DOCKET NO.: GD 910300-RO
STATE OF NEW YORK
DIVISION OF HOUSING AND COMMUNITY RENEWAL
OFFICE OF RENT ADMINISTRATION
92-31 UNION HALL STREET
JAMAICA, NEW YORK 11433
IN THE MATTER OF THE ADMINISTRATIVE : SJR 6569
APPEAL OF ADMINISTRATIVE REVIEW
: DOCKET NO. GD 910300-RO
MONA LISA APARTMENTS, DISTRICT RENT ADMINISTRATOR'S
: DOCKET NOS. EA 9-1-0027-RP
ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW
On April 23, 1992, the above-named owner filed a petition for administrative
review of an order issued on March 20, 1992 by a District Rent Administrator
concerning various apartments located at 671 Bronx River Road, Yonkers, New
Subsequently and after more than ninety days had elapsed from the time it
filed its petition for administrative review, the owner deemed its petition
as having been denied, and sought judicial review in the Supreme Court of
the State of New York pursuant to Article 78 of the Civil Practice Law and
After considering the Article 78 petition, the Court issued an order
remitting the proceeding to the New York State Division of Housing and
Community Renewal (DHCR) for further consideration.
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 review.
The owner commenced this proceeding on October 28, 1987 by filing an
application for a rent increase based on a major capital improvement (MCI),
including replacement of windows, replacement of the parking deck,
installation of parking garage door, and relining of the elevator cab at a
total cost of $147,762.00.
Some of the tenants submitted answers to the Administrator asserting, among
other things, that a Yonkers housing inspector informed them that the prior
windows were not obsolete; that they just needed caulking, and required
weather stripping, and that new windows were not necessary.
The owner submitted a response to DHCR, dated March 28, 1988, which
asserted, among other things, that the old windows needed to be replaced,
and that pursuant to Operational Bulletin 84-4 the owner is entitled to an
MCI rent increase based on the total cost of the windows as the replacing of
the prior windows were necessary.
To its response the owner attached a letter written by a professional
engineer, dated February 15, 1988, which stated that:
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Although the windows are only 17 years old, their
complete replacement is recommended.
Inspection of sample apartments indicated that many
units require weather stripping and sealing, while
several units were warped, did not seat (sic) properly,
and leaked air.
In addition to the physical and dimensional deficiencies
outlined, these single glazed units are energy wasteful,
and would not meet present Energy Conservation Code if
The installation of double glazed thermal-break units
would result in improved comfort level within the
The Administrator's order under Docket No. BL 810003-OM, issued October 31,
1988, determined that the installation of the parking deck, the garage door,
and the relining of the elevator cab do not qualify as an MCI. The
Administrator approved an MCI rent increase for 50% of the cost of the
replacement of the windows, as the Administrator stated, "pursuant to
Operational Bulletin 84-4, in applications where the replaced windows were
less than 25 Years old, the allowable cost will constitute 50% of the
The owner's petition of the above-mentioned order, dated November 9, 1988,
alleged, among other things, that Operational Bulletin 84-4 states that:
"In those cases where the old windows were between 15 and 25 years old, the
District Rent Administrator may grant a rent increase based upon the full
substantiated cost of the new windows if the District Rent Administrator
determines that the replacement were necessary...." (Emphasis by the
owner.) The subject owner's petition further asserted that the
Administrator did not consider the issue of whether or not the windows were
The Commissioner's order, under Docket No. CK 810135-RO, issued on December
21, 1989, determined that it was not necessary for the Administrator to have
determined whether the replacement of the windows were necessary, upon the
Administrator's finding that the window replacements were for energy
conservation purposes; that the relining of the elevator cab was merely a
cosmetic improvement; that the issue of the installation of the garage door
should be remanded to the Administrator to determine whether the garage
door is a benefit to all of the tenants, and if the MCI rent increase should
be borne exclusively by those tenants who have use of the garage space, and
that the issue of the restoration of the parking deck should be remanded to
the Administrator to determine whether it was a building-wide improvement.
