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.: GK410050RT,
APPEALS OF GK410052RT, GK410053RT,
VARIOUS TENANTS OF GK410054RT, GK410055RT,
108 West 15th St. NY, NY GK410056RT, GK410057RT,
GK410058RT, GK410059RT,
GK410060RT, GK410061RT,
GK410064RT, GK410065RT,
GK410067RT,
RENT ADMINISTRATOR'S
DOCKET NO.: FJ410026RP
PETITIONERS
-------------------------------------X
ORDER AND OPINION DENYING PETITIONS FOR ADMINISTRATIVE REVIEW
On November 4, 1992, various tenants timely filed petitions for
administrative review against an order issued on October 2, 1992 by
a Rent Administrator concerning the housing accommodations known as
various apartments of 108 West 15th Street, New York, NY.
The Commissioner deems it appropriate to consolidate these
petitions for a uniform 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 June 1, 1989, by filing an
application for a rent increase based on the installation of the
following items at a total cost of $53,415.00: new windows and a
waste compactor. The owner indicated in its application that the
building contained 55 apartments all of which were rent stabilized
with a total of 130 rooms.
A total of 17 tenants responded to the owner's MCI application, 16
of which only requested an extension of time to examine the
application before submitting their answers. One tenant
specifically objected to the new windows saying they were
unnecessary and were only installed as an excuse to increase the
rent. All of the responses were received in October 1989.
ADMIN. REVIEW DOCKET NO. GK-410050-RT
On November 2, 1990, in response to a request for clarification
from the Rent Administrator, the owner amended its application to
state that the total number of rooms in the building was 155 and
not 130 and that the new windows were installed in all of them.
The response was never served on the tenants.
In Docket No. DF-410255-OM issued March 15, 1991, the Rent
Administrator granted, in part, the owner's application and
authorized an increase for the new windows. Disallowed by the
Administrator was the claimed cost of $5,200.00 for a waste
compactor upon a finding that the owner had failed to file its
application within two years from the completion date of the
compactor installation.
Nineteen tenants appealed the above-mentioned order and contended,
in substance, that (1) the room count upon which the increase was
based was incorrect in that the "A","B","G" and "K" line apartments
had three and a half rooms whereas the D line apartments consisted
of four and a half rooms; (2) none of the hall windows were
replaced despite the owner's claim that the window replacement was
building-wide; (3) the cost of the window replacement was
excessive; (4) the window replacement was unnecessary and was not
done for the benefit of the tenants, but instead was done to create
a "selling point" for converting the building to a cooperative; and
(5) the old windows would not have needed replacement if the owner
had properly maintained them.
In its answer, the owner stated that the hall windows were not
replaced and were not part of the total window count. The replaced
windows, however, were over 25 years old and had exceeded their
useful life. Furthermore, the cost of $155.00 per window was less
than the $165.00 approved under the New York State valuation
standards. The owner also objected to the tenants raising
arguments for the first time on appeal. Finally, the owner noted
that the room count was correct under the RSA standards.
In Administrative Review Docket Nos. FF-410543-RT el al. issued
October 23, 1991, the Commissioner found as follows:
The tenants' contention that the window installation
cannot be considered building-wide because of the
omission of windows in the hallways is incorrect. The
Commissioner has held that such circumstances do not mean
that the replacement was not done on a building-wide
basis, especially if the actual improvement consisted of
replacing all windows in all apartments, which resulted
in benefits to every tenant. Moreover, had the hallways
windows been replaced, this cost would only have been
factored into the total cost, resulting in an even higher
increase (ARB Docket No. ART-07981-B et al.). The claim
that the replacement was unnecessary is also without
merit, since the record is undisputed that the windows
ADMIN. REVIEW DOCKET NO. GK-410050-RT
were over 25 years old and, according to previous
holdings, are meriting of an MCI increase regardless of
their condition (ARB Docket No. ART-00840-W). The
general objections that the claimed cost has not been
substantiated is, firstly, disputed by the owner's
documentation in the record and secondly, is inadmissible
since it had not been raised by any of the tenants in the
record below, and cannot be raised for the first time on
appeal. The contention that the owner's real purpose for
the replacement was as a "selling point" in converting
the building to a co-operative does not lessen its
benefit to the tenants, and is no reason not to grant an
authorized rent increase. Finally, the contention that
no replacement would have been necessary if the owner had
properly maintained the windows, besides contradicting
the tenants' claim that the old windows were still
adequate, is also meritless because of the aforementioned
25 year useful life policy and because none of the
tenants had filed service complaints charging
deterioration of the old windows.
