Adm. Rev. Docket No.: ARL12419W & ARL12420W
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
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IN THE MATTER OF THE ADMINISTRATIVE SJR 6904
APPEAL OF
ADMINISTRATIVE REVIEW
DOCKET NOS.: ARL12419W
ROBERT ROCHELLE COMPANY & ARL12420W
DRO DOCKET NO.:
WNR85-S-4-9-0AD
PETITIONER TENANTS: VARIOUS
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ORDER AND OPINION GRANTING PETITION FOR ADMINISTRATIVE REVIEW AND
REVOKING ADMINISTRATOR'S ORDER
The above-named petitioner-landlord timely filed two Petitions for
Administrative Review against an order issued on July 9, 1986,
by the Rent Administrator at 55 Church Street, White Plains, New
York concerning housing accommodations known as Various Apartments
at 199 and 205 North Avenue, New Rochelle, New York, wherein the
Administrator determined the owner's application for a
determination as to whether or not apartments 1, 2, 5 and 6 at 199
North Avenue (there being five residential units in that building
with Apartment 4, occupied by Leticia da Hora, being considered
subject to the Emergency Housing Rent Control Law by the landlord)
and apartments 1 and 2 at 205 North Avenue (there being only two
residential units in that building) are exempt from regulation
under the Emergency Tenant Protection Act of 1974 (ETPA) by finding
that said apartments are subject to such regulation as they are
situated in a horizontal multiple dwelling containing six or more
residential units.
Subsequently, the landlord filed a Petition in the Supreme Court,
Westchester County, under Article 78 of the New York Civil Practice
Law and Rules, in the nature of an application seeking a writ of
mandamus, asking the Court to direct the Commissioner to determine
the landlord's Petition for Administrative Review. Thereafter,
pursuant to a Stipulation entered into between the Division and the
landlord, the matter was remitted to the Commissioner.
The Commissioner has reviewed all of the evidence in the record and
has carefully considered that portion of the evidence relevant to
Adm. Rev. Docket No.: ARL12419W & ARL12420W
the issues raised in the administrative appeal.
The Commissioner notes that the landlord filed one Petition for
Administrative Review as to 199 North Avenue and another as to 205
North Avenue: both against the same order. Pursuant to
9NYCRR2510.1(c), these Petitions are consolidated herein.
The issue in this proceeding is whether the landlord met his burden
of proof hereinbelow.
The proceeding below was commenced by the landlord's application
for a determination of the status of the subject apartments.
Both below and on this appeal, the landlord has, in substance,
asserted that the subject buildings* are separate and distinct from
one another and they do not constitute a horizontal multiple
dwelling.
Neither below nor on appeal does the record contain a response from
any tenant which addresses the issues raised by the landlord's
application and/or appeal. The responses received by the Division
indicate opposition to the application below based on the
landlord's failure to properly maintain each of the subject
buildings.
The Administrator indicated in his order that the finding as to the
existence of a horizontal multiple dwelling was made "inasmuch as
the buildings have a common heating plant and is [sic] operated as
a unit under common ownership". The Administrator also noted in the
order that each building has separate water and electrical
service.
This proceeding was brought by the landlord, therefore, the burden
of proof rested on the landlord. The landlord produced a statement
* There is a one story taxpayer, which is also owned by the
landlord, between 199 and 205 North Avenue. There is no question
but that said taxpayer contains no residential units; it is known
as 201 North Avenue. The Commissioner notes that the record
indicates that there is no building known as 203 North Avenue on
the same side of North Avenue as the above described buildings.
from its insurance company and utility bills that indicated that
the two buildings, 199 and 205, are separately insured and
separately billed for utilities.
Adm. Rev. Docket No.: ARL12419W & ARL12420W
The inspection conducted by the DHCR staff confirmed that there
are five residential units in 199 and two in 205.
The Commissioner finds that the substantial evidence herein
indicates that other than common ownership and a common heating
plant, the two buildings in question have no connection or
similarity. The Commissioner notes that common ownership and a
common heating plant alone are insufficient to support a finding of
a horizontal multiple dwelling. Therefore, the Commissioner finds
that the Administrator erred in finding that these buildings
constitute a horizontal multiple dwelling.
THEREFORE, pursuant to all of the applicable statutes and
regulations, it is
ORDERED, that this Petition be, and the same hereby is granted and
that the Administrator's order be, and the same hereby is revoked;
and it is further
ORDERED, that the above described apartments 1, 2, 5 and 6 at 199
North Avenue, New Rochelle and apartments 1 and 2 at 205 North
Avenue, New Rochelle are not subject to regulation under the ETPA
as they are not contained in a building containing six or more
residential units and they are not contained in a building which is
part of a horizontal multiple dwelling.
ISSUED:
JOSEPH A. D'AGOSTA
Deputy Commissioner
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