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



          ----------------------------------X
          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.
          ----------------------------------X



            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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