DOCKET NO.: GD 910300-RO
The subject owner wrote to the DHCR a letter, dated January 3, 1990,
requesting reconsideration of the Commissioner's order. The letter asserted
that the Commissioner misinterpreted Operational Bulletin 84-4, in that the
owner stated that "the intent of the Bulletin is to allow the full cost of
the windows to be included if the replaced windows were between 15 and 25
years old and it is determined that their replacement was 'necessary',"
(emphasis by the owner) regardless of the fact that the new windows were
also for energy conservation purposes.
The rent agency issued an order, on February 27, 1990, granting the owner's
request for reconsideration and reopening of Administrative Review Docket
No. CK 810135-RO. The order stated that: "The windows being at least 17
years old, the Administrator was required to determine the necessity for
this replacement, i.e. unsafe, hazardous, inoperable, rotted frames, etc.,
in addition to determining that the owner would be only entitled to 50% of
the cost if replacement was only for energy conservation purposes." The
order afforded the tenants twenty days from the above-mentioned date to
respond to the above-mentioned order.
Various tenants in their response to the above-mentioned order asserted that
the prior windows worked properly, and that they did not need to be
The subject owner's response, dated March 6, 1990, alleged that the tenants'
responses were "self-serving," and "have little evidentiary value," as the
tenants did not submit any "documentary evidence to support their
To its response the owner attached affidavits from several contractors which
alleged that the prior windows were in poor condition and needed to be
The Commissioner's order, under Docket No. CK 810135-RO (Reopened), issued
on July 13, 1990, remanded the proceeding to the Administrator "For the
purpose of affording the owner and the tenants an opportunity to present
evidence as to the necessity of the subject window replacement. Factors
taken into account may include...inoperability, hazardousness and the
condition of the frames." The Commissioner also affirmed the portion of the
prior order, issued on December 31, 1989, which remanded the issues of the
garage door and parking deck restoration to the Administrator.
The subject owner submitted a letter to the Administrator, dated August 17,
1990, which asserted that the owner is entitled to 100% of the cost of the
new windows in calculating the MCI rent increase as the replacement of the
windows were necessary; that the owner withdraws its MCI application with
respect to the parking deck, and that an MCI rent increase should be granted
for the garage door as to those tenants who use the garage.
To its letter the owner attached, among other things, statements from
several building contractors and engineers alleging that the prior windows
were in poor condition and needed to be replaced; an inspection report from
a housing inspector from the City of Yonkers, dated June 17, 1986, of twelve
of the ninety-three apartments in the subject building (due to violations of
the Yonkers City Code), which noted that in two apartments the windows
required adjustments to close; that in three apartments the windows required
weather stripping; that in one apartment the bedroom window sill was water
DOCKET NO.: GD 910300-RO
damaged; that in one apartment the windows throughout required repairs, and
that in five apartments the inspector did not note any defects concerning
the windows. In addition, the owner attached a prior inspection report from
a Yonkers's housing inspector, dated January 23, 1986, of twenty-one
apartments in the subject building. The inspection report noted that there
were defects of the windows in eight of the apartments, in that the windows
in one apartment required caulking, three apartments had windows that had
damage to the window sills, four apartments had windows that needed
weatherstripping, one apartment had windows that required adjusting to close
properly, one apartment needed repairs to the living room window panes, one
apartment had a bedroom window fire escape lock broken, and in one apartment
a bedroom window had to be made "weathertight."
The subject owner also attached letters from various tenants asserting,
among other things, that the old windows formed "condensation," causing
water to leak inside; that the windows were hard to lock and hard to clean;
that the windows were poor insulators as they allowed cold air in the
apartment, and that the old windows were easy to open from the outside by
On March 21, 1991, the Administrator mailed to the parties a "Notice of
Proceeding to Reconsider Order Pursuant to Remand," which provided that the
parties to the proceeding were to respond to the issues that were remanded
to the Administrator by the Commissioner's order, issued on July 13, 1990,
within twenty days of the above-mentioned date.
