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
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IN THE MATTER OF THE ADMINISTRATIVE DOCKET NOS.: GA210130RT
APPEALS OF GC210603RT
GB210350RT
VARIOUS TENANTS GA210010RT
RENT ADMINISTRATOR'S
PETITIONERS DOCKET NO.: CD230093OM
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ORDER AND OPINION DENYING PETITIONS FOR ADMINISTRATIVE REVIEW
The above-named petitioner-tenants timely filed or refiled
petitions for administrative review (PAR's) against an order issued
on December 31, 1991, by a Rent Administrator (Gertz Plaza)
concerning the housing accommodations known as 3101 Ocean Parkway,
Brooklyn, New York, various apartments, wherein the Rent
Administrator determined that the owner was entitled to a rent
increase based on 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 April 12, 1988 by initially
filing an application for a rent increase based on the installation
of new apartment windows at a total claimed cost of $118,885.00.
In support of his application, the owner submitted copies of
contracts and cancelled checks.
Various tenants answered opposing the owner's application. In
substance, the tenants challenged the application on the grounds
that the windows were hastily and poorly installed; that they did
not fit snugly into the frames; that they were drafty, leaky and
very heavy; that they were very difficult to open and close; that
ADMIN. REVIEW DOCKET NOS.: GA210130RT et al.
the moldings and sashes were never painted after the new windows
were installed; that the requested increase was too high; that the
tenants were not asked whether, or not, they wanted new windows;
that the old windows were in good condition and did not need
replacement; that the owner has replaced adequate and workable
storm windows that had only been installed in 1979; that the owner
has replaced the windows for the sole purpose of increasing the
value of his property; and that the tenants, the majority of whom
are senior citizens, should not be made to pay this increase. One
of the petitioner-tenants ( Apt. 2J, Administrative Review Docket
No. GA210130RT) did not respond to the owner's application.
In response to the tenants' answers, the owner contended that he
will instruct his staff to make all necessary repairs and
adjustments; that he will submit a report to the Division when the
repairs are completed; and that the replaced windows were thirty-
five years old.
On December 31, 1991 the Rent Administrator issued the order here
under review finding that the installation, building-wide, of
apartment windows qualified as a major capital improvement,
determining that the application complied with the relevant laws
and regulations based upon the supporting documentation submitted
by the owner and allowing increases for both rent controlled and
rent stabilized apartments. However, the owner was barred from
collecting this increase from apartments 4J, 4O, and 7A since an
inspection, conducted on October 29, 1991, revealed that windows in
those apartments were defective. Once the repairs are completed,
the increase shall be effective prospectively from the date of
completion.
In their petitions for administrative review, three of the tenants
under Docket Nos. GC210603RT; GB210350RT and GA210010RT, re-
iterate, in substance, that which they had asserted in answer to
the owner's application, namely that the windows were poorly
installed; that they were drafty, leaky and very heavy; that they
were very difficult to open and close; that the moldings and sashes
were never painted after the new windows were installed; that the
tenants were not asked whether or not they wanted new windows; that
the old windows were in good condition and did not need
replacement; and that the owner has replaced the windows for the
sole purpose of increasing the value of his property.
The tenant of Apt.F6 also stated, under Docket No. GA210010RT, that
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ADMIN. REVIEW DOCKET NOS.: GA210130RT et al.
he should not be made to pay the retroactive part of the increase
for the installation of the windows since the windows in his
apartment were repaired twelve days before the Rent Administrator's
order was issued.
The tenant of Apt. 2J also added for the first time on PAR, under
Docket No. GA210130RT, that the new windows replace storm windows
that were installed in approximately 1983 and that the windows are
difficult to open.
In response to the tenants' petitions, the owner contends, in
substance, that the storm windows installed in various apartments
in 1979 helped prevent drafts but did not replace broken and rotten
sashes; that the new windows have upgraded the structure and were
for the preservation of the entire building; that the installation
was building-wide; that tenants' consent is not required in order
to be eligible for a rent increase providing the improvement was
done building-wide; that the replaced windows were installed in a
workmanlike manner and are very easy to operate; and that the
replaced windows had exceeded their useful life; and that no rent
increase was granted for storm or apartment window installation
prior to the order in question.
