CF410084RO
                                  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.: CF410084RO
                                                  
          JOSEPH PECORARO                         RENT
                                                  ADMINISTRATOR'S DOCKET 
                                                  NO.: CB410131S
                                  PETITIONER            
          ----------------------------------x


            ORDER AND OPINION GRANTING PETITION FOR ADMINISTRATIVE REVIEW
               IN PART AND REMANDING PROCEEDING TO RENT ADMINISTRATOR

               On June 3, 1988 the above named petitioner-owner filed a 
          Petition for Administrative Review against an order of the Rent 
          Administrator issued May 9, 1988. The order concerned housing 
          accommodations known as Apt 3-FS located at 1431 First Avenue, New 
          York, N.Y.  The Administrator established the tenant's rent at 
          $1.00 per month pursuant to Section 2522.6 of the Rent 
          Stabilization Code based on the fact that the tenant had to 
          involuntarily vacate the subject apartment after a fire.

               The Commissioner has reviewed the record and carefully 
          considered that portion relevant to the issues raised by this 
          appeal.

               The tenant commenced this proceeding on February 19, 1988 by 
          filing a Statement of Complaint of Decrease in Services and stated, 
          in sum, that the subject apartment had been rendered uninhabitable 
          as the result of a fire on February 17, 1988. 

               The owner was served with a copy of the complaint and afforded 
          an opportunity to respond. The owner filed a response on March 12, 
          1988 and stated, in sum, that water, heat and temporary electricity 
          had been restored to the apartments in the building, that other 
          repairs were in progress and that the owner was willing to accept 
          a rent of $1.00 for the month of March.
           
               The Administrator ordered a physical inspection of the subject 
          apartment.  The inspection was conducted on March 25, 1988. The 
          inspector reported  that gas was not being provided, that 2 living 
          room, 2 kitchen and 1 bathroom windows were boarded up with 
          plywood, that the living room, kitchen and bathroom were in need of 
          painting due to smoke damage and that there was broken plaster on 
          the bathroom ceiling.  The inspector reported that the tenant was 












          CF410084RO

          still in occupancy. 

               The Administrator issued the order here under review on May 9, 
          1988 and established the tenant's rent at $1.00 per month effective 
          February 17, 1988, the date of the fire.

               On appeal the owner, as represented by counsel, states that 
          the owner was not given a full and fair opportunity to be heard in 
          that, on April 27, 1988 the owner's attorney submitted a request to 
          be given until May 2, 1988 to file a supplementary answer but the 
          Administrator issued the order here under review on May 9, 1988.  
          The owner further states that a rent reduction was not warranted 
          because the apartment was never rendered uninhabitable and because 
          the tenant was subjected to "minor inconveniences" in service 
          reductions.  Finally, the owner states that the service reductions 
          found by the Administrator were de minimis and promptly corrected 
          by March 27, 1988.  The petition was served on the tenant.

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

               The order appealed herein was issued pursuant to Section 
          2522.6 of the Code which authorized the DHCR to establish the legal 
          regulated rent in certain situations.  The rent was established at 
          $1.00 per month based on the erroneous conclusion that the tenant 
          had been forced to vacate the apartment because of a fire.  
          However, since the inspector found that the tenant was in 
          occupancy, establishing the rent at $1.00 was not appropriate.

               Section 2523.4 of the Code requires the Division to order a 
          rent reduction to the level in effect prior to the most recent 
          guidelines adjustment for the period for which it is found that the 
          owner has failed to maintain required services.  Required services 
          are defined in Section 2520.6 (r) as that space and those services 
          which the owner was maintaining or was required to maintain on the 
          applicable base date including repairs, decorating and maintenance.  

               Pursuant to Section 2523.4, the Rent Administrator was 
          required to order a rent reduction to the level in effect prior to 
          the most recent guidelines adjustment based on the conditions 
          requiring repair described in the inspector's report.  On remand, 
          the Administrator should issue such a rent reduction order, 
          effective March 1, 1988, the first rent payment date following 
          service of the complaint on the owner.  

               However, because a stay of the prospective application of the 
          Administrator's order was granted by the Commissioner on August 2, 
          1988, pursuant to the owner's request, the owner may reasonably 
          have concluded that the filing of a rent restoration application 
          was not warranted or appropriate.  Accordingly, on remand, the 
          Administrator should investigate by means of a hearing if 






          CF410084RO

          necessary, when the conditions described by the inspector's report 
          were corrected and order the rent restored as of that date.

               With regard to the owner's argument that it was not given a 
          full and fair opportunity to be heard, the Commissioner notes that 
          the owner filed an answer on March 12, 1988 wherein it agreed to 
          accept a rent of $1.00 for the month of March based on the 
          admission that services had been disrupted.  The owner's April 27, 
          1988 request for additional time to answer was received by the 
          Administrator only after the order was issued.

               With regard to the owner's argument that the service 
          reductions were de minimis in nature, the Commissioner finds that 
          the fact that the tenant did not have gas in the apartment that the 
          windows were boarded up and that painting and plastering was 
          required throughout the apartment can not be charactorized as 
          "minor inconveniences".  

               THEREFORE, pursuant to the Rent Stabilization Law and Code it 
          is 

               ORDERED, that this petition be, and the same hereby is, 
          granted in part, and that this proceeding be, and the same hereby 
          is, remanded to the Rent Administrator for further processing 
          consistent with this order and opinion.

          ISSUED:



                                                                             
                                             JOSEPH A. D'AGOSTA
                                             Deputy Commissioner
                                   






    

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