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 : ADMINISTRATIVE REVIEW
APPEALS OF DOCKET NOS.: GI 410028-RT
: GI 410032-RT
VARIOUS TENANTS OF 200 WEST GI 410038-RT
16TH STREET, NEW YORK, NY GI 410047-RT
PETITIONERS : GI 410048-RT
------------------------------------X GI 420270-RT
RENT ADMINISTRATOR'S
DOCKET NO.: EB 430001-OM
ORDER AND OPINION DENYING PETITIONS FOR ADMINISTRATIVE REVIEW DOCKET
NOS. GI 410028-RT, GI 410032-RT, GI 410038-RT. GI 410047-RT AND
GI 420270-RT AND GRANTING IN PART PETITION FOR
ADMINISTRATIVE REVIEW DOCKET NO. GI 410048-RT
The petitioner-tenants timely filed administrative appeals against an order
issued on August 7, 1992 by the Rent Administrator (92-31 Union Hall
Street, Jamaica, New York) concerning the housing accommodations known as
200 West 16th Street, New York, New York, various apartments, wherein the
Administrator granted major capital improvement (MCI) rent increases for
the controlled and stabilized apartments in the subject premises based on
the installation of new apartment windows.
The owner commenced the proceeding below by filing its MCI application in
February of 1990. In support of its application, the owner submitted
copies of the contract, invoice, contractor's certification and cancelled
checks.
Twenty tenants objected to the owner's application and contended, inter
alia, that the new windows were defective.
The owner responded to the tenants' objections by alleging that all of the
defective windows had been repaired.
In rebuttal, eight tenants (apartments 2G, 6D, 6I, 8K, 9B, 9H, 12F and 15A)
stated that their windows still had not been repaired.
The subject premises was inspected on June 3 and 4 of 1992 wherein the
inspector noted that all of the above-mentioned apartments contained
defective windows.
On August 7, 1992, the Rent Administrator issued the order here under
review, finding that installation qualified as an MCI, determining that the
application complied with the relevant laws and regulations based upon the
supporting documentation submitted by the owner, and authorized rent
increases of $9.80 per room, per month (based on a total revised room count
of 260) for rent controlled and rent stabilized apartments. Furthermore,
ADMIN. REVIEW DOCKET NO.: GI 410028-RT, et al.
the Administrator barred the owner from collecting the rent increase from
the eight apartments listed above until all repairs to the defective
windows have been completed.
On appeal, the tenants contend, in substance, as follows: Apartments 7D
and 12C: they should not have to pay a retroactive or a permanent
increase; they should only be assessed for the value of the windows and
should be given the opportunity to pay the increase in one lump sum.
Apartment 8D: the owner did not install any new windows in her apartment,
rather the previous tenant installed the windows and she reimbursed the
previous tenant for a portion of the cost of such windows. Apartment 11A:
he was never notified of the MCI application and his windows were not
repaired until April 1992. Apartment 12A: several of her windows were
improperly installed and neither her vacancy lease of July 1, 1990 nor her
renewal lease of July 1, 1992 (copies of which were submitted) notified her
of any MCI increase for windows. Apartment 15A: The owner under stated
total room count as evidenced by copy of an order and opinion issued on
February 2, 1981 under Docket No. CPLA 32,498.
The owner did not submit a response to any of the tenants' petitions.
After a careful consideration of the entire evidence of record, the
Commissioner is of the opinion that the administrative appeal Docket No.
GI 410048-RT should be granted in part; and that the remaining petitions
should be denied.
At the outset the Commissioner notes, as confirmed by the record, that the
tenants of apartments 8D and 11A were served by the Administrator with
notice of the instant application and that they failed to respond thereto.
Fundamentals principals of the administrative appeal process and Section
2529.6 of the Rent Stabilization Code prohibit a party from raising issues
on appeal which were not raised below. The tenants of said apartments
could have raised the very issues before the Rent Administrator which they
seek to raise for the first time on appeal. Accordingly, the Commissioner
is constrained to foreclose consideration of these issues in this appeal
proceeding.
