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.: GA210052RT
APPEALS OF GA210284RT
IRVING LAZAR & SARA JITZCHAKI
RENT ADMINISTRATOR'S
PETITIONERS DOCKET NO.: EG230108OM
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ORDER AND OPINION REMANDING PROCEEDING UNDER DOCKET NUMBER
GA210052RT AND DENYING PETITION FOR ADMINISTRATIVE REVIEW UNDER
DOCKET NUMBER GA210284RT
The above-named tenants timely filed petitions for administrative
review (PARs) against an order issued on January 10,1992 by the
Rent Administrator (Gertz Plaza) concerning the housing
accommodations known as 1620-1630 Ocean Avenue, Brooklyn, New York,
various apartments, wherein the Rent Administrator determined that
the owner was entitled to a rent increase based on various major
capital improvements.
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. Furthermore, 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 owner commenced this proceeding on July 19, 1990 by initially
filing an application for a major capital improvement rent increase
predicated on the installation of the following items:
ITEMS CLAIMED COST
1. Elevator $ 11,000.00
2. Elevator Cab Renovation $ 9,000.00
3. Doors $ 2,370.00
4. New Burner $ 21,000.00
5. Intercom $ 9,000.00
6. Parapet Wall Cementing $ 6,500.00
7. Fencing $ 4,500.00
8. Windows $115,702.00
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TOTAL CLAIMED COST $179,072.00
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ADMIN. REVIEW DOCKET NOS.: GA210052RT et al.
In support of his application, the owner submitted copies of
contracts, permits, approvals and cancelled checks.
In response to the owner's application, several tenants filed
answers objecting to the increase. In substance, the tenants
contended that the heat and hot water were inadequate; the intercom
system was old and inoperable; the windows were defective; the
doors were broken; the burner was malfunctioning; and that the
elevator was in a state of disrepair. In addition, the petitioner-
tenant of Apt. 2O (Docket No. GA210052RT) claimed that he lives in
the building at 1630 Ocean Avenue and that said building does not
have any elevator. The petitioner-tenant of Apt. 2C (Docket No.
GA210284RT) did not submit any answer to the owner's application.
The owner was informed of these allegations and subsequently
responded indicating that heat and hot water were adequately
provided; that the intercom repairs were done and that the
arrangements for the repair of the windows had been made.
A subsequent inspection conducted by the Division revealed that
heat and hot water were adequately provided and that the intercom
system was operable. However, the inspection revealed that the
windows in some apartments, namely 2-O, 4D, 5C, and 5L were
defective.
On January 10, 1992, the Rent Administrator issued the order here
under review finding that the upgrading of the elevators and the
installation of doors, burner, intercom system and apartment
windows qualified as major capital improvements, determining that
the application as it relates to such items, complied with the
relevant laws and regulations based upon the supporting
documentation submitted by the owner and allowing rent increases
for both rent controlled and rent stabilized apartments based upon
the approved net cost of $159,072,00 and $145,702.00 for rent
controlled and rent stabilized apartments respectively. Disallowed
by the Rent Administrator, was the total of $20,000.00 for rent
controlled and rent stabilized apartments since the elevator cab
renovation, not done in conjunction with the elevator upgrading,
parapet wall cementing and fencing did not qualify as major capital
improvements. Disallowed also for rent stabilized apartments, was
the additional cost of $13,370.00 for elevator upgrading and doors
since the owner failed to file the application within two years
from the completion date of the installation. In addition, the
owner was barred from collecting the rent increase for the window
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ADMIN. REVIEW DOCKET NOS.: GA210052RT et al.
installation, including all retroactivity, for apartments 2-O, 4D,
5C, and 5L, until all repairs had been effectuated.
In his petition for administrative review, under docket number
GA210052RT, the tenant re-iterates, in substance, that which was
asserted when the case was before the Rent Administrator, namely
that the building at 1630 Ocean Avenue has three floors and does
not have an elevator; that the building is poorly maintained; that
the fencing and cementing of the parapet wall are not considered
major capital improvements; that the building is infested with
pests; and that he has already paid increases for doors and
intercom in the past.
In the petition under docket number GA210284RT, the tenant of Apt.
2C contends, in substance, that the intercom in said apartment has
never worked; that the shower is not working; and that the marble
panels are cracked and crumbling.
After a careful consideration of the entire evidence of record, the
commissioner is of the opinion that the proceeding under Docket #
GA210052RT should be remanded to the Rent Administrator for further
processing and that the petition under Docket # GA210284RT should
be denied.
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 a item whose useful life has expired.
The Commissioner notes that the upgrading of an elevator and the
installation of doors, burner, intercom and windows qualify as
major capital improvements for which an increase may be warranted,
providing the owner otherwise so qualifies. The record indicates
that the owner correctly complied with the applicable procedures
for a major capital improvement rent increase as to these items.
Section 2529.6 of the Rent Stabilization Code provides, in
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ADMIN. REVIEW DOCKET NOS.:GA210052RT et al.
pertinent part, that the scope of administrative review is limited
to such facts or evidence as was before the Administrator as raised
in the petition unless the petitioner can establish that such
issues could not reasonably have been offered or raised in the
proceeding prior to the issuance of the Administrator's
determination.
There is no indication that the tenant of Apt. 2C, under docket
number GA210284RT, could not have raised the issue of the defective
intercom before the Administrator in the proceeding below nor has
the petitioner submitted any explanation for her failure to do so.
Accordingly, the issue sought to be raised by this petition is not
within the scope of the Commissioner's review of this proceeding
and may not be considered on the merits. This order and opinion is
issued without prejudice to the tenant's right to file a service
complaint with the Division, if the facts so warrant.
With regard to the claim made by the tenant of Apt. 2O, under
docket number GA210052RT, that fencing and cementing of the parapet
wall are not considered major capital improvements, the
Commissioner notes that no increase was granted for said
installations. A search of the Division's records negates the
tenant's claim that increases were already granted for the
installation of doors and intercom system.
A physical inspection conducted on March 23, 1994 by the Division
supports the tenant's claim that the building at 1630 Ocean Avenue
is a three-storied building without any elevators. Further, the
buildings at 1620 and 1630 Ocean Avenue are not connected in way
that would make it possible for tenants of 1630 Ocean Avenue to use
the elevator installed at 1620 Ocean Avenue to get to their
apartments. The Commissioner, therefore, finds that it was
improper for the Rent Administrator to grant an increase for the
rent controlled tenants of 1630 Ocean Avenue for the elevator
installation when said building does not have an elevator and when
said tenants do not benefit from the installation of the elevator
at 1620 Ocean Avenue. In view of the foregoing, the Commissioner
is of the opinion that this proceeding should be remanded for a
redetermination of the increase for elevator upgrading for the rent
controlled tenants of 1620 Ocean Avenue and to determine the refund
to which the rent controlled tenants of 1630 Ocean Avenue are
entitled.
THEREFORE, in accordance with the Rent Stabilization Law and Code
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ADMIN. REVIEW DOCKET NOS.:GA210052RT et al.
and the Rent and Eviction Regulations for New York City, it is
ORDERED, that the petition under docket number GA210284RT be, and
the same hereby is, denied and the petition under docket number
GA210052RT be, and the same hereby is, granted to the extent of
remanding this proceeding to the Administrator for further
processing in accordance with this order and opinion. The order
and determination of the Rent Administrator remains in full force
and effect until a new order is issued on remand.
ISSUED:
JOSEPH A. D'AGOSTA
Deputy Commissioner
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