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.: GI410054RT,
APPEALS OF GI410079RT, GI410113RT,
VARIOUS TENANTS OF GI410123RT
228 EAST 26TH STREET
NEW YORK, NY RENT ADMINISTRATOR'S
DOCKET NO.: FC430063OM
PETITIONERS
-------------------------------------X
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 August 20,
1992, by a Rent Administrator (Gertz Plaza) concerning the housing
accommodations known as 228 East 26th 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 in these administrative appeals.
The owner commenced this proceeding on March 15, 1991, by initially
filing an application for a rent increase based on the installation
of electrical wiring at a total cost of $29,700.00.
One of the petitioning tenants objected to the owner's MCI
application, alleging, in substance, that the rewiring was required
due to electrical defects and should not be considered as an MCI
for that reason; that the apartment has two (2) rooms, not three
(3) for which the tenant has been billed; and that if the owner
considers the kitchen to be a room, this is incorrect because her
kitchen, with a window, only measures 51 square feet.
The owner did not respond to the tenant's objections below.
ADMIN. REVIEW DOCKET NO. GI-410054-RT ET AL
On August 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 rent increases for rent stabilized
tenants.
In these petitions, the tenants contend, in substance, that the
electrical work was done to correct problems noted as violations
and fire hazards by the New York City Department of Building's
Electrical Control Bureau (ECB); that for the above reason, the
rewiring should not be considered as an MCI; that the room count
should be two (2), not three (3) because the tenant's kitchen,
containing a window, only measures 33 square feet (2D); that other
tenants having the same apartment layout are only being charged for
two (2) rooms (2D); and that an inspection is warranted.
In response to the tenants' allegations, the owner contends, in
substance, that the violations mentioned by the tenants are
irrelevant to the MCI herein; and that the MCI has been validated
by the DHCR and warrants payment of the increase herein.
After a careful consideration of the entire evidence of record, the
Commissioner is of the opinion that these petitions should be
denied.
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. It is long-standing Division policy
that the adequate rewiring of a building qualifies as an MCI.
The evidence of record in the instant case indicates that although
electrical violations were cited by the ECB, the inspection held on
August 29, 1990, revealed that said violations were primarily
relative to the basement of the building. Subsequent thereto, the
ECB issued a certificate of electrical inspection dated December
20, 1990, indicating that the installation conformed with the
requirements of said bureau. Furthermore, there are no apartment
services complaints filed by the tenants against the premises
relating to "blow outs" or otherwise which might indicate that the
tenants were experiencing an unreasonable inconvenience prior to
the commencement of the proceeding below. Thus, rewiring areas
other than those found to be in violation of ECB standards not only
satisfied the requirements of the ECB but also served as a benefit
to all tenants by enhancing the quality of the structure. Even
though a review of the New York City Department of Housing
Preservation and Development's (HPDs) violations log revealed that
there were violations against the premises prior to the
commencement of the proceeding herein, said violations did not
disclose the existence of immediately hazardous conditions and did
not involve electrical problems. Hence, the Rent Administrator
acted properly in granting the rent increase based upon the
evidence of record.
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ADMIN. REVIEW DOCKET NO. GI-410054-RT ET AL
With respect to the tenant's allegation regarding room count, it is
noted that the owner has certified, via annual registration since
1984 to present and on its application, that the building contains
one (1) and three (3) room units only. There are no apartments in
the building registered as having two (2) rooms. Thus, the owner
should not be charging any tenants rent increases using room
quantities which are not in accordance with said certifications.
It shall be presumed that other tenants in the building are being
charged according to the information submitted in the application
as no other complaints concerning room count have been submitted to
this agency. In pertinent part, Policy Statement 93-2, which
supersedes Policy Statement 90-3, states that an enclosed kitchen
with a window or a windowless kitchen containing at least 59 square
feet constitutes a room for MCI purposes. Since it is conceded
that the kitchen in the subject apartment contains a window, the
size of the kitchen is irrelevant.
THEREFORE, in accordance with the Rent Stabilization Law and Code,
it is
ORDERED, that these petitions be, and the same hereby are, denied;
and that the Administrator's order be, and the same hereby is,
affirmed.
ISSUED:
____________________
Joseph A. D'Agosta
Deputy Commissioner
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