Majority
OPINION OF THE COURT
The issue in this case is whether the space which respondent occupied in a lodging house is subject to rent-stabilization regulation. We affirm the order of the Appellate Division because under the facts of this particular case, the area in question constituted a "housing accommodation” not expressly excluded from the coverage of the rent-stabilization laws.
Petitioner brought a holdover proceeding alleging that respondent’s tenancy expired on July 31, 1990 and that his right to occupy the space at issue had been terminated by a 30-day notice of termination. The petition further alleged that the respondent’s partitioned space was not "subject to rent control, rent stabilization or hotel stabilization.” The notice of termination did not state any grounds for the termination.
Respondent moved to dismiss the petition on the ground that the space was subject to the Rent Stabilization Law and that the notice of termination failed to state any of the authorized grounds contained in the Rent Stabilization Code for terminating a rent-stabilized tenancy. Civil Court dismissed the petition on the ground that the termination notice was defective since the area in question was subject to rent stabilization.
Petitioner appealed the dismissal to the Appellate Term which affirmed, with one Justice dissenting. On further leave to appeal to the Appellate Division, that Court also affirmed, and held that the Palace Hotel was subject to rent stabilization as a class B multiple dwelling. The Appellate Division thereafter granted petitioner leave to appeal to this Court.
As relevant here, the RSL covers "housing accommodations in class A or class B multiple dwellings made subject to this law pursuant to the emergency tenant protection act of nineteen seventy-four” (Administrative Code of City of NY § 26-504 [b]). It is undisputed that the Palace Hotel is structurally classified as a class B multiple dwelling by the Department of Buildings (see, Multiple Dwelling Law § 4 [9]). The ETPA provides 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)” (Matter of Salvati v Eimicke, 72 NY2d 784 , 791). The ETPA does not contain any exemptions applicable to respondent’s living space.
The definition of "housing accommodation” for rent-stabilization purposes appears in the Rent Stabilization Code which defines the term as,
"[t]hat part of any building or structure, occupied or intended to be occupied by one or more individuals as a residence, home, dwelling unit or apartment, and all services, privileges, furnishings, furniture and facilities supplied in connection with the occupation thereof” (9 NYCRR 2520.6 [a] [emphasis supplied]).
This functional definition is not limited by any physical or structural requirements, such as minimum square footage.
Whether a period of occupancy is accompanied by sufficient indicia of "permanency” such that the space occupied may be characterized as a home, residence or dwelling unit for rent-stabilization purposes is a fact-intensive question substantially turning on the intent and behavior of the parties. One factor to consider in reaching an appropriate determination is
Other factors which may be considered include whether the occupant has any other residence, and any limitations relating to an occupant’s use and control of the premises which have been imposed and enforced by a landlord. The Code itself identifies the intent of the occupant as a relevant consideration (see, 9 NYCRR 2520.6 [a] [providing that a tenant must occupy or intend to occupy that part of any building or structure as a residence, home or dwelling unit]).
The landlord’s conduct in relation to respondent’s use of the rental space assigned to him demonstrates that, from the landlord’s perspective, it was expected and intended that respondent would occupy the area as his residence. The record reflects that the landlord rented the same space to the respondent for a continuous period of two years, and that respondent had no other residence during that time. That the landlord could have limited the length of respondent’s stay in the same living area to less than one week at a time[1] is irrelevant since the actual length of continuous occupancy was significantly longer.
Furthermore, the landlord allowed respondent to retain a key over an extended period, which enabled respondent to exclude others from his designated space. The landlord also gave respondent extended permission to store all of his personal possessions, including clothes and a television set, inside a locker within the enclosed confines. Moreover, the record also contains an affidavit from the respondent which states that he considered the rented space to be his home. Thus, the findings below that the area was subject to rent-stabilization regulation are amply supported by the record.
Petitioner’s contention that the space at issue cannot be characterized as a housing accommodation for rent-stabilization purposes because of its structural configuration is contradicted by the plain language of the Rent Stabilization Code. The Code defines a housing accommodation as that "part” of any building or structure, which is occupied, or
1 See, Multiple Dwelling Law § 4 (14) (defining a lodging house as a multiple dwelling in which "persons are housed for hire for a single night, or for less than a week at one time, or any part of which is let for any person to sleep in for any term less than a week”); Administrative Code § 27-2004 (a) (18) (same).
