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
      APPEALS OF                             DOCKET NOS.:
                                          :  GA110468RT/GA110469RT/GB110377RT/
      VARIOUS TENANTS OF 183-11 HILLSIDE     GB110473RT/GB110474RT/GB110475RT/
      AVENUE, JAMAICA, NEW YORK              GB110476RT/GB110477RT/GB110478RT/
                            PETITIONERS   :  GB110479RT/GB110480RT/GB110481RT/
      ------------------------------------X  GB110482RT/GB110483RT/GB110484RT/
                                             GB110485RT/GB110486RT/GB110487RT/
                                             GB110488RT/GB110489RT/GB110490RT/
                                             GB110491RT/GB110492RT/GB110493RT

                                             RENT ADMINISTRATOR'S 
                                             DOCKET NO.:CK130078OM

            ORDER AND OPINION DENYING PETITIONS FOR ADMINISTRATIVE REVIEW

      On various dates the above-named petitioner-tenants timely refiled 
      petitions for administrative review (PARs) against an order issued on 
      December 13, 1991, by a Rent Administrator (Gertz Plaza) concerning the 
      housing accommodations known as 183-11 Hillside Avenue, Jamaica, New York, 
      various apartments, wherein the Rent Administrator determined that the 
      owner was entitled to a rent increase for both rent controlled and rent 
      stabilized tenants based on the installations of major capital improvements 
      (MCI).  (The Commissioner notes that the subject premises is a completely 
      stabilized building).

      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.

      The Commissioner has reviewed all of the evidence in the record and has 
      carefully considered that portion of the record relevant to the issues 
      raised by these administrative appeals.

      The owner commenced this proceeding by filing on November 10, 1988 an MCI 
      rent increase application for boiler/burner and waste compactor 
      installations totaling $148,850.00.

      Several tenants filed responses to the owner's application, five of whom 
      objected to the extent or quality of the installations, and alleged in 
      essence that the heat and hot water service was erratic and that 
      banging/clanging noises occurred within the heating pipe system.  Although 
      some of these tenants objected to the waste compactor installation 
      qualifying as an MCI, no allegations were made as to its adequacy.

      On October 10, 1991, the owner responded to the tenants' objections by 
      submitting a statement from a registered architect (dated January 25, 1990) 
      confirming that the installations conformed with the Rules and Regulations 
      of the N.Y.C. Buildings Department and, in particular, that the plumbing 
      had received that Department's approval.  Additionally, the owner directed







          ADMIN. REVIEW DOCKET NO.: GB110493RT,  et. al.




      attention to a heat/hot water complaint (Docket No. EE 130035-HW) which 
      the DHCR denied on August 10, 1990, and to various service complaints
      under Docket No. EE 130039-B for which an inspection was conducted on June 
      11, 1991, finding that all services were being maintained.

      On November 12, 1991 the tenant in apartment 7-M followed-up with a second 
      objection to the owner's MCI application reiterating that the installations 
      of the boiler/burner and the steam traps had proved ineffective in 
      remedying the banging in the radiators.  The owner responded on November 
      14, 1991 reiterating his earlier statements.

      On December 12, 1991 the Rent Administrator issued the order here under 
      review finding that the installations qualified as MCIs, 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.  As a result of 
      an error in the room count, an amended order was issued on May 19, 1992.

      In identically worded petitions the tenants contend, in substance, the 
      following:

      1.  they did not receive any documents relating to the owner's MCI         
          application; and

      2.  they were not afforded an opportunity to review the complaints
          made against the MCI installations and were not advised of the         
          corrective actions taken by the owner, in violation of their due       
          process rights.

      In April 1992 the tenants submitted fifty-four affidavits indicating that 
      assurances were given to them in July 1990 by the managing agent that the 
      new boiler/burner installation would provide heat to the top floors and 
      eliminate, by the installation of steam traps, the banging noises which 
      wake and disturb the tenants in the early mornings;  and that efforts to 
      locate the steam traps have proved futile.

      On November 12, 1992 nineteen tenants submitted identically  worded 
      amplifications to their PARs stating in substance the following:

      1.  they did not receive copies of the tenants' complaints or proof of the
          corrections alleged by the owner as per the amended order issued on May
          19, 1992; and

      2.  their submissions of acknowledgments of complaints, dated April 
          7, 1992 and October 2, 1992, relating to the banging/clanging noises
          emanating from the steam pipes and radiators, obtained from the City 
          of New York Department of Housing Preservation and Development, Office  
          of Rent and Housing Maintenance, proves that the conditions were not
          corrected as stated in the comments of the amended order issued
          on May 19, 1992.  Further proof of the inadequacy of the installation  
          is a violation issued on July 6, 1992 for a lack of hot water.



          ADMIN. REVIEW DOCKET NO.: GB110493RT,  et. al.




