Matter of Saladino et. al. OATH Index Nos. 2412/13 & 1879/14 (May 20, 2016),

adopted in part, rejected in part, Loft Bd. Order No. 4714 (Nov. 30, 2017), appended

[Loft Bd. Dkt. Nos. TR-1033 & 1158,

401 Wythe Avenue/62 South 6th Street, Brooklyn, N.Y.]

In application for coverage and protected occupancy, ALJ finds

that five units satisfy the prerequisites for coverage under the Loft

Law as amended in 2010, and that the building, therefore, is an

IMD. However, one unit is located in a basement and does not

qualify for coverage. Three applicants are found to be the

protected occupants of their respective units.

Loft Board adopts ALJ’s findings of window period coverage and

protected occupancy for two applicants, as well as ALJ’s finding

that units contain qualifying windows. The Board disagrees that

one unit is located in a basement and deems that unit covered and

the two tenants of the unit protected occupants. The Board also

finds that one applicant should not be protected because he was not

the residential occupant “in possession” of the unit.

_____________________________________________________

NEW YORK CITY OFFICE OF

ADMINISTRATIVE TRIALS AND HEARINGS

In the Matter of

JOEL SALADINO, PABLO CASTRO, VERONICA SCHWARTZ,

FRANK HUGHES, JULIEN ASFOUR, and JEAN COSTELLO, and

401 WYTHE AVENUE TENANTS

Petitioners

____________________________________________________

REPORT AND RECOMMENDATION

FAYE LEWIS, Administrative Law Judge

This is a tenant-initiated Loft Law coverage application involving a building or buildings

located at 401 Wythe Avenue/62 South 6th Street, Brooklyn, New York (“the building”),

pursuant to section 281(5) of the Multiple Dwelling Law (“MDL” or “Loft Law”), as amended

on June 21, 2010, and title 29 of the Rules of the City of New York (“RCNY” or “Loft Board

Rules”). MDL § 281(5) (Lexis 2016); 29 RCNY §§ 2-08, 2-09 (Lexis 2015). Petitioners seek a

finding that the building is a horizontal multiple dwelling and an interim multiple dwelling

(“IMD”), that their units and two additional units are covered IMD units, and that they are the

protected occupants of their units. Respondent, Dasa Realty Corp., which owns the premises

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(Pet. Ex. 5) and whose principal is Isaac Dahan (see Pet. Exs. 8, 9; Resp. Ex. SS), opposes the

application.

As set forth below, I find that the unit occupied by Ms. Schwartz and Mr. Castro (“the

Schwartz/Castro unit”) is located in a basement and does not qualify for coverage under the Loft

Law. The units occupied by Dr. Asfour (“Asfour unit”), Mr. Hughes (“Hughes unit”), and Mr.

Saladino (“Saladino unit”), along with the units formerly occupied by Leonardo Lasagni

(“Lasagni unit”) and Erwin Ziegler (“Ziegler unit”), satisfy the prerequisites for coverage under

the Loft Law and therefore the building is an IMD. I further find that Dr. Asfour, Mr. Saladino,

and Mr. Hughes are the protected occupants of their respective units, and that Ms. Costello is not

a protected occupant. Ms. Schwartz and Mr. Castro are not protected occupants since their unit

does not qualify for coverage.

ANALYSIS

Procedural History

Petitioners filed their original application for coverage and protected occupancy with the

Loft Board on September 21, 2012. That application was referred to OATH for conferencing

and possible trial. 29 RCNY § 1-06(j)(2)(ii) (Lexis 2015). Petitioners amended their application

twice, once on August 1, 2013, and again on September 18, 2013. The original application was

filed by Mr. Saladino, Mr. Castro, Ms. Schwartz, Mr. Hughes, Dr. Asfour, and Ms. Costello,

who were representing themselves. The initial amended application was submitted by counsel

for petitioners on behalf of “Various Tenants at above address,” comprised of the original six

tenants, minus Ms. Costello, who was listed as an affected party. The second amended

application was identical to the initial amended application except for correcting a typographical

error in the address of the building.1 The owner filed answers to each application, except for the

1 The original application (ALJ Ex. 5) listed 397-401 as the building address. As petitioners asserted in their brief

(Pet. Br. at 2-3), and respondent did not dispute, this is the wrong address for the building. There are separate deeds

for 395-397 Wythe Avenue (Pet. Ex. 4) and 401 Wythe Avenue (Pet. Ex. 5), which show that Dasa Realty owns 401

Wythe Avenue (Pet. Ex. 5), while another corporation owns 395 Wythe Avenue. There are also different certificates

of occupancy for 395 Wythe Avenue (Pet. Exs. 6a, 6b) and 62/64 South 6th Street a/k/a 399-401 Wythe Avenue

(Pet. Ex. 59). Mr. Saladino testified that he used the address “397-401” on the application because he thought at the

time that was correct (Tr. 1475). He explained that the building was “historically known” as 397 Wythe, there was

previously a mailbox labeled that way, and for that reason he had put the entrance number “397” on the gate on the

Wythe Avenue side of the building (Tr. 1455-556). Counsel for respondent acknowledged that the “397” address

“seems to have been . . . used colloquially . . . for [the] premises” (Tr. 2023).

