Adm. Rev. Docket No.: GI420265RT
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 SJR 7122
APPEAL OF
ADMINISTRATIVE REVIEW
DOCKET NO.: GI420265RT
KATHLEEN O'REILLY,
DRO DOCKET NO.:
FD 430014 UC
PETITIONER OWNER: AHMED NAJI
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ORDER AND OPINION REMANDING PROCEEDING ON APPEAL AND REVOKING
ADMINISTRATOR'S ORDER
The above-named petitioner-tenant timely filed a Petition for
Administrative Review (PAR) against an order issued on July 31,
1992, by the Rent Administrator at Gertz Plaza, Jamaica, New York,
concerning housing accommodations known as Apartment 3 at 246 East
23rd Street, New York, New York, wherein the Administrator
determined the owner's application for a determination as to
whether or not the subject apartment was exempt from regulation by
finding that that apartment is not subject to regulation under the
Rent Stabilization Law and is not situated in a horizontal multiple
dwelling containing six or more units.
On June 29, 1993, the Commissioner issued an order and opinion
wherein said PAR was granted. Thereupon the owner sought judicial
review of that order and opinion in the Supreme Court for New York
County (Naji v DHCR ., Index No. 121853/93). Thereafter, the Court
issued an order remanding the matter to the Division pursuant to a
stipulation entered into between the owner and the Division.
The proceeding below was commenced by the owner's application for
a determination of the status of the subject apartment. The owner
filed said application during the pendency of the tenant-
petitioner's application for an order directing the owner to issue
a renewal lease in accordance with the Rent Stabilization Law and
Code. The tenant's proceeding, to which Docket No. ED 410043 RV had
been assigned, was terminated without prejudice to the tenant's
rights to a renewal lease; depending on the determination made with
respect to the owner's application.
Both below and on this appeal, the owner has, in substance,
Adm. Rev. Docket No.: GI420265RT
asserted that the subject building is separate and distinct from
the surrounding buildings and that it does not constitute a
component of a horizontal multiple dwelling.
Both below and on appeal, the petitioner-tenant has, in substance,
taken the position that: the subject building is one of several
buildings occupying the Eastern half of the block bound by East
23rd Street on the North, Second Avenue on the East, East 22nd
Street on the South and Third Avenue on the West (Block 903), which
have been owned and operated, from at least 1955 up until around
1983, as a single complex of rental units; up until 1983 the heat
and hot water for the subject building, and others in the complex,
had been furnished from the boiler in the building known as 235
East 22nd Street (one of the other buildings in the alleged
complex) and 235 East 22nd Street contains well over six units
itself; that the issue herein has been litigated between the owner
and the other tenant of the subject building (there being now only
three residential occupants of the subject building: the owner, the
petitioner-tenant and the other tenant, the tenant of Apt. 4) and
that the Housing Court's dismissal of the owner's Holdover Petition
upon a determination that the other tenant's apartment was subject
to rent stabilization bars the owner from asserting that the
petitioner-tenant's apartment is not subject to regulation and is
not a part of a horizontal multiple dwelling containing six or more
housing units.
The Administrator issued his order after receiving the report of
the February 26, 1992 inspection conducted by a DHCR staff
inspector. The Administrator had instructed the inspector to
examine, and report on, the present condition of the subject
building. Relying on said report, the Administrator determined that
the subject apartment is not part of a horizontal multiple dwelling
containing six or more housing units.
The Commissioner finds that the Housing Court decision issued by
Judge Spires in the holdover proceeding relating to Apartment 4
does not bar the owner from seeking a determination that the
subject apartment (Apartment 3) is exempt from regulation. In order
to effect a collateral estoppel against one of the litigants in a
proceeding, a determination must be res judicata as to the
litigants in that proceeding. That would not appear to be the case
as to the litigants in the Apartment 4 holdover proceeding were
they to come before the Division on the issue of whether Apartment
4 is rent stabilized (the Commissioner cautions the reader that no
issue as to Apartment 4 may be deemed to be determined in this
Order and Opinion). Moreover, Judge Spires did not reach the issue
of whether the subject building is subject to rent stabilization on
the basis that it was part of a horizontal multiple dwelling on the
base date, but merely determined that the tenant of apartment 4 was
protected by rent stabilization based on Judge Spires's reading of
the records of the Division for that apartment. Therefore Judge
Adm. Rev. Docket No.: GI420265RT
Spires's determination is limited to the apartment that was the
subject of the proceeding before him: Apartment 4 and cannot
collaterally estop the owner before this Agency as to Apartment 3.
The Commissoner notes that under the established law, whether the
subject building may be deemed subject to the Rent Stabilization
Law as part of a complex that was a horizontal multiple dwelling
containing six or more residential units depends on whether it was
part of such a complex on May 6, 1969. Shubert v. DHCR 162 AD2d
261, 556 N.Y.S.2d 618 (1st Dept, 1990)
The Commissioner has determined that it will serve the best
interests of all concerned to have this question finally resolved
in the proceeding commenced hereinbelow, the Commissioner believes
that this matter should be remanded to the Administrator for
additional factfinding and, thereafter, reconsideration of the
owner's application. The issue to be determined is whether the
building was part of a horizontal multiple dwelling as of the base
date, May 6, 1969.
The Commissioner directs that a hearing be held on remand. The
Commissioner believes that this matter will best be resolved upon
the parties being afforded a full opportunity to present evidence;
including the testimony of any witnesses who were familiar with the
management, operation and detailed physical layout of the alleged
complex on May 6, 1969 and whatever other evidence may be available
that provides explicit information about the subject building and
the alleged complex on that date.
THEREFORE, pursuant to all of the applicable statutes and
regulations, it is
ORDERED, that this Petition be, and the same hereby is granted to
the extent that the Administrator's order be, and the same hereby
is revoked and that this proceeding be and the same hereby is
remanded to the Administrator for processing in accordance with
this Order and Opinion.
ISSUED:
JOSEPH A. D'AGOSTA
Deputy Commissioner
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