Opinion
Index No.: L& T 52878/2012
02-06-2013
SREP 10TH AVENUE VENTURE LLC Petitioner- Landlord v. JUSTIN WALTERS a/k/a JUSTIAN WALTERS ANGELA McKAIN 500 West 22nd Street, Third Floor NEW YORK, NEW YORK 10011 Respondents-Tenants JOHN DOE and/or JANE DOE
TO: SMITH & KRANTZ Attorneys for Petitioner HIMMELSTEIN McCONNELL, GRIBBEN DONOGHUE & JOSEPH Attorneys for Respondents
DECISION & ORDER
HON. SABRINA B. KRAUS
BACKGROUND
This summary holdover proceeding was commenced by SREP 10TH AVENUE VENTURE LLC (Petitioner) against JUSTIN WALTERS a/k/a JUSTIAN WALTERS and ANGELA McKAIN (Respondents), seeking to recover possession of third floor at 500 West 22nd Street, New York, New York, 10011 (Subject Premises) based on the allegation that Respondents are month to month tenants, not subject to rent regulation, and their tenancy had been terminated by thirty days written notice. Respondents assert that the Subject Premises is part of a horizontal multiple dwelling and thus subject to Rent Stabilization.
PROCEDURAL HISTORY
Petitioner issued a Notice of Termination dated November 10, 2011, terminating the monthly tenancy as of December 31, 2011. The petition is dated January 20, 2012, and was originally returnable February 7, 2012. The petition asserts that the Subject Premises is not governed by rent regulation because it is a free market rental with a rent above $2000 per month. Respondent appeared through counsel on March 7, 2012.
On March 13, 2012, Respondent moved to dismiss the petition asserting that the allegation in the petition was insufficient to establish an exemption from rent regulation, and further asserting that because the Subject Premises were never registered with DHCR, it can not be deregulated by asserting that the legal rent was over $2000 plus a vacancy, as no legal rent had ever been established. Petitioner cross-moved to amend the petition to allege that the basis for the exemption from regulation was that the Subject Premises is located in a building with less then six units. On June 20, 2012, the court (Stoller, J.) issued a decision granting Petitioner's cross-motion to amend and denying Respondent's motion as moot "... without prejudice to the assertion of Respondent's defenses at trial or on motion in this matter."
Respondent filed a written answer dated July 25, 2012. The proceeding was restored to the calendar on July 27, 2012. On that date, the court (Stoller, J) adjourned the proceeding to September 11, 2012, pursuant to a written decision and order, for the results of an inspection of the building by an inspector chosen by Respondent.
On November 20, 2012, the proceeding was sent to the expediter to be assigned for trial. The proceeding was assigned to Part R for trial. As the facts underlying the proceeding were uncontested, the parties agreed to enter a stipulation of facts and to submit to the court for a determination on the law. A stipulation of facts, included documents stipulated to be considered as evidence, was submitted and so-ordered by the court on or about January 9, 2012.
The proceeding was adjourned to January 31, 2013 for the submission of memoranda of law. On said date the memos were submitted and the court reserved decision.
STIPULATED FACTS
The parties stipulated certain documents into evidence, including , but not limited to the documents listed below.
The Subject Premises is located in a building which contains three residential apartments. The building abuts 197 10th Avenue (together with 500 West 22nd street "Subject Buildings"). The Subject Buildings were built separately at different times. The Subject Buildings are commonly owned and have been commonly owned since at least 1961.
Respondent Justin Walters is the tenant of record of the Subject Premises pursuant to a written lease agreement dated December 23, 2002 (Ex B). Respondents executed a Tenant Estoppel Certificate dated December 26, 2007, for the Subject Premises which asserts the most recent lease renewal would expire on December 31, 2008 and was for a monthly rent of $2500.00 (Ex C).
The Subject Buildings have separate MDR numbers, however certain HPD records show that the address 199 Tenth Avenue is also known as 500 West 22nd Street (Ex G).
In evidence as Exhibit H is a Certificate of Occupancy for 500 West 22nd Street dated May 24, 1961. The address is described as 199 Tenth Avenue, 502 West 22nd Street. The first page of this document provides under a section labeled notes "Heat and hot water for the above building is supplied from building located at 197 Tenth Avenue, under same ownership." In evidence as Exhibit I is a temporary certificate of occupancy dated April 7, 1961 for 500 West 22nd Street.
In evidence as Exhibit J is a certificate of occupancy for 197 Tenth Avenue dated September 14, 1967.
In addition to the documents stipulated into evidence the parties stipulated to certain facts. The Subject Buildings have separate and independent entrances, exits, egress and ingress, and one can not pass from one building into the other. The Subject Buildings have separate roof bulkheads, and have always maintained separate street addresses.
