Majority
OPINION OF THE COURT
The common issue presented on these appeals is whether
Petitioners in Matter of Salvati are three sisters who own two adjoining buildings located at 184 and 186 Sixth Avenue. Respondent Division of Housing and Community Renewal (DHCR) determined that the buildings were subject to rent regulation as a horizontal multiple dwelling because they contained a total of more than six units and were serviced by a common boiler. Supreme Court vacated and annulled the agency’s determination, concluding that in order for the buildings to be considered a horizontal multiple dwelling, they must "first be found to include structures which are * * * garden-type maisonette dwelling complexes”. Supreme Court also found that DHCR’s determination was not supported by substantial evidence because the record contained no evidence of any common facilities other than the boiler adapted for use by the two buildings. The Appellate Division reversed on the law and reinstated the agency’s determination ( 135 AD2d 424 ). Relying on its decision in Matter of Bambeck v State Div. of Hous. & Community Renewal ( 129 AD2d 51 , lv denied 70 NY2d 615 ), but making no reference to Supreme Court’s conclusion that the record was otherwise devoid of substantial evidence, the Appellate Division held that the inclusive rather than exclusive language of the Rent Stabilization Law (Administrative Code § 26-505) supported the agency’s view that the statute was not limited to horizontal multiple dwellings constituting garden-type maisonette complexes.
In Matter of Heller, petitioners are tenants in three adjoining buildings under a common ownership. DHCR, relying upon Supreme Court’s ruling in Matter of Salvati, determined that these three buildings did not constitute a regulated horizontal multiple dwelling because they were not a garden-type maisonette complex. Alternatively, the agency also found that although the buildings share common ownership and a common boiler, they are not a regulated horizontal multiple dwelling because they do not share sufficient other common facilities or services. Supreme Court’s judgment confirming
On these appeals, DHCR now argues that the Rent Stabilization Law and the Emergency Tenant Protection Act apply to horizontal multiple dwellings other than garden-type maisonette complexes and that its factual determinations in each case are supported by substantial evidence, are not arbitrary or irrational and therefore should be upheld.
DHCR’s interpretation of the statutes it administers, if not unreasonable or irrational, is entitled to deference (Matter of Colt Indus. v New York City Dept. of Fin., 66 NY2d 466 , 471; Matter of New York Pub. Interest Research Group v New York State Dept. of Ins., 66 NY2d 444 , 448; Matter of Howard v Wyman, 28 NY2d 434 , 437-438; Matter of Mounting & Finishing Co. v McGoldrick, 294 NY 104 , 108). The 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. The statute applies to "Class A multiple dwellings” (Administrative Code § 26-504) which are "deemed to include a multiple family garden-type maisonette complex containing six or more dwelling units having common facilities such as sewer line, water main, and heating plant, and operated as a unit under a common ownership on [May 6, 1969], notwithstanding that certificates of occupancy were issued for portions thereof as one- or two-family dwellings” (Administrative Code § 26-505 [emphasis added]). The Emergency Tenant Protection Act 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 (McKinney’s Uncons Laws of NY §§8623, 8625). Although buildings containing fewer than six units are expressly excepted (McKinney’s Uncons Laws of NY § 8625 [a] [4] [a]), horizontal multiple dwellings containing six or more units are not excepted and garden-type maisonette complexes having the common facilities listed in the statute are expressly included as multiple dwellings containing more than six units (McKinney’s Uncons Laws of NY § 8625 [a] [4] [b]). Accordingly, DHCR’s interpretation that the statutes apply to these buildings, which are not garden-type maisonette dwellings, is rational and should be upheld (Matter of Bambeck v State Div. of Hous. & Community Renewal, 129 AD2d, at 56 ,
In determining the existence of a regulated horizontal multiple dwelling the crucial factor, therefore, is not whether the housing accommodations are part of a "multiple family garden-type maisonette complex”, but rather 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 Bambeck v State Div. of Hous. & Community Renewal, 129 AD2d, at 58 , supra; Matter of Love Sec. Corp. v Berman, 38 AD2d 169 , 170-171).
In Matter of Salvati, DHCR correctly considered whether the subject buildings constituted a regulated horizontal multiple dwelling even though they are not part of a garden-type maisonette complex. Supreme Court concluded however, and we agree, that DHCR’s finding that the buildings constituted such a regulated horizontal multiple dwelling is not supported by substantial evidence since the only evidence of common facilities was a heating unit located in the basement of one building which serviced both buildings. Although DHCR argues to us that there are other indicia of commonality, such as a common fuel storage tank, a common hot water system, a common fire escape, a common roof and a common backyard, there are no such factual findings in the record.
By contrast in Matter of Heller, although DHCR incorrectly concluded that the Rent Stabilization Law applied only to garden-type maisonette complexes, the record contains substantial evidence supporting the agency’s factual determination and alternate finding that the subject buildings, although under a single ownership, did not constitute a regulated horizontal multiple dwelling because they did not share sufficient common facilities or services — the only facility common to the three buildings was a shared heating system; the buildings had separate water and sewer mains, electric service and mail boxes.
Accordingly, the order of the Appellate Division in Matter of Salvati v Eimicke should be reversed, with costs, and the determination of the Division of Housing and Community Renewal annulled. The order of the Appellate Division in Matter of Heller v Mirabal should be affirmed, with costs.
Chief Judge Wachtler and Judges Simons, Kaye, Alexan
In Matter of Salvati v Eimicke: Order reversed, with costs, and determination of the Division of Housing and Community Renewal annulled.
In Matter of Heller v Mirabal: Order affirmed, with costs.
