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.: HF210125RT
APPEALS OF HF210172RT
HF210239RT
Ellen Azriel of 2576 East 6th Street; HF210243RT
Grazia Argoetti of 65 Manhattan Court;
Dorothy S. Blaustein of 63 Manhattan
Court and Miriam Legeno of 60
Manhattan Court, Brooklyn, New York
RENT ADMINISTRATOR'S
PETITIONERS DOCKET NO.: FF210008OM
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ORDER AND OPINION DENYING PETITIONS FOR ADMINISTRATIVE REVIEW
The petitioner-tenants timely filed administrative appeals against
an order issued on May 17, 1993 by the Rent Administrator (92-31
Union Hall Street, Jamaica, New York) concerning the housing
accommodations known as Ocean Park Estates, Brooklyn, New York,
various apartments, wherein the Administrator granted a major
capital improvement (MCI) rent increase for the stabilized
apartments in the subject premises.
The owner commenced this proceeding below by filing its MCI
application in June of 1991 based on the installation of new
apartment windows at a total claimed cost of $220,428.00. In
support of its application, the owner submitted copies of the
contract, contractor's certification and cancelled checks.
On July 1, 1991 a copy of the MCI application was served by the
Division on the tenants. Along with the application was a form to
be used by the tenants for their responses.
Several tenants objected to the owner's application, including
three of the petitioners (Note: The petitioner-tenant, Grazia
Argoetti of 65 Manhattan Court, Apartment Number A, failed to file
an objection to the owner's application):
ADMINISTRATIVE REVIEW DOCKET NOS.: HF210125RT et. al.
Ellen Azriel, 2576 East 6th Street, Apartment Number A
The installation of new windows was not necessary, and the owner
failed to obtain her consent for the installation and the rent
increase.
Dorothy S. Blaustein, 63 Manhattan Court, Apartment A
The window replacement was long overdue; the neighboring apartment
still had old windows; the owner was not maintaining building
services; and the new windows were of cheap quality and were hard
to open and close.
Miriam Legeno, 60 Manhattan Court, Apartment A
The windows were not requested by the tenants; the claimed cost
exceeds the total cost incurred by the owner, and the owner has
failed to maintain services.
The Administrator's order appealed herein authorized an MCI rent
increase for the new apartment windows.
On appeal, the petitioner-tenants state, in substance, the
following:
Ellen Azriel, 2576 East 6th Street, Apartment Number A
The windows and the screens have not worked ever since they were
installed, and the owner was made aware of the situation, but to no
avail as nothing has been fixed.
Grazia Argoetti, 65 Manhattan Court, Apartment Number A
The windows installed are of inferior quality and are easy to open
from the outside which causes a security risk.
Dorothy S. Blaustein, 63 Manhattan Court, Apartment A and Miriam
Legeno, 60 Manhattan Court, Apartment A
The windows installed are of inferior quality; there are continuing
problems in opening and closing of the windows which creates an
unsafe situation; adjustments were made, however the problems
continue to exist due to the inferior quality of the windows.
In response to the tenants' petitions, the owner states, in
substance, the following:
ADMINISTRATIVE REVIEW DOCKET NOS.: HF210125RT et. al.
Ellen Azriel, 2576 East 6th Street, Apartment Number A
An inspection of the premises will be performed and if required,
adjustments to the windows and/or screens will be made. All of the
tenants' window complaints made while during the application was
pending were taken care of. This tenant is raising this allegation
for the first time on appeal.
Grazia Argoetti, 65 Manhattan Court, Apartment Number A
The windows installed are in good working condition.
Dorothy S. Blaustein, 63 Manhattan Court, Apartment A and Miriam
Legeno, 60 Manhattan Court, Apartment A
All the necessary adjustments were made to the windows, and the
windows installed are the best on the market.
After a careful consideration of the entire evidence of record, the
Commissioner is of the opinion that these administrative appeals
should be denied.
Rent increases for major capital improvements are authorized by
Section 2522.4 of the Rent Stabilization Code for the rent
stabilized apartments. 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 position of the Division that the building-wide
installation of apartment windows, as in the instant case,
qualifies as an MCI.
The evidence of record in the instant case indicates that the owner
fully substantiated its application in the proceeding below by
submitting to the Administrator documentation in support thereof,
including copies of the contract, the contractor's certification
and cancelled checks. Considering the nature and extent of the
complex-wide work involved herein (the installation of over 1400
windows in 183 apartments at a total cost of $220,428.00), the fact
that a limited number of tenants may have experienced minor
difficulty with said window installation (while 20 tenants
submitted answers in the proceeding below, only 8 of those tenants
questioned the adequacy of the window installation, only four
tenants filed appeals, and only one of those tenants filing an
appeal complained about the windows in the original proceeding) is
not sufficient grounds to conclude that the owner is not entitled
to the MCI rent increase adjustment authorized by the
Administrator. However, the owner is hereby directed to correct any
ADMINISTRATIVE REVIEW DOCKET NOS.: HF210125RT et. al.
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 application for a rent reduction based on a diminution
of building-wide and/or individual apartment services, including
defective windows, if the facts so warrant.
The Commissioner notes that tenant consent is not required and that
three of the petitioner-tenants did not raise any objections as to
the quality of the new window installation while this proceeding
was pending before the Rent Administrator although they were
afforded the opportunity to do so.
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 as the
petitioner-tenants could have raised the very issues before the
Rent Administrator which they now seek to raise for the first time
on appeal. Accordingly, the Commissioner is constrained to
foreclose consideration of their objections in this proceeding.
As to the remaining petitioner-tenant (Dorothy S. Blaustein, 63
Manhattan Court, Apartment A) who did in fact complain about the
quality of the new windows during the proceeding before the
Administrator, the Commissioner notes that this tenant's complaint
was never served upon the owner by the Administrator. The owner is
hereby directed to inspect and make any necessary repairs to the
windows in said apartment within 60 days from the issuance date of
this order and opinion. Should the owner fail to make any necessary
repairs to this apartment's windows, the tenant may file a
complaint with the Division. 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 apartment retroactively to the
effective date thereof in addition to a rent reduction pursuant to
Section 2523.4 of the Rent Stabilization Code.
As to the tenants' contention with respect to the maintenance of
services, a review of Division records discloses that there were no
orders outstanding against the subject premises based on the
owner's failure to maintain building-wide services at the time the
Administrator's order was issued.
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, it is
ADMINISTRATIVE REVIEW DOCKET NOS.: HF210125RT et. al.
ORDERED, that these administrative appeals be, and the same hereby
are, denied; and that the Rent Administrator's order be, and the
same hereby is, affirmed.
ISSUED:
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Joseph A. D'Agosta
Deputy Commissioner
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