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.: GC110208RT
APPEAL OF
MICHELE MANGES
RENT ADMINISTRATOR'S
DOCKET NO.: EC130180OM
PETITIONER
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ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW
On March 5, 1992, the above-named petitioner-tenant timely filed a
petition for administrative review (PAR) against an order issued on
February 14, 1992, by the Rent Administrator (Gertz Plaza)
concerning the housing accommodations known as 42-09 47th Avenue,
Apt. 6E, Sunnyside, New York, wherein the Rent Administrator
determined that the owner was entitled to a rent increase based on
the installation of a major capital improvement (MCI).
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 this administrative appeal.
The owner commenced this proceeding on March 27, 1990, by initially
filing an application for a rent increase predicated on the
installation of a new intercom system and new apartment and hallway
windows, at the subject premises, at a total claimed cost of
$89,455.00. In support of its application, the owner submitted
copies of the contracts and cancelled checks.
On July 17, 1990 the Tenants' Association submitted a response
disputing the owner's claim and requesting an extension of time in
which to prepare an answer. However, at the time of processing,
February 11, 1992, no further response was received from the
Association. The tenants, therefore, failed to raise any pertinent
objection to the installation.
On February 14, 1992, the Rent Administrator issued the order here
under review, finding that the installations of a new intercom
system and new apartment and hallway windows qualified as Major
Capital Improvements, 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
an approved cost of $89,455.00.
ADMIN. REVIEW DOCKET NO. GC110208RT
In her petition for administrative review, the tenant requests
reversal of the Administrator's order and contends, in substance,
that the major capital improvements were made and the rent
increases applied for before she moved into her apartment on
February 1, 1991; and that her vacancy lease did not state the
pending MCI and list the items for which the MCI rent increase was
sought.
In answer to the tenant's petition, the owner contends, in
substance, that the tenant brought forth no reason for the final
order to be revised or modified in any way; and that the said
tenant is not being charged an increase for the major capital
improvements in question.
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 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 replacement of an intercom system
and apartment and hallway 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
substantiated his application by submitting copies of the contracts
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 where the tenant took occupancy of the
apartment pursuant to a vacancy lease commencing after the owner
had filed its application, as is the case in the instant
proceeding, for the MCI increase, granted by the Rent
Administrator's order, to be collectible during the term of the
tenant's vacancy lease, such vacancy lease would have to contain a
specific clause advising the tenant of the pending proceeding and
advising that the rent charged was subject to an additional
increase (during the current lease term in effect) as provided by
Section 2522.4(a)(5) of the Rent Stabilization Code and established
Division precedent. In the absence of same, said increase is not
collectible until the expiration of the lease term in effect at the
time of issuance of the MCI order, February 14, 1992, providing the
renewal lease contains a general authorization provision for
adjustment of the rent reserved by the DHCR order.
The Commissioner further notes that, according to the owner, the
tenant has not been charged an increase for the major capital
improvements.
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ADMIN. REVIEW DOCKET NO. GC110208RT
This order and opinion is issued without prejudice to the tenant's
right to file a rent overcharge complaint if the owner has
collected any rent increase authorized by the Rent Administrator's
order for any period prior to the expiration of the lease term in
effect, at the time the Administrator's order was issued.
THEREFORE, in accordance with the applicable provisions of the Rent
Stabilization Law and Code, it is
ORDERED, that this administrative appeal be, and the same hereby
is, denied, and the Administrator's order be, and the same hereby
is, affirmed.
ISSUED:
____________________
Joseph A. D'Agosta
Deputy Commissioner
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