Kelenzon v DeROBERTIS

[*1] Kelenzon v DeROBERTIS 2004 NY Slip Op 50616(U) Decided on June 14, 2004 Appellate Term, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on June 14, 2004
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM : 2nd and 11th JUDICIAL DISTRICTS
PRESENT:PESCE, P.J., ARONIN and PATTERSON, JJ.
NO. 2003-839 K C

TSILYA KELENZON, Appellant,

against

ROSANNA DeROBERTIS, Respondent.

Appeal by landlord from a final judgment of the Civil Court, Kings County

(A. Alterman, J.), entered September 3, 2002, after a trial, dismissing the petition.
Final judgment unanimously reversed without costs, petition reinstated and a
new trial ordered.
Tenant occupies an apartment in one of two attached 4-family structures
which are independently registered, taxed, inspected, and certified for occupancy.
Although long owned and managed in common, the buildings share no essential services and no physical attributes aside from a party wall, roof, vinyl facade, a
lobby (with separate entrances), and a boiler room housing heating units
independently serving each building, albeit venting through a common chimney.
The properties have passed ownership through separate deeds and have been
subject to independent financing.
Contiguous structures constitute a unified regulated multiple dwelling when
the "indicia of common facilities, common ownership, management and operation [*2]
. . . warrant treating the housing as an integrated unit" (Matter of Salvati v Eimicke,
72 NY2d 784, 792 [1988]). As the cases emphasize "various combinations" of such indicia, no one factor is determinative (Matter of Bambeck v State Div. of Hous. & Community Renewal, Off. of Rent Admin., 129 AD2d 51, 54 [1987]; First Sterling
Corp. v Catapano, NYLJ, Apr. 8, 1991 [App Term, 1st Dept]). Although the
buildings have long been jointly owned and managed, it is well-settled that such circumstances, even where, unlike the instant case, the structures share a common block and tax lot or one or more utilities, do not compel an inference of integration
(e.g. Jackson v Biderman, 151 AD2d 400, 401 [1989] [no intergration despite
common ownership and operation, and a joint heating system]; DeLorenzo v
Krizman, NYLJ, May 16, 1986 [App Term, 1st Dept], affd 125 AD2d 1015 [1986] [same]; Yahudaii v Lawson, NYLJ, Oct. 9, 2003 [App Term, 2d & 11th Jud Dists]
[no integration despite common ownership, tax lot, a shared water meter, facade
and roof]; Cha Kai Brothers, Inc. v Nicholas G. Yeager, Inc., NYLJ, Oct. 21, 1998
[Civ Ct, NY County] [no integration despite common ownership, tax lot and a shared elevator and sprinkler system, where the remaining services are independent]), particularly where, as here, the evidence of the buildings' structural independence predominates (Howell v Francesco, 195 Misc 2d 844, 846 [App Term, 2d & 11th
Jud Dists 2003]; Duell v Roberts, NYLJ, Feb. 18, 1994 [App Term, 1st Dept]). Moreover, the mere accumulation of attributes inherent to common ownership, such
as joint financing, insurance, bookkeeping, and bill collection, does not meaningfully strengthen the case for integration beyond what joint ownership and management
may signify (259 Fourth Ave. LLC v Williams, NYLJ, Jan. 6, 2004 [App Term, 2d &
11th Jud Dists]). Here, the properties have changed ownership by separate deeds
and they have been independently financed.

We note that the creation of openings in the party wall by a prior
owner, evidently to facilitate movement between the buildings at the floor landings, does not compel a contrary result. Illegal as presently configured, the openings are
the basis of violations issued by City inspectors, evidently as impermissible
impairments of the party wall's fire protection function, and have no effect on the number of dwelling units in each otherwise independent structure.

Accordingly, as the lower court's dismissal of the petition on the sole ground that the structures constituted a de facto horizontal dwelling subject to rent stabilization, the final judgment is reversed, the petition reinstated and a new trial ordered.

Decision Date: June 14, 2004t