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.:
ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW
The above-named petitioner-owner filed a timely petition for
administrative review (PAR) of an order issued concerning the
housing accommodation known as 41 Bennett Avenue, Apartment 25,
New York, New York.
The Commissioner has reviewed all of the evidence in the record and
has carefully considered that portion of the record relevant to the
issues raised by the petition.
The tenant commenced the proceeding below by filing a complaint on
July 8,1988, asserting that there was a fire in the apartment on
June 23, 1988 due to faulty wiring and the apartment is not
liveable, the windows were broken by the fire department and the
rooms and hall are charred.
The complaint was sent to the owner on July 26, 1988, but the
record does not contain an answer.
Thereafter an inspection of the subject apartment was conducted by
a Division of Housing and Community Renewal (DHCR) inspector on
August 2, 1988, who confirmed the existence of the following de-
1. Due to fire damage, light and gas service has
2. Due to extensive smoke, fire, and water dam-
age, the apartment is not habitable.
3. Walls and ceilings have extensive damage, ap-
pliances, stove, and refrigerator are not in
4. The tenant is not in occupancy and has vacated
the apartment involuntarily.
The Rent Administrator established the rent at $1.00 per month.
In its petition for administrative review, the owner states that
its answer was overlooked. The owner submitted a copy of an answer
dated August 4, 1988 stating that the tenant is an illegal sublet
who was never granted a sublet lease and steps are being taken to
evict him and that they did not have access to the apartment to
restore it to livable conditions because the tenant had the keys.
The owner further states that all necessary repairs had been made.
The DHCR served a copy of the petition on the tenant on November
After careful consideration, the Commissioner is of the opinion
that the petition should be denied.
The Commissioner has considered the owner's claim that the Rent
Administrator erred by establishing the rent at $1.00 without
considering the owner's claim that the tenant was an illegal sublet
and rejects this argument.
The scope of review in administrative appeals is limited to a
review of facts or evidence that were before the Administrator.
The owner's answer was not before the Administrator and there is no
evidence that it was mailed to or received by the Division. The
matters raised in that answer are, therefore, beyond the scope of
review of this proceeding. Moreover, the alleged denial of access
is not substantiated by the owner with evidence showing attempts to
The owner may file a rent restoration application if the facts so
warrant. The rent will not be restored until a rent restoration
application is filed and granted. The tenant is advised to file an
overcharge complaint with the Division if the owner has collected
an illegal rent.
The automatic stay of the retroactive rent abatement that resulted
by the filing of this petition is vacated upon issuance of this
Order and Opinion.
THEREFORE, in accordance with the Rent Stabilization Law and Code
and the Emergency Tenant Protection Act of 1974, it is
ORDERED, that this petition be, and the same hereby is, denied, and
that the Rent Administrator's order be, and the same hereby, is
JOSEPH A. D'AGOSTA