GE530151RO
                                  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.: GE530151RO
                                                  
          MARTIN KIRZNER                          RENT
                                                  ADMINISTRATOR'S DOCKET 
                                                  NO.: GA530031B
                                  PETITIONER            
          ----------------------------------x


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

               On May 12, 1992 the above named petitioner-owner filed a 
          Petition for Administrative Review against an order of the Rent 
          Administrator issued April 24, 1992. The order concerned various 
          housing accommodations located at 35 Hamilton Place, New York, N.Y.  
          The Administrator issued an order establishing the rents of 32 
          tenants at $1.00 per month effective February 10, 1992, the date on 
          which the tenants were allegedly forced to vacate their apartments 
          due to a fire.

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

               This proceeding was commenced on January 13, 1992 when 21 
          tenants in this 90 unit building joined in filing a Statement of 
          Complaint of Decrease in Building-Wide Services wherein the 
          complaining tenants alleged, in sum, that the owner was not 
          maintaining certain required building-wide services.

               On February 10, 1992 the tenant named on the heading of the 
          complaint  advised the Administrator that she wished to withdraw 
          the complaint because the building is under new management and all 
          services are being provided.

               In an answer to the complaint dated February 19, 1992, the 
          owner stated that there was a major gas explosion in the building 
          on February 10, 1992 and that the fire and its aftermath completely 
          destroyed the building's public areas as well as several 
          apartments.  A copy of a vacate order (#V 00653) issued by the Fire 
          Department was submitted.  The order pertains to Apts. 707, 710, 
          711, 712, 714, 607, 610, 611, 507, 510, 511, 407, 410, 411, 307, 
          310, 311, 207, 210, 211 and 107. The owner also stated that the 












          GE530151RO

          apartment of the official representative for all the tenants (Apt. 
          711) was completely destroyed but a deal had been worked out with 
          her to have her withdraw the complaint because gas service, which 
          was the main reason for the complaint, had mostly been restored.  
          The owner claimed that the gas explosion was caused by efforts by 
          Con Edison to restore gas to three more risers.  The owner asserted 
          that it would be unfair for DHCR to conduct a physical inspection 
          at this time because it will take months to repair the damage from 
          the explosion.  Finally, the owner asked the Division to contact 
          the tenants' representative for verification of the owner's 
          statements.

               A physical inspection by the Division was conducted on April 
          12, 1992.  The inspector reported that the vestibule door lock was 
          defective and the door was not self-closing, that there was peeling 
          paint in the hallways and stairways, the lobby floor was defective, 
          the main entrance door did not close properly, the light fixture in 
          the hallway near the elevator was defective, the locks and sashes 
          on all hallways windows were defective, the hallway floors were 
          dirty, the elevator lighting was defective, no gas was provided and 
          there was evidence of vermin infestation.

               The Administrator issued the order here under review on April 
          24, 1992 and ordered that, pursuant to Section 2202.22 (c) of the 
          Rent and Eviction Regulations and Section 2522.4 (d) of the Rent 
          Stabilization Code, the rents of all rent controlled tenants and 
          those rent stabilized tenants who joined the complaint, be 
          established at $1.00 per month effective February 10, 1992.

               On appeal the owner states, in sum, that the Administrator 
          erred in including tenants in the order here under review who were 
          not listed in the Fire Department's above described order.  The 
          owner argues that only those tenants who were commanded by the Fire 
          Department to vacate should be entitled to relief granted by the 
          order here under review.  The petition was served on the tenants on 
          June 2, 1992.

               Various tenants filed responses wherein they stated, in sum, 
          that the order here under review should be affirmed.  One tenant 
          stated that the owner was making a good faith attempt to repair    
          the building and should be allowed the time needed to complete 
          repairs.
           
               After careful review of the evidence in the record, the 
          Commissioner is of the opinion that the petition should be granted, 
          the Rent Administrator's order should be modified and the 
          proceeding should be remanded to the Administrator for further 
          processing.

               The order here under review was premised solely on the Fire 
          Department's order.  Therefore, the owner is correct in that the 
          Administrator should have granted relief only to those tenants who 






          GE530151RO

          were listed in the "Vacate Fire" order.  The Commissioner finds 
          that the rent should be established at $1.00 per month effective 
          February 10, 1992 for the tenants of Apts. 707, 710, 711, 712, 714, 
          607, 610, 611, 507, 510, 511, 407, 410, 411, 307, 300, 311, 207, 
          210, 211 and 107.  The order is affirmed with regard to these 
          tenants and is revoked for all other tenants.  In order for the 
          rents to be restored to the level in effect prior to the explosion, 
          the owner must establish the date the apartments became habitable 
          and the rents will be restored as of that date.  A copy of this 
          order and opinion will be sent to the pending rent restoration 
          proceeding (Docket No. HG530015OR) wherein the date of habitability 
          of the affected units will be determined.

               The Commissioner further notes that this proceeding was 
          initiated because of complaints of decreased building-wide services 
          stated by the tenants and that within a month of the filing of the 
          complaint, a letter was received by the Rent Administrator 
          withdrawing the complaint.  Although the letter was submitted by 
          the tenant named in the heading of the complaint, the complaint did 
          not designate her as the authorized tenant representative.  
          Accordingly, it cannot be determined whether the complaint was 
          withdrawn by all the tenant-signatories and whether the one tenant 
          was acting as an individual tenant or on behalf of all others.

              Moreover, it is apparent that the major gas explosion which 
          occurred in the building on February 10, 1992 caused so much water 
          and structural damage throughout the public areas of the building 
          that the items mentioned in the original complaint were affected, 
          necessitating more extensive and time-consuming repairs.

               Accordingly, the proceeding is being remanded to the Rent 
          Administrator for the purpose of determining whether the complaint 
          was withdrawn by all tenant-signatories, and if not, for re-service 
          of the complaint on the owner and for a new inspection to determine 
          whether necessary repairs have been made.  If it is determined that 
          the owner has failed to maintain required services, an appropriate 
          prospective rent reduction should be ordered for rent controlled 
          tenants and the rents should be reduced by a guideline for rent 
          stabilized tenants effective the first of the month following the 
          re-service of the complaint on the owner.

               With regard to rent stabilized tenants, the automatic stay of 
          the retroactive rent abatement which resulted by the filing of this 
          appeal is vacated upon issuance of this order and opinion.

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

               ORDERED, that this petition be, and the same hereby is, 
          granted, and that the Rent Administrator's order be, and the same 
          hereby is, affirmed as modified herein and it is further 













          GE530151RO

               ORDERED, that this proceeding be, and the same hereby is, 
          remanded to the Rent Administrator for further processing 
          consistent with this order and opinion.  If the tenants of the 
          apartments for which the order here under review has been revoked 
          owe arrears based on the Commissioner's decision herein, for rent 
          stabilized tenants the arrears may be paid off in thirty six (36) 
          equal monthly installments and, for rent controlled tenants, the 
          installments of back rent shall not exceed the difference per month 
          between the rent established by the order and the prior rent.  Any 
          tenant who vacates owes arrears immediately.

          ISSUED:



                                                                             
                                             JOSEPH A. D'AGOSTA
                                             Deputy Commissioner
                                    


















    

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