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.: GE110003RT;
APPEALS OF GE110034RT; GE110358RT;
VARIOUS TENANTS OF GE120036RT
35-08 95TH STREET
JACKSON HEIGHTS, NY RENT ADMINISTRATOR'S
DOCKET NO.: DL130064OM
ORDER AND OPINION DENYING PETITIONS FOR ADMINISTRATIVE REVIEW
The above named petitioner-tenants timely filed petitions for
administrative review (PARs) against an order issued on April 20,
1992, by a Rent Administrator (Gertz Plaza) concerning the housing
accommodations known as 35-08 95th Street, Jackson Heights, 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 these administrative appeals.
The owner commenced this proceeding on December 7, 1989, by
initially filing an application for a rent increase based on the
installation of a waste compactor at a total cost of $11,975.00.
The tenants did not submit an objection to the owner's MCI
application although afforded the opportunity to do so.
On April 20, 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
ADMIN. REVIEW DOCKET NOS. GE110003RT ET. AL.
In these petitions, the tenants contend, in substance, that the
installation was not performed in a workmanlike manner; that the
incinerator is not used because garbage placed there is ultimately
taken outside by the Superintendent; that one tenant is a Senior
Citizen who cannot afford the increase; that one tenant who moved
in when the application was pending did not receive notice of the
proceeding; and that the owner is not maintaining services
In response to the tenants' petitions, the owner contends, in
substance, that the tenants failed to provide a valid reason for
the modification or reversal of the order herein; that the
compactor was properly installed; that the compactor was inspected
by the appropriate agencies and a licensed architect who certified
that the compactor met all of the New York City requirements (copy
of architect's statement submitted); that the compactor is used
regularly; and that, with respect to the one tenant disputing
proper notice, the tenant's vacancy lease contained the provision
notifying the tenant of the pending MCI application (copy of the
lease containing said provision submitted).
After a careful consideration of the entire evidence of record, the
Commissioner is of the opinion that these petitions should be
Rent increases for major capital improvements are authorized by
Section 2522.4 of the Rent Stabilization Code for rent stabilized
apartments. 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 cases indicate that with
exception to one petitioner whose vacancy lease provided notice of
the pending application as required by the DHCR, all of the
petitioners were in possession of the subject premises at the time
notice was sent to all tenants by the DHCR. Said notice elicited
one response. Presumably, all tenants were given proper
notification as said notices were not returned by the United States
Post Office marked undeliverable as addressed. Therefore, the
issues raised herein for the first time on appeal are generally
considered to be outside the scope of the Commissioner's review in
accordance with Section 2529.6 of the Rent Stabilization Code.
ADMIN. REVIEW DOCKET NOS. GE110003RT ET. AL.
However, the Commissioner deems it appropriate to note that, as
provided for in the Administrator's order, Senior Citizens
possessing a valid SCRIE may not have to pay rent in excess of one-
third of their household disposable income; and that the owner has
complied with the DHCR requirement mandating notice to prospective
tenants via a vacancy lease provision stating that an MCI
application is pending prior to effectuating a vacancy lease which
is evidenced by a copy thereof.
It is further noted that this order and opinion is issued without
prejudice to the right of the tenants to file apartment services
complaints or building-wide service complaints which may result in
a reduction from the tenants' rents, if the facts so warrant.
THEREFORE, in accordance with the Rent Stabilization Law and Code,
ORDERED, that these petitions be, and the same hereby are, denied,
and that the Administrator's order be, and the same hereby is,
Joseph A. D'Agosta