OFFICE OF RENT ADMINISTRATION
                                    GERTZ PLAZA
                              92-31 UNION HALL STREET
                              JAMAICA, NEW YORK 11433

     APPEAL OF                              DOCKET NO. BE 410178-RO
                                            DRO DOCKET NO. L 3113214-R
                           PETITIONER    :  TENANT: SACHIKO HITOMI


     On May 19, 1987, the above-named petitioner-owner  filed  a  petition  for
     administrative review against an order issued on April  14,  1987,  by  an
     Administrator concerning the housing accommodation known as 25 Christopher 
     Street, Apartment 3R,  New  York,  New  York,  wherein  the  Administrator
     determined that the owner failed to provide  a  full  rental  history  and
     failed to substantiate its claim that the subject premises was not subject 
     to the jurisdiction of Rent Stabilization.

     The Commissioner has reviewed all the evidence in the record.

     The tenant filed an overcharge complaint on March 22, 1984 indicating that 
     he or she moved into the subject apartment on November 1, 1975 pursuant to 
     a two year lease at a rental of $150.00 per month.  The  tenant  said  the
     rent was increased to $175 in 1977, to $200 in 1979, to $225 in 1980,  and
     to $400 in December 1981.

     In answer to the complaint, the owner referred to a case  pending  in  the
     Enforcement Unit (9916-HL).

     In a later submission, the owner asserted  that  DHCR  lacks  jurisdiction
     because the subject building contains fewer than  six  units.   The  owner
     also argued that if the apartment is found to be subject to stabilization, 
     then DHCR must find that the owner collected  rent  pursuant  to  "deemed"
     leases.  The owner stated that the apartment was decontrolled on March  8,
     1973 and that the tenant took occupancy pursuant  to  a  one  month  lease
     commencing November 1, 1975 at a  monthly  rent  of  $150.00.   The  owner
     submitted copies of letters from the owner to the tenant advising of  rent
     increases and copies of the tenant's rent checks  showing  the  amount  of
     rent paid at various times.

     Based on the owner's failure to substantiate the claim that  the  building
     contains fewer than 6 apartments and in the absence of a  complete  rental
     history, the Administrator used established default  procedures  developed
     in accordance with section 42A of the former Rent Stabilization Code to 
     determine the  lawful  rent  for  the  subject  apartment.   The  tenant's
     initial rent was set at $131.00 (the rent charged on November 1, 1975 


          DOCKET NUMBER: BE 410178-RO
     minus a guideline increase and a vacancy  allowance)  and  the  owner  was
     directed to refund $4701.42 including  excess  security  and  interest  on
     overcharges collected on or after April 1, 1984.

     In the petition for administrative review, the owner again argues that the 
     subject apartment  is  exempt  from  stabilization  because  the  building
     contains fewer than six dwelling units.  The owner also contends that even 
     if the apartment is subject to stabilization, the order must  be  modified
     because the owner, who took title to the building in June 1977  cannot  be
     ordered to refund rent collected prior to that date.  The owner also cites 
     various alleged computation errors in the Administrator's rent chart.

     In answer to the petition, the tenant states that the subject building was 
     formerly connected to the adjoining building  (#23  Christopher  St.)  and
     shared a common roof, fire escape, boiler, and electric wire system.   The
     tenant claims that there was a connecting door  and  yard  prior  to  1923
     until March 2, 1982 when a separate boiler was  installed  as  well  as  a
     separate electric wire system and 23 Christopher Street was sold.

     The tenant again refers to a harassment proceeding  and  alleges  that  it
     resulted in a determination after a hearing that the tenant was subject to 
     rent control.  The tenant agrees that the owner should not have to  refund
     rent collected prior to the date of ownership.  The tenant offers his  own
     version of the correct computations and adds that the building  was  again
     sold to a new owner on December 25, 1986.

     In answer to the tenant's response to  the  owner's  petition,  the  owner
     submitted a reply reaffirming that it is not responsible for  the  alleged
     overcharges collected during the period of November 1, 1975  through  June
     29, 1977 because its ownership commenced on June 29, 1977.  The petitioner 
     emphasized that the tenant has affirmed this fact in its response  to  the
     petition.  Additionally, the owner asserts that the subject  apartment  is
     not subject to rent control.  In support  of  this  allegation  the  owner
     reiterates that the tenant took occupancy on November  1,  1975  and  that
     pursuant to Section 2200.2(f)(17) of the New York City Rent  and  Eviction
     Regulation a housing accommodation is not subject to rent control  if  the
     housing accommodation became vacant on or about June 30, 1971 by voluntary 
     surrender of possession.  Moreover, the owner asserts that there has never 
     been a recontrol order issued by  DHCR  or  the  Office  of  Rent  Control
     declaring the subject apartment subject to rent control.   The  petitioner
     also contends that the proceeding which was  held  at  the  Department  of
     Housing Preservation and Development did not  pertain  to  the  regulatory
     status  of  the  apartment.   Lastly,  the  petitioner  asserts  that   25
     Christopher Street  contains  five  (5)  apartments  and  is  exempt  from
     regulation and DHCR does not have jurisdiction to determine the legal rent 
     of the subject apartment.