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second amended application. The applications are denoted as ALJ Exhibits 1, 5, and 7, and the

answers as ALJ Exhibits 2 and 6.

Before trial, petitioners moved for summary judgment on the Schwartz/Castro unit,

contending that there were no material issues of fact as to whether Ms. Schwartz and Mr. Castro

residentially occupied their unit during the window period and on the effective date of the 2010

amendments to the Loft Law, and whether any of the coverage exclusions listed in section 281(5)

of the Loft Law applied to their unit. Although respondent did not challenge residential

occupancy, respondent asserted that the Schwartz/Castro unit is located in a basement and cross-

moved for summary judgment.

On January 10, 2014, I partially granted the petitioners’ motion for summary judgment

relating to the Schwartz/Castro unit, finding that the unit was residentially occupied during the

window period and on the base date of the 2010 amendments to the Loft Law, is over 400 square

feet, has at least one window opening onto a street or lawful yard or court, and has at least one

entrance that does not require passage through another residential unit. I denied the motion

insofar as it sought a finding that the unit is not located in a basement. I also denied respondent’s

cross-motion seeking summary judgment that the Schwartz/Castro unit is located in a basement

and excluded from coverage under the Loft Law. Matter of Saladino et. al., OATH Index No.

2412/13, mem. dec. (Jan. 10, 2014). The motion papers and my memorandum decision are made

part of the record as ALJ Exhibits 9 and 10, respectively.

Trial began on January 21, 2014, then on January 30, 2014, petitioners filed a new

coverage application,2 seeking coverage of two additional units: the Ziegler unit and the Lasagni

unit (ALJ Ex. 3). In a number of subsequent e-mails (ALJ Ex. 11), counsel for petitioners

requested that the applications be consolidated. Counsel represented that she had only recently

learned that the two units were residentially occupied and otherwise met the requirements for

coverage, and asserted that the next trial date was several months away, giving respondent

sufficient time to prepare for trial on the new application. By e-mail on February 24, 2014 (ALJ

Ex. 12), counsel for respondent characterized petitioners’ request as an application to amend

their previously filed application to include the Lasagni and Ziegler units and argued that it

should be denied. Counsel asserted that the units should have been included in the previously

filed application, that Mr. Lasagni had already testified, that the owner’s trial preparation had

2 The applicants on this application are the five tenants on the initial amended application and second amended

application, plus Amanda Saladino, who is Mr. Saladino’s wife (ALJ Ex. 3).

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been geared toward the applicants’ four units, and that additional discovery would be needed

regarding the additional units.

Ultimately, I decided to consolidate the two applications and noted so on the record (Tr.

407). Our rules of practice expressly provide for consolidation. See 48 RCNY § 1-41 (Lexis

2015) (“All or portions of separate cases may be consolidated for trial . . . in the discretion of the

administrative law judge. Consolidation or severance may be ordered on motion or sua sponte,

in furtherance of justice, efficiency or convenience.”). Under this rule, where appropriate,

individual Loft Board cases have been consolidated for trial. See Matter of Alkara, OATH Index

No. 1101/03 (Oct. 6, 2004), adopted in part, modified in part, Loft Bd. Order No. 2920 (Apr. 21,

2005) & Matter of Plot Realty, LLC, OATH Index No. 1285/03 (Oct. 6, 2004), adopted, Loft Bd.

Order No. 2920 (Apr. 21, 2005) (harassment and access applications consolidated for trial);

Matter of 315 Berry Street Corp., OATH Index No. 764/96, mem. dec. (Nov. 9, 1995) (where

joint adjudication and trial of two pending cases pursuant to the Loft Law would conserve

resources for the parties and this tribunal, consolidation of the two cases was ordered).