Petitioner also argues that courts should accord deference to the "longstanding interpretation” of the Division of Housing and Community Renewal (DHCR) (the agency responsible for the administration of the rent-stabilization laws in New York City) that places in lodging houses, such as the one at issue here, are exempt from rent regulation. "DHCR’s interpretation of the statutes it administers, if not unreasonable or irrational, is entitled to deference” (Matter of Salvati v Eimicke, 72 NY2d 784 , 791, supra). Although the question of whether a particular space is subject to rent stabilization falls within DHCR’s administrative expertise, this Court will annul DHCR determinations which are irrational or unsupported by substantial evidence (see, e.g., Matter of Salvati v Eimicke, supra).
Petitioner cites to two DHCR orders as evidence of the agency’s "longstanding interpretation” that living compartments in lodging houses are not subject to rent stabilization. The orders (issued in 1992 and 1994), however, do not involve the Palace Hotel, and state, without any further elaboration, that the areas in question do not fall under the jurisdiction of the agency (Order of DHCR Denying Application or Terminating Proceeding, Docket No. ZEG 440321 [Aug. 20, 1992]; Order of DHCR Denying Application or Termination Proceeding, Docket No. HD-440167-R [Dec. 21, 1994]). As these orders, by their terms, limit their applicability to the specific premises which were at issue, it is unclear what general principle, if any, may be drawn from these determinations. Moreover, the orders are bare of any facts or reasoning which led DHCR to find that it lacked jurisdiction over the proceedings. Under these circumstances, no judicial deference to these DHCR orders is required in this essentially statutory construction controversy.
To the extent that DHCR, participating as amicus curiae in this appeal, argues that the partitioned space here cannot be a housing accommodation as a matter of law, its position is unreasonable and inconsistent with the applicable statutes. As we have already observed, the definition of "housing accom
Accordingly, the order of the Appellate Division should be affirmed, with costs.
Chief Judge Kaye and Judges Titone, Bellacosa, Levine, Ciparick and Wesley concur.
Order affirmed, with costs.
2 We do not address petitioner’s constitutional claims as they are unpreserved.
Cases cited
- Bayview Hotel, Inc. v. Temporary State Housing Rent Commission 12 NY2d 423 p. 351, p. 353
- Hotel Armstrong, Inc. v. Temporary State Housing Rent Commission 11 AD2d 395 p. 351, p. 353
- National Elevator Industry, Inc. v. New York State Tax Commission 49 NY2d 538 p. 351
- Rent Stabilization Ass'n of New York City, Inc. v. Higgins 83 NY2d 156 p. 351, p. 352, p. 354
- La Guardia v. Cavanaugh 53 NY2d 67 p. 351, p. 352, p. 353
- 23 Realty Associates v. Teigman 213 AD2d 306 p. 351, p. 353
- Salvati v. Eimicke 72 NY2d 784 at 791 p. 351, p. 352, p. 354, p. 355, p. 357
- Shoreham-Wading River Central School District v. Town of Brookhaven 107 AD2d 219 p. 351
- Seawall Associates v. City of New York 74 NY2d 92 p. 352
- Kaiser Aetna v. United States 444 US 164 p. 352
- Armstrong v. United States 364 US 40 p. 352
- Roslyn Garden Associates v. Board of Trustees of Inc. Village of Roslyn 190 AD2d 722 p. 352
- City of Cleburne v. Cleburne Living Center, Inc. 473 US 432 p. 352, p. 353
- Bucho Holding Co. v. Temporary Housing Rent Commision 11 NY2d 469 p. 352, p. 353
