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.: BI210231RT,
APPEALS OF BI230388RT
DIANE PERRY AND
DAVID SCHACHTER RENT ADMINISTRATOR'S
DOCKET NO.: AG230137OM
PETITIONERS
-------------------------------------X
ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW DOCKET
NO. BI230388RT; GRANTING IN PART PETITION FOR ADMINISTRATIVE REVIEW
DOCKET NO. BI210231RT AND MODIFYING ADMINISTRATOR'S ORDER.
The above-named petitioners timely filed petitions for
administrative review (PARs) against an order issued on August 20,
1987, by the Rent Administrator (Gertz Plaza) concerning the
housing accommodations known as 317 Pacific Street apartment Nos.
B4 and D2, Brooklyn, New York, wherein the Rent Administrator
granted the owner's application for a major capital improvement
(MCI) rent increase based on the installation of new replacement
windows building-wide.
The Commissioner has reviewed all of the evidence of record and has
carefully considered that portion relevant to the issues raised by
these administrative appeals.
On appeal, the tenant of apartment No. B4 (Docket No. BI230388RT)
contends, in substance, that the work benefits the owner due to the
increased value of the property; that the owner did not refute her
statement contending that the life expectancy of the old windows
had not expired. The tenant of apartment No. D2 (Docket No.
BI210231RT) asserts, in substance, that he took occupancy after the
owner filed its application; and that his vacancy lease does not
contain any provision which would authorize a rent increase
adjustment prior to the expiration of the lease term. Submitted
with the petition is a copy of said vacancy lease.
In response to the tenants' petitions the owner submitted an answer
stating, in substance, that the old windows had been over 50 years
old and they were beyond repair.
After careful consideration of the entire evidence of record, the
Commissioner is of the opinion that the administrative appeal under
Docket No. BI230388RT should be denied; and that the administrative
appeal under Docket No. BI210231RT should be granted, in part, and
the Administrator's order modified in accordance with this order
and opinion.
ADMIN. REVIEW DOCKET NOS. BI-210231-RT, BI-230388-RT
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 replace an item whose useful life has expired. Piecemeal work
or ordinary repairs and maintenance does not constitute work for
with a rent increase adjustment is warranted under current and past
procedures.
It is the established position of the Division that the
installation of new replacement windows to replace windows which
are twenty-five years old or older constitutes a major capital
improvement for which a rent increase adjustment may be warranted.
The record in the proceeding below discloses that the owner
substantiated its application by submitting to the Administrator,
among various documentation, a statement certifying that the old
windows were 50 years old. The Commissioner is of the opinion that
the tenant's (Apt. B4) allegation with respect to the life
expectancy of the old windows, devoid of evidentiary support,
should not disturb the Administrator's finding.
As to the tenant's assertion (Apt. D2), that his vacancy lease does
not contain any provision which would authorize collection of the
MCI rent increase prior to the expiration thereof, the Commissioner
notes that for the MCI rent increase granted by the Administrator's
order to be collectible during the term of the petitioner's vacancy
lease, such vacancy lease would have to contain a specific clause
advising the tenant of the docket number of the pending proceeding
and advising that the rent charged was subject to additional
increase (during the current lease term in effect) as provided by
Section 2522.4(a)(5) of the Rent Stabilization Code and established
Division precedent. In the absence of same, said increase was not
collectible until the expiration of the lease term then in effect
at the time of issuance of the MCI order, provided the renewal
lease contains a general authorization provision for adjustment of
the rent reserved by the DHCR order. The record, as amplified on
appeal, discloses that the tenant executed his vacancy lease on
January 1, 1987, after the owner completed service of its
application upon the tenants on September 2, 1986. Also, said
vacancy lease did not contain any specific clause advising the
tenant of the pending MCI application.
2
ADMIN. REVIEW DOCKET NOS. BI-210231-RT, BI-230388-RT
Accordingly, the Commissioner finds that the tenant of apartment D2
is exempt from the rent increase provided for in the
Administrator's order until the expiration of the initial lease,
December 31, 1987.
THEREFORE, in accordance with the applicable provisions of the Rent
Stabilization Law and Code and the Rent and Eviction Regulations,
it is
ORDERED, that the petition for administrative review under Docket
No. BI230388RT be, and the same hereby is denied; that the petition
for administrative review under Docket No. BI210231RT be, and the
same hereby is granted in part; that the Administrator's order be,
and the same hereby is modified by exempting apartment D2 from the
rent increase until the expiration date, December 31, 1987, of the
initial lease; and that as so modified said Administrator's order
be, and the same hereby is affirmed, and it is further
ORDERED, that the owner refund to the tenant of apartment D2
(David Schachter) any excess rent which may have been collected,
arising as a result of this order, within 30 days from the date of
issuance hereof.
ISSUED:
____________________
Joseph A. D'Agosta
Deputy Commissioner
3
|
