DOC. NOS.: EI 430076-RO, et. al
                                 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   S.J.R. NO. 5615
         IN THE MATTER OF THE ADMINISTRATIVE :   ADMINISTRATIVE REVIEW
         APPEALS OF                              DOCKET NOS.: EI 430076-RO
                                                              EI 430081-RO
                                                              EI 410082-RO
              DONALD GORDON/                 :   D.R.O. DOCKET NOS.:
              DIGBY MANAGEMENT CO.,          :             DG 410005 UC
                                 PETITIONER  :             DG 410004 UC
         ------------------------------------X             EE-410010-RK



            ORDER AND OPINION DENYING PETITIONS FOR ADMINISTRATIVE REVIEW


         On September 10, 1990, the above named petitioner-owner filed 
         Petitions for Administrative Review against orders issued on August 9, 
         1990, by the District Rent Administrator, concerning housing 
         accommodations known as 245, 247 and 249 East 57th Street, New York, 
         N.Y., various apartments.

         Subsequent thereto, the owner filed a petition in the Supreme Court 
         pursuant to Article 78 of the Civil Practice Law and Rules 
         requesting that the Court direct the Division to issue a 
         determination of the owner's administrative appeals.

         Pursuant to a "so ordered" stipulation entered into between the 
         parties (petitioner and the DHCR) on May 14, 1991, the article 78 
         proceeding in New York Supreme Court was settled on the condition 
         that the DHCR expeditiously issue a determination of the 
         petitioner's administrative appeals.

         The Commissioner deems it appropriate to consolidate the owner's 
         administrative appeals for determination under this order and 
         opinion.

         On August 9, 1990, the District Rent Administrator issued an order 
         under Docket #EE-410010-RK, which reconsidered the record in the 
         proceeding under Docket #CF-410019-AD and revoked the order issued 
         under that docket number.  The District Rent Administrator further 
         determined that ". . . the premises is subject to the Rent 
         Stabilization Code, pursuant to Section 2520.11(d) --  The above-


         cited building (249 East 57th Street) is an adjacent/adjoining 












         DOC. NOS.: EI 430076-RO, et. al
         building to 245 and 247 East 57th Street, which are operated under 
         common ownership.  The subject Housing Accommodations share common 
         facilities and services such as boiler, lighting (public area only), 
         chimney, roof and operation.  Therefore, it is determined that the 
         subject premises is part of a Horizontal Multiple Dwelling.  The 
         owner is required to file an Initial Registration and must Register 
         all Rent Stabilized Housing Accommodations annually with the 
         Division of Housing and Community Renewal."

         Identical orders were also issued by the District Rent 
         Administrator, on August 9, 1990, pertaining to 245 and 247 East 
         57th Street, New York, New York.

         The Commissioner has reviewed all the evidence in the record and 
         has carefully considered that portion of the record relevant to the 
         issues raised by the administrative appeal.

         In these petitions the owner contends, in substance, that the 
         District Rent Administrator's revocation of its prior order denying 
         Horizontal Multiple Dwelling status is in error and that the three 
         buildings in question are independent, self contained premises and 
         are not part of a Horizontal Multiple Dwelling and that consequently 
         none of the premises is subject to the Rent Stabilization Law.  
         Specifically, the owner contended, inter alia, that the independent 
         nature and status of the subject buildings is shown by: 

         a.separate mortgages for each of the three buildings.

         b.separate certificates of occupancy.

         c.separate block and lot numbers from the time of 
purchase in 1947, through 1978.

         d.real estate taxes for each property were paid 
separately from 1947 until 1978.

         e.water charges were paid separately from 1947 until 
1978.

         f.the three buildings share no common structural 
features.  Each has its own, stairway, mail boxes, 
electric services, water mains, sewer mains and 
intercoms.






         g.there are no areas that are common to the three 
buildings.  To physically move from one building to 
the next, it is necessary to return to the street 
and re-enter the next building.  The buildings are 




         DOC. NOS.: EI 430076-RO, et. al
         fully separated by party walls running from the roof 
to the basement.

         h.Each building has separate multiple dwelling 
registration (MDR) numbers.

         i.None of the apartments in any of the buildings have 
ever been registered with RSA or DHCR as rent 
stabilized.

         j.No J-51 tax benefits have ever been applied for or 
received.

         None of the tenants filed answers to the owner's petitions on 
         appeal.

         The Commissioner is of the opinion that these petitions should be 
         denied.

         On April 5, 1990, inspections were made of 245 and 247 West 57th 
         Street, which disclosed, inter alia that #245 lacked a  roof 
         chimney; that the chimney was located between #247 and #249 
         buildings; that the roofs of all three buildings were connected; 
         that there is a central heating system for all three buildings; 
         that there was a common lighting system with one meter for all 
         buildings and that the facades for all buildings are identical.

         Section 2520.11(d) of the Rent Stabilization Code provides in 
         pertinent part that a building shall be deemed to contain six or 
         more housing accommodations if it was part of a multiple family 
         garden-type maisonette dwelling complex containing six or more 
         housing accommodations having common facilities such as a sewer 
         line, water main or heating plant and was operated as a unit under 
         common ownership on the date the building or complex first became 
         subject to the RSL, notwithstanding that Certificates of Occupancy 
         were issued for portions thereof as one or two-family dwellings.

         Ordinarily, a building containing less than six housing 
         accommodations is not subject to the Rent Stabilization Law.  
         However, if the unit is deemed to be part of a horizontal multiple 
         dwelling with a total of six or more housing accommodations, the 
         entire complex is subject to regulation.




         Among factors to be considered in determining if a building or 
         complex is a horizontal multiple dwelling are whether or not there 
         are common facilities such as a sewer line, water main or heating 
         plant; and, whether or not the premises was operated as a unit under 
         common ownership on the date it first became subject to the Rent 
         Stabilization Law.









         DOC. NOS.: EI 430076-RO, et. al
         In Salvati v. Eimicke, 533 N.E.2d 1045, 72 N.Y.2d 784, 537 N.Y.S.2d 
         16 (1988), the Court of Appeals held that in determining the 
         existence of a regulated horizontal multiple dwelling the crucial 
         factor is not whether the housing accommodations are part of a 
         "multiple family garden-type maisonette complex," but rather 
         whether there are 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.

         The evidence in the record indicates that all three buildings share 
         common ownership and common facilities and services such as boiler, 
         lighting in the public areas, chimney, roof and operation.

         The Commissioner finds, therefore, that the three buildings in 
         question comprise a Horizontal Multiple Dwelling and that the file 
         has shown sufficient justification, under the Salvati decision for 
         this conclusion.

         Accordingly, the Commissioner further finds that 245, 247, and  249 
         East 57th Street, New York, New York are subject to regulation.


         THEREFORE, in accordance with the provisions of the Rent 
         Stabilization Law and Code, it is

         ORDERED, that these administrative appeals be, and the same hereby 
         are, denied; and that the District Rent Administrator's orders be, 
         and the same hereby are affirmed.

         ISSUED:

                                      
         ELLIOT SANDER
         Deputy Commissioner
         DOC. NOS.: EI 430076-RO, et. al
           






    

TenantNet Home | TenantNet Forum | New York Tenant Information
DHCR Information | DHCR Decisions | Housing Court Decisions | New York Rent Laws
Disclaimer | Privacy Policy | Contact Us

Subscribe to our Mailing List!
Your Email      Full Name