BK610076RO
                                    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
          APPEAL OF                               DOCKET NO.:                  
          BK610076RO  
                                  
                     AMIT SIKDAR,                 RENT ADMINISTRATOR'S
                                                  DOCKET NO.:
                                                  BF610018S 
                                   PETITIONER                         
          ----------------------------------x



            ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW
                                       IN PART


          On November 25, 1987, the above-named petitioner-owner filed a 
          petition for administrative review of an order issued on October 
          23, 1987, by the Rent Administrator, concerning the housing accom- 
          modation known as Apt. 5-B, 2001 McGraw Avenue, Bronx, New York, 
          wherein the Administrator established the rent for the subject 
          apartment at $1.00 per month as of May 22, 1987, the date a fire 
          caused the tenant to vacate involuntarily.

          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 June 3, 1987 when the tenant filed 
          a complaint in which she stated that a fire on May 23, 1987 damaged 
          the apartment so seriously that she and her children are unable to 
          live in it.  The tenant alleged that the owner was requiring her to 
          pay for all repairs.

          The complaint was sent to the owner on June 12, 1987 but no 
          response was received.

          A physical inspection by DHCR on June 29, 1987 revealed that gas 
          and electricity had been restored, that the living room and bedroom 
          hallway walls and ceilings were smoke damaged, that the window had 
          been repaired, and that the tenant was not in occupancy.














          BK610076RO

          Based on the inspector's report, the legal regulated rent was 
          established at $1.00 as of May 22, 1987, pursuant to Section 2522.6 
          and 2522.4(d) of the Rent Stabilization Code.

          In the petition for administrative review, the owner asserts that 
          the order should be revoked because all repairs were completed 
          prior to the issuance of the order, the tenant did not request a 
          rent reduction, the fire was caused by the tenant's husband and the 
          tenant agreed to pay for all damages, and the Rent Administrator 
          ignored the owner's answer to the complaint.  The owner enclosed 
          with the petition various documents including a copy of the answer 
          to the complaint stamped "Received" by DHCR on July 21, 1987.

          The tenant did not answer the petition.

          After careful consideration of the evidence of record, the Commis- 
          sioner is of the opinion that the petition should be denied.

          The Rent Administrator's order, appealed herein, was issued pur- 
          suant to Section 2522.6 of the Rent Stabilization Code which 
          permits DHCR to determine the legal regulated rent for an apartment 
          based on relevant facts and Section 2522.4(d) which requires an 
          owner to apply to decrease required services for a reduction of the 
          legal regulated rent.

          The order was not based on Section 2523.4 (Failure to maintain ser- 
          vices) and therefore a request by the tenant for a rent reduction 
          was not required.

          The rent was established at $1.00 in order to maintain the land- 
          lord/tenant relationship between the parties while the apartment 
          was uninhabitable and the tenant was obliged to live elsewhere.  
          Once the tenant is restored to possession, the rent may be restored 
          to its pre-fire amount.

          Although the Administrator did not consider the owner's answer 
          because it was not in the file before the order was issued, the 
          Commissioner is of the opinion that this does not warrant reversal 
          or modification of the order.  The answer was not filed in a timely 
          manner and the contents of the answer are not material to the 
          determination made by the Administrator.  The answer asserts 
          that the fire was caused by the tenant's husband, that the tenant 
          is responsible for the cost of repairs and that the repairs were 
          nearly completed except for the painting which the tenant had said 
          she wanted to do herself and then changed her mind.  




          The responsibility for bearing the cost of the repairs is not an 
          appropriate matter for resolution by the commissioner in this 
          proceeding.  Section 2520.6(r) defines required services as that 






          BI 230194-RO

          space and those services the owner was maintaining or was required 
          to maintain on the applicable base date including repairs and 
          decorating and maintenance.  The owner is, therefore, required to 
          repair the damage caused by the fire even if the fire was caused by 
          the tenant's husband.  The owner's insurance should compensate the 
          owner and indemnification may be sought against the responsible 
          party in a court of competent jurisdiction.

          Although the owner has asserted that the tenant was restored to 
          possession before the order was issued, this allegation has not 
          been substantiated.  The inspector found that the tenant was not in 
          occupancy and that this report was the basis for the Administra- 
          tor's order.  The owner is advised to file a restoration 
          application wherein the rent will be restored to the pre-fire 
          amount once the tenant's return to possession is established.  
          Until such a restoration order is issued, the rent remains at $1.00 
          per month.


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

          ORDERED, that this petition be, and the same hereby is, denied and 
          the Administrator's order be, and the same hereby is, affirmed.


          ISSUED:



                                                                           
                                                JOSEPH A. D'AGOSTA
                                                Deputy Commissioner






    

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