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   ADMINISTRATIVE REVIEW
          IN THE MATTER OF THE ADMINISTRATIVE      DOCKET Nos.:  GE120120RT, 
          APPEALS OF                               GE120332RT,   GE120148RT, 
                                                   GF110003RT,   GF110029RT, 
                    VARIOUS TENANTS OF             GF120001RT,   GF120004RT, 
                    32-35 30TH STREET              GF120030RT,   GF120031RT, 
                    ASTORIA, NY                    GF120042RT
                                         
                                                   RENT ADMINISTRATOR'S
                                                   DOCKET NO.:  EC130077OM

                                   PETITIONERS
          -------------------------------------X

          ORDER AND OPINION GRANTING IN PART PETITIONS FOR ADMINISTRATIVE 
          REVIEW

          On various dates, the above named petitioner-tenants timely filed 
          petitions for administrative review (PARs) against an order issued 
          on May 8, 1992, by a Rent Administrator (Gertz Plaza) concerning 
          the housing accommodations known as 32-35 30th Street, Queens, New 
          York, wherein the Rent Administrator determined that the owner was 
          entitled to a rent increase based on the installation of major 
          capital improvements (MCIs).

          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 March 5, 1990 by initially 
          filing an application for a rent increase based on the installation 
          of the following items at a total claimed cost of $286,876.00:  
          plumbing, thermal insulated windows building-wide, and outer and 
          vestibule doors.



















          ADMIN. REVIEW DOCKET NOS.  GE-120120-RT ET. AL.

          Numerous tenants objected to the owner's MCI application, 
          contending, in substance, that the various items were in "dire 
          need" of repairs, and that an MCI rent increase was not warranted 
          because the installations were made to correct building violations.  
          Additionally, tenants in Apts. D45, D41, D6, and C22 alleged that 
          the windows were drafty and loose; the tenant in Apt. B41 alleged 
          that the ceiling leaked and the intercom on the new door had not 
          worked since it was installed; and the tenant of Apt. C35 alleged 
          that the new door was heavy for elderly tenants and that there was 
          a need for the repairs both to the building and this tenant's 
          apartment.

          The owner responded to the tenants' objections, stating in 
          substance, that repairs were completed in apartments D45, C35, D6, 
          C22 and D41.

          On May 8, 1992 the Rent Administrator issued the order here under 
          review.  The order of the Rent Administrator granted, in part, the 
          owner's MCI application and authorized an increase for rent 
          stabilized apartments, effective August 1, 1990, based upon a total 
          approved cost of $264,116.00 upon finding that the windows and 
          plumbing installations qualified as MCIs.  Disallowed by the Rent 
          Administrator as to stabilized apartments was the claimed cost of 
          $22,760 for the doors upon a finding that the owner failed to 
          submit the application within two years from the completion date of 
          the installation of said item.  The Administrator approved the 
          total claimed cost of $286,876.00 for the windows, plumbing and 
          door installations for the rent controlled apartments and 
          authorized a rent increase for said units, effective June 1, 1992.

          In these petitions the various tenants contend, in substance, that 
          they never were notified of the owner's responses to the tenants' 
          answers; that the installations were to correct violations; that 
          the cost of the doors is exaggerated; and that the tenants did not 
          request the improvements.  Additionally, the tenant in apartment 
          D45 states that a window is broken and the bedroom roof leaks.  The 
          tenants in apartment D46 state that they have sporadic heat and hot 
          water and should not be required to pay arrears back to 1990 since 
          they did not take occupancy until 1991.

          In response to the tenants' petitions, the owner contends, in 
          substance, that he is entitled to upgrade equipment for the 
          operation, preservation and maintenance of the building; and that 
          the tenants' consent is not necessary for a building-wide 
          installation.  In response to the tenant in apartment D45, the 
          owner states that the tenant's complaints are apartment specific 
          and should be made to the superintendent.  In response to the 
          tenants in apartment D46, the owner states that this MCI increase 
          is not collectible from the subject tenants.


                                          2






          ADMIN. REVIEW DOCKET NOS.  GE-120120-RT ET. AL.

          After a careful consideration of the entire record, the 
          Commissioner is of the opinion that these petitions should be 
          granted in part to modify the Administrator's order for reasons set 
          forth herein.

          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.

          As to the tenants' contention that they did not receive the owner's 
          response to their complaints, a review of the record shows that the 
          Rent Administrator requested the owner to comment upon answers 
          submitted by the tenants of five apartments (D45, C35, D6, C22 and 
          D41) who had complaints related to the window installation and 
          plumbing workmanship.  The record also indicates that the owner's 
          responses were sent only to these five tenants for confirmation 
          that repairs were actually performed.  Furthermore, of these five 
          tenants, two filed petitions, the tenants of apartments C35 and 
          D45, and neither petition claimed that the tenant did not receive 
          notification of the owner's response.  Therefore, this contention 
          is not supported by the evidence of record. 

          As for the petitioner-tenants' contentions that the improvements 
          corrected building violations, the Commissioner notes the 
          installations meet the criteria for an MCI rent increase as stated 
          in Section 2522.4(a) of the Rent Stabilization Code and 2204.4 of 
          the Rent and Eviction Regulations.  It is the established position 
          of the Division, and the courts have so held, that the fact that 
          such work may have been performed to correct violations or to 
          comply with a Court order does not bar an owner's entitlement to a 
          major capital improvement rent increase, if the facts otherwise so 
          warrant.

          Furthermore, the record discloses that the owner substantiated its 
          application in the proceeding below by submitting to the 
          Administrator documentation in support of the application, 
          including the contractors' certifications, copies of contracts, 
          invoices, estimates, cancelled checks, and the necessary 
          governmental approvals and sign-offs for the work in question.