With regard to the complaint made by the tenant of Apt. 2J, under
Docket No. GA210130RT, the owner contends that said tenant was
afforded the opportunity to respond to the owner's application but
failed to do so; that the windows in Apt. 2J are in good and
operable condition; that the tenant's allegations are raised for
the first time on PAR; and that, as per the Division's Policy,
issues raised for the first time on PAR cannot bar the owner from
collecting a rent increase.
In answer to the allegation made by the tenant of Apt. F6, under
Docket No. GA210010RT, the owner states, in substance, that the
windows in said apartment were in operable condition; that only a
minor adjustment was necessary for one of the windows; that this
should not bar the owner from collecting the retroactive increase;
and that the adjustment was made as soon as he, the owner, was
notified.
The tenant of Apt. F6 answers the owner's response by stating that
in his, the tenant's, original complaint two windows were
inoperable and that another leaked; that the owner did not fix the
windows immediately, as the owner claimed; that the windows were
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ADMIN. REVIEW DOCKET NOS. GA210130RT et al.
repaired in December, 1991; and that the windows still do not work
properly.
With regard to Docket Nos. GC210603RT and GB210350RT, filed by the
tenants of Apts. 2O and 5M respectively, the owner submitted two
work sheets, dated March 18, 1991 and March 17,1991 respectively,
that were signed by the two tenants in question, stating that the
sashes were painted and that the windows were operable. However,
the tenant of Apt. 2O claimed that he had signed the worksheet
without reading and that the windows were still not repaired.
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.
The Commissioner notes that the building-wide replacement of
apartment windows qualifies as a major capital improvement for
which an increase may be warranted. The record indicates that the
owner substantiated his application by submitting copies of the
contract and cancelled checks. The record confirms that the owner
correctly complied with the applicable procedures for a major
capital improvement rent increase.
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 Apartment 2J could not
have raised the issue of defective windows which was raised in the
petition under Docket No. GA210130RT 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, namely GA210130RT, is not
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ADMIN. REVIEW DOCKET NO. GA210130RT et al.
within scope of the Commissioner's review of the proceeding and may
not be considered on the merits.
With regard to the tenants' assertions that they were never asked
if they wanted new windows and never consented to the old windows
being replaced, the Commissioner notes that such consent is not
necessary where the installation qualifies as an MCI.
A review of the Division's records indicates that no rent increase
was previously granted for the installation of apartment or storm
windows for the subject premises. Further, it is the established
position of the Division that the building-wide installation of new
apartment windows to replace windows that are twenty-five or more
years old, as is the case in the instant proceeding, constitutes a
major capital improvement for which a rent increase may be
warranted, providing the owner otherwise so qualifies.
With regard to the allegations made by the tenants under Docket
Nos. GC210603RT and GB210350RT, the Commissioner notes that both
tenants had signed worksheets, on March 18, 1991 and March 17, 1991
respectively, stating that all the necessary repairs had been
effectuated.
With regard to the claim made by the tenant of Apt. F6, under
Docket No. GA210010RT, the Commissioner finds that the owner had
taken appropriate corrective action while the proceeding was still
pending before the Rent Administrator and that the requested
repairs were effectuated before the Administrator's order was
issued.
The Commissioner also finds that no service complaint was filed,
with the Division, by the complaining-tenants with regard to
defective window installation.
This order is issued without prejudice to the tenants' right to
file service complaints with the Division based on defective and
inoperable apartment windows, if the facts so warrant.
THEREFORE, in accordance with the applicable provisions of the Rent
Stabilization Law and Code, it is
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ORDERED, that these tenants' petitions, under Docket Nos.
GA210130RT, GC210603RT, GB210350RT, and GA210010RT be, and the same
hereby are, denied and the Rent Administrator's order be, and the
same hereby is affirmed in all respects.
ISSUED:
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JOSEPH A. D'AGOSTA
Deputy Commissioner
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