The Subject Buildings have always had separate vestibules, common areas, and have separate front facade walls and front decorative roof level facades. The only residential entrance for 500 West 22nd street is on West 22nd Street and the only residential entrance for 197 Tenth Avenue is on Tenth avenue. The Subject Buildings have separate fire escapes, and the means of access to the roof of each building is separate.
The Subject Buildings have common ownership and a shared heating system. 197 10th Avenue has a boiler but no oil tank, an 500 West 22nd Street has oil tanks but no boiler or burner. The Subject Buildings were conveyed jointly pursuant to a single deed on multiple occassions. The Subject Buildings also have a common block and lot number, and have common electrical and water services and insurance coverage. The electrical service for both buildings enters 197 10th Avenue and the water service for the buildings enters 500 West 22nd Street. There is currently one mortgage covering both buildings, and boht buildings are covered under the same insurance policy.
DISCUSSION
In 1953 rent control laws were amended in New York to provide for decontrol of housing accommodations in one or two family houses which became vacant after April 1 1953 (State Residential Rent Law § 2, subd. 2 par [I]). The intent of the amendment was to alleviate hardships on small non professional property owners by allowing them to have increased rentals and decontrol upon vacancies (Matter of Castleton Estates v Abrams 1 AD2d 390). In Castleton the court affirmed an administrative agency decision not to decontrol units which the court found could not be individually owned and operated (Id.).
In 1972, the Appellate Division held that in determining whether buildings constituted a horizontal multiple dwelling "(t)he factors which contribute to determination of such a question are common ownership, management, including supply of services, and common facilities. As usual in such questions, cases present different combinations of those factors and no one factor can be said to be determinative (Matter of Love Sec. Corp v Berman 38 AD2d 169, 170)."
In 1974 the Rent Stabilization Law (RSL) provided that buildings with six or more units were subject to coverage. Section 26-505 of the RSL provides that:
For purposes of this chapter a class A multiple dwelling shall be deemed to included a multiple family garden-type maisonette dwelling complex, containing six or more dwelling units having common facilities such as a as a sewer line, water main and heating plant, and operated as a unit under single ownership on May sixth, nineteen hundred sixty-nine, notwithstanding that certificates of occupancy were issued for portions thereof as one- or two-family dwellings.
In 1988 the Court of Appeals addressed the issue in Salvati v Eimicke 72 NY2d 784. The Court held "(t)he inclusive, rather than exclusive language of the Rent Stabilization Law supports the agency's view that the statute applies to horizontal multiple dwellings other than garden-type maisonette complexes (id at 791)." The Court further noted that the ETPA "also supports the agency's view by providing for the regulation of all housing accommodations which it does not expressly except, including previously unregulated accommodations (id)."
Finally the Court, citing Bambeck and Love supra held :(Id at 792).
In determining the existence of a regulated horizontal multiple dwelling the crucial factor is ... 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 court's findings further made clear that common ownership and common heating facility were insufficient by themselves to support a finding of a horizontal multiple dwelling (id).
As one court has noted "... a lower court called upon to make a horizontal multiple dwelling determination faces the daunting task of reconciling the disparate (and sometimes apparently inconsistent) fact patterns cited in the appellate cases, and analogizing them to the facts of the case at bar in order to determine whether the buildings have sufficient common facilities to constitute an integrated unit (Stewart v Ancion 1993 WL 13716190)." the determination must be made on a case by case basis.
In this case, the Subject Buildings share common owners now and in the past, were conveyed pursuant to a single deed on multiple occasions, share common management, common heating facilities, and main lines for water and electric, a common mortgage and common insurance policies. These factors all support Respondents' position that the Subject Buildings should be considered a horizontal multiple dwelling (Matter of Ruskin v Miller 172 AD2d 164; 207 E 117th Street LLC v Vera 20 Misc3d 128(A); Matter of Bambeck supra; Blane v DHCR 147 AD2d 401).
In sum the court finds that "... the various factors present here are sufficient to conclude that the common facilities, ownership and management warrant treating the (buildings) as one integrated unit and multiple dwelling for purposes of rent stabilization (Bambeck at 58)."
Based on the foregoing, the court finds that the Subject Premises are a horizontal multiple dwelling and the petition is dismissed.
This constitutes the decision and order of this Court.
________________________
SABRINA B. KRAUS
Dated: New York, New York
February 6, 2013
TO: SMITH & KRANTZ
Attorneys for Petitioner
HIMMELSTEIN McCONNELL, GRIBBEN
DONOGHUE & JOSEPH
Attorneys for Respondents