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.: FL 410183 RO
MAUTNER-GLICK CORP. DISTRICT RENT
NO.: FE 510940 S
ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW
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
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