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. BE 410178-RO
DRO DOCKET NO. L 3113214-R
PETITIONER : TENANT: SACHIKO HITOMI
ORDER AND OPINION REMANDING PROCEEDING ON APPEAL
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
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.