STATE OF NEW YORK
DIVISION OF HOUSING AND COMMUNITY RENEWAL
OFFICE OF RENT ADMINISTRATION
92-31 UNION HALL STREET
JAMAICA, NEW YORK 11433
IN THE MATTER OF THE ADMINISTRATIVE : ADMINISTRATIVE REVIEW
APPEALS OF DOCKET NOS.
: GC 210378-RT;GC 210379-RT
A & R REALTY & GC 210380-RT;GC 210381-RT
VARIOUS TENANTS GC 210382-RT;GC 210383-RT
PETITIONERS : GC 210384-RT;GC 210385-RT
------------------------------------X GC 210386-RT;GC 210387-RT
GC 210389-RT;GC 210423-RT
GC 210424-RT;GC 210425-RT
GC 210426-RT;GC 210427-RT
GC 210428-RT;GC 210429-RT
GC 210430-RT;GC 210431-RT
GC 210432-RT;GC 210433-RT
GC 210434-RT;GC 210435-RT
GC 210436-RT;GC 210491-RT
GC 210366-RT;GC 210367-RT
GC 210377-RT;GC 210092-RT
FI 230052-RO;GA 210131-RT
GC 210365-RT;GB 210379-RT
DOCKET NOS. FI 230009-RK
ORDER AND OPINION DENYING TENANTS' PETITIONS FOR ADMINISTRATIVE REVIEW
AND TERMINATION OWNER'S PETITION FOR ADMINISTRATIVE REVIEW
The above-named petitioners timely filed Administrative Appeals against
orders issued on August 19, 1991 and December 31, 1991 by the Rent
Administrator, (Gertz Plaza) concerning housing accommodations known as
751 Troy Avenue, Brooklyn, New York, Various Apartments, wherein the
Administrator granted, in part, the owner's application for Major Capital
Improvement rent increases.
The Commissioner has reviewed all of the evidence of record and has
carefully considered that portion of the record relevant to the issue
raised by these administrative appeals.
The owner commenced this proceeding below by filing a major capital
improvement rent increase application seeking to increase the rents of
controlled and stabilized apartments based upon the installation of
replacement windows, intercom system and the painting of hallways, stairs,
lobby and vestibule and at a claimed cost of $110,690.00.
Pursuant to the order (CJ 200050-OM) issued on August 19, 1991 the
Administrator authorized MCI rent increases for the intercom system and
for the controlled apartments only, for the window installation. The
Administrator denied such portion of the application as pertained to the
painting of lobby, vestibule, hallways, and stairs. The Administrator
DOCKET NUMBER: GC 210432-RT et al
also disallowed an increase for the window replacement with respect to
stabilized apartments on grounds that the application had not been filed
within two years of the completion date (October 14, 1986) of said
installation as required by Section 2422.4 (a)(8) of the Code.
Thereafter the owner filed a request for reconsideration of such portion
of the order which denied an increase for the window installation and
submitted to the Administrator a Certified mail receipt for the
application which was postmarked by the Postal Authorities on October 13,
1988. On September 17, the Administrator reopened the proceeding.
Tenants affected by the owner's rent increase application and reopened
proceeding were notified and were afforded an opportunity to respond. In
answer to the application, various tenants objected to the increase.
On December 31, 1991 the Administrator issued an order under Docket No.
FI 230009-RK modifying the previous order issued under Docket No. CJ
230050-OM, so as to further increase the rents of stabilized apartments to
reflect the cost ofthe window replacement.
In these petitions against the amended order (FI 230009-RK) the tenants
assert, in relevant part, that (a) the owner did not file its application
within the two year limit after the installation of the replacement
windows was completed; b) the work done constituted ordinary repairs and
not improvements, as defined by the Code; c) the painting of hallways,
stairways, lobby and vestibule was comestic in nature; d) the intercom
system does not function properly; e) some of the replacement windows were
not properly installed; f) the replacement windows benefit the owner due
to the savings on heating fuel; and g) the installations of new windows
and intercom system were not necessary since their useful life had not
In its petition against the Administrator's August 19, 1991 order (CJ
230050-OM) the owner states in substance, that the window installation
was completed on October 14, 1986; that its application was submitted on
October 13, 1988, meeting the two year statute of limitation requirement;
and thus a rent increase adjustment should be granted for said
installation as to the stabilized apartments.
After careful consideration of the entire record the Commissioner is of
the opinion that the tenants' petitions should be denied; and that the
owner's administrative appeal should be terminated.
At the outset the Commissioner notes that since the Administrator
subsequently resolved the issue raised by the owner's petition there is no
further issue to be determined with respect thereto.
Rent increases for major capital improvements are authorized by Section
2202.4 of the Rent and Evictions 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
DOCKET NUMBER: GC 210432-RT et al
for the operation, preservation, and maintenance of the structure; and
replace an item whose useful life has expired. Piecemeal work or ordinary
repairs and maintenance does not constitute work for which a rent increase
adjustment in warranted under current and past procedure.
It is the established position of the Division that the building-wide
installation of apartment and/ or public area windows to replace windows
which are 25 or more years old (as is the case herein) constitutes a MCI,
as does a new intercom system, for which a rent increase may be warranted,
if the owner otherwise so qualifies.
A review of the record below discloses that the owner substantiated its
MCI application to the extent ultimately recognized by submitting to the
Administrator documentation in support thereof including copies of the
accepted contractors' proposals, contractors' certifications, and
cancelled checks for the work in question. The record further discloses
that the owner timely filed its MCI application.
The tenants' contention with respect to the work done (painting of
hallways, stairways, lobby and vestibule) is irrelevant since the entire
claimed cost for said work was properly disallowed by the Administrator.
As to the tenants' allegations pertaining to the conditions of the
windows and the intercom system, the Commissioner notes that these claims
are being raised for the first time on appeal and are therefore
inappropriate for consideration at this level. However, this order is
issued without prejudice to the tenants filing an appropriate complaint
with the DHCR based on the owner's failure to maintain services, if the
facts wo warrant.
The other contentions raised by the tenants are irrelevant to the issue of
whether the owner is entitled to MCI rent increases for the installations
On the basis of the entire evidence of record, it is found that the
Administrator's amended order (FI 230009-RK) is correct and should be
THEREFORE, in accordance with the provisions of the Rent Stabilization Law
and Code and the Rent and Eviction Regulations for New York City, it is
ORDERED, that the petition under Docket No. FI 230052-RO be, and the same
hereby is terminated as moot; and it is further
ORDERED, that the tenants' petitions for administrative review be, and the
same hereby are denied; and that the Administrator's order under Docket
No. FI 230009-RK) be, and the same hereby is affirmed.
JOSEPH A. D'AGOSTA
Acting Deputy Commissioner