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
APPEALS OF DOCKET NOS. FL 110179-RT
: FL 130187-RT
THOMAS FAVATA AND VARIOUS TENANTS,
R. BONNIE HABER RENT ADMINISTRATOR'S
PETITIONER : DOCKET NO. CH 130110-OM
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ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW
DOCKET NO. FL 110179-RT, GRANTING PETITION FOR ADMINISTRATIVE
REVIEW DOCKET NO. FL 130187-RO AND MODIFYING THE ORDER OF
THE RENT ADMINISTRATOR
The above named petitioner-tenants and petitioner-owner timely filed
Petitions for Administrative Review against an order issued on November
18, 1991 by the Rent Administrator, 92-31 Union Hall Street, Jamaica, New
York concerning housing accommodations known as 86-20 Park Lane South,
Woodhaven, New York, various apartments, wherein the Administrator
authorized an MCI rent increase for the installation of new doors and
apartment windows and disallowed expenditures in the amount of $26,000.00
for the installation of a new boiler based upon a determination that an
MCI increase had previously been authorized for such installation.
The Commissioner notes that all of the apartments involved in this
proceeding are rent stabilized.
These petitions are consolidated for disposition herein as they involve
common issues of law and fact.
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 appeals.
In their petition the tenants contend that some tenants have been paying a
rent increase for new windows installed prior to the subject MCI
installation; that the previously installed windows were replaced with the
MCI installation; that tenants are still paying increases for the earlier
installation and therefore the MCI increase should be deleted from their
rent; that some of the windows "frostup" in the winter, let moisture in
when it rains and are not vacuum sealed and insulated; and that the door
installed by the owner is primarily used as a fire exit/delivery door to
which the tenants do not have access during the day and therefore the
tenants are not obligated to pay for it.
DOCKET NUMBERS: FL 110179-RT & FL 130187-RT
In her petition the owner contends that the prior MCI increase was
authorized for the installation of a new burner, not a new boiler; and
that the Administrator's Order should be modified to include an increase
for the new boiler.
After a careful consideration of the entire record, the Commissioner is of
the opinion that the tenants' petition should be denied and the owner's
petition should be granted.
Rent increases for major capital improvements are authorized by Section
2522.4 of the Rent Stabilization Code for rent stabilized apartments.
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 record in the instant case, which includes copies of proposals,
invoices, contractor's certifications and cancelled checks for the door
and window installation, indicates that the owner correctly complied with
the applicable procedures for a major capital improvement for said
installations and that the tenants have not established that the increase
should be revoked.
Regarding the tenants' contention that some tenants were paying and
continue to pay a rental increase for previously installed new windows,
the tenants failed to submit any documentation in support of this
allegation. However, this Order and Opinion is issued without prejudice
to any tenants' right to file a complaint of rent overcharge, if the facts
so warrant.
Regarding the tenants' contention that the window installation is
defective, the Commissioner notes that the tenants did not raise such
objections with specificity during the proceeding before the Administrator
although afforded the opportunity to do so. Accordingly, pursuant to
Section 2529.6 of the Rent Stabilization Code, the tenants' contention may
not be considered now when offered for the first time on administrative
appeal. However, the Order and Opinion is issued without prejudice to the
tenants' rights to file an application for a decrease in rent based upon
any current decrease in services, if the facts so warrant.
Regarding the owner's contention that an MCI increase is warranted for the
boiler installation, the record indicates that on March 21, 1988 under
Docket No. AB 130149-OM the Rent Administrator issued an order authorizing
an MCI increase for, among other things, the installation of a new
boiler/burner at the subject premises. However, a review of the record in
that proceeding reveals that, although referred to as a boiler/burner
installation, said installation consisted of a new burner and did not
include a new boiler. Accordingly, in view of the fact that the owner's
MCI application included copies of a proposal, invoice, contractor's
certification, cancelled checks and governmental approvals and sign-offs
for the boiler installation and operation of the heating system, the
Commissioner finds that an MCI increase is warranted for the boiler
DOCKET NUMBERS: FL 110179-RT & FL 130187-RT
installation and that the increase determined by the Rent Administrator
should be modified to reflect the hereby approved cost of the boiler
installation as follows:
Total approved Cost:
apartment windows $28,350.00
boiler $26,000.00
doors $ 450.00
$54,800.00
Divided by 60 months: $913.33
Total rooms 150
Permanent rent increase
per room, per month: $6.09
Based upon the above computation, the permanent rent increase is $6.09 per
room, per month, effective from March 1, 1989; is collectible as of
December 1, 1991; and shall not exceed 6% of the rent as of January 1,
1989 each year.
The tenants may pay any arrears occurring as a result of this Order and
Opinion in 12 equal monthly installments.
Therefore, in accordance with the provisions of the Rent Stabilization Law
and Code, it is
ORDERED, that the tenants' petition be, and the same hereby is, denied;
that the owner's petition be, and the same hereby is, granted; and that
the Rent Administrator's order be, and the same hereby is, modified in
accordance with this Order and Opinion; and as so modified, said order is
hereby affirmed.
ISSUED:
JOSEPH A. D'AGOSTA
Acting Deputy Commissioner
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