DOCKET NUMBERS: CG 410181-RT (SJR 4945); CG 410182-RT; CH 410001-RT
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 : ADMINISTRATIVE REVIEW
APPEAL OF DOCKET NO.: CG 410181-RT
: (SJR 4945); CG 410182-RT;
LISA LIVINGSTON, THOMAS GARAHAN CG 410001-RT
& PHILIP CESARIO DRO DOCKET NO.: AJ 410003-UC
PETITIONER :
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ORDER AND OPINION REMANDING PROCEEDINGS ON APPEAL
The abovenamed petitioner tenants filed timely Petitions for
Administrative Review against orders issued on June 27, 1988 by the Rent
Administrator concerning the housing accommodations known as 207 East 26th
Street, Apartments 2,3 & 4, Lower Manhattan.
The Commissioner deems it appropriate to consolidate the petitions
herein.
The issue herein is whether the apartments are subject to regulation
because, among other reasons, they are located in one of 3 adjoining
buildings (203, 205 & 207 East 26th Street) which comprise a "horizontal
multiple dwelling" containing 6 or more apartments.
The current owner, Herzel Nir, acquired 207 East 26th Street on October
31, 1984 and his two brothers acquired 203 & 205 East 26th Street at the
same time from the same owners who took back purchase money mortgages on
the buildings.
On October 24, 1986 Herzel Nir filed an application (RS-3) for a
determination that 207 East 26th Street is exempt from regulation on the
grounds that it contains only 3 apartments and one store.
The herein appealed orders of the Rent Administrator granted the
application finding that the building contains less than 6 housing
accommodations, based on submitted documentation and physical inspections
discussed infra, and were, therefore, exempt from stabilization.
The record discloses that prior to 1960 207 East 26th Street had been a 16
unit rooming housing. In January 1961 a Certificate of Occupancy was
issued showing a conversion to a cellar and 4 apartments. In September
1986 a new Certificate of Occupancy was issued showing a cellar, a store
and 3 apartments. The record also contains an August 1986 Certificate of
Occupancy for 205 East 26th Street showing a basement which can be used
for commercial purposes and 2 apartments.
Physical inspections of 207 East 26th Street only were conducted in
February 29 & May 24, 1988 the reports of which recite that the building
has its own water and sewer corrections, 6 electric and 5 gas meters, its
own basement ("which shows signs of being occupied by a tenant or
DOCKET NUMBERS: CG 410181-RT (SJR 4945); CG 410182-RT; CH 410001-RT
tenants") and that it contains 5 units including the basement".
The record indicates that 207 East 26th Street receives its own tax and
utility bills.
It appears that Mr. Nir's brothers filed similar applications for 203 &
205 East 26th Street and that similar orders were issued by the
Administrator (AJ 410002-UC & AA 410004-UC. No petitions have been filed
concerning those buildings.
207 East 26th Street was registered with this agency by Mr. Nir in 1984 as
having 4 stabilized apartments and in 1985, 86 & 87 as having 3
apartments. The other 2 buildings were registered by the prior or current
owners in 1984 through 87 showing different numbers and regulating
categories of apartments at different times. The total among the 3
buildings is in excess of 6.
The tenants, in the proceeding before the Administrator, in their
petitions and in a supplement thereto, allege that Ms Livingston took
occupancy in 1977, Mr. Garahan in 1976 and Mr. Cesario in 1970; that until
1986 the heat and hot water systems and the electric meters for all 3
buildings were located in 207 East 26th Street; that there was a doorway
connecting 205 and 207; that there is still a means of fire escapes
connecting 205 and 207; that, in addition to the abovenoted registrations,
Mr. Nir in 1987 applied to this agency for major capital improvement rent
increases (BD 410171-OM); that Mr. Nir in 1986 alleged in court papers
that Ms Livingston's apartment was stabilized; and that the contract for
the sale of the premises was between the prior owners and the 3 Nir
brothers as a partnership, each one taking title to a separate building on
the closing.
In response the owner, in substance, urges that the record adequately
supports the Administrator's findings and that the family relationship
between the current owners is immaterial.
The Commissioner is of the opinion that the proceeding should be remanded
for further processing.
The Commissioner notes that Mr. Cesario, irrespective of anything else in
the record, may be rent controlled if, in fact, he has been in occupancy
since prior to June 30, 1971 and if the building (in one form or another)
was in existence prior to February 1, 1947. The abovenoted 1960
conversion from a rooming house would not, by itself, be sufficient to
decontrol the building.
The Commissioner further notes that if, on the applicable base dates or
when the tenants took occupancy, the premises were a horizontal multiple
dwelling containing 6 or more units between them, subsequent acts of the
owners, such as installation of separate heating systems, relocating
utility connections, blocking up doorways and sales to separate owners,
would not remove them from regulation.
The abovenoted physical inspections are ambiguous as to the exact number
of actual apartments in 207. They also indicate an excessive number of
gas and electric meters for the 3 apartments in 207 but the correct number
if they were also servicing the 2 apartments in 205 East 26th Street.
On remand the matter should be reexplored, on notice to all parties, by
DOCKET NUMBERS: CG 410181-RT (SJR 4945); CG 410182-RT; CH 410001-RT
whatever means are found useful including physical inspections (of all
buildings and all units) and/or hearings if necessary.
THEREFORE, pursuant to the Rent Stabilization Law and Code and the Rent
and Eviction Regulations for New York City, it is
ORDERED, that these petitions be, and the same hereby are, granted to t he
extent of remanding these proceedings to the Rent Administrator for
further processing in accord herewith. The orders of the Rent
Administrator are stayed and the apartments deemed subject to regulation
until new orders are issued on remand.
ISSUED:
ELLIOT SANDER
Deputy Commissioner
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