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
|
