FL 410183-RO
                        STATE OF NEW YORK
                           GERTZ PLAZA
                     92-31 UNION HALL STREET
                     JAMAICA, NEW YORK 11433
APPEAL OF                               DOCKET NO.: FL 410183 RO

                                        ADMINISTRATOR'S DOCKET
                                        NO.: FE 510940 S

      On December 24, 1991 the above named petitioner-owner filed
a Petition for Administrative Review against an order of the Rent
Administrator  issued  December  3,  1991.  The  order  concerned
housing  accommodations known as Apt 14  located  at  1448  First
Avenue,  New York, N.Y.  The Administrator established,  pursuant
to  9  NYCRR  2522.6 that the rent on May 9, 1991 was  $1.00  per
month based on the tenant's having to vacate the apartment due to
fire-related damage.  The Administrator's order also ordered  the
rent restored effective September 9, 1991.

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

      The  tenant  commenced this proceeding on May 30,  1991  by
filing  a Statement of Complaint of Decrease in Services  wherein
she  alleged that she was forced to vacate her apartment  due  to
severe  smoke  damage caused by a fire in another apartment.  She
also  stated  that she had been in contact with  the  owner,  who
offered all tenants a rent abatement of $200 as compensation  for
any fire-related expenditures.

      The  owner  was  served with a copy of  the  complaint  and
afforded an opportunity to respond. The owner filed a response on
June 26, 1991 and stated that a fire did occur on May 9, 1991.  A
few  days  thereafter, the building manager spoke to the affected
tenants  and  authorized the commencement of work to restore  the
apartments to their pre-fire condition.  The owner stated that it
offered monetary compensation for any cleaning expenses that were
necessary.  The owner claimed that the tenant was refusing access
to  the owner's representatives.  This refusal, the owner stated,
was  the  reason  why the apartment had not been  restored.   The
owner  supplied  a copy of a letter demanding access,  which  had
been hand delivered to the tenant.

      The  tenant  filed a response on June 24, 1991 wherein  she
stated,  in substance, that she was not refusing access  and  had
made efforts to cooperate with the owner.

      The  Administrator  ordered a physical  inspection  of  the
subject apartment.  The inspection was conducted on September 12,
1991  and  was  a "no access" inspection where both parties  were
required  to  be  present.   The  inspection  revealed  that  all
services  were  being  provided,  that  the  apartment  had  been
renovated  and  was in excellent condition, that  new  appliances
were  installed and that the tenant had resumed occupancy of  the

      The  Administrator sent a notice to the tenant on September
24,  1991  and  requested that the parties provide the  following
information: date of fire, date tenant vacated the apartment  and
date  tenant resumed occupancy.  The tenant responded on  October
1,  1991  and stated that the fire occurred on May 9, 1991,  that
she  vacated  that  same day and that she  resumed  occupancy  on
September 9, 1991.

       The  Administrator issued the order here under  review  on
December 3, 1991 and established, pursuant to 9 NYCRR 2522.6 that
the  rent on May 9, 1991 should be fixed at $1.00 per month based
on  the  owner's  failure  to  comply  with  9  NYCRR  2522.4(d),
[application to decrease required services for a reduction of the
legal  regulated rent].  Additionally, the Administrator  ordered
the rent restored on September 9, 1991.

      On  appeal  the  owner, through counsel,  states  that  the
Administrator was misled into believing that there was structural
damage  to the tenant's apartment when, in fact, the sole  damage
was  dirt  and soot related.  The owner argues that this "damage"
is  legally insufficient to warrant the rent reduction ordered by
the Administrator.  The owner states that the apartment was never
rendered  "uninhabitable".  Finally, the owner  states  that  the
tenant,  by letter dated July 9, 1991, stated that the  apartment
had been "beautifully cleaned".  Therefore, the owner argues that
the  Administrator should have ordered rent restoration effective
July 8, 1991.

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

      It  is  clear  from  the evidence in the  record  that  the
Administrator was well aware of the nature of the dirt  and  soot
related  damage  to  the  tenant's  apartment.   Therefore,   the
Commissioner rejects the owner's assertion that the Administrator
issued  the order here under review believing that the  apartment
had  suffered  any  other kind of damage.  The Commissioner  also
rejects the owner's contention that severe fire-related smoke and
soot  damage  cannot  render  an  apartment  uninhabitable.   The
Commissioner  has held that an apartment need not  be  physically
touched  by flames and fire to be damaged to the extent that  the
rent can be reduced to $1.00 per month. (See Docket No. ARL 00675
Q).   It  follows that severe smoke damage caused by  a  fire  in
another apartment can render an apartment uninhabitable so as  to
warrant the reduction in rent ordered by the Administrator.

      With  regard to the owner's argument that the  rent  should
have been restored effective July 8, 1991, the Commissioner notes
that  the  letter  the  owner submits  as  Exhibit  "C"  was  not
presented to the Administrator despite the opportunity to do  so.
It  is  settled  that the  scope of review in  an  administrative
appeal is limited to facts or evidence presented before the  Rent
Administrator.   Since  the owner did not  avail  itself  of  the
opportunity to submit this letter to the Administrator, it cannot
now present the letter for consideration before the Commissioner.
The order here under review is affirmed.

      THEREFORE, pursuant to the Rent Stabilization Law and  Code
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, affirmed.


                                   JOSEPH A. D'AGOSTA
                                   Acting Deputy Commissioner

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