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 
      IN THE MATTER OF THE ADMINISTRATIVE :  ADMINISTRATIVE REVIEW
      APPEALS OF                             DOCKET NOS.: HE230088RT/
                                          :  HE230098RT/  HE230099RT/
      VARIOUS TENANTS OF 580 EAST 17TH AND   HE230126RT/  HG230183RT
      585 EAST 16TH STREET                              
      BROOKLYN, NEW YORK      PETITIONERS :  RENT ADMINISTRATOR'S
      ------------------------------------X  DOCKET NO.:  FJ130067OM    

            ORDER AND OPINION DENYING PETITIONS FOR ADMINISTRATIVE REVIEW

      The above-named petitioners timely filed and/or refiled their respective 
      Petitions for Administrative Review (PARs) of an order issued on April 12, 
      1993 by a Rent Administrator concerning the housing accommodations known as 
      various apartments, 580 East 17th and 585 East 16th Streets, Brooklyn, New 
      York.

      Since these petitions pertain to the same order and involve common issues 
      of law and fact, they have been consolidated herein for a uniform 
      disposition.

      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 these PARs.

      The owner of the subject premises commenced this proceeding by filing a 
      major capital improvement (MCI) rent increase application with the agency 
      on October 16, 1991, based on the building-wide installation of windows.

      The Administrator granted the owner's MCI application and approved a rent 
      increase of $8.12 per room per month.  However, the Administrator exempted 
      four apartments from the increase until the owner made necessary repairs to 
      the windows.

      In their petitions the tenants assert, in substance, that the window 
      installation is unworkmanlike she was never given notice of an inspection, 
      and her apartment has not been inspected (apartment 2C); the windows are 
      drafty (apartments 2C, and 5H); defective (apartments 5G, 5H, and 6G ); 
      improperly aligned (apartment 2C); do not lock (apartment 6G); and leak 
      (apartment 6H). 

      The owner responds asserting, in substance, that when the windows were 
      installed in 1991, each tenant was given a "punch list" form on which they 
      could indicate any window problems, and that all such complaints had been 
      attended to; that any new problems would be attended to by the building 
      agent, when notified.  The owner adds that the "punch lists" from the 
      tenants of apartments 6G and 5G indicated problems which had since been 
      rectified; that the tenant of apartment 6G stated that the windows in his 










          ADMIN. REVIEW DOCKET NO.: HE230098RT et al.



      apartment were defective without stating the specific defects; and that the 
      tenants of apartments 6D and 5H had failed to return their punch lists.  
      The owner encloses, among other things, copies of the "punch" lists 
      submitted by the tenants of apartments 6D and 5H.

      After a careful consideration of the entire evidence of record, the 
      Commissioner is of the opinion that these petitions should be denied.

      At the outset, the Commissioner notes, as confirmed by the record, that the 
      tenant of apartment 5G failed to raise any objection to the quality or 
      adequacy of the installation while this proceeding was pending before the 
      Administrator.  The tenant could have raised the very issues before the 
      Rent Administrator which he now seeks to raise for the first time on 
      appeal.  Fundamental principles 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.  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 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 
      replaced an item whose useful life has expired.

      It is the established position of the Division that the building-wide 
      installation of new apartment and/or public area windows that are 25 or 
      more years old (as is the case herein) constitutes an MCI for which a rent 
      increase may be warranted, provided the owner otherwise so qualifies.  In 
      this respect, the Commissioner notes that work of a piece-meal nature or 
      ordinary repairs and maintenance does not qualify as an MCI.

      The Commissioner further notes that three other petitioner-tenants 
      (apartments 2C, 5H and 6G) did complain of defective windows during the 
      proceeding before the Administrator.  However, these three tenants failed 
      to provide access to the DHCR inspector.  Accordingly, the Commissioner 
      will not entertain the tenants' arguments on appeal.  This order and 
      opinion is issued without prejudice to the tenants' right to file 
      applications for a rent reduction based on a decrease in building-wide or 
      individual apartment services, including defective windows, if the facts so 
      warrant.

      Considering the nature and extent of the building-wide installation of 924 
      windows for 104 units, the fact that a limited number of tenants (5) may 
      have experienced minor difficulty with the windows is not sufficient 
      grounds to conclude that the owner is not entitled to the MCI rent increase 
      adjustment authorized by the Administrator.  Finally, the Commissioner 
      notes that the petitioner-tenant of apartment 6D did submit an objection to


          ADMIN. REVIEW DOCKET NO.: HE230098RT et al.


      the owner's MCI application during the original proceeding which was not 
      addressed by the Administrator.  The owner is hereby directed to inspect 
      and make any necessary repairs to this tenant's apartment windows within 
      thirty (30) days from the issuance date of this order and opinion.  Should 
      the owner fail to make any necessary repairs to this tenant's windows, then 
      this tenant may file a complaint with the Rent Administrator.  If the 
      tenant does so within the following ninety days and if the Administrator 
      determines that the windows are defective, then the Administrator may 
      rescind the original MCI rent increase for this tenant's apartment 
      retroactively to the effective date thereof in addition to granting a rent 
      reduction pursuant to Section 2523.4 of the Rent Stabilization Code. 

      THEREFORE, in accordance with the provisions of 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, denied, and that 
      the order of the Rent Administrator be, and the same hereby is, affirmed.

      ISSUED:











                                                                    
                                           JOSEPH A. D'AGOSTA
                                           Deputy Commissioner




                                                    





    

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