STATE OF NEW YORK
DIVISION OF HOUSING AND COMMUNITY RENEWAL
OFFICE OF RENT ADMINISTRATION
92-31 UNION HALL STREET
JAMAICA, NEW YORK 11433
-------------------------------------X ADMINISTRATIVE REVIEW
IN THE MATTER OF THE ADMINISTRATIVE DOCKET Nos.: GB410141RT
APPEALS OF GB410342RT, GB410343RT
VARIOUS TENANTS OF GB410346RT, GB410337RT
21 ESSEX STREET GC410053RT
NEW YORK, NY
DOCKET NO.: CK430187OM
ORDER AND OPINION REMANDING PROCEEDING ON APPEAL
On various dates, the above named petitioner-tenants timely filed
petitions for administrative review (PARs) against an order issued
on January 31, 1992 by a Rent Administrator (Gertz Plaza)
concerning the housing accommodations known as 21 Essex Street, New
York, New York, various apartments, wherein the Rent Administrator
determined that the owner was entitled to a rent increase based on
the installation of a major capital improvement (MCI).
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 the administrative appeal.
The owner commenced this proceeding on November 21, 1988 by
initially filing an application for a rent increase based on the
installation of gas fired heater units in each of the 16 apartments
in the premises, at a total cost of $20,800.00.
Various tenants objected to the owner's MCI application, alleging,
in substance, that they have to provide their own fuel for the
heater and hot water; that the new units are defective and break
down; that repairs to the units are needed; and that the cost of
the MCI installation is too high. Additionally, the tenant in
apartment 14 claims that the owner is not maintaining required
ADMIN. REVIEW DOCKET NO. GB-410141-RT
The owner responded to tenants' objections by contending, in
substance, that New York City required the owner to remove the old
illegal heating units; that the cost of the new gas fired heater
units was substantiated in the application; that the tenants do
supply the fuel for their units; and that the unit in apartment 12
did break down but the owner had repaired the unit.
The tenant in apartment 12 responded to the owner's contentions,
claiming that the gas fired heater unit had not been working since
August 1990; that the tenant has been using an electrical heating
unit; and that in the tenant's prior apartment, apartment 6, the
heater unit was out of order for three years.
The DHCR scheduled physical inspections for apartment 12 for
January 7, 1992 and January 13, 1992 but the inspections were not
conducted because the inspector could not get access to the
apartment. There were no responses from the tenant in apartment 12
regarding the inspection notices.
On January 31, 1992, the Rent Administrator issued the order here
under review finding that the installation qualified as an MCI,
determining that the application complied with the relevant laws
and regulations based upon the supporting documentation submitted
by the owner, and allowing appropriate rent increases for rent
controlled and rent stabilized tenants.
In their petitions, various tenants contend that the gas fired
heaters are either not working or not working properly; that the
$20,800 cost of the installation is too high; that some heater
units make noises; and that the tenants pay for their own fuel.
Additionally, the tenant in apartment 12 claims that he did not
receive the "first notice".
The owner, in response to the tenants' claims, stated, in
substance, that the system was installed in 1988 and the tenants
are only complaining now because of the pending rent increase; and
that the owner makes repairs as soon as he is notified of a
problem. Additionally, the owner submitted a letter from P.R.K.
Mechanical to show that the owner's service person tried to gain
access to the apartments to do repair work but was unsuccessful.
Some of the tenant-petitioners responded to the owner's answer
stating that the system does not always work, supplies insufficient
heat, and makes loud noises; that a repair person from P.R.K.
Mechanical came at 7AM without making an appointment; and that they
did not let the serviceman in because of the "possibility of
The Commissioner is of the opinion that these petitions should
remanded for further consideration.
ADMIN. REVIEW DOCKET NO. GB-410141-RT
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 evidence of record in the instant case indicates that none of
the gas fired heater units in the apartments were actually
inspected although twenty-five percent of the tenants complained of
dysfunctional units. The Commissioner finds that the Rent
Administrator incorrectly granted the owner's application without
an inspection of the individual units. In their petitions,
tenants make similar complaints and the owner's answer indicates
that he has not made repairs albeit due to the fact that the
tenants did not permit access to the apartments on what may have
been inadequate notice.
This proceeding must be remanded for inspection of the petitioner-
tenants' gas fired heater units to verify the adequacy of the MCI
THEREFORE, in accordance with the Rent Stabilization Law and Code,
and the New York City Rent and Eviction Regulations, it is
ORDERED, that these petitions be, and the same hereby are, granted
to the extent of remanding this proceeding to the Rent
Administrator for further processing in accordance with this order
and opinion. The automatic stay of that part of the Rent
Administrator's order directing a retroactive rent increase is
hereby continued until a new order is issued upon 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 remand.
Joseph A. D'Agosta