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 
          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    : 
          ------------------------------------X                             


            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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