DECISION After considering the testimony and the other evidence at the trial herein, the court makes the following findings of fact, reaches the following conclusions of law, and grants respondent a judgment dismissing the proceeding.Petitioner asserts that it may recover possession of the apartment at issue inasmuch as it is located in a building with fewer than six dwelling units and thus is not subject to rent regulation. In his answer respondent denies the same and asserts that the premises is subject to rent regulation because there are or have been six or more dwelling units in the building.The court finds that the apartment is located on the second floor of a multiple dwelling registered as such with the Department of Housing Preservation and Development (“HPD”) of the City of New York and that petitioner acquired the building from a Dionicio Hamilton by a deed dated May 19, 2016. Israel Goldstein testified that he is a member of petitioner and that when petitioner purchased the building it consisted of three stories above a basement, and that there were two residential apartments on the third floor, two residential apartments on the second floor, commercial space on the first floor, and a basement. The Certificates of Occupancy received in evidence are in accordance with the foregoing except that they show that the building has a cellar, not a basement1.Goldstein testified that on his visits to the basement he saw no occupants and no furniture; petitioner argued that accordingly, even if the cellar were deemed a dwelling unit, there were only five such units in the building and therefore that the building was not subject to rent stabilization coverage.Respondent countered with the testimony of Fernando Caimona, Ricardo Casue de Aza, and respondent himself. Caimona testified that he lived in the basement for six or seven years ending in March, 2016. He testified that there were four separate rooms or studios in the basement, that he lived in one of them, and that farther back in the basement there was a bathroom and a kitchen. Caimona testified that during this time, a Luis Felipe lived with his wife in another room in the basement. Caimona testified that the bathroom had a toilet, a bathtub and a shower. He testified that the kitchen area had a stove and a refrigerator. He testified that the refrigerator was large enough for all of the basement’s occupants to store their food. He testified that at first the stove was a gas stove but that later it was replaced with a smaller electric stove so as to make room for a washer/dryer. He testified that he paid rent monthly in cash to a Rudy Hamilton and that at times he got receipts. The court received in evidence a receipt that characterizes itself as a payment of rent for “6-1-12 to 7-1-12″; this receipt states that the payment was by Fernando Caimona and bears the signature “Dionicio Hamilton.”2 The court finds that Caimona’s testimony was credible.Ricardo Casue de Aza testified that he lived in a studio in the basement for four years between 2012 and 2016. He testified that for two years beginning in 2012 he lived there with his son, who was 11 years old when they moved in, but that his son went to live elsewhere after that. He testified that he rented the studio from “Hamilton,” that he paid rent in cash, that he did not have any receipts, that his uncle Luis Felipe also rented a studio in the basement, that there was a separate bathroom and a kitchen in the basement, that the kitchen had a stove and a refrigerator, and that the bathroom had a sink, a tub and a shower. He testified that there was a boiler room on the right-hand side of the basement. The court finds that his testimony was credible.Respondent testified that he had gone to the basement a total of six or seven times and that Caimona and Casue de Aza lived in different units there. His description of the basement was similar to that given by Caimona and Casue de Aza, i.e., there were four units at the front, and in the back a kitchen and a bathroom, and to the right in the back a boiler room. He did not testify that the bathroom had a sink; instead, he testified that it had a wash basin and a soap dish. The court finds that respondent’s testimony with respect to the configuration and occupancy of the basement was credible.In 124 Meserole LLC v. Recko, 55 Misc 3d 146 (A) (App Term, 2nd, 11th, & 13th Jud. Dists, 2017), lv. den., 2018 NY Slip Op 69126(U) (2nd Dep’t, 2018) the court held that a building with four residential units upstairs and two commercial units downstairs should be considered as having six residential units and therefore subject to rent stabilization inasmuch as the two commercial units had been occupied in part residentially. In pertinent part the court wrote: “The parties agree that the building has four residential units upstairs and two commercial units on the ground floor, and that a portion of the commercial unit on the left side of the ground floor was formerly used residentially as well. The dispositive issues are whether, as tenants allege, two rooms behind a store in the ground-floor right side of the building were used by the store’s proprietor as a residence with the knowledge of the prior landlords in 1974 or at any time thereafter (see RSC §2520.11 [d]) and whether these rooms constituted a ‘housing accommodation’ within the meaning of RSC §2520.6…. The Rent Stabilization Code defines a ‘housing accommodation’ as ‘that 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’ (RSC §2520.6 [a] [emphasis added]; see Matter of Gracecor Realty Co. v. Hargrove, 90 NY2d 350 [1997]; Joe Lebnan, LLC v. Oliva, 39 Misc 3d 31 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists [2013]). Here, the weight of the evidence established that the store proprietor had occupied the rooms as her home over a period of years with the knowledge of the prior landlords. Thus, the rear two rooms of the store on the right side of the building constituted a ‘housing accommodation’…. Once a building contains six or more units, all the units in the building are brought under rent stabilization (Matter of Gandler v. Halperin, 232 AD2d 637 [1996]; Commercial Hotel, Inc. v. White, 194 Misc 2d 26 [App Term, 2d Dept, 2d & 11th Jud Dists 2002]).”To the same effect, see, Robrish v. Watson, 48 Misc 3d 143(A) (App Term, 2nd, 11th, & 13th Jud Dists, 2015).Here the court finds that there were at least six residential units in the building. Accordingly, the court holds that the premises at issue herein is rent stabilized and the court grants the relief set out above.The court finds it unnecessary to address respondent’s other arguments. The court will mail to the parties copies of this decision along with their exhibits.Dated: Brooklyn, NYNovember 9, 2018
