STATE OF NEW YORK
DIVISION OF HOUSING AND COMMUNITY RENEWAL
OFFICE OF RENT ADMINISTRATION
92-31 UNION HALL STREET
JAMAICA, NEW YORK 11433
IN THE MATTER OF THE ADMINISTRATIVE ADMINISTRATIVE REVIEW
APPEAL OF DOCKET NO.:
AMIT SIKDAR, RENT ADMINISTRATOR'S
ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW
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.
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
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
THEREFORE, in accordance with the Rent Stabilization Law and Code,
ORDERED, that this petition be, and the same hereby is, denied and
the Administrator's order be, and the same hereby is, affirmed.
JOSEPH A. D'AGOSTA