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 S.J.R. NO.: 6937
IN THE MATTER OF THE ADMINISTRATIVE : ADMINISTRATIVE REVIEW
APPEAL OF DOCKET NO.: EJ430319RO
:
H.F. ASSOCIATES LTD. PARTNERSHIP RENT ADMINISTRATOR'S
DOCKET NO.: DE430128OM
PETITIONER :
------------------------------------X
ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW
On October 29, 1990 the above-named petitioner-owner filed an
administrative appeal against an order issued on October 9, 1990 by the
Rent Administrator (92-31 Union Hall Street, Jamaica, New York) concerning
the housing accommodations known as 801 West End Avenue, New York, New
York, various apartments, wherein the Administrator denied major capital
improvement (MCI) rent increases for the controlled and stabilized
apartments in the subject premises for the installation of replacement
windows and new mailboxes based on a determination that the windows were
installed on a piecemeal basis during a two year and four month period and
the mailboxes were not relocated from an outer vestibule to an inner
vestibule.
Subsequent thereto the owner filed a petition in the Supreme Court pursuant
to Article 78 of the Civil Practice Law and Rules seeking an order of
mandamus. This resulted in a court ordered stipulation remitting the
proceeding for a determination of the owner's administrative appeal herein.
In this petition the owner contends, in substance, that the windows were
not installed on a piecemeal basis; that the windows were installed
pursuant to a single contract with one contractor as part of a unified
plan; that the window installation took a prolonged period of time because
many tenants refused access therefor, and that the Rent Administrator
erroneously disallowed a rent increase for new mailboxes installed in the
same location.
In response, various tenants assert, in substance, that the window
installation took so long because "the owners tried several times to induce
the renters to purchase [the windows]" and not because of any fault on the
part of the tenants; that the window installation was piecemeal; and that
the owner was not entitled to a rent increase for either the window or
mailbox installations. Various tenants confirmed that they either were
paying a 1/40th rent increase or had paid in full for replacement windows
installed in their respective apartments.
After careful consideration, the Commissioner is of the opinion that this
petition should be denied.
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
ADMIN. REVIEW DOCKET NO.: EJ430319RO/SJR 6937
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.
It is the established position of the Division that the building-wide
installation of new thermal apartment and/or public area windows to replace
windows that are 25 or more years old (as is the case herein) constitutes
a major capital improvement for which a rent increase may be warranted,
provided the owner otherwise so qualifies. In this respect the
Commissioner notes that work of a piecemeal nature or ordinary repairs and
maintenance does not qualify as a major capital improvement.
The record indicates that the window installation herein was commenced in
September, 1986 and completed in January, 1989, two years and four months
later. Although the owner contends that said installation took a prolonged
period of time because many tenants refused access to the contractor, there
is no evidence in the record to establish that any attempts to obtain
access were made by the owner and/or were refused by tenants. Compliance
with every other aspect of the Code and Regulations is not sufficient
where, as in the instant case, the installation was performed in a
piecemeal fashion.
It is noted that the owner's reliance on two prior Administrative Review
orders to support its contention that the instant window installation was
not piecemeal is misplaced. In Administrative Review Docket No.
DB530003RO, the Commissioner found that the window installation therein
substantially complied with the requirements for a major capital
improvement based on the facts and circumstances therein, including the
owner's indications that the installation, which was performed by three
contractors during a 20 month period, was prolonged for economic reasons.
In Administrative Review Docket No. BC110041RO, the Commissioner found that
the subsequent replacement of windows in five out of a total of six
apartments, performed by one contractor during a two month period,
qualified as a major capital improvement. The Commissioner further found
that the Administrator had correctly disallowed the owner's claim for the
initial window installation, which was performed three years earlier in the
owner's apartment and was clearly intended solely for the owner's benefit.
The owner's contention, raised on appeal, that the Commissioner had
determined that a three year window installation was not piecemeal is
erroneous.
Regarding the owner's contention that the Administrator erroneously
disallowed a rent increase for the new mailboxes installed in the same
location, it is the established position of the Division that the
installation of mailboxes per se does not constitute a major capital
improvement, but rather their structural relocation to a more secure area
behind locked doors. Since the mailboxes in question were reinstalled in
the same general location as the old ones, the Administrator properly found
them not to qualify as a major capital improvement since said installation
ADMIN. REVIEW DOCKET NO.: EJ430319RO/SJR 6937
did not entail the additional requirement that they be relocated from the
outer vestibule to a more secure inner area behind a second set of locked
doors.
Based upon the foregoing, the Commissioner finds that the Administrator
properly determined that the owner was not entitled to a major capital
improvement rent increase for the subject installations.
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 this petition be, and the same hereby is, denied, and that
the order of the Rent Administrator be, and the same hereby is, affirmed.
ISSUED:
JOSEPH A. D'AGOSTA
Deputy Commissioner
|