      The owner, in response to the tenants' petitions, states the following:

      1.  that the appropriate notices and answer forms were sent to all tenants
          by DHCR on February 16, 1989;

      2.  that various tenants submitted their objections to the MCI rent
          increase application on the very response forms claimed by the tenants
          in their PARs not to have received, including tenants of apartments 7-  
          M and PH-A, who are petitioners in the instant proceeding;

      3.  that although subsequent inquiries were made by DHCR to the            
          complaining tenants following their initial responses, no further      
          responses were received;

      4.  that the letter from the tenants sent to Commissioner Angelo Aponte and
          annexed to their PARs refers to an order (Docket No. EE 1300039-B)
          stemming from a service complaint which is irrelevant to the instant   
          matter; and

      5.  that the tenants do not state any error in law or in fact as reasons   
          for dismissal of the Administrator's order.

      After careful consideration of the entire record, the Commissioner is of 
      the opinion that these petitions 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 record reveals that, contrary to the tenants allegations, on February 
      16, 1989 DHCR mailed to all the tenants of the subject building (comprising 
      163 units) the required RA79N and RA-79 forms as well as 3 copies of the 
      RTP form, resulting in several of these tenants exercising their right to 
      object to the owner's MCI rent increase application. 

      The record also indicates that the DHCR forwarded the owner's October 10, 
      1991 response to those tenants (apartments 2D, 7P, 7M, 9H & PHA) who had 
      specifically objected to the adequacy of the installations in question with 
      instructions that no further action was needed if the conditions had been 
      corrected.  Moreover, in the event that no corrective action had been 
      taken, a response, detailing the exact nature of the defective condition 
      should be made.  In this instance one tenant submitted a response which was 
      forwarded to the owner eliciting a reiteration of his former response.









          ADMIN. REVIEW DOCKET NO.: GB110493RT,  et. al.




      The Commissioner notes that due to an apparent oversight, as is readily 
      ascertainable from the above, a comment appears on the two orders issued on 
      December 17, 1991 and May 19, 1992 in the instant proceeding, indicating 
      that no follow-up tenant responses were received by DHCR.  Although not 
      reported accurately, the record shows that the proper procedure was 
      followed; the tenant's response was forwarded to the owner, resulting in
      its response.  All documents were reviewed and considered.  Based on the 
      foregoing, the Commissioner finds that the tenants were properly notified 
      of the owner's application and were given a full and fair opportunity to 
      participate in the proceeding.

      The initial tenants' responses, as is later reported in their purported 
      affidavits, indicate that the loud banging/clanging noises emanating from 
      the steam pipes was a condition that had preceded the boiler/burner 
      installation.  The Commissioner notes that only two tenants complained of 
      loud banging pipes during the proceeding before the Administrator.

      The tenants' anticipation that the new boiler/burner would alleviate the 
      annoying noises is not grounds for finding that the installation does not 
      function adequately, especially when a review of the boiler/burner contract 
      reveals that the installation of the steam traps is presented as three 
      separate alternative installations for which a separate cost would be given 
      if the owner chose to pursue any one of the alternatives.  The cost claimed 
      ($136,500) for the boiler/burner installation on the owner's MCI 
      application indicates that the cost for steam traps were not included in 
      this installation.

      The record does reveal that the loud banging noises were not reported to 
      any governmental agency until April 7, 1992 and October 2, 1992, months 
      after issuance of the initial order, as is similarly true of the one 
      violation (July 6, 1992) for lack of hot water.  However, the nature of 
      these defective conditions would more appropriately be classified as 
      service complaints for which a rent decrease application could be made.

      In accordance with the applicable provisions of the Rent Stabilization 
      Code, and as provided for in the Administrator's order, as to any tenant 
      who may have moved into the subject premises after the instant application 
      filed, the increase provided for in the Administrator's order is not  
      collectible until the expiration of the lease term in effect at the time of 
      the issuance of said order of the Administrator unless the tenant's vacancy 
      lease contained a provision that the rent may be increased pursuant to an 
      order issued by the DHCR; that the instant application is pending before 
      the DHCR, including the docket number and the basis for the requested 
      increase; and that if granted, the increase may be collectible during the 
      lease term.

      The Commissioner notes that the determination herein and the collectibility 
      of the MCI rent increase provided for in the Administrator's order may be 
      affected by a decision to be rendered in connection with the tenants' PAR 
      (FJ 130521-RT) against the order of denial issued under Docket No. 
      EE 130039-B.



          ADMIN. REVIEW DOCKET NO.: GB110493RT,  et. al.




      THEREFORE, in accordance with the applicable provisions of the Rent 
      Stabilization Law and Code, 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 subject 
      to a possible limitation on collectibility as herein above noted.

      ISSUED:











                                                                    
                                           JOSEPH A. D'AGOSTA
                                           Deputy Commissioner





    

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