BL 410311-RO

                                    STATE OF NEW YORK
                            OFFICE OF RENT ADMINISTRATION
                                     GERTZ PLAZA
                               92-31 UNION HALL STREET
                               JAMAICA, NEW YORK 11433

          APPEAL OF                               DOCKET NO.:                  
          BL 410311-RO; 
                    NICOLA BRUSCO,
                                                  RENT ADMINISTRATOR'S
                                                  DOCKET NO.:
                                   PETITIONER     BG 410080-S


          On December 4, 1987, the above-named petitioner-owner timely re- 
          filed a petition for administrative review of an order issued on 
          October 16, 1987, by the Rent Administrator, concerning the housing 
          accommodation known as Apt. 2-B, 32 West 73rd Street, New York, 
          New York, wherein the Administrator established the tenant's rent 
          at $1.00 per month as of May 17, 1987.

          The Commissioner has reviewed all of the evidence in the record and 
          has carefully considered that portion of the record relevant to the 
          issue raised by the administrative appeal.

          This proceeding was commenced on July 17, 1987 when the tenant 
          filed a complaint alleging that an accidental fire on May 12, 1987 
          destroyed one entire room of the apartment which, according to the 
          building inspectors, must now be rebuilt.  The tenant sought a rent 
          reduction due to the loss of space.

          In answer to the complaint, the owner conceded that a fire had 
          damaged one room which the owner planned to repair as soon as the 
          insurance company gave its permission.

          A physical inspection of the building by a DHCR inspector occurred 
          on September 2, 1987.  The inspector reported that a second bedroom 
          had been completely demolished by a fire but that the tenant 
          remained in occupancy; that gas, electricity, and hot and cold 
          water were being provided; and that all appliances were in good 
          working order.

          BL 410311-RO

          The Administrator's order established the rent at $1.00 per month 
          pursuant to Section 2522.6 of the Rent Stabilization Code and 
          stated that based on the owner's failure to comply with the 
          requirements of Section 2522.4(d), the legal regulated rent of 
          $1.00 was effective as of May 12, 1987, the date the fire caused 
          the tenant to vacate involuntarily.

          In the petition for administrative review, the owner asserts that 
          reducing the rent from $384.59 to $1.00 per month is inappropriate 
          when only one bedroom, amounting to 20% of the apartment was 
          damaged and the tenant did not vacate.  The owner stated that he 
          had reached an amicable settlement with the tenant and enclosed a 
          statement signed by the tenant on November 9, 1987 withdrawing the 

          In an answer to the petition, dated February 25, 1988, the tenant 
          stated that one room had been totally destroyed and no repairs had 
          yet to be commenced.  The tenant asserted that an opening in the 
          outside wall, due to the fire, had not been sealed, making the 
          apartment very cold and insecure.  The tenant has not vacated only 
          because she cannot find another apartment but on very cold days, 
          she stays with neighbors or friends.  She said she does not wish to 
          withdraw the complaint and signed the withdrawal before the weather 
          turned cold.

          After careful consideration of the evidence of record, the 
          Commissioner is of the opinion that the petition should be granted.

          The sections of the Rent Stabilization Code cited in the Adminis- 
          trator's order [2522.6 and 2522.4(d)] are applicable to the 
          situation where a tenant is forced to vacate an apartment because 
          it is legally uninhabitable.  The rent is established at $1.00 in 
          order to maintain the landlord/tenant relationship between the 
          parties until the tenant can resume possession.  In the instance 
          case, it is undisputed that the tenant continued to remain in 
          occupancy despite the destruction of one room.  In such circum- 
          stances, establishing the rent at $1.00 per month is not warranted.

          The applicable code sections are 2523.4 and 2520.6(r).  Section 
          2523.4 requires DHCR to order a rent reduction, upon application by 
          a tenant, to the level in effect prior to the most recent guide- 
          lines adjustment, where it is found that the owner has failed to 
          maintain required services.  Required services are defined by 
          Section 2520.6(r) as that space and those services provided or 
          required to be provided on the applicable base date.  Based on the 
          undisputed facts of this case that one room of the subject apart- 
          ment was destroyed by fire, the rent should be reduced to the level 
          in effect prior to the most recent guidelines adjustment, effective 
          May 12, 1987 the date of the fire.

          BL 410311-RO

          It is noted that the Division's records reveal that the owner's 
          rent restoration application (CD 410156-OR) was granted December 
          29, 1988 and this Order and Opinion has no effect on that 

          If the tenant owes rent arrears as a result of this order the 
          tenant should be permitted to pay such arrears in twelve equal 
          monthly installments.

          THEREFORE, in accordance with the Rent Stabilization Law and Code,  
          it is,

          ORDERED, that this petition be, and the same hereby is, granted, 
          and that the Rent Administrator's order be, and the same hereby is, 
          modified to order a reduction in the legal regulated rent to the 
          level in effect prior to the last guidelines adjustment which 
          occurred before May 12, 1987.


                                                JOSEPH A. D'AGOSTA
                                                Acting Deputy Commissioner



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