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 NO.: GA210161RT
APPEAL OF
MERNA HING
RENT ADMINISTRATOR'S
PETITIONER DOCKET NO.: DG230068OM
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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.
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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
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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:
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JOSEPH A. D'AGOSTA
Deputy Commissioner
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