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.: GE530221RT
          APPEALS OF                                           GE530222RT
                                                               GE510306RT
                    VARIOUS TENANTS                                          

                                                  RENT ADMINISTRATOR'S
                               PETITIONERS        DOCKET NO.:  EC530200OM
          ------------------------------------X

           ORDER AND OPINION GRANTING ADMINISTRATIVE APPEALS, IN PART, AND 
          REMANDING PROCEEDING ON APPEAL

          The above-named petitioner-tenants timely filed petitions for 
          administrative review (PAR's) against an order issued on April 24, 
          1992, by a Rent Administrator (Gertz Plaza) concerning the housing 
          accommodations known as 803 West 180 Street, New York, NY, various 
          apartments, wherein the Rent Administrator determined that the 
          owner was entitled to a rent increase based on major capital 
          improvements (MCI's).

          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 tenants of twenty - 
          three apartments, namely apartments 1, 2, 4, 5, 21, 22, 25, 26, 31, 
          34, 41, 42, 43, 44, 51, 52, 53, 54, 55, 56, 61, 64, and 66, joined 
          in the PAR under docket number GE530222RT.  Tenants of apartments 
          55 and 63 filed individual PAR's under docket numbers GE510306RT 
          and GE530221RT respectively.   

          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 March 27, 1990 by initially 
          filing an application for a rent increase based on the installation 
          of new windows and a new boiler/burner at a total claimed cost of 
          $98,290.00.

          In support of his application, the owner submitted copies of 
          contracts and cancelled checks.                                    
                                                                            
                                                                             
                                                                             















          ADMIN. REVIEW  DOCKET  NO.: GE530221RT   et al.


          Various tenants answered opposing the owner's application.  In 
          substance, the tenants challenged the application on the grounds 
          that the windows were cheap and of poor quality, and that their 
          installation was faulty.  Further, the tenants contended that some 
          of the locks were defective and inoperable.  With regard to the 
          boiler/burner, the tenants contended, in substance, that it needs 
          to be "redesigned"; that the installation was defective and that 
          they were constantly without hot water due to its breakdown.  The 
          Commissioner notes that twelve of the tenants who joined in the PAR 
          under docket number GE530222RT and the tenant who filed under 
          docket number GE530221RT were not among the tenants who responded 
          to the owner's application even though they were served with the 
          said application. 

          In response to the tenants' answers, the owner contended that he 
          had served individual letters to complaining tenants, asking them 
          to inform his office if any problems existed and also to provide 
          dates on which corrective measures could be implemented.  He also 
          submitted an order, dated May 22, 1992, under docket number 
          FK530067HW stating that an unannounced physical inspection 
          conducted on January 6, 1992 by an inspector from the Division, 
          determined that  heat and hot water were being adequately provided.  
          He further pointed out that his letters of inquiry sent to 
          complaining tenants only elicited two responses. 

          On April 24, 1992 the Rent Administrator issued the order here 
          under review finding that the installations of a boiler/burner and 
          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 increases for both the rent controlled and rent stabilized 
          apartments.  However, the owner was barred from collecting this 
          increase from apartments 5, 7, 21, 23, 25, 34, 43, 52, and 62 since 
          inspections conducted on February 18, 1992 and March 2, 1992 
          revealed defective windows in the above listed apartments.  The 
          inspection also revealed that the heat was inadequate.  Since the 
          heating season was over at the time of issuance of the 
          Administrator's order, the owner was directed to provide adequate 
          heat when the new season commences.

          In their petitions, the tenants iterate, in substance, that which 
          they had asserted in answer to the owner's application, namely that 
          the windows were cheap and of very poor quality; that their 
          installation was faulty and that the locks were defective and 
          inoperable.  They further claim that the rent increase was 
          excessive and that they should not be made to pay so high an 
          increase for such poor quality windows.  
                                                                         
                                        2








          ADMIN.  REVIEW  DOCKET  NO.: GE530221RT   et al.


          With regard to the boiler/burner installation, the tenants also 
          iterate that the boiler continues to malfunction and they are 
          continually without heat and hot water.  On November 24, 1992 the 
          tenant of apartment 55 submitted dates from January 26, 1992 to 
          October 6, 1992 on which no heat and/or hot water was/were 
          provided.  

          In response to the tenants' petitions, the owner contends, in 
          substance, that the windows are of excellent quality and were 
          properly installed and that he is prepared to make all necessary 
          repairs if tenants make specific complaints regarding the window 
          installation. With regard to the boiler/burner installation, the 
          owner contends, in substance, that the problem was rectified and 
          that he has filed an application for a rent restoration with the 
          Division.  He also submitted a copy of a work order from Castle 
          Service Corporation stating that the necessary repairs had been 
          effectuated to the boiler/burner.