Here, although trial had begun, respondent had sufficient time before the next trial date to

prepare. Additional discovery on the new application was ultimately ordered. Trial on the

consolidated applications began on April 2, 2014, and continued until January 5, 2015, giving

respondent ample time to present its defense, including its claim that several units, including the

Lasagni unit, were located in a basement. Indeed, Mr. Ziegler was not presented as a witness

until April 29, 2014, and again on June 24, 2014. In all, consolidation did not prejudice

respondent. Instead, it furthered judicial and administrative efficiency by permitting the

development of a full record relating to the units in the building, including the basement issue,

which concerned the Lasagni unit as well as other units.

The parties submitted post-trial briefs on May 29, 2015, and reply briefs on June 19,

2015, at which time the record closed. However, on July 29, 2015, petitioners moved to reopen

the record in light of Matter of Doris, OATH Index Nos. 2542/14 & 2543/14 (July 10, 2015),

which held that a lot line window satisfied the minimum requirements of the Loft Law because it

faced a lawful rear yard. By affirmation on August 7, 2015, respondent opposed the motion and

cross-moved, in light of the decision in Ansonia Assoc. L. P. v. Unwin, 130 A.D.3d 453 (lst

Dep’t 2015), to reopen the record for additional discovery relating to petitioners’ tax returns.

The parties’ pleadings on the motion to reopen are designated as ALJ Exhibits 13a and 13b.

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By e-mail on September 10, 2015, I granted petitioners’ motion to reopen the record. As

set forth in that e-mail (ALJ Ex. 14), I concluded that in light of the decision in Matter of Doris,

which was issued after the record in this matter closed, that petitioners should be given the

opportunity to present evidence on whether lot line windows in both the Hughes and the Asfour

units were qualifying windows for purposes of coverage under section 281(5) of the MDL. I did

so even though petitioners had stipulated that the lot line window in the Hughes unit did not

qualify for coverage (Tr. 2354-355), noting that the state of the law was in flux as a result of the

decision in Matter of Doris, which the Loft Board, until very recently, did not pass upon. See

Loft Bd. Order No. 4511 (Apr. 21, 2016). However, I denied petitioners’ request that the

reopening be limited to the submission of affidavits and exhibits and took testimony of expert

witnesses on the lot line window issue.

In that same e-mail, I denied respondent’s motion to reopen the record to permit

additional discovery of petitioners’ tax returns. In its affirmation in support, respondent sought

leave to serve discovery demands relating to petitioners’ tax returns, without redaction of

information relating to business deductions of rents and utilities or representations as to

occupancy. Respondent also sought to submit additional testimony and documentary evidence,

including the testimony of tax professionals, if appropriate. Respondent highlighted that in

Ansonia Assoc., also decided after the close of the record, the First Department held that a rent-

stabilized tenant’s claim of primary residency was “logically incompatible” with her deduction

of her entire rent as a business expense on federal tax returns, and awarded possession of her

apartment to her landlord.

Respondent contended that the record should be reopened because “the doctrine of quasi-

estoppel adopted in Ansonia is new law” (Aff. in Opposition at 9). I do not agree. Ansonia

Assoc. cited to Mahoney-Buntzman v. Buntzman, 12 N.Y.3d 415, 422 (2009), in which the Court

of Appeals held, “[a] party to litigation may not take a position contrary to a position taken in an

income tax return.” Moreover, this tribunal has, in multiple coverage cases, discussed Mahoney-

Buntzman in determining the weight to be accorded to tax returns when assessing residential

occupancy under the Loft Law. See Matter of Boyers, OATH Index Nos. 1338/12, 1381/12 &

1403/13 at 23-24 (Feb. 10, 2014), adopted in part, rejected in part, Loft Bd. Order No. 4302

(Sept. 18, 2014); Matter of Gurkin, OATH Index No. 489/12 at 16 (Dec. 14, 2012), adopted,

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Loft Bd. Order 4186 (Oct. 17, 2013). Thus, reopening of the record in light of Ansonia Assoc.

was not warranted.3

Upon reopening of the record on September 10, 2015, for evidence as to lot line

windows, the trial concluded on December 21, 2015. Overall, the trial was held over 13 days.

Petitioners introduced 80 exhibits, and respondent introduced 49 exhibits. Petitioners presented

17 witnesses while respondent presented 4 witnesses. Petitioners Hughes, Asfour, Saladino, and

Schwartz testified, as did Ms. Costello. The other witnesses presented by petitioners included:

representatives from three utility companies; Mr. Ziegler; Mr. Lasagni; and two expert witnesses:

John Peachy, an architect, and Vincent Dicce, a professional land surveyor. Respondent

presented the testimony of Noam Elia, an assistant to Mr. Dahan; Yosef Rapoport, the owner of a

construction company; and architects Harry Meltzer and Angelo Costa.

