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.: FL120154RT
APPEALS OF GA120096RT/ GA110097RT
GA120099RT/ GA120100RT
VARIOUS TENANTS OF GA110101RT/ GA120104RT
83-43 118th Street GA110105RT/ GA110106RT
QUEENS, NEW YORK
RENT ADMINISTRATOR'S
DOCKET NO.: EL130008RP
PETITIONERS
-------------------------------------X
ORDER AND OPINION DENYING PETITIONS FOR ADMINISTRATIVE REVIEW
The above-named petitioners-tenants timely filed Petitions for
Administrative Review against an order issued under Docket No.
EL130008RP on December 3, 1991 by the Rent Administrator (Gertz
Plaza) concerning the housing accommodations known as 83-43 118th
Street, Queens, New York, various apartments, wherein the
Administrator revoked the denial order issued on March 21, 1989
under Docket No. CL130235OM and granted rent increases based on the
installation of various major capital improvements.
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 against the order issued under Docket No. CL130235OM which
denied the owner's application for an MCI rent increase based on
the determination that incomplete RA-79, Supplement forms
(contractor and/or vendor information) were submitted by the owner.
The Commissioner's determination of said appeal remanded the
proceeding to the Rent Administrator for further processing. On
remand it was determined that the following installations
constitute major capital improvements and warrant a rent increase:
Boiler/burner, catwalk, plumbing, replacement windows and intercom.
The roof installation was withdrawn by the owner by letter dated
August 29, 1991.
ADMIN. REVIEW DOCKET NO. FL-120154-RT
On remand, the Division served the tenants with a copy of the
owner's MCI application for the first time. Although several
tenants in the subject building filed responses to said
application, only five of the nine petitioning tenants herein filed
any objections. Three tenants in the following apartments: 3K,
4B, & 6H objected to the increase without making any complaints
pertinent to the installations while the other two tenants alleged
the following: that the concrete flatwork is in need of repairs;
that the intercom has not been properly replaced; and that the
windows lack security- (Apt. 1K); that the boiler/burner is
unreliable since it breaks down frequently; that the concrete
flatwork was a poor job as the drainage is inadequate; and that the
bells in the present intercom should be changed-(Apt. 6P).
Based on the tenants' allegations, physical inspections were
conducted on November 15 and 18, 1991. The inspector reported that
the concrete flatwork was found to be done in a workmanlike manner;
that the intercoms in Apts. 1K and 6P function properly; that the
windows in Apt. 1K lack security; and that the heat/hot water is
adequate in Apt. 6P.
In their Petitions for Administrative Review, the tenants contend,
in substance, that the old boiler/burner was fifty years old and
needed repairs since it broke down frequently; that since the new
boiler/burner was installed there is an inadequate supply of hot
water; that when it rains the tenants cannot walk on the catwalk
because of flooding caused by poor drainage; that the old windows
were fifty years old and needed replacement for several years
before they were finally replaced; that the type of locks on the
windows are unsafe; and that the present intercom system is not
adequate since communication is difficult. The tenants in Apts. 1K
and 1N further assert that only the catwalk cost should have been
approved and said order should be modified to reflect same; that
all the other improvements are items which the landlord is required
to maintain as a matter of law under New York State laws; and that
it is unfair for the Rent Administrator to charge the tenants for
said costs when the proper remedy is already available under
federal and state tax law whereby the landlord can deduct same,
amortize same and otherwise separately benefit from such tax laws.
After a careful consideration of the entire evidence of record, the
Commissioner is of the opinion that these Administrative Appeals
should be denied.
ADMIN. REVIEW DOCKET NO. FL-120154-RT
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 has expired, meet the definitional requirements of
major capital improvements.
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.
The Commissioner notes that none of the objections regarding the
quality of the work performed now being raised for the first time
on Administrative Appeal by the petitioners with the exception of
those raised by the tenants of Apartments 1K & 6P were raised while
the owner's application at remand was pending before the Rent
Administrator even though all of the tenants were afforded the
opportunity to do so. Accordingly, the Commissioner finds that
these objections may not now be considered herein.
As to the contentions of the tenant in Apt. 6P regarding the
quality of the work performed, the record discloses that the
Division conducted an inspection of the subject building and that
the inspector reported that the catwalk concrete flatwork was found
to be done in a workmanlike manner; that the intercom functions
properly; and that the heat/hot water is adequate.
With respect to the contentions of the tenant in Apt. 1K that the
improvements are items which the landlord was required to maintain
as a matter of law and that the Federal and State tax codes are
adequate remedy to recompense the landlord the Commissioner further
notes that these claims do not constitute grounds to bar an owner
from obtaining a rent increase for major capital improvements that
is otherwise warranted.
ADMIN. REVIEW DOCKET NO. FL-120154-RT
This determination is without prejudice to the rights of the
tenants filing an application with the Division for a rent
reduction based upon a decrease in services, if the facts so
warrant.
THEREFORE, in accordance with the Rent Stabilization Law and Code
and the 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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