- Teeval Co. v. Stern 301 NY 346 p. 352
- 8200 Realty Corp. v. Lindsay 27 NY2d 124 p. 352
- Zeitlin v. New York City Conciliation & Appeals Board 46 NY2d 992 p. 352, p. 353
- Duane Thomas Loft Tenants Ass'n v. Sylvan Lawrence Co. 117 Misc 2d 360 p. 352
- Perth Realty Co. v. Dovoll 79 Misc 2d 514 p. 352
- Hickey v. Bomark Fabrics, Inc. 120 Misc 2d 597 p. 352
- Bowles v. Willingham 321 US 503 p. 352
- Block v. Hirsh 256 US 135 p. 352
- People ex rel. Durham Realty Corp. v. La Fetra 230 NY 429 p. 352
- Federal Home Loan Mortgage Corp. v. New York State Division of Housing & Community Renewal 87 NY2d 325 p. 352, p. 353
- Villas of Forest Hills Co. v. Lumberger 128 AD2d 701 p. 352
- Pelhut Realty Co. v. White 77 Misc 2d 585 p. 352
- Kips Bay Towers, Inc. v. Armstrong 82 Misc 2d 489 p. 352
- Sapphire Hotel Corp. v. Netzick 82 Misc 2d 95 p. 352
- 353 Realty Corp. v. Disla 81 Misc 2d 68 p. 352
- Towers Hotel Investors Corp. v. Davis 85 Misc 2d 451 p. 352, p. 353
- Towers Hotel Investors Corp. v. Davis 42 NY2d 923 p. 352, p. 353
- Braschi v. Stahl Associates Co. 74 NY2d 201 p. 352
- Tonetti v. Penati 48 AD2d 25 p. 352
- Bolotnikov v. Katz 95 Misc 2d 377 p. 352
- Mann v. 125 E. 50th St. Corp. 124 Misc 2d 115 p. 352, p. 353
- Mann v. 125 E. 50th St. Corp. 126 Misc 2d 1016 p. 352, p. 353
- Kaypar Corp. v. Fosterport Realty Corp. 1 Misc 2d 469 p. 352
- Shearman v. Iroquois Hotel & Apartment Co. 42 Misc 217 p. 352, p. 354
- De Wolf v. Ford 119 App Div 808 p. 352, p. 354
- de Wolf v. Ford 193 NY 397 p. 352, p. 354
- Seminole Realty Co. v. Greenbaum 209 AD2d 345 p. 353
- Kurcsics v. Merchants Mutual Insurance 49 NY2d 451 p. 353
- Drew v. Schenectady County 88 NY2d 242 p. 353
- Town of Brookhaven v. New York State Board of Equalization & Assessment 88 NY2d 354 p. 353
- Jewish Home & Infirmary of Rochester, New York, Inc. v. Commissioner of New York State Department of Health 84 NY2d 252 p. 353
- Rodriguez v. Perales 86 NY2d 361 p. 353
- Jones v. Berman 37 NY2d 42 p. 353
- Gordon v. American Museum of Natural History 67 NY2d 836 p. 353
- Cooper v. City of New York 81 NY2d 584 p. 353
- Cummins v. County of Onondaga 84 NY2d 322 p. 353
- Quain v. Buzzetta Construction Corp. 69 NY2d 376 p. 353
- Snyder v. Wetzler 84 NY2d 941 p. 353
- People v. Two Wheel Corp. 71 NY2d 693 p. 353
- Di Bella v. Di Bella 47 NY2d 828 p. 353
- Telaro v. Telaro 25 NY2d 433 p. 353
- Cibro Petroleum Products, Inc. v. Chu 67 NY2d 806 p. 353
- Fablan Studios, Inc. v. Herman 25 Misc 2d 752 p. 353
- Noxon Operating Corp. v. Herman 32 Misc 2d 557 p. 353
- Noxon Operating Corp. v. Herman 13 NY2d 604 p. 353
- 378 Realty Corp. v. New York City Rent & Rehabilitation Administration 39 Misc 2d 30 p. 353
- 378 Realty Corp. v. New York City Rent & Rehabilitation Administration 13 NY2d 817 p. 353
- Nordlinger v. Hahn 505 US 1 p. 353
- United States Railroad Retirement Board v. Fritz 449 US 166 p. 353
- Honore de St. Aubin v. Flacke 68 NY2d 66 p. 353
- Lavanant v. State Division of Housing & Community Renewal 148 AD2d 185 p. 354
- Crow v. 83rd Street Associates 68 NY2d 796 p. 354
- Versailles Realty Co. v. New York State Division of Housing & Community Renewal 76 NY2d 325 p. 354
- Clason Management Corp. v. Temporary State Housing Rent Commission 29 Misc 2d 258 p. 354
- Clason Management Corp. v. Herman 14 AD2d 765 p. 354
- Clason Management Corp. v. Herman 10 NY2d 1022 p. 354
- Hankin v. Division of Housing & Community Renewal 112 Misc 2d 1085 p. 354