Outline of Disputed Issues

Under the Loft Law, an IMD is defined as a building, or portion of a building, that: (1) at

any time was occupied for manufacturing, commercial, or warehouse purposes; (2) lacks a

certificate of compliance or occupancy; (3) is not owned by a municipality; and (4) was occupied

“as the residence or home of any three or more families living independently from one another

for a period of twelve consecutive months during the period commencing” January 1, 2008, and

ending December 31, 2009 (the “window period”). MDL § 281(1), (5) (Lexis 2016); 29 RCNY

§ 2-08(a)(4)(i) (Lexis 2015). For a unit to qualify as a covered residence, it must have been

residentially occupied for 12 consecutive months during the window period, and in addition,

must: (i) not be located in a basement or cellar; (ii) have at least one entrance that does not

require passage through another residential unit to obtain access to the unit; (iii) have at least one

window opening onto a street or a lawful yard or court as defined in the zoning resolution for

such municipality; and (iv) be at least 400 square feet in area. MDL § 281(5) (Lexis 2016); see

also 29 RCNY § 2-08(a)(4)(iii) (Lexis 2015).

3 It is questionable whether Ansonia Assoc., which was decided in the rent-stabilization context, would apply in a

Loft Law coverage proceeding, where there are broader issues beyond the particular tenant’s residency, such as

whether the building itself should be determined to be an IMD subject to the legalization requirements of the Loft

Law. Indeed, the First Department has explicitly rejected the doctrine of estoppel in the Loft Law context, holding,

“coverage under a rent regulatory scheme is governed by statute and may not be created or destroyed by laches,

waiver and estoppel.” In the Matter of Jo-Fra Props., Inc., 27 A.D.3d 298, 299 (lst Dep’t 2006).

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The units at issue are located in two adjacent buildings on Wythe Avenue and South 6th

Street: a one-story building (62 South 6th Street) and a two-story building (401 Wythe Avenue),

which together form an “L” shape.4 The Schwartz/Castro, Asfour, and Lasagni units are located

in the one-story building. The north wall of the Schwartz/Castro unit is situated on South 6th

Street and has a door opening onto that street which is used to access the unit. The east wall in

the Schwartz/Castro and Asfour units runs along a lot line, adjacent to a residential building with

the address of 66 South 6th Street. The Lasagni unit is situated in the interior of the one-story

building. Both the Asfour and Lasagni units are accessed by an alleyway with its entrance on

Wythe Avenue. The Hughes unit is located on the bottom floor of the two-story building and the

Ziegler and Saladino units are located on the second floor, with the Ziegler unit towards the front

of the building and the Saladino unit in the back. The front of the two-story building is situated

on Wythe Avenue. The south wall of the two-story building is abutted by a building with the

address of 53 Broadway and the east wall of the building runs along the same adjacent lot as the

Schwartz/Castro and Asfour units. Part of the north wall of the two-story building runs along the

south wall of the Asfour unit. The Hughes, Ziegler, and Saladino units are all accessed from

Wythe Avenue.

At the conclusion of the trial, the parties stipulated to the following: none of the units are

located in a cellar, and the Saladino and Ziegler units are not located in a basement (Tr. 2352);

all of the units have an entrance that does not require passage through another unit (Tr. 2352);

the Saladino and Ziegler units have a window that opens onto a street or a lawful yard or court

(Tr. 2353); all of the units except the Ziegler unit are at least 400 square feet in area (Tr. 2352);

and the Saladino, Asfour, and Schwartz/Castro units were residentially occupied during the

window period (Tr. 2353-355). Further, as part of a stipulation at the beginning of the trial, the

parties agreed that the building or buildings known as 401 Wythe Avenue/62 South 6th Street do

not have a residential certificate or certificates of occupancy and were formerly used for

commercial purposes (Pet. Exs. 1, 59). Although the parties also stipulated before the reopening

that the lot line window in the Hughes unit does not qualify for coverage (Tr. 2354-355),

petitioners changed their position in light of this tribunal’s decision in Matter of Doris, as noted

above.

4 A survey (Pet. Ex. 76), reproduced below at page 11, shows the general layout of the buildings. The one-story

building is designated as the “One Story Brick,” and the two-story building is designated as the “Two Story Brick.”