          After a careful consideration of the entire evidence of record, the 
          Commissioner is of the opinion that these petitions should be 
          remanded to the Administrator for further processing.

          Rent increases for major capital improvements are authorized by 
          Section 2202.4 of the Rent and Eviction Regulations for rent 
          controlled apartments and Section 2522.4 of the Rent Stabilization 
          Code for rent stabilized apartments.  Under rent control, an 
          increase is warranted where there has been since July 1, 1970 a 
          major capital improvement required for the operation, preservation 
          or maintenance of the structure.  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.

          It is the established policy of the Division that the building-wide 
          installation of new apartment windows to replace windows which are 
          25 or more years old constitutes a major capital improvement for 
          which a rent adjustment may be warranted, providing the owner 
          otherwise so qualifies.  However, for such work to qualify for an 
          MCI rent increase, the work must be performed in such a workmanlike 
          manner that all tenants may enjoy the benefits thereof.

          In this regard, it appears from the record that shortly after the 
          inception of these proceedings the owner was on notice that tenants 
          were experiencing difficulty with the windows.  Fourteen  of  the 

                                      3

















          ADMIN. REVIEW DOCKET NOS.:  GE530221RT et al.



          thirty-six tenants (38.88%) in the building complained of defective 
          windows and inadequate heat and hot water when the case was before 
          the Rent Administrator and twenty-four of the said thirty-six 
          tenants (66.66%) raised the issues on PAR.  The records disclose 
          that  physical inspections conducted on February 18, 1992 and March 
          2, 1992 revealed that nine of the ten inspected apartments, 
          representing 25% of the total number of apartments in the building, 
          had defective windows, (representing over 10% of the total number 
          of windows installed) thereby substantiating the claim made by the 
          tenants.  The defects found included defective tracks and locks, 
          cracked and broken sashes and tracks, windows not closing and 
          locking properly, loosely fitting windows that allow air seepage, 
          and windows that are very difficult to open and close.  

          In view of the foregoing, the Commissioner is of the opinion and 
          finds that such installation was not performed in a workmanlike 
          manner on a building-wide basis so as to inure to the benefit of 
          all tenants;  that the major capital improvement rent increase 
          granted under Docket number EC530200OM with regards to the 
          installation of apartment windows should be suspended, retroactive 
          to the effective dates stated in the order; and that this 
          proceeding should be remanded to the Administrator for such further 
          processing as may be necessary in accordance herewith.

          The owner is hereby directed to either repair or replace any 
          defective windows in the subject premises for the entire building. 

          Any increase granted in this connection shall be on a prospective 
          basis, provided the owner establishes to the Administrator that all 
          defects with the windows have been corrected and that adequate heat 
          and hot water are provided in accordance with the Rent and Eviction 
          Regulations for New York City and the Rent Stabilization Law and 
          Code.  The owner's failure to comply with said directive will 
          result in a permanent revocation of the rent increase based on the 
          window installation stated in the Administrator's order.

          With regard to the increase granted for the new boiler/burner, the 
          Commissioner finds that the Administrator's determination to grant 
          such increase was proper.  A review of the Division's records 
          discloses that various tenants filed individual apartment service 
          complaints alleging the owner's failure to provide adequate heat 
          and/or hot water.  Said complaints were granted in some instances 
          and denied in others.  Such findings indicate that any problems 

                                       4












          ADMIN. REVIEW DOCKET NOS.: GE530221RT  et al.



          with providing adequate heat and/or hot water relate to how the 
          owner provides and maintains these services rather than to whether 
          the installation was performed properly.  Under these 
          circumstances, the Commissioner is of the opinion that the tenants' 
          proper recourse is to file service complaints with the Division if 
          they are not receiving adequate heat and/or hot water.     

          THEREFORE, in accordance with the Rent Stabilization Law and Code, 
          and the Rent and Eviction Regulations for New York City, it is 

          ORDERED, that these petitions be, and the same hereby are, granted 
          to the extent of remanding this proceeding to the Rent 
          Administrator for further processing in accordance with this order 
          and opinion; and that the portion of the  major capital improvement 
          rent increase granted under Docket number EC530200OM for the 
          apartment window installation ($5.33 per room, per month plus 
          $111.93 per room, per month retroactivity with respect to 
          stabilized apartments and $2.96 per room, per month for controlled 
          apartments, reflecting a tax abatement offset) be and the same 
          hereby is suspended, from the 
          inception 
          thereof; and it is further

          ORDERED, that the owner refund to the tenants any excess rent 
          collected as a result of this order with regards to the 
          installation of apartment windows within thirty days from the date 
          of issuance hereof.  The order and determination of the 
          administrator remains in full force and effect in all other 
          respects.




          ISSUED: 

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























































    

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