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 NO.: GA210161RT
          APPEAL OF

                  MERNA HING
                                                  RENT ADMINISTRATOR'S
                               PETITIONER         DOCKET NO.: DG230068OM 
          ------------------------------------X

            ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW

          On January 21, 1992 the above-named tenant timely refiled a 
          Petition for Administrative Review of an order issued on May 7, 
          1991 by a Rent Administrator (Gertz Plaza) concerning the housing 
          accommodations known as Apartment C9, 1151 New York Avenue,      
          Brooklyn, NY, wherein the Rent Administrator determined that the 
          owner was entitled to a rent increase based on a major capital 
          improvement.

          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 the petition for administrative review.

          The owner commenced this proceeding on July 18, 1989 by initially 
          filing an application for a major capital improvement rent increase 
          predicated on the installation of new apartment windows, at the 
          subject premises, at a total claimed cost of $54,036.00.  In 
          support of his application, the owner submitted copies of contracts 
          and cancelled checks.

          In response to the owner's application, five tenants, including the 
          petitioner-tenant, filed answers objecting to the rent increase. 
          They contended, in substance, that the owner neglected to make 
          timely repairs thereby resulting in the windows becoming 
          irreparable; that the windows were very old and in very bad shape; 
          that the claimed cost is too high; that the tenants should not be 
          made to pay increases such as these where the owner profits from 
          the improvement by saving on fuel costs; that no increase should be 
          granted to the owner for providing necessary services; and that the 
          windows in the common areas, such as the lobby and the stairs, were 
          not replaced, therefore, the installation cannot be considered 
          building-wide.


















          ADMIN.   REVIEW   DOCKET NO.: GA210161RT


          On May 7, 1991, the Rent Administrator issued the order here under 
          review finding that the installation of building-wide 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 rent increases for both rent controlled and rent 
          stabilized apartments based upon the approved cost of $54,036.00.

          In her petition for administrative review the tenant reiterated 
          that which was asserted when the proceeding was before the Rent 
          Administrator, namely that the owner is supposed to make all 
          necessary repairs without passing the cost to the tenants; that the 
          owner neglected to make repairs in a timely manner thereby 
          necessitating replacement; that the windows were beyond repair from 
          the time she took occupancy of the apartment; and that the windows 
          in the common areas, such as the lobby and the stairs, were not 
          replaced.  In addition, the tenant also claimed that some of the 
          new windows are not properly sealed, that they leak when it rains 
          and that the apartment becomes colder in winter months.

          In response to the tenant's petition, the owner contends, in 
          substance, that the building-wide replacement of apartment windows 
          is considered a major capital improvement for which a rent increase 
          may be granted by the DHCR; that the old windows were beyond 
          repair; that the new windows are all in working condition and that 
          the tenant brings forth no reason for the reversal or modification 
          of the Administrator's order.

          The tenant responds to the owner's answer by stating that she does 
          not consider the replacement of apartment windows as a building- 
          wide replacement since the windows along the stairwell and in the 
          lobby were not replaced.  She further contends, in substance, that 
          the owner was advised that the work done in her apartment was 
          unsatisfactory but to date no corrective measures have been 
          effectuated.

          After a careful consideration of the entire evidence of record, the 
          Commissioner is of the opinion that this petition should be denied.

          Rent increases for major capital improvements are authorized by 
          Section 2522.4 of the Rent Stabilization Code.  Under rent 
          stabilization, the improvement must generally be building-wide; 
          depreciable under the Internal Revenue Code, other than for 
          ordinary repairs; be required for the operation, preservation, and 
          maintenance of the structure; and replace an item whose useful life 
          has expired.

                                           2










          ADMIN.  REVIEW  DOCKET  NO.: GA210161RT



          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 Commissioner notes that it is the well established position of 
          the Division, as reflected in Policy Statement 89-6, that the 
          building-wide installation of all apartment windows, as is the case 
          in the instant proceeding, and/or public area or lot line windows, 
          to replace windows which are 25 or more years old, constitutes a 
          major capital improvement for which an increase may be warranted, 
          provided the owner otherwise so qualifies.  Public area windows may 
          be replaced as a separately qualifying MCI.

          Section 2529.6 of the Rent Stabilization Code provides in 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 could not have raised the 
          issue of the improperly sealed, leaky and drafty windows 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 the proceeding and may not be 
          considered on the merits.  In addition, the Commissioner notes that 
          the tenant has not complained of improperly sealed, leaky and 
          drafty windows in any services complaints filed with the Division.

          This order is issued without prejudice to the tenant's right to 
          file a service complaint with this Division based on a reduction of 
          services, if the facts so warrant.

          THEREFORE, in accordance with the Rent Stabilization Law and Code, 
          it is



                                          3


















          ADMIN.  REVIEW   DOCKET  NO.:  GA210161RT



          ORDERED, that this petition be, and the same hereby is, denied, and 
          the Rent Administrator's order be, and the same hereby is, 
          affirmed.






          ISSUED:


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





















































    

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