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Petitioners contend that the one-story building and two-story building are either legally

one building, because they have the same block and lot number, and the same building

identification number, or that they comprise a horizontal multiple dwelling, under section 2-

08(a)(1) of the Loft Board Rules (Pet. Br. at 3-4). Respondent does not dispute that the buildings

comprise a horizontal multiple dwelling, and the evidence in support of that is compelling. The

buildings have the same commercial certificate of occupancy (Pet. Ex. 59). Dasa Realty owns

and manages both buildings (Pet. Ex. 5). Gas service is provided to both addresses as the same

building (Tr. 68). The water main for 401 Wythe Avenue and the Con Edison meters for two of

the units at 401 Wythe Avenue are located in 62 South 6th Street. Further, the buildings have

common Department of Buildings records, and common water piping, electrical, and sprinkler

systems, there is an old boiler under 62 South 6th Street with pipes going into 401 Wythe

Avenue, and the buildings share a load bearing wall (Peachy: Tr. 1558-561). A sliding fireproof

door seals the opening between the units that share the load bearing wall (Tr. 1562, 1565; Pet.

Exs. 55a, 55b, 56a-56c).

The remaining disputed issues are whether: (1) the Schwartz/Castro, Asfour, Lasagni, and

Hughes units are located in a basement; (2) the Asfour, Lasagni, and Hughes units have a

window that opens onto a street or a lawful yard or court; (3) the Ziegler unit is at least 400

square feet in area; (4) the Lasagni, Hughes, and Ziegler units were residentially occupied during

the window period; (5) whether Mr. Hughes, Dr. Asfour, Mr. Saladino, Ms. Costello, Ms.

Schwartz, and Mr. Castro are protected occupants; and (6) whether the roof should be included

as part of the Saladino unit or as a service.

This decision, including the discussion of qualifying windows, is comprehensive, given

the many novel issues raised.

Are the units located in a basement?

Under the Loft Law, for a unit to qualify for coverage it must not be “located in a

basement.” MDL § 281(5) (Lexis 2016). Further, the Loft Board Rules provide that in order to

qualify as an IMD unit, a residence “must not be located in” a “basement,” as defined in section

4(38) of the MDL. 29 RCNY § 2-08(a)(4)(iii)(A) (Lexis 2015).

Section 4(38) defines a basement as “a story partly below the curb level but having at

least one-half of its height above the curb level . . . .” MDL § 4(38) (Lexis 2016). Although

section 4(38) enunciates a method for determining height above curb level, it is limited to

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instances “where every part of the building is set back more than twenty-five feet from a street

line.” MDL § 4(38) (Lexis 2016). This is inapposite as the building is not set back more than 25

feet from the street line (Meltzer: Tr. 1953; Peachy: Tr. 2324).

Petitioners and respondent dispute how “curb level” is to be measured and whether the

units are below curb level. Petitioners also advance some preliminary arguments in support of

their claim that the units should not be excluded by virtue of the basement exclusion. As

explained below, I find that the Schwarz/Castro unit is located in a basement, as defined in the

MDL, but the Hughes, Asfour, and Lasagni units are not located in a basement.

Preliminary Arguments

Petitioners first contend that section 281(5) of the Loft Law is unconstitutional as overly

broad (Pet. Br. at 21). Noting that tenants may legally reside in basements in other types of

residential buildings as long as the basement complies with zoning and code requirements,

petitioners claim that the “overbreadth” of the Loft Law denies “due process and fundamental

fairness” to tenants who live in a basement and seek coverage under the Loft Law (Pet. Br. at 21;

Exs. A, B).

I recognize that basements may be legal residences in certain instances and that the Loft

Law should be construed in light of other rent regulatory statutes. BLF Realty Holding Corp. v.

Kasher, 299 A.D.2d 87, 93 (1st Dep’t 2002) (“Statutes in pari materia are to be construed

together and ‘as intended to fit into existing laws on the same subject unless a different purpose

is clearly shown.’”); Lower Manhattan Loft Tenants v. NYC Loft Bd., 66 N.Y.2d 298, 304

(1985). It seems incongruous to exclude units from coverage solely because they are located in a

basement, if that basement could be legalized under the Building Code.

However, as petitioners acknowledge, this tribunal (as well as the Loft Board) lack the

authority to pass upon the facial unconstitutionality of a state law (Pet. Br. at 21). See Matter of

Tenants of 51-55 West 28th Street, OATH Index No. 1019/05, mem. dec. at 6 (Nov. 7, 2005)

(“[T]his tribunal does not have jurisdiction to pass on such facial constitutional issues.”). Thus, I

do not reach the issue of the alleged overbreadth of the basement exclusion of the Loft Law.

Petitioners’ argument is preserved for appellate review (Pet. Br. at 21).