     On January 26, 1989, a submission was received by the current owner of  25
     Christopher Street asserting that the Administrator's order was  erroneous
     because as a matter of law DHCR has no jurisdiction to determine the  rent
     for the subject apartment.  In support of this contention he cites Section 
     5(A)(4)(a) of the Emergency Tenant Protection Act,  Section  26-504(a)  of
     the  Rent  Stabilization  Law,  and  Section  2520.11(d)   of   the   Rent
     Stabilization  Code,  which  state  that  an  apartment  is  exempt   from
     regulation if it is within  a  building  containing  only  five  or  fewer
     housing accommodations.

          DOCKET NUMBER: BE 410178-RO
     The current owner also addressed the tenant's contention that the  subject
     building and the adjacent dwelling (23 Christopher Street)  constituted  a
     horizontal  multiple  dwelling.   In  its  submission  the  current  owner
     includes a survey which illustrates that  23  Christopher  Street  is  not
     attached to 25 Christopher Street.  This, the owner contends, refutes  the
     tenant's allegation that the two buildings, share a common roof and  yard.
     Additionally he encloses an architect's report  dated  January  18,  1989,
     which indicates that the subject building is a single integrated structure 
     with separate sewer, water, electrical, gas and heating  lines.   He  also
     submits a certificate of occupancy dated August 15, 1988, indicating  that
     the subject building contains five to six families.

     Lastly, the current owner cites Salvati v. Emicke, 72 NY2d 784, 537  NYS2d
     16 (CT of App. 1988), for the proposition that in order for a dwelling  to
     be considered a horizontal multiple  dwelling  there  must  be  sufficient
     indicia of common facilities, common ownership, management  and  operation
     to warrant treating  the  housing  as  an  integrated  unit  and  multiple
     dwelling subject to regulation.  It  is  the  current  owner's  allegation
     that the subject premises does not meet the requisite elements of Salvati, 
     supra, and that the only element of commonality between the two  buildings
     is a fire escape and the fact that at  one  time  23  and  25  Christopher
     Street were owned by a single owner.

     A review of Division's records indicates that during the years of 1988 and 
     1989 the subject building was registered as having seven units.  Moreover, 
     the rent control records identify the building as 23  and  25  Christopher
     Street.  Lastly, the prior owner's certification and notice of  fuel  cost
     adjustment eligibility  for  1981  and  1980  list  the  total  number  of
     apartments as 10 and total room count as 14.  The prior  owner  identified
     the subject building as 23-25 Christopher Street.

     Section 2520.11 of the Rent Stabilization Code, provides  that  a  housing
     accommodations  in   buildings   containing   fewer   than   six   housing
     accommodations on the date the building first became subject  to  the  RSL
     are not subject to Stabilization.  Two or more buildings are considered  a
     single horizontal multiple dwelling for the  purpose  of  determining  the
     number of units if they share common facilities  such  as  a  sewer  line,
     water main or heating plant and were  operated  as  a  unit  under  common
     ownership on the date the building or complex first became subject to  the
     RSL, notwithstanding the fact that Certificates of Occupancy  were  issued
     for each building.

     The Commissioner is of the  opinion  that  the  record  does  not  contain
     sufficient factual evidence to  determine  whether  the  subject  building
     shared  sufficient  common  facilities  or  services  with  the   adjacent
     buildings on the base date to constitute a horizontal  multiple  dwelling.
     The registration and the Rent Control records  though  of  some  probative
     weight reflect the  prior  owner's  beliefs  which  are  insufficient,  by
     themselves to confer jurisdiction.

     Accordingly, this proceeding is being remanded  to  the  Administrator  to
     determine whether the building contains six  or  more  units  and  whether
     utilizing the standards set forth  in  Salvati,  supra,  there  existed  a
     sufficient indicia of commonality between 23 and 25 Christopher Street  at


          DOCKET NUMBER: BE 410178-RO
     the time of decontrol.  If necessary, a physical inspection of the subject 
     building and 23 Christopher Street should  be  conducted  and  possibly  a
     hearing if the matter cannot be resolved without oral testimony.

     THEREFORE, in accordance with the provisions of the Rent Stabilization Law 
     and Code, the Emergency Tenant Protection Act of 1974, it is

     ORDERED, that this petition for administrative review  be,  and  the  same
     hereby is, granted to the extent  of  remanding  this  proceeding  to  the
     Administrator for further processing in accordance  with  this  order  and
     opinion.  The automatic stay of so much of the  Administrator's  order  as
     directed a refund is hereby continued until a new  order  is  issued  upon
     remand.  However, the Administrator's determination as to the rent is  not
     stayed and shall remain in effect, except for any adjustments pursuant  to
     lease renewals, until the Administrator issues a new Order upon remand.


                                     ELLIOT SANDER
                                     Deputy Commissioner


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