulations, it is
ORDERED, that these petitions be, and the same hereby are denied;
and that the Rent Administrator's order be, and the same hereby is
affirmed.
ISSUED:
____________________
Joseph A. D'Agosta
Deputy Commissioner
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