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.: GA210130RT
          APPEALS OF                                           GC210603RT
                                                               GB210350RT
                   VARIOUS TENANTS                             GA210010RT
                                                  RENT ADMINISTRATOR'S
                               PETITIONERS        DOCKET NO.:  CD230093OM 
          ------------------------------------X



           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 


                                        2










          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   
                

                                         3
















          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 


                                      4











          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



                                         5


















          ADMIN. REVIEW DOCKET  NOS.: GA210130RT et al.


          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:


           
                                                     -----------------------  
                                                      JOSEPH  A. D'AGOSTA
                                                      Deputy Commissioner   

                                        




























































    

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