In March and April, 1991, various tenants submitted responses to the above-
mentioned notice asserting, among other things, that the prior windows did
not require replacing, and that they only needed to be weather stripped and
caulked. However, two other tenants asserted that the prior windows were
insufficient for proper warmth and security; that they were difficult to
clean, and "prone to frost and condensation," and that they were poor sound
On April 4, 1991, the subject owner submitted to the Administrator a letter
which alleged that the tenants who had alleged that the replacement of the
windows were not necessary, did not submit any evidence to substantiate
their allegations, and that their allegations were "self-serving."
To his letter the subject owner attached a statement by an alleged licensed
architect, dated September 17, 1990, which stated that:
Overall the windows were of inferior grade; improperly
installed, and needed replacement. Specifically, I
found in various sample apartments the windows were
warped, pitted and loose. They did not close or open
properly. Some had difficulty locking. The conditions
of the windows warranted that they be replaced. I
recommended, energy efficient double-glazed replacement
On December 1, 1991, the Administrator mailed to the subject owner a notice
which requested that it submit the cooperative offering plan for the subject
building, within twenty days of the above-mentioned date.
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On December 10, 1991 the subject owner submitted the aforementioned
cooperative offering plan, dated June 30, 1982, which stated that:
All apartment windows are aluminum sliders, with
screens, and provision for 'piggyback' storm window
attachment. Exterior window sills are cast stone.
Although window sashes are generally in acceptable
condition, most windows are either not caulked or
improperly caulked, and most steel lintels are rusted
and require scraping, refinishing and proper recaulking.
In the order under review herein, the Administrator determined, among other
things, that the owner is entitled to an MCI rent increase based upon 50% of
the cost of the new windows, as the Administrator determined that the
replacement of the windows were not necessary, but were due to energy
The subject owner's petition asserts that although the replacement of the
windows did in fact contribute to energy conservation, the prior windows
were in poor condition, "and that the replacement of windows were
necessary." The subject owner further asserts that the Administrator
ignored the statements of the various contractors which alleged that the
replaced windows were in extremely poor condition.
Furthermore, the owner's petition states that:
The MCI provisions of the ETPA and Regulations are
clearly intended to encourage owners to improve the
housing stock by providing for a return on the actual
cost of the improvement. It is contrary to the intent
of the law to place limitations on the rent adjustment
where there is no dispute that the improvement qualifies
as an MCI.
To the extent that Operational Bulletin 84-4 provides
for such limitation, it is void as contrary to the
express language of the statute and the obvious
The subject owner further asserts that the choice of twenty-five years as
the "useful life" of windows, that is established in Operational Bulletin
84-4, is arbitrary, and that the owner alleges that it is not aware of any
"scientific studies or research which would support the DHCR's choice of 25
years." The owner also states that:
[B]y defining 'useful life' solely as a function of
years, the DHCR has eliminated other important
considerations for replacing windows, including
aesthetics and the improved function of modern windows.
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Forcing owners to wait 25 years to replace outdated
windows, the practical effect of the DHCR's 'useful
life' rules, does not necessarily benefit the tenants
and may contribute to the deterioration of the building.
In October, 1992, various tenants' submitted answers to the owner's petition
alleging that the original windows were fine; that they did not need to be
replaced, and that some of the original windows only needed to be caulked.
After careful consideration, the Commissioner is of the opinion that this
petition should be denied.
The Commissioner is of the opinion that the subject owner has the burden of
proof in establishing the necessity of replacing the windows in this
proceeding. The Commissioner finds that the owner's evidence did not
properly rebut the tenants allegation that it was not necessary to replace
the windows as they only needed to be caulked and weatherstripped.