Petitioners also contend, relying upon the 1947 commercial certificate of occupancy for

62/65 South 6th Street, that the Department of Buildings has already “determined” that the

Schwartz/Castro unit is not in a basement, but is instead on the first floor (Pet. Br. at 22). The

commercial certificate of occupancy upon which petitioners rely indicates that 62/65 South 6th

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Street has two “storys,” a “first” story and a “second” story (Pet. Ex. 59). As Mr. Peachy

highlighted, it makes no reference to a basement (Tr. 1674-675, 2282; Pet. Ex. 59). Petitioners

further contend that the Asfour, Lasagni, and Hughes units are on the same “floor” as the

Schwartz/Castro unit (Pet. Br. at 24).

In contrast, respondent asserts that the certificate of occupancy and other Department of

Buildings records are not dispositive as to whether the units are located in a basement and that

the issue must be determined under the Loft Law (Resp. Reply Br. at 2-5).

Mr. Peachy testified that the weight given to the certificate of occupancy is “enormous”

(Tr. 1743). Mr. Peachy also testified that since 1930 other Department of Buildings records have

referred to the area including the Schwartz/Castro, Asfour, Lasagni, and Hughes units as the first

floor or ground floor (Tr. 1593-594, 1689, 1696; Pet. Exs. 58-64). By contrast, Mr. Meltzer

testified that the Department of Buildings records are authoritative only “[t]o a degree” because

“many times the Building[s] Department forms are inaccurate” (Tr. 1975, 2005).

I am not persuaded by petitioners’ interpretation of the 1947 certificate of occupancy and

do not agree that it is dispositive of whether the units are located in a basement for purposes of a

coverage determination. As noted by respondent, because a basement is defined in the MDL as a

“story partially below curb level” (Resp. Br. at 2), the reference in the commercial certificate of

occupancy to a “first” story and a “second” story is not particularly helpful. Moreover, as I

concluded in my memorandum decision, documents from the Department of Buildings are not

“controlling as to whether the unit is a ‘basement’ under the MDL.” Saladino, OATH 2412/13 at

4. There is no evidence that, in approving the commercial certificate of occupancy, the

Department of Buildings made a legal determination as to whether or not the units were located

in a basement; rather, it appears that the Department relied upon documents filed by the owner

(Pet. Ex. 59; Tr. 1678-680). Mr. Peachy testified about some of those documents, including an

application for a sprinkler system filed by the owner which referred to a first and second “floor”

(Tr. 1692-696). Although the Department of Buildings approved this application (Tr. 1709), it

does not follow that by so doing, it made a determination, much less one binding here, as to

whether any of the units were contained in a story partially below curb level.

Rather, the determination of whether each of these units is located in a basement, defined

as a story partially below curb level, must be made based upon the evidence at trial.

Evidence relating to Basement issue

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Both parties relied upon the testimony of their architects, Mr. Peachy for petitioners and

Mr. Meltzer for respondent, each of whom was qualified as an expert in architecture and loft

conversion under the Loft Law (Tr. 1540-541, 1946). In addition, petitioners presented the

testimony of Mr. Dicce, a licensed land surveyor (Tr. 2163). Mr. Dicce conducted a survey (“the

Survey”) of the building in November 2014 (Pet. Ex. 76). The measurements were taken in

relation to how high each measured point is above sea level and Mr. Dicce used elevation

starting points designated by the City (Tr. 2196-197).

The Survey is reproduced below.

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(Pet. Ex. 76).

According to Mr. Dicce, the area labeled “One Story Brick” on the Survey includes the

Schwartz/Castro, Asfour, and Lasagni units. The area labeled “Two Story Brick” includes the

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Hughes unit. Petitioners’ counsel drew a blue line across the area labeled “One Story Brick” to

assist the witness’ testimony in relation to the Survey (Tr. 2177-178). According to Mr. Peachy,

the line is an approximation of the dividing point between the Schwartz/Castro unit (located

above the line) and the Asfour and Lasagni units (located below the line) (Tr. 2261).

Mr. Dicce testified about how the average curb elevations on Wythe Avenue and on

South 6th Street compare to the floor elevations within the units. He indicated that the average

curb elevation on Wythe Avenue is 34.36 feet above sea level (Tr. 2176). This is the average

between the two blue x’s marked by petitioners’ counsel on the Survey on Wythe Avenue with

the top elevation measurements of 34.46 feet and 34.25 feet (Tr. 2186-187, 2200). Further, the

average of the elevations measured within the “One Story Brick” below the blue line is

approximately five inches above the average curb level on Wythe Avenue; the average of the

elevations measured within the “One Story Brick” above the blue line is about the same, with a

two to three inch variance (Tr. 2181-182, 2184-185). The variance is attributable to the fact that

the building is old and the floor has settled (Tr. 2194-196).

