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
|
