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.:
WHITEYARD INDUSTRIES, INC., DOCKET NO.:
337 East 13th St.
PETITIONER Apt. 5, N.Y., NY
ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW
The above-named owner filed a timely Petition for Administrative
Review (PAR) of an order issued on July 28, 1989, concerning the
above-described housing accommodations.
The Commissioner has reviewed all 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 this proceeding on May 31, 1989, by filing a
complaint asserting that a May 19, 1989 fire had rendered the
In answer, the owner asserted in substance that all services had
Thereafter, a physical inspection of the subject apartment was
conducted on June 30, 1989, by a Division of Housing and Community
Renewal (DHCR) staff member who confirmed that the apartment was
under renovation after it had sustained fire damage and that the
tenant was not in occupancy.
By an order dated July 28, 1989, the Administrator established
pursuant to Section 2522.6 that the rent on May 19, 1989 was $1.00
per month, based upon the owner's failure to comply with the
requirements of Section 2522.4(d), which amount is the legal
regulated rent for the housing accommodation as of May 19, 1989,
the date of the fire which caused the tenant to vacate
In this petition, the owner contends in substance that the tenant
did not involuntarily vacate the subject apartment and continued to
occupy the subject apartment after the fire and furthermore, that
full services were promptly restored. The owner submitted copies
of court papers pertaining to a related Housing Court action with
this petition. Subsequent to filing this petition, the owner
submitted a letter from the tenant, dated September 18, 1989,
withdrawing her complaint.
DHCR mailed a copy of the petition to the tenant who answered,
stating that she did, in fact, have to involuntarily vacate the
apartment due to the fire.
After careful consideration, the Commissioner is of the opinion
that the petition should be denied.
The owner's petition does not establish any basis to modify or
revoke the Administrator's determination based on the June 30, 1989
inspection which confirmed that this rent-stabilized apartment was
uninhabitable as of May 19, 1989, the date of the fire which caused
the tenant to vacate involuntarily.
The owner's contention that the tenant did not vacate the subject
apartment was raised for the first time in this petition and is
therefore beyond the scope of review, which is limited to those
issues and evidence which had originally been before the Adminis-
trator. The copies of the court documents attached to this
petition were also submitted for the first time with this petition
and so are also beyond the scope of review. In any event, the
Commissioner notes that the DHCR has concurrent jurisdiction with
the Housing Court and that there is nothing contained in the
submitted court documents which refutes the findings of the DHCR
Finally, the Commissioner notes that the letter from the tenant
withdrawing her complaint is dated September 18, 1989, which is
nearly two months after the issuance of the Administrator's order,
and as such does not refute or challenge the findings which are the
basis of that order. Furthermore, it was, by necessity, submitted
for the first time with this petition and so was not before the
Administrator below, and is therefore also beyond the scope of
The rent will be restored only when an owner's application to
restore the rent is filed and granted. Division records reveal
that such an application has been filed and is pending before the
Administrator under Docket No. IF410146OR.
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 Operational Bulletin 84-1, it is
ORDERED, that this petition be, and the same hereby is, denied, and
that the Administrator's order be, and the same hereby is,
LULA M. ANDERSON