Furthermore, the owner's allegation that the windows needed to be replaced
is contradicted by the Yonkers's housing inspector's report which noted that
only seven or eight apartments (out of ninety-three apartments) had
defective windows, and only a couple of those windows had defects of a major
nature. The Commissioner notes that the majority of the windows noted in
the Yonkers's housing inspector's report merely needed to be caulked and
The Commissioner notes that the aforementioned cooperative offering plan,
dated June 30, 1982, stated that the original windows "are either not
caulked or improperly caulked, and most steel lintels are rusted and require
scraping, refinishing and proper recaulking."
The Commissioner finds, based on the preponderance of the evidence, that the
replacement of the windows were not necessary, pursuant to Operational
Bulletin 84-4, and that most of the windows that were replaced only needed
minor repairs, e.g., caulking, weatherstripping and scraping.
Accordingly, the Commissioner finds that the subject owner has not met its
burden of proof in establishing the necessity of replacing the windows, as
the owner has not established that the replaced windows were structurally
defective, i.e., inoperable, hazardous, unsafe, rotted frame, etc. The
Commissioner is of the opinion that based on the evidence submitted in this
proceeding the windows were replaced solely for energy conservation
The Commissioner notes that the replaced windows did not exceed its useful
life period, as established by Operational Bulletin 84-4, as the subject
owner admits that the replaced windows were only seventeen years old.
As the replacement of the windows were for energy conservation purposes and
not due to structural defects, and that the replaced windows did not exceed
its useful life period, pursuant to Operational Bulletin 84-4, the
Commissioner finds that the replacement of the windows in this proceeding do
not qualify as an MCI within the definition of the Emergency Tenant
Protection Act (ETPA) and the State Tenant Protection Regulations (STPR),
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and therefore the Commissioner is accordingly of the opinion that the above-
mentioned Operational Bulletin which provides for rent increases based on
50% of the cost of the windows is not contrary to the MCI provisions of ETPA
and the STPR.
Pursuant to Section 2502.4(a)(2)(iii) of the STPR an owner is not eligible
for an MCI rent increase where the legal regulated rent has "been adjusted
prior to the application based in whole or part upon the grounds set forth
in the application." A literal interpretation of the above-mentioned
Section would mean that an owner would be eligible for an MCI rent increase
for work on a specific item or equipment for one time only in perpetuity.
The above-mentioned interpretation is contrary to the intent of the above-
mentioned section which is to encourage the maintenance and rehabilitation
of the housing stock, and therefore the Commissioner is of the opinion that
based on the intent of the above-mentioned section it is implied that the
rent agency may promulgate a useful life schedule for specific items and
The Commissioner is also of the opinion that the rent agency's determination
that the useful life for windows is twenty-five years, pursuant to
Operational Bulletin 84-4, is not arbitrary as the above-mentioned time
period is not absolute, and in fact may be less when the owner can show that
the replacement of the windows were necessary. As the subject owner did not
show that the replacement of the windows were necessary, the Commissioner
finds that using twenty-five years as the useful life for windows, as noted
in Operational Bulletin 84-4, was reasonable in this proceeding.
As to the owner's allegation that "aesthetics" should be included as a
criteria in determining whether work qualifies as an MCI, the Commissioner
notes that for work to qualify as a major capital improvement, it must
satisfy various criteria. The installation must be required for the
continued operation, preservation, and maintenance of the subject premises.
Furthermore, the installation must be one which is essentially structural in
nature and materially add to the value of the property and appreciably
prolong the life thereof. Accordingly, the Commissioner finds that
"aesthetics", by itself, is not a criteria in determining whether work
qualifies as an MCI. The Commissioner further finds that the subject
owner's allegation that the new windows function better than the prior
windows has not been substantiated.
Accordingly, the Commissioner finds that the Administrator's order should be
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THEREFORE, in accordance with the provisions of the Emergency Tenant
Protection Act of 1974, and the State Tenant Protection Regulations, it is
ORDERED, that this petition be, and the same hereby are, denied, and that
the order of the Rent Administrator be, and the same hereby is, affirmed.
Acting Deputy Commissioner