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 : ADMINISTRATIVE REVIEW
APPEALS OF DOCKET NOS.:
VARIOUS TENANTS OF HD130033RT/HD130142RT/
132-40 SANFORD AVENUE HD130184RT/HE130090RT/
FLUSHING, NEW YORK PETITIONERS : HE130242RT
------------------------------------X RENT ADMINISTRATOR'S
DOCKET NO.: CD130199OM
ORDER AND OPINION DENYING PETITIONS FOR ADMINISTRATIVE REVIEW
The above-named petitioner-tenants timely filed and/or refiled
administrative appeals against an order issued on March 13, 1993 by the
Rent Administrator (92-31 Union Hall Street, Jamaica, New York) concerning
the housing accommodations known as 132-40 Sanford Avenue, Flushing, New
York, various apartments, wherein the Administrator granted major capital
improvement (MCI) rent increases for the stabilized apartments in the
subject premises based on the installation of new apartment windows.
In these petitions the tenants contend, in substance, that the owner
replaced the windows to correct defective conditions and should not be
"rewarded" therefor; that it is the owner's obligation to repair the
building; that the increase should not be permanent; and that the increase
is burdensome. Two tenants raise complaints regarding the quality or
adequacy of the window installation. One tenant asserts that there is an
outstanding rent reduction order for her apartment and therefore she should
not have to pay the MCI rent increase.
In response to the petitions, the owner asserts, in substance, that the
tenants never objected to the MCI rent increase application and that the
rent increase was warranted.
After careful consideration, the Commissioner is of the opinion that these
petitions 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 improvements 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 well established position of the Division (as reflected in Policy
Statement 89-6) that the building-wide installation of all apartment
windows and/or public area or lot line windows to replace windows which are
25 or more years old constitutes a major capital improvement for which a
rent increase may be warranted, provided the owner otherwise so qualifies.
ADMIN. REVIEW DOCKET NO.: HC130143RT
The record discloses that the owner substantiated its application in the
proceeding below by submitting to the Administrator documentation in
support thereof, including copies of contracts for the improvements,
contractor's certifications and cancelled checks.
Regarding the contention that the owner installed the new windows in order
to correct defective conditions, the fact that certain work remedies such
conditions does not constitute grounds for the denial of the application,
provided the work performed otherwise qualifies as a major capital
improvement, and the owner establishes an entitlement to a rent increase
As to the two tenants who raised complaints regarding the quality or
adequacy of the installation, the Commissioner notes that one tenant
(residing in Apartment 4J) failed to raise any objection to the quality or
adequacy of the installation while this proceeding was pending before the
Rent Administrator. Accordingly, pursuant to Section 2529.6 of the Code,
said tenant's allegations in this regard may not be considered now when
raised for the first time on appeal.
With respect to the other tenant (residing in Apartment 2C), the fact that
one tenant may have experienced difficulty with said installation is not
sufficient grounds to conclude that the owner is not entitled to the MCI
rent increase adjustment authorized by the Administrator (while 45 tenants
submitted answers in the proceeding below, only one tenant has
appropriately questioned the adequacy of the installations on appeal).
However, the owner is hereby directed to correct any defective condition
brought to its attention in writing, if it has not already done so,
and the determination herein is without prejudice to the right of the
tenants or any one of them filing an appropriate complaint for a reduction
in rent based on a diminution in service, including any current window
defects, if the facts so warrant.
Regarding the contention of the tenant residing in Apartment 4C that she
should not have to pay the rent increase because there is an outstanding
rent reduction order for her apartment, the Commissioner notes, as
reflected in said order, as well in Policy Statement 90-8, that the owner
may not collect any increase provided for in the Administrator's order with
respect to any individual apartment during the period of time a rent
reduction order, based upon a failure to maintain services, is in effect
where the effective dates of such rent reduction order is prior to the
issuance date of the MCI orders, until such time as there is a finding by
DHCR that services have been restored.
As to the tenants' contention pertaining to the permanent nature of the
increase granted, the New York Court of Appeals has concluded that the Rent
Stabilization Law authorizes this Division to grant permanent rent
increases for MCI's, and that the law does not limit the time during which
the increases can be imposed. In the Matter of Ansonia Residents
Association, et al., v. DHCR et al., 75 N.Y. 2d 206, 551 N.Y.S. 2d 871
ADMIN. REVIEW DOCKET NO.: HC130143RT
With regard to the contention that the rent increase will be a hardship,
the Commissioner is not unmindful of the possibility that the rent increase
may prove burdensome to some tenants. However, the Commissioner is
constrained by the applicable statutory and regulatory provisions to
grant such increases as are warranted.
A tenant who has a valid Senior Citizen Rent Increase Exemption Order
(SCRIE) is exempted from that portion of the increase which would cause the
rent to exceed one-third of the tenant's household monthly disposable
income. A tenant who may be entitled to this benefit may contact the New
York City Department of the Aging by calling (212) 240-7000.
Based on the supporting documentation submitted by the owner herein, the
Commissioner finds that the Rent Administrator correctly computed the
appropriate rent increase based on the proven cost of the installation.
The tenants have not established that the rent increase should be revoked.
THEREFORE, in accordance with the provisions of the Rent Stabilization Law
and Code, it is
ORDERED, that these petitions be, and the same hereby are, denied, and that
the order of the Rent Administrator be, and the same hereby is, affirmed.
JOSEPH A. D'AGOSTA