Cases cited
- Bambeck v. State Division of Housing & Community Renewal 129 AD2d 51 p. 786, p. 787, p. 788, p. 790
- La Guardia v. Cavanaugh 53 NY2d 67 p. 786, p. 787, p. 789
- Roth v. Michelson 55 NY2d 278 p. 786
- Washington Post Co. v. New York State Insurance Department 61 NY2d 557 p. 786
- Mayfair-York Corp. v. Weaver 13 Misc 2d 829 p. 786
- Trump-Equitable Fifth Avenue Co. v. Gliedman 57 NY2d 588 p. 786, p. 789
- People v. Cull 10 NY2d 123 p. 786, p. 787
- Hill v. New York State Teachers' Retirement System 97 Misc 2d 95 p. 786
- Two Associates v. Brown 127 AD2d 173 p. 786
- Nicholas v. Kahn 47 NY2d 24 p. 786
- 300 Gramatan Avenue Associates v. State Division of Human Rights 45 NY2d 176 p. 786
- Klein v. Weaver 7 Misc 2d 545 p. 786
- Goldstein v. Gabel 44 Misc 2d 20 p. 786, p. 788
- Love Securities Corp. v. Berman 38 AD2d 169 at 170-171 p. 786, p. 787, p. 788, p. 789, p. 792
- 11th Co. v. Joy 92 Misc 2d 664 p. 787, p. 788, p. 789
- Coyle v. Gabel 21 NY2d 808 p. 787, p. 788, p. 789
- Edlu Custom Builders, Inc. v. Young 16 Misc 2d 376 p. 787
- Lower Manhattan Loft Tenants v. New York City Loft Board 66 NY2d 298 p. 787
- Axelrod v. Starr 52 AD2d 232 p. 787
- Lee v. Gasoi 113 Misc 2d 760 p. 787
- Lee v. Gasoi 126 Misc 2d 719 p. 787
- Mandel v. Pitkowsky 102 Misc 2d 478 p. 787
- Sommer v. New York City Conciliation & Appeals Board 93 AD2d 481 p. 787, p. 789
- Sommer v. New York City Conciliation & Appeals Board 61 NY2d 973 p. 787, p. 789
- Mounting & Finishing Co. v. McGoldrick 294 NY 104 at 108 p. 787, p. 788, p. 789, p. 791
- American Industrial Contracting Co. v. Travelers Indemnity Co. 54 AD2d 679 p. 787
- American Industrial Contracting Co. v. Travelers Indemnity Co. 42 NY2d 1041 p. 787
- Suffolk County Builders Ass'n v. County of Suffolk 46 NY2d 613 p. 787
- Village of Herkimer v. Axelrod 88 AD2d 704 p. 787
- Roman Catholic Diocese v. New York State Department of Health 66 NY2d 948 p. 787
- Stuyvesant Polyclinic v. Axelrod 117 AD2d 99 p. 787
- Menoudakos v. Berman 25 NY2d 723 p. 787, p. 788
- Mid-State Management Corp. v. New York City Conciliation & Appeals Board 112 AD2d 72 p. 787
- Mid-State Management Corp. v. New York City Conciliation & Appeals Board 66 NY2d 1032 p. 787
- Towers Hotel Investors Corp. v. Davis 85 Misc 2d 451 p. 787, p. 789
- Colton v. Berman 21 NY2d 322 p. 787, p. 788
- First Terrace Gardens, Inc., v. McGoldrick 1 NY2d 1 p. 787, p. 789
- Amorelli v. Berman 19 NY2d 960 p. 788, p. 789
- Teeval Co. v. Stern 301 NY 346 p. 788
- Bucho Holding Co. v. Temporary Housing Rent Commision 11 NY2d 469 p. 788
- 378 Realty Corp. v. New York City Rent & Rehabilitation Administration 39 Misc 2d 30 p. 788
- Menoudakos v. Berman 59 Misc 2d 850 p. 788
- Johnson v. Joy 48 NY2d 689 p. 788, p. 789
- Exxon Corp. v. Board of Standards 128 AD2d 289 p. 788
- Herzog v. Joy 74 AD2d 372 p. 789
- Herzog v. Joy 53 NY2d 821 p. 789
- Hotel Armstrong, Inc. v. Temporary State Housing Rent Commission 11 AD2d 395 p. 789
- Meskill v. Park Summit Realty Corp. 90 AD2d 410 p. 789
- Trump-Equitable Fifth Avenue Co. v. Gliedman 98 AD2d 487 p. 789
- Trump-Equitable Fifth Avenue Co. v. Gliedman 62 NY2d 539 p. 789
- Kurcsics v. Merchants Mutual Insurance 49 NY2d 451 p. 789
- Eaton v. New York City Conciliation & Appeals Board 56 NY2d 340 p. 789
- Sullivan v. Brevard Associates 66 NY2d 489 p. 789
- Howard v. Wyman 28 NY2d 434 at 437-438 p. 789, p. 791
- Colgate-Palmolive-Peet Co. v. Joseph 308 NY 333 p. 789
- Udall v. Tallman 380 US 1 p. 789
- Power Reactor Development Co. v. International Union of Electrical, Radio & Machine Workers 367 US 396 p. 789
- In re the City of New York 15 AD2d 792 p. 789
- Salvati v. Eimicke 135 AD2d 424 p. 790
- Colt Industries, Inc. v. New York City Department of Finance 66 NY2d 466 at 471 p. 791
- New York Public Interest Research Group, Inc. v. New York State Department of Insurance 66 NY2d 444 at 448 p. 791