Although Mr. Dicce did not testify about the relationship between the average elevation

measured within the “Two Story Brick” and the average curb level on Wythe Avenue, the

Survey shows points of elevation within the Hughes unit measured at 34.45 feet and 35.03 feet

(Pet. Ex. 76). Both points of elevation are above the top average curb elevation on Wythe

Avenue of 34.36 feet above sea level.

Mr. Dicce also testified that the average curb elevation on South 6th Street is 37.24 feet

above sea level. This was measured by averaging the top elevations on South 6th Street of 37.64

feet and 36.84 feet, which were designated on the Survey by petitioners’ counsel with two blue

stars. The elevation of the floor within the entire area labeled “One Story Brick” is below the

average curb elevation on South 6th Street by approximately two feet and two to three inches

(Tr. 2212-213). Specifically, the area within the “One Story Brick” above the blue line

(representing the Schwartz/Castro unit) is approximately two feet below the average curb

elevation on South 6th Street (Tr. 2185). This area is also about a foot below the average curb

elevations of Wythe Avenue and South 6th Street (Tr. 2188-189). The east side of the “One

Story Brick” is further below grade than the west side due to the downward slope towards the

river (Tr. 2217). Further, the entire area labeled “Two Story Brick” is below the average curb

elevtion on South 6th Street (Tr. 2213-214).

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Relying upon the survey, Mr. Peachy testified that the Asfour, Lasagni, and Hughes units

are above grade “when employing the method of looking at the portion of a story” (Tr. 2264-

265). According to Mr. Peachy, surveying the building “by portions” is permissible under

section 12-10 of the New York City Zoning Resolution (“Zoning Resolution” or “ZR”), which

defines a basement as “a story (or portion of a story) partly below curb level” (Tr. 2263, 2265).

As petitioners explained, Mr. Peachy based his conclusion upon comparing the floor elevations

in the Asfour, Lasagni, and Hughes units with the mean grade curb elevation on Wythe Avenue

(Pet. Br. at 25).

Mr. Peachy acknowledged, however, that the Schwartz/Castro unit is approximately two

feet and three-quarter inches below the curb level on the South 6th Street side of the building (Tr.

1764-766, 1767, 2287). Therefore, the unit does not meet the requirements of a first floor as

currently configured (Tr. 1768, 2283), and the unit is a basement under the MDL (Tr. 1765,

2323). Further, he testified that the Schwartz/Castro, Hughes, Asfour, and Lasagni units are all

on the “same story” and the same floor level, apart from the raised platforms in the Hughes and

Schwartz/Castro units, which are indicated in the Survey (Tr. 1728, 1776-777; Pet. Ex. 76).

But, Mr. Peachy also opined that this is a “noncompliance” and the Schwartz/Castro unit can be

legalized by raising the floor approximately two and a half feet so that it is equal to or above the

curb level, especially since there are already raised platforms in the unit (Tr. 1730, 2285-286).

Alternatively, relying upon the definition of “story” under the MDL, Mr. Peachy asserted

that the Schwartz/Castro unit actually comprises two stories. A “story” is defined as “a space

between the level of one finished floor and the level of the next higher finished floor,” but, “for

the purpose of measuring height by stories” in multiple dwelling buildings erected after April 18,

1929, “one additional story shall be added for each twelve feet or fraction thereof that the first

story exceeds fifteen feet in height . . . .” MDL § 4(36) (Lexis 2016). Mr. Peachy opined,

therefore, that since the height of the unit is 16 feet and six inches, it actually comprises two

stories: one 15 feet and the other one foot and a half (Tr. 1732, 1734, 1735). He acknowledged,

however, that this presents a “dilemma” because the two “stories” cannot be split (Tr. 1733), and

he conceded that the minimum height for a habitable room is eight feet (Tr. 1800).

Mr. Meltzer testified that the Schwartz/Castro unit is “clearly a basement” because the

floor of the unit is below the level of the sidewalk (Tr. 1947). Further, he found that because the

sidewalk pitches up in an easterly direction, the rooms in the eastern portion of the unit are

further below the sidewalk level than the entrance to the unit (Tr. 1951-952). He estimated that

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the unit is between four and five feet below the sidewalk level at its furthest point to the east and

approximately two and a half feet below the sidewalk level at the entrance (Tr. 1952). These

observations were made visually, and Mr. Meltzer never measured the pitch of the sidewalk (Tr.

2002). He acknowledged that his measurements were approximations but asserted that “none of

this makes any difference because it’s below the sidewalk. It doesn’t make a difference if it’s

one inch below the sidewalk, it’s a basement” (Tr. 2003).