                                          3












          ADMIN. REVIEW DOCKET NOS.  GE-120120-RT ET. AL.

          With respect to the petitioner-tenants' objections to the 
          installations, the Commissioner notes that the owner does not need 
          tenant consent when the installations meet the criteria for an MCI 
          as set forth above.

          As for the claim of the petitioner-tenant of Apt. D45, the 
          Commissioner notes that the tenant's original complaint of drafty 
          and loose windows was addressed by the Rent Administrator, and that 
          said tenant did not dispute the owner's statement that repairs were 
          made.  The new claims of a broken window and leaky bedroom ceiling 
          were raised for the first time on appeal, and thus, cannot be 
          considered at this stage of the proceeding as this is not a de novo 
          proceeding.

          As for the claim of the petitioner-tenants of Apt. D46 that said 
          apartment has sporadic heat and hot water, the record indicates, as 
          stated above, that the owner substantiated his application.  On the 
          other hand, the tenants have submitted on appeal no evidence to 
          support their claim which, in any event, is unrelated to the 
          improvements in question. This order and opinion is issued without 
          prejudice to the tenants' right to file a service reduction 
          complaint with the Division wherein they may allege these 
          conditions and seek a rent decrease.

          With regard to the claim by the same petitioner-tenants of 
          apartment D46 that they moved into said apartment after the filing 
          of the owner's MCI application (as confirmed by the record), the 
          Commissioner notes that pursuant to Section 2522.4(a)(2) of the 
          Rent Stabilization Code, the MCI increase is not collectible until 
          the expiration of the lease term in effect at the time of issuance 
          of the Administrator's order (May 8, 1992) unless said tenants' 
          vacancy lease contained a provision stating that the rent may be 
          increased pursuant to an order issued by the DHCR; that the instant 
          application is pending before the DHCR, including the docket number 
          and the basis for the requested increase; and that if granted, the 
          increase may be collectible during the lease term.  In no event 
          would the tenant be obligated for any increases prior to the time 
          they took occupancy of the apartment.

          However, it is the established policy of the DHCR, as reflected in 
          Policy Statement 90-8, that "where there is a DHCR order in effect 
          determining a failure to maintain a building-wide service which 
          resulted in a rent reduction", such order will constitute a bar to 
          obtaining an MCI rent increase.  The subsequent restoration of rent 
          based on a finding of service restoration will result in the 
          prospective elimination of this sanction.





                                          4






          ADMIN. REVIEW DOCKET NOS.  GE-120120-RT ET. AL.

          In this respect, the Commissioner notes that a prior MCI 
          application (Docket No. ZDA130179OM) was denied due to the 
          existence of three building-wide rent reduction orders, Docket Nos. 
          BH130192B, BD130096B and BE110066B.  The owner filed applications 
          for rent restorations under Docket Nos. EC130132OR, EA130046OR and 
          EA130050OR, which were granted on October 9, 1990, August 10, 1990 
          and October 5, 1990, respectively.

          The record further discloses that a building-wide rent reduction 
          order, Docket No. QCS000099B, issued on July 29, 1985, based upon 
          a finding that services of a building-wide nature were not being 
          maintained (defective buzzer and bell system and main door) was 
          outstanding against the subject premises at the time the order 
          appealed herein was issued (notwithstanding that the owner was 
          advised in 1988 to make application for rent restoration).

          The Commissioner notes, however, that on March 19, 1992 and April 
          7, 1992, a Rent Administrator issued rent restoration orders 
          regarding Docket No. QCS000099B under Docket Nos. FG120283OR and 
          FH120220OR for apartments B26 and D23, respectively, based upon a 
          February 5, 1992 building-wide inspection which disclosed no 
          evidence of a defective bell/buzzer system or a defective building 
          entrance door.  The Commissioner also notes that there is a rent 
          restoration application pending before the Division for apartment 
          B23 (GI120245OR) with regard to Docket No. QCS000099B.  

          Based upon the foregoing, and in accordance with Policy Statement 
          90-8, the Commissioner is of the opinion and finds that the rent 
          increase provided for in the Administrator's order should be 
          suspended for stabilized apartments from the inception thereof and 
          that said increase be reinstated, effective as of April 1, 1992, 
          the date upon which it was found by the Division that the services 
          for which rents had been reduced under Docket No. QCS00099B had 
          been restored.  The Commissioner notes that this modification does 
          not impact upon the effective date of the increase for rent 
          controlled apartments which is June 1, 1992, the first rent payment 
          date after issuance of the Administrator's order appealed herein.

          The Commissioner further notes, in accordance with Policy Statement 
          90-8, that the MCI rent increase which is the subject of this 
          proceeding is not collectible from any apartment as to which an 
          order of rent reduction, effective prior to the effective dates of 
          the increase provided for herein, remains outstanding.

          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 
          in part; that the Administrator's order be, and the same hereby is, 
          modified so as to change the effective date thereof with respect to 
          stabilized apartments to April 1, 1992 for reasons hereinabove 
          indicated; and it is further   5 












          ADMIN. REVIEW DOCKET NOS.  GE-120120-RT ET. AL.

          ORDERED, that as to tenants of rent stabilized apartments, the 
          owner credit any excess rent collected at the rate of 20% per month 
          commencing on the first rent payment date following issuance of 
          this order of the Commissioner until all overpayments have been 
          refunded.

          ISSUED:

                                                       ____________________
                                                         Joseph A. D'Agosta
                                                        Deputy Commissioner








































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