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 NO.: FL130186RT
:
VARIOUS TENANTS OF 97-25 RENT ADMINISTRATOR'S
64TH AVENUE, REGO PARK, DOCKET NO.: CK1300210M
NEW YORK, NY PETITIONER :
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ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW
On December 30, 1990 the above petitioner-tenants timely filed a
petition for administrative review (PAR) against an order issued on
December 6, 1991, by a Rent Administrator (Gertz Plaza) concerning
the housing accommodations known as 97-25 64th Avenue, Queens, New
York, various apartments, wherein the Rent Administrator determined
that the owner was entitled to a rent increase based on the
installation of major capital improvements (MCI).
The Commissioner has reviewed all of the evidence in the record and
has carefully considered that portion relevant to the issues raised
by this administrative appeal.
The owner commenced this proceeding on November 2, 1988, by
initially filing an application for a rent increase based on the
installation of front entrance and vestibule doors and a new roof
at a total claimed cost of $19,074.53.
Nine tenants responded to the owner's application alleging in
substance that the new doors do not provide security since the side
entrance door is kept unlocked for most of the day, broken locks
remained unrepaired for long periods of time, and the doors have
not been completed; that the new roof was installed in response to
the code violations incurred by the owner for a serious leak
problem throughout various areas of the building and therefore
should be considered ordinary maintenance not warranting a rent
increase.
The owner responded to the tenants objections by contending in
substance, that the work performed qualifies as major capital
improvements; and that two of the objecting tenants (apts. B-5 and
D-9) have since vacated.
A physical inspection of the subject premises occurred on November
19, 1991 wherein the inspector noted that the front entrance doors
were not defective; that the side doors were locked; that the door
from the laundry room to the backyard was unlocked; and that
despite two attempts (with prior notice) to inspect Apt. F-16, no
access was provided.
ADMIN. REVIEW DOCKET NO.: FL130186RT
On December 6, 1991 the Rent Administrator issued the order here
under review finding that the installations qualified as a MCI
determining that the application complied with the relevant laws
and regulations based upon the supporting documentation submitted
by the owner, and allowing rent increases for rent controlled and
rent stabilized tenants.
In this petition, the tenants through a representative, contend, in
substance, that the doors (as is evident from the photographs) are
of inferior quality as is the lock on the inside door; that as a
result the lock has malfunctioned and remained unrepaired for
weeks, a condition which should not have occurred especially when
considering its excessive cost; that shoring equipment and carting
containers for disposal of debris normally associated with a new
roof installation, was never in evidence and tenants are still
complaining of roof leaks; that the management has not honored
their request to examine the bills related to the installations;
and that the owner will receive a further benefit for these MCI
installations through the J-51 program.
In response to the tenants' petition the owner states that the
doors are made of brown/bronze aluminum and glass and were
considered sufficiently adequate and not excessive in cost by DHCR
who approved the application; that the cost paid reflects a new
roof and not a patched roof; that as to complaints regarding roof
leaks, presumably originated from the tenants occupying apartments
in the "F" line are without merit; that tenants were specifically
notified by letter dated February 22, 1989 of the location of the
MCI applications master copy, and that the application could be,
examined at the superintendent's apartment; that during the past
three years no tenant has requested access to review the
application; that the owner has availed itself of the benefits that
MCI rent increase and J-51 tax abatement programs offer; and that
the tenants signatures accompanying the P.A.R. were obtained
through misrepresentation.
After careful consideration of the entire record, the Commissioner
is of the opinion that this petition 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.
ADMIN. REVIEW DOCKET NO.: FL130186RT
The evidence of record in the instant case indicates that the owner
substantiated its application for the installation of a new roof
and entrance doors in the proceeding below by submitting to the
Administrator documentation in support of the application,
including the contractor's certifications, copies of contracts,
cancelled checks confirming the cost of the respective items. In
this connection the Commissioner notes that work performed to
correct violations or pursuant to court order does not constitute
a ban to an MCI rent increase if otherwise so warranted.
Moreover, the record reveals that on various dates in February
1989 DHCR mailed to the tenants a copy of the owner's MCI
application with an attachment advising that the entire
application, including all required supplements and supporting
documentation could be reviewed at the offices of the resident
manager, managing agent or superintendent located in the subject
premises where there is an office or at the DHCR office. In
addition, the various tenants who responded to the owner's
application, and who are now petitioner's, claiming not to have had
an opportunity to examine receipts for the installations, never
indicated in their responses or at any time subsequent and up to
the date of issuance of the instant order, that any attempts to
review the entire application had met with any opposition from the
owner.
The inspection ordered by DHCR and conducted on November 19, 1991
found the new doors to be functioning properly; and that the side
doors posed no security breach, as they were locked. In addition
the DHCR attempted to verify the alleged leak condition by
scheduling two inspections with the only tenant claiming to have
personally experienced a leak. However, that tenant never made his
apartment accessible for the inspection.
Tenants who fail to respond with complaints related to the MCI
installations at the administrative level, absent a justifiable
reason, are now precluded from entering such claims in their
petition for administrative review. However, where warranted a
decrease of service complaint may be filed.
The Commissioner notes that the owner's application for or receipt
of a J-51 tax benefit based on the subject improvements does not
preclude the entitlement to a major capital improvement rent
increase. While the current law provides that a stabilize
apartment may share in such benefits such law is not applicable to
work commenced prior to June 28, 1988 (as is the case herein).
Rent controlled tenants may share in this benefit and may make
appropriate application to the Owner Individual Unit of the DHCR.
ADMIN. REVIEW DOCKET NO.: FL130186RT
Based upon the entire 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 and the Rent and Eviction Regulations,
it is
ORDERED, that this administrative appeal be, and the same hereby is
denied; and the Rent Administrator's order be, and the same hereby
is affirmed.
ISSUED:
JOSEPH A. D'AGOSTA
Deputy Commissioner
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