Opinion
No. 2003-839 KC.
Decided June 14, 2004.
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.
PRESENT: PESCE, P.J., ARONIN and PATTERSON, JJ.
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 . . . warrant treating the housing as an integrated unit" ( Matter of Salvati v. Eimicke, 72 NY2d 784, 792). 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; 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 [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 [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.