Rent increases for major capital improvements are authorized by Section
2202.4 of the Rent and Eviction Regulation 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 be generally 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
position of the Division that the building-wide installation of windows, as
in the instant case, meets the definitorial requirements of a MCI; and that
the Administrator's order was properly made retroactive with respect to
stabilized apartments in accordance with the applicable provisions of the
Rent Stabilization Code.
ADMIN. REVIEW DOCKET NO.: GI 410028-RT, et al.
The petitioners' claim that the rent increase should be eliminated upon the
expiration of the amortization period is rejected because the New York
State Court of Appeals in the case of Matter of Ansonia Residents
Association v. DHCR ruled that the rent regulatory laws mandate that the
increase be permanent.
With regard to the petition filed by the tenant of apartment 15A to the
effect that the amended room count is incorrect, the Commissioner notes
that the prior room count determination is not, under the circumstances of
this case, binding upon the Administrator and that the Administrator
properly use a reduced room count in accordance with Policy Statement 90-3
(February 8, 1990) then in effect which defines a room for MCI purposes as
follows:
1) A windowless kitchen containing at least 59 square feet.
2) An enclosed area with window containing at least 60 square
feet.
3) An enclosed area without window containing at least 80
square feet.
4) Bathrooms, walk-in closets, etc. are excluded.
However, with respect to the contention of the tenant of apartment 12-A
that he was not notified of the instant proceeding (and that windows in
said apartment are defectively installed), Sections 2522.5 (d)(2) and (4)
of the Rent Stabilization Code provide that when an application for a rent
increase for an MCI is pending before the agency, the vacancy lease must
provide that the rent may be increased pursuant to an order issued by the
agency; that such application is pending before the DHCR including the
basis for the requested increase; and that if granted, the increase may be
effective during the lease term. In absence of the same, no increase shall
be collectible until the expiration of the lease term in effect at the time
the order is issued.
The undisputed evidence of record in the instant case confirms that neither
the vacancy lease nor the renewal lease executed by the tenant of apartment
12A contains the required information concerning the pending MCI proceeding
would have enabled the owner to collect an increase upon issuance of the
Administrator's order. In the event of a change in tenancy during a major
capital improvement proceeding, as in the instant case, it is the
obligation of the owner to notify the new tenant of the pendency of such
proceeding and to advise the Division of this change in tenancy. While not
fatal to the owner's application, such failure to include notice of the
application in the tenant's lease is cause for modification of the order.
Although the owner is not entitled to any retroactive increase as well as
to any increase during the lease term herein, the increase will be
collectible upon a renewal lease commencing July 1, 1993 provide the owner
has made the necessary repairs concerning the windows in apartment 12A.
ADMIN. REVIEW DOCKET NO.: GI 410028-RT, et al.
THEREFORE, in accordance with the provision of the Rent and Eviction
Regulations for New York City and the Rent Stabilization Code, it is
ORDERED, that the petitions for administrative review under Docket Nos. GI
410028-RT; GI 410032-RT; GI 410038-RT; GI 410047-RT and GI 420270-RT be,
and the same hereby are denied; that petition for administrative review
Docket No. GI 410048-RT be, and the same hereby is granted in part; that as
to apartment 12-A the Administrator's order be, and the same hereby is
modified so as to provide that the MCI increase be, and the same hereby is
effective as of July 1, 1993, the date of the first renewal lease after
issuance of the Administrator's order provided the owner complies with the
direction herein to make such repairs as are necessary to the windows in
said apartment within 45 days from the date of this order; and that as so
modified said order be, and the same hereby is affirmed; and it is further
ORDERED, that the owner repay to the tenant of apartment 12-A excess rent,
if any, arising as a result of this order within thirty (30) days from the
date of issuance hereof.
Note: The determination herein is without prejudice to the tenants, or any
of them, filing a complaint with the Division if the owner is not
now maintaining all required service.
ISSUED:
JOSEPH A. D'AGOSTA
Acting Deputy Commissioner
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