Adm. Rev. Docket No.: EL210252RT
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
APPEAL OF
ADMINISTRATIVE REVIEW
DOCKET NO.: EL210252RT
EUCAL OSBOURNE
DRO DOCKET NO.:
DE 210005 AD
PETITIONER OWNER: FARHAT REALTY CORP.
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ORDER AND OPINION GRANTING PETITION FOR ADMINISTRATIVE REVIEW
The above-named petitioner-tenant timely filed a Petition for
Administrative Review against an order issued on November 30, 1990,
by the Rent Administrator at Gertz Plaza, Jamaica, New York,
concerning housing accommodations known as apartment 2 at 1577
Bushwick Avenue, Brooklyn, New York, wherein the Administrator
determined that the subject apartment was not subject to regulation
under the Rent Stabilization Law and was not situated in a
horizontal multiple dwelling containing six or more units.
The Commissioner has reviewed all of the evidence in the record and
has carefully considered that portion of the evidence relevant to
the issues raised in the administrative appeal.
The issue in this proceeding is whether the Administrator's
determination was based on the best evidence available.
The proceeding below was commenced by the Administrator when, in
the course of processing the tenant's overcharge complaint (Docket
No. AJ 210027 R), a question arose as to whether or not the subject
apartment was subject to rent stabilization. The processing of that
overcharge complaint has been held in abeyance pending a resolution
of the proceeding below.
Adm. Rev. Docket No.: EL210252RT
Both below and on this appeal, the tenant has taken the position
that the three contiguous buildings known as 1573, 1577 and 1579
Bushwick Avenue [the Commissioner notes that it is undisputed that
there is not now, nor has there ever been at any time relevant to
these proceedings, a contiguous building known as 1575 Bushwick
Avenue) constitute a horizontal multiple dwelling with six housing
units in 1573 (a three story structure), two in 1577 (a three story
structure) and two in 1579 (a four story structure).
The Commissioner notes that from time to time, the first story of
1577 and the first two stories of 1579 have been used for
commercial purposes and that neither party has contended that said
portions of those two buildings contain housing accommodations.
The owner, both below and on this appeal has, in substance,
asserted that each of the three buildings are separate and distinct
and do not constitute components of a horizontal multiple dwelling.
The Commissioner is of the opinion that the Petition should be
granted and that the Administrator's order should be revoked.
The Commissioner finds that the Administrator's order was based on
an inspection of 1577 and 1579: each of which contain only two
housing units. That inspection said nothing about 1573 despite the
tenant's assertion that 1573 was a component of the alleged
horizontal multiple dwelling.
In the interest of reaching a more expeditious resolution of this
matter, the Commissioner caused a new inspection to be conducted on
appeal.
That inspection indicates that both as to their physical plant and
their operation, 1577 and 1573 Bushwick Avenue are so connected as
to constitute a horizontal multiple dwelling containing a total of
eight housing units.
The inspection conducted on appeal shows that all of the electrical
meters for 1573 and 1577 are located in the cellar of 1577; that
the cellars of 1573 and 1577 are connected (that is that one can
walk from the cellar underneath 1573 to the cellar under 1577
without having to exit to the exterior of either building); that
the heat and hot water for both buildings are supplied by the oil
burner in 1577, that both buildings have the same superintendent,
that both buildings share the same water main, that both buildings
Adm. Rev. Docket No.: EL210252RT
are virtually identical in terms of exterior appearance; and that
the household refuse from both buildings is deposited in a
receptacle kept in front of 1577.
The Commissioner notes that the record herein already showed that
the water and sewer charges for both 1573 and 1577 are on the same
bill with 1579; that all three properties have been owned in
conjunction by at least the last two owners and that they were
deeded to the present owner and the present owner's predecessor via
a single deed.
The Commissioner also notes that the original application for a
building permit for 1573-1577 (which was examined on April 20,
1915) was a single application for two, three story buildings
conforming in size and construction to the buildings currently
located at 1573 and 1577 Bushwick Avenue; whereas the application
for 1579 was separate and describes a four story building. The
Commissioner also notes that the Certificate of Occupancy (C of O)
for 1577 issued in 1962 indicated that the cellar was used for a
boiler and storage, but the C of O for 1573 issued in 1964 did not
indicate that 1573 contained a boiler.
The Commissioner notes that no determination is made herein as to
whether 1579 is part of the subject horizontal multiple dwelling as
no such determination need be made in order to determine the status
of the tenant's apartment. The tenant's building is 1577 and the
determination made herein is that 1577 is a component of a
horizontal multiple dwelling along with 1573.
The Commissioner reminds the owner of its duty under the Rent
Stabilization Law and Code to register the apartments in 1577
Bushwick Avenue.
Therefore, the Commissioner finds that the preponderance of the
credible evidence herein proves that apartment 2 at 1577, of which
the tenant took occupancy in 1980, is subject to regulation under
the Rent Stabilization Law and Code as it is contained in a
horizontal multiple dwelling containing eight residential units.
The Commissioner notes that, subject to the owner's right to seek
judicial review of this order and opinion under Article 78 of the
New York Civil Practice Law and Rules, the processing of the
tenant's rent overcharge complaint may now resume.
Adm. Rev. Docket No.: EL210252RT
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.
ISSUED:
JOSEPH A. D'AGOSTA
Deputy Commissioner
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