The Commissioner remanded the proceeding to determine the proper
room count for the subject building.
On November 13, 1991, the Rent Administrator mailed to the owner
and all tenants a notice of Proceeding to Reconsider Order
Pursuant to Remand wherein all parties were informed that the
proceeding had been reopened for the purpose of determining the
total room count for the subject building.
Eleven tenants submitted responses alleging the room counts for
their respective apartments. The tenant of apartment 5E contends
that the new windows are defective. The tenant of apartment 5B
contends that the old windows were repaired one month before the
new windows were installed and were in perfect working order.
The owner responded by submitting a letter on March 31, 1992,
wherein the owner stated that pursuant to the new room count
definition in Policy Statement 90-3, the correct room count for the
subject building was 155.
On May 11, 1992, the owner submitted a layout for the "A", "B",
"D", "G" and "K" lines of the subject building which indicated the
square footage of each room of the apartments.
In Docket No. ZFJ-410026-RP issued October 2, 1992, the Rent
Administrator determined that the total number of rooms in the
subject building was 145, and accordingly, modified the monthly
rent increase previously granted under Docket No. ZDF-410256-OM.
ADMIN. REVIEW DOCKET NO. GK-410050-RT
In these petitions, the tenants contend, in substance, that (1)
they were never notified about the remand order, and thus lost any
opportunity to submit documents; (2) the Division failed to take
into account that the hallway windows were not replaced; (3) the
Division failed to investigate whether said window replacement was
necessary and (4) the Division failed to rebut any statements
contained in the previous PAR, which should have been fairly and
thoroughly investigated in the remanded proceeding.
In response to the tenants' petitions, the owner contends, in
substance, that the Division issued an Order and Opinion on October
23, 1991 which reaffirmed the Administrator's original
determination granting an MCI rent increase for the windows, but
remanding the proceeding to verify the room count for the subject
building. On October 23, 1992, the Division issued a modified
order to reflect the correct room count and adjusted the rent
increase. The tenants, however, have filed Petitions using the
same arguments regarding the windows which the Division had already
addressed and dismissed in the original petition. As all evidence
has been reviewed, and all arguments previously addressed regarding
the windows, the tenants' petitions should be dismissed.
After careful consideration of the entire record, the Commissioner
is of 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.
The evidence of record in the instant case indicates that the owner
correctly complied with the application procedures for an MCI. The
owner substantiated its application in the proceeding below by
submitting to the Administrator contracts, proposals, invoices and
cancelled checks for the work in question. On the other hand, the
tenants have not submitted any evidence, either in the proceeding
before the Administrator or on appeal, to support any of their
allegations and have not established that the rent increase should
be revoked.
The Commissioner finds that the record belies the tenants'
contention that they were never notified about the remanded
proceeding and were not given the opportunity to submit evidence.
As a matter of fact, the record indicates that all of the tenants
were sent a notice of the remanded proceeding on November 13, 1991,
and that eleven tenants submitted responses thereto.
ADMIN. REVIEW DOCKET NO. GK-410050-RT
With regard to the remaining contentions of the tenants, the
Commissioner notes that all of those issues were fully addressed
and properly adjudicated in the Commissioner's earlier order of
October 23, 1991. In this respect, the Commissioner notes that an
owner need not to replace public area windows to obtain an increase
for the building-wide installation of apartment windows (Policy
Statement 89-6); and that the contract with the window installer
does not provide for the installation of hallway windows.
Based upon the entire evidence of record as amplified upon remand,
the Commissioner finds that the Administrator's order appealed
herein is correct and should be affirmed.
THEREFORE, in accordance with applicable provisions of the Rent
Stabilization Law and Code, it is
ORDERED, that these administrative appeals be, and the same hereby
are, denied and that the Rent Administrator's order be, and the
same hereby is, affirmed.
ISSUED:
____________________
Joseph A. D'Agosta
Deputy Commissioner
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