Similarly, Mr. Meltzer concluded that the Asfour and Lasagni units are “definitely part of

a basement” because they “are on level with the [Schwartz/]Castro unit” and are below the level

of the sidewalk (Tr. 1952, 1998-999). There is a step down at the entrance to the vestibule

before entering Dr. Asfour’s unit and the entry vestibule is below the sidewalk level at both

South 6th Street and Wythe Avenue (Tr. 1956). On cross-examination, he conceded that the

Asfour and Lasagni units “are not so far below the sidewalk nearest them than the Castro unit”

(Tr. 1999). Mr. Meltzer attributed the higher floor elevation of the Asfour and Lasagni units to

their location, which he agreed was closer to the frontage on the Wythe Avenue side of the

building than to the frontage on the South 6th side of the building (Tr. 1999). He conceded that

he did not take measurements of the Asfour and Lasagni units but made his observations from

photographs (Tr. 2003). Mr. Meltzer did not testify about whether the Hughes unit was located

in a basement.

Post-Trial Arguments

In their post-trial briefs, petitioners make different arguments relating to the

Schwartz/Castro unit than to the Asfour and Lasagni units. Petitioners contend that the

Department of Buildings has determined that the Schwartz/Castro unit is on the first floor, the

unit is therefore a “non-complying first floor,” and the noncompliance can be remedied by

raising the floor level (Pet. Br. at 21-22). Thus, petitioners assert that whether the

Schwartz/Castro unit is located in a basement is not determinative of whether it should be

covered under the Loft Law, but it is instead a legalization issue (Pet. Br. at 22).

Petitioners do not address Mr. Peachy’s testimony that the Schwartz/Castro unit is

actually comprised of two stories, the second story being 18 inches in height.

Petitioners further assert that the Survey proves that the Lasagni, Asfour, and Hughes

units are approximately five inches above the mean grade curb elevation on Wythe Avenue,

which is the closest street. Based upon this method of measuring, petitioners contend that the

units are not located in a basement (Pet. Br. at 25). Petitioners assert that surveying of the floor

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elevation of the individual units in connection to the curb elevation of the nearest street, for

purposes of assessing whether a unit is in a basement, is consistent with section 12-10 of the

Zoning Resolution (Pet. Br. at 24-25). Section 12-10 provides that “[o]n through lots, the curb

level nearest to a story (or portion of a story) shall be used to determine whether such story (or

portion of a story) is a basement.”

Respondent also relies upon the Survey, but contends that it shows that the units are

below curb level and therefore located in a basement within the meaning of the MDL.

Respondent makes two distinct arguments in support. First, respondent contends that the

Schwartz/Castro, Lasagni, and Asfour units, which are located in the “One Story Brick,” are

below curb level because every point of floor elevation within the “One Story Brick” is below

the measured points of curb elevation which correspond with the perimeter of the building on

South 6th Street, the “street-facing side” of the “One Story Brick” (Resp. Br. at 7).

Second, respondent claims that, because the building is a horizontal multiple dwelling

and faces both Wythe Avenue and South 6th Street, the Schwartz/Castro, Lasagni, Asfour, and

Hughes units are all below the building’s average curb level, calculated under section 4(33) of

the MDL (Resp. Br. at 8-11). Section 4(33) states that curb level, “for the purpose of measuring

the height of any portion of a building, is the level of the curb at the center of the front of the

building; except that where a building faces more than one street, the curb level is the average of

the levels of the curbs at the center of each front.” Although the Survey does not provide curb

elevation measurements at the “center of the front of [each] building,” respondent calculates the

curb levels by averaging the curb elevations at the “corners of [the] faces” of each building

(Resp. Br. at 10). According to respondent’s calculations, which are in its brief (Resp. Br. at 10-

11), the curb elevation at the center of the South 6th Street face of the building is 37.24 feet, the

curb elevation at the center of the Wythe Avenue face of the building is 34.275 feet, and the

average of the two curb elevations is 35.7575 feet. This average measurement is above the floor

elevation of the units at “every point of measurement on the Dicce survey” (Resp. Br. at 11).

Thus, respondent asserts, the units are located in a basement.

Conclusions

Resolution of the basement issue depends upon the choice of methodology for measuring

whether a unit is below curb level. Respondent’s assertions as to methodology are contradictory.

Respondent first claims that the Schwartz/Castro, Lasagni, and Asfour units are below the curb

level on South 6th Street. This approach -- using the curb elevation on South 6th Street -- seems

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to take into account that the Schwartz/Castro unit is accessed from South 6th Street and is closest

to South 6th Street, and that the Lasagni and Asfour units are in the same “One Story Brick”

building as the Schwartz/Castro unit.

Respondent does not follow this approach regarding the Hughes unit. The