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  S.J.R. NO.: 6745
        IN THE MATTER OF THE ADMINISTRATIVE :  ADMINISTRATIVE REVIEW
        APPEALS OF                             DOCKET NOS.: GG10151RT/
                                            :   GH210016RT/GG230121RO
        VARIOUS TENANTS OF 350 LEFFERTS         
        AVE., BROOKLYN AND 350 LEFFERTS        RENT ADMINISTRATOR'S
        REALTIES              PETITIONERS   :  DOCKET NO.: DH230065OM
        ------------------------------------X                             

                  ORDER AND OPINION REMANDING PROCEEDINGS ON APPEAL

        The above-named petitioners filed Petitions for Administrative Review 
        against an order issued on June 30, 1992 by the Rent Administrator 
        (Gertz Plaza), concerning housing accommodations known as 350 Lefferts 
        Avenue, Brooklyn, New York, wherein the Administrator partially granted 
        the owner's major capital improvement (MCI) application.

        Thereafter the owner commenced a proceeding in the Supreme Court 
        pursuant to Article 78 of the Civil Practice Law and Rules having 
        deemed its petition denied by operation Law.  The proceeding was then 
        remitted to the Division pursuant to Court order for a determination of 
        the administrative appeal.  The tenants' and the owner's administrative 
        appeals are consolidated for uniform disposition herein.

        The owner commenced the proceeding below  by filing a major capital 
        improvement application due to the installation of new replacement 
        windows, a new boiler/burner, a new roof, new entrance doors, elevator 
        upgrading and new mailboxes at a total claimed cost of $161,845.00.  
        The tenants were served with a copy of the application and afforded an 
        opportunity to respond.

        In response to the owner's application various tenants alleged, in 
        substance, that the work done was in the nature of delayed maintenance 
        and repairs; that some of the replacement windows do not function 
        properly and were not properly installed; that window screens were not 
        replaced; that the roof leaks; that there is inadequate heat and hot 
        water; and that the elevator regularly breaks down.  The tenants 
        further alleged that the incinerator room, the lobby including the 
        front and back yards are not kept clean and, consequently, the building 
        is infested with vermin.

        The owner responded by submitting an answer stating that all complaints 
        have been taken care of to the tenants' satisfaction.

        The Administrator authorized a rent increase for replacement windows 
        and a new boiler burner.  The Administrator determined that the owner 
        failed to timely file its application with respect to the installation







          ADMIN. REVIEW DOCKET NO.: GG210151RT, et al.




        of a roof and entrance doors and thus a rent increase adjustment was 
        granted for said items affecting only controlled apartments.  The 
        Administrator denied an MCI rent increase for elevator work and  
        mailboxes as these items did not fully meet the requirements for same.

        In its petition the owner contends, in substance, that the 
        Administrator incorrectly denied an MCI rent increase for the 
        installation of the entrance doors and the new roof since it submitted 
        its application in a timely fashion to the Division; and that an MCI 
        rent increase should have also been granted for elevator upgrading 
        since it meets the definitional requirements for same. 

        In response to the owner's petition the tenants' reasserts, in 
        substance, that the items for which a rent increase adjustments was 
        granted or requested are either defective and inoperative.  The owner 
        responded by submitting a letter from its contractor stating that the 
        elevator upgrading includes both a controller and a selector.

        In their petitions the tenants reiterate, in substance, that the 
        windows were not installed in a workmanlike manner so they malfunction 
        and as a result cold air seeps into their apartments; that the roof 
        leaks; that the elevator breaks down frequently; and that there is 
        inadequate heat and hot water among other various service complaints.

        The Commissioner is of the opinion that these proceedings should be 
        remanded to the Administrator for further processing.

        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.  Piecemeal work or ordinary repairs and maintenance does not 
        constitute work for which a rent increase adjustment is warranted under 
        current and past procedures.

        It is the established position of the Division that for an elevator  
        upgrading to qualify as a major capital improvement the installation 
        must include a new a new selector and a new controller, the electronic 
        brain of the elevator (Accord: ARL9558Q).  The record discloses that 
        the owner submitted to the Division evidence substantiating the 
        installation including requisite governmental approval and sign-off for 
        the operation of same.  The Administrator disallowed this item on the 
        apparent ground that the record did not specifically reflect the 
        installation of a new selector, albeit a controller as well as  swing 
        door locks and master door operator were installed.  Since the record, 


          ADMIN. REVIEW DOCKET NO.: GG210151RT, et al.




        as amplified on appeal, indicates that a selector may have been 
        installed in conjunction with the other items, the Commissioner deems 
        it appropriate, under the facts and circumstances of this particular 
        case, to remand this proceeding to the Administrator for further 
        processing, including consideration of the owner's claim that a 
        selector was installed as part of the elevator upgrading and if so, 
        whether an increase is warranted for this item.  In this connection the 
        Administrator should also investigate the tenants' complaints regarding 
        the functioning of this item.

        With respect to the new entrance doors, the owner specified in its 
        application that the work was completed on August 1 and July 31, 1987,
        respectively.  While the partial disallowance of these items (as to 
        stabilized apartments), was predicated on the fact that the instant 
        application was filed on August 18, 1989 (beyond the two year limit for 
        stabilized apartments) the record discloses that the instant   
        application was initially received by the Division of Housing and 
        Community Renewal (DHCR) on July 31, 1989 as evidence by a date stamp 
        on the filed application received by the Brooklyn Rent Office.  
        Therefore, the Commissioner finds that the application was timely filed 
        as required by Section 2522.4 (a)(8) of the Rent Stabilization Code.  
        In view of the foregoing the Commissioner deems it appropriate to 
        remand this proceeding to the Rent Administrator for such further 
        processing as may be deemed necessary with respect to such portion of 
        the application as pertains to the new doors and the new roof.

        As to the tenants' allegations concerning the windows, the entrance 
        doors, heat and hot water and the roof, the record indicates that the 
        Rent Administrator investigated these complaints and based upon the 
        Division's inspectional staff report, which revealed that the problems 
        had been resolved or that the objections were groundless for two 
        apartments, albeit more than 25 tenants had been complaining, the 
        Administrator did not investigate this further.  Accordingly, the 
        Commissioner finds that this proceeding should be remanded to the Rent 
        Administrator for further processing, including an inspection of the 
        premises, in order to ascertain whether all defective problems have 
        been corrected with respect to these items.

        The other contentions by the petitioners are irrelevant to the issue of 
        whether the owner is entitled to MCI rent increase for the 
        installations herein.

        THEREFORE, in accordance with the applicable provisions of the Rent 
        Stabilization Law and Code, and the Rent and Eviction Regulations for 
        New York City, it is













          ADMIN. REVIEW DOCKET NO.: GG210151RT, et al.




        ORDERED, that these proceedings be, and the same are, remanded to the 
        Rent Administrator for further consideration in accordance with this 
        order and opinion.  The automatic stay of so much of the Rent 
        Administrator's order as directed a retroactive rent increase for the 
        rent stabilized apartments is hereby continued until a new order is 
        issued upon the remand.  However, the Administrator's determination as 
        to a prospective rent increase is not stayed and shall remain in effect 
        until the Administrator issues a new order upon the remand.

        ISSUED:








                                                                      
                                             JOSEPH A. D'AGOSTA
                                             Deputy Commissioner

                            
         
    

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