78 Havemeyer LLC v Abuzaid
Annotate this CaseDecided on January 29, 2016
Civil Court of the City of New York, Kings County
78 Havemeyer LLC, Petitioner,
against
Hussain Abuzaid et al., Respondents.
90607/13
Petitioner's counsel
Law Office of Benjamin Z. Epstein, P.C.
2394 Nostrand Avenue
Brooklyn, NY 11210
Respondents' counsel
South Brooklyn Legal Services
105 Court Street
Brooklyn, NY 11201
Gary F. Marton, J.
In this holdover proceeding petitioner alleges that it may terminate respondent's tenancy because his apartment is located in a building with only three apartments and thus is not subject to rent regulation. Respondent denies the same and asserts that the building and two adjacent buildings, each of which has three apartments, are owned and operated together and thus by law — 9 NYCRR § 2500.9 — constitute a rent-stabilized horizontal multiple dwelling.
At this proceeding's outset respondent interposed an answer that includes counterclaims for breach of the warranty of habitability and for rent overcharge. The counterclaim for breach of the warranty of habitability does not constitute a defense to this holdover; accordingly, it is hereby severed without prejudice. Cf., City of New York v Candelario, 223 AD2d 617, 618 (1st Dep't, 1996) where the court held in that holdover proceeding that a counterclaim for an injunction to cure violations of the housing maintenance code had "no bearing on the outcome" of the proceeding and therefore should have been severed. Similarly, the counterclaim for rent overcharge has no bearing on the outcome of this proceeding and it is severed without prejudice.
At trial the court took testimony from petitioner's managing agent Israel David Friedman, petitioner's architect Walter Maffei, respondent, respondent's architect Robert Boyd, and two employees of the City of New York, one from its Department of Buildings ("DOB") and the [*2]other from its Department of Environmental Protection ("DEP").
Now, after considering these testimonies, the two-attorney stipulation as to certain facts that was "so ordered" on June 17, 2014, and the other evidence, the court makes the following findings of fact, reaches the following conclusions of law, holds that the premises is located in a rent-stabilized horizontal multiple dwelling, dismisses the proceeding, and grants respondent a judgment of possession.
DISCUSSION
The three buildings are located on real estate designated on the tax map of the City of New York as Block 2346 Lot 21 ("Parcel"). The Parcel, which occupies the eastern end of a somewhat irregularly shaped city block, is bordered on three sides by thoroughfares, with 30 feet of frontage on Metropolitan Avenue, 63 feet of frontage on Havemeyer Street, and 40 feet of frontage on North 5th Street. The buildings have the street addresses of 381 Metropolitan Avenue, 78 Havemeyer Street, and 76 Havemeyer Street. The first has one side adjacent to the second and the second adjacent to the third; in other words, respondent's apartment is in the middle building. With the exception of a roughly 400 square-foot rear courtyard that is flanked on three sides by the backs of each building, the entirety of the Parcel's footprint of roughly 10,000 square feet is occupied by the buildings. Each is four stories tall, with retail on the first (i.e., ground floor) and with one apartment on each of the second, third, and fourth floors.
The Court of Appeals has set out what might be characterized as three sets of considerations that ought to be taken into account when deciding whether a combination of buildings constitutes a horizontal multiple dwelling. "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." Matter of Salvati v Eimicke, 72 NY2d 784, 792 (1988).
Common ownership
So far as appears, for over a century the Parcel has had only one owner at a time. Records of the City of New York's Department of Finance ("Finance") show that the buildings were built in 1910. Petitioner's and respondent's architects disagreed on much but they did agree that the buildings had been built at the same time and that it was reasonable to think that at that time there had been a single owner and a single architect inasmuch as each building was built to a similar plan with an overall view of taking the maximum advantage of the Parcel's footprint.
The evidence offered at trial showed that the Parcel had been conveyed in 1949, in 1979, in 1987, and, most recently, to petitioner in 2013. Each time, the entire Parcel, and not a portion thereof or one or two of the three buildings, was conveyed. There was no evidence of a conveyance at any time of less than the entire Parcel.
The evidence at trial also showed that the Parcel was mortgaged in 1979, 1980, 1987, 1999, and 2013; each time the mortgage became a lien on the entire Parcel and not a portion thereof. Not surprisingly, the mortgage satisfactions that have been given embraced the entire Parcel as well.
Finance's regulations have long permitted the apportionment, i.e., subdivision, of tax lots into smaller lots. Petitioner does not contend that either it or its predecessors ever sought to apportion Lot 21 into three lots so as to conform to the footprints of the buildings.
Common operation and management
The evidence at trial showed that the buildings have been managed and operated mainly in common. The insurance policy that petitioner first obtained covered the three buildings without differentiation [FN1] . Many months later petitioner procured other policies that referred to the buildings individually, but the court will treat them as having no probative value inasmuch as the instant litigation was already well under way [FN2] . The multiple dwelling registrations that were filed with the City of New York's Department of Housing Preservation and Development ("HPD") list the same managing agent for the three buildings. Finance bills the real estate taxes to one name and address, but DEP bills water and sewer charges for each building, rather than for all of the buildings together, although to the same name and address. As discussed below, the buildings have always had one superintendent at a time, and petitioner employs one managing agent for many buildings including the three at issue here.
Respondent Abuzaid has lived in the premises at 78 Havemeyer Street with his wife and children since 2005; from 1990 to 1997 he lived in the same building but in a different apartment. In addition, since 1997 and perhaps earlier, he has worked at the corner deli/grocery store on the ground floor at 78 Havemeyer Street. Abuzaid testified that since 1990 there has always been only superintendent at a time for the three buildings. The court finds that this testimony was credible.
HPD's records show that Joseph Corsini was the registered managing agent for the three buildings from 2010 through 2012. Abuzaid testified that Corsini also served as the superintendent for the three buildings, and that Corsini also taught Abuzaid, who was conveniently working in the corner grocery/deli, how to adjust the one boiler that serviced the three buildings so as to be able to respond to heat complaints from any of tenants in any of the buildings. This boiler is located in the basement of 78 Havemeyer.
Abuzaid also testified that the key to the front door of 78 Havemeyer also opened the doors to 76 Havemeyer and to 381 Metropolitan until petitioner in 2013 replaced the door to 381 [*3]Metropolitan. The court finds that this testimony was credible.
Friedman testified that he is petitioner's managing agent for the three buildings. He testified that he signs leases for petitioner, collects rents, and might oversee construction. During his direct testimony, he stated that he goes to the buildings once a month; during his rebuttal testimony, which was taken about six months after his direct testimony, he testified that he goes to the buildings once a week. He testified that he manages many other buildings for petitioner.
Friedman testified that Rene Rivera is the superintendent for the three buildings and that Rivera might be employed as a superintendent for other buildings of petitioner as well. He confirmed that a master key for the three buildings is kept at the deli/grocery store at the corner of Havemeyer Street and Metropolitan Avenue.
Friedman's testimony was by and large credible. The court finds that the testimony did not rebut respondent's showing and instead, to the extent that it bore on the issue of individualized or common building management, tended to show that petitioner managed the three buildings not individually but without differentiation.
Common facilities and services
Respondent's architect Boyd testified that the roofline is continuous and uninterrupted, as it would be for a single building, except for a penthouse-type addition to 381 Metropolitan that petitioner constructed after it purchased the Parcel in 2013. There are no roof boundaries that delineate the different buildings and the rubber membrane that covers the roof is consistent throughout although the part that covers 381 Metropolitan is newer. The pitch of the roof is the same on each of the buildings, and while each building has its own gutter or drainspout, all three drain into a single wasteline in the basement of 78 Havemeyer Street. The court finds that this testimony was credible and uncontested.
Boyd testified that the buildings are separated by party walls. These reach the underside of the roof but do not protrude above it. They are loadbearing and serve as firebreaks, but they are only three bricks in width, not four with a space between the second and third bricks, and so do not serve as double walls. The party walls are not visible from the exterior because the outer façade of the buildings is covered with uniform siding and marked by other uniform features such as windows and fire escapes which are aligned with each other notwithstanding the sloping street grade. Petitioner's architect Maffei offered a somewhat different characterization of the party walls, testifying at one point that they might be wood framing with brick infill called "nogging," but he backtracked from this characterization and, in any event, the court finds Boyd's testimony the more persuasive and credits it as such.
Petitioner emphasized in its arguments that the buildings should be treated as individual standalones because they have separate doorways and the common areas of the buildings are not connected by passageways. However, there are pipes and conduits in the buildings' [*4]basements/cellars that pierce the party walls and that carried, and may still carry, steam heat and electrical wiring between two or three of the buildings.
All three buildings received heat from a single source in the basement of 78 Havemeyer until petitioner altered the delivery of heat so that after October, 2013 heat was no longer provided to 381 Metropolitan from 78 Havemeyer, and after November, 2013 heat was no longer provided to 76 Havemeyer from 78 Havemeyer. Hot water was provided to all three buildings from a single source in the basement of 78 Havemeyer through October, 2013 to 381 Metropolitan and through the third week of April, 2014 to 76 Havemeyer.
Petitioner did not offer an explanation for making these alterations. The alterations did not change the buildings' regulatory status. Cf, Rashid v Cancel, 9 Misc 3d 130(A) (App Term, 2nd & 11th Jud Dists, 2005) where the court held that the residential use of a basement in what otherwise would have been a five-unit building brought the building under rent-stabilization and that discontinuance of that use would not terminate the rent-stabilization coverage.
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 [citation omitted]." SREP 10th Avenue Venture LLC v Walters, 38 Misc 3d 1220(A) (Civ Ct, NY Co, 2012).
In this case, the buildings have always had common owners, were always conveyed pursuant to a single deed, have shared and share common management, common heating facilities, a common mortgage and common insurance policies. These factors all support respondents' position that the buildings should be considered a horizontal multiple dwelling. See, Matter of Ruskin v Miller 172 AD2d 164 (1st Dep't, 1991); 207 E 117th Street LLC v Vera 20 Misc 3d 128(A) (App Term, 1st Dep't, 2008); Matter of Bambeck v DHCR, 129 AD2d 51(1st Dep't, 1987); Blane v DHCR, 147 AD2d 401 (1st Dep't, 1987).
In sum, the court holds that "there are sufficient indicia of common facilities, common ownership, management and operation to warrant treating the [buildings] as an integrated unit and multiple dwelling subject to regulation." Salvati, supra. Accordingly, the court grants the relief set out above.
The court will telephone the parties to advise that copies of this decision and order may be picked up in the courtroom as of the date of this decision and order, and the parties are requested to retrieve their exhibits by March 15, 2016, failing which they will be submitted for recycling.
Dated:Brooklyn, NY
January 29, 2016
_________________________________
Gary F. Marton Footnotes
Footnote 1:Respondent's exhibit B2.
Footnote 2:Petitioner's exhibits 3A, 3B, and 3C.
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