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.:
: GK210085RT/GK230110RT/
VARIOUS TENANTS OF 9935 THIRD AVE. GL230002RT/GL230013RT/
BROOKLYN, NY GL230028RT/GL230040RT/
PETITIONERS : GL230041RT/GL230050RT/
------------------------------------X GL230055RT/GL230074RT
RENT ADMINISTRATOR'S
DOCKET NO.: EK230026OM
ORDER AND OPINION GRANTING IN PART PETITIONS FOR
ADMINISTRATIVE REVIEW
The above named petitioner-tenants timely filed administrative
appeals against an order issued on November 6, 1992 by the Rent
Administrator (Gertz Plaza, Jamaica, New York) concerning the
housing accommodations known as 9935 Third Avenue, Brooklyn, New
York, various apartments, wherein the Administrator granted the
owner's major capital improvement (MCI) application. The
Administrator authorized a rent increase adjustment for wiring.
The Commissioner has reviewed all the evidence in the record and
has carefully considered that portion of the record relevant to the
issues raised by the administrative appeals.
Since these appeals pertain to the same building and involve common
issues, they have been consolidated for a disposition herein.
The owner commenced the proceeding below by filing its MCI
application in November 1990.
In response to the application, various tenants filed answers in
opposition to the requested rent increase alleging that the
rewiring work was completed in the kitchen only, and that the work
completed fails to meet professional standards.
The owner was notified of these objections, in response to which
four tenants alleged specific defects with the work performed. The
owner submitted a statement from a licensed electrician to the
effect that the wiring in apartments D2, D4, E1 and F4 was tested
and found to be in proper condition.
On November 6, 1992, the Rent Administrator issued an order
granting the owner's application increasing the rents for both the
rent controlled and rent stabilized tenants at the subject
building. Said order contains the notation that tenants failed to
reply to a subsequent notice (relating to the owner's response)
mailed on September 22, 1992.
ADMIN. REVIEW DOCKET NO.: GK210085RT, et al.
In their administrative appeals various tenants allege in substance
that notification of a pending rent increase was not given prior to
the issuance of the Administrator's order; and that they did not
receive the notice dated September 22, 1992 referred to in the
Administrator's order. The tenant of apartment B4 alleges that an
insufficient number of outlets were installed and the tenants of
apartment 4E and 5F state that the installation was completed prior
to the issuance of their lease agreements and there was no lease
clause signed to indicate an increase in rent as a result of the
rewiring work.
In response to the tenants petitions, the owner stated, in
substance, that the Division properly notified all tenants of the
pendency of the MCI application and that the tenant of apartment 5F
untimely filed a petition for administrative review, and that the
tenants in apartments C1, C5 and E5 failed to respond to the
application during the initial filing.
After a careful consideration of the entire evidence of record, the
Commissioner is of the opinion that these administrative appeals
should be granted in part and the Administrator's order modified in
accordance with this order and opinion.
Rent increases for major capital improvements are authorized by
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.
At the outset, the Commissioner notes that for an electrical
upgrading to qualify as an MCI under current procedures, the job
requires the installation of new electric service to the building,
new copper riser and feeders extending from the property box in the
basement to every housing accommodation of sufficient capacity at
the apartment panel to accommodate the installation of in the
living room and bedrooms of air-conditioner circuits and outlets as
well as the installation of two duplex outlets in the kitchen to
accommodate heavy duty appliances. In addition, the tenants must
be given the option of having air-conditioning outlets installed in
their apartments at cost to the tenants. The record herein
discloses that the owner substantiated its MCI application for the
rewiring work in the proceeding below by submitting to the
Administrator copies of the contract, cancelled checks, the
contractor's certification, and the Certificates of Electrical
Inspection issued by the NYC Bureau of Electrical Control for the
work in question, the governmental agency having jurisdiction for
ADMIN. REVIEW DOCKET NO.: GK210085RT, et al.
the verification and the approval thereof. However, the record
does not disclose that the tenants were given the option of having
air-conditioner outlets installed in their apartments. Therefore,
the Administrator's order should be amended to add ATTACHMENT TO
MCI ORDER FOR REWIRING, annexed herein.
With respect to the tenants' contention that they did not receive
the notice dated September 22, 1992, referred to in the
Administrator's order, the Commissioner notes that this follow-up
notice was only mailed to the four tenants who indicated defects
with the wiring in their apartments (as distinguished from those
tenants who alleged that outlets were not installed in every room).
Regarding the contention of tenants that they took occupancy after
the installation was completed, the Commissioner notes that in
accordance with the applicable provisions of the Rent Stabilization
Code, as to any tenant who may have moved into the subject premises
after the instant application was filed, the increase provided for
herein shall not be collectible until the expiration of the lease
term in effect at the time of issuance of the Administrator's
order, and then on a prospective basis only, unless, said tenant's
vacancy lease and any renewal thereof contained provision that the
rent may be increased pursuant to an order issued by the DHCR; that
the instant application is pending before the DHCR, including the
docket number and basis for the requested increase; and that if
granted, the increase may be collectible during the lease term.
This order and opinion is issued without prejudice to the tenants
or any one of them, filing a complaint with the Division based on
a reduction of services or rent overcharge, if the facts so
warrant.
On the basis of the entire evidence of record, it is found that the
Administrator's order is correct and should be affirmed.
THEREFORE, in accordance with the applicable provisions of the Rent
Stabilization Law and Code; the Rent and Eviction Regulations for
New York City and Operational Bulletin 84-1, it is
ORDERED, these the administrative appeals be and the same hereby
are granted in part; that the Administrator's order be, and the
same hereby is modified in accordance with this order and opinion;
and that as so modified, said order is hereby affirmed.
ISSUED:
JOSEPH A. D'AGOSTA
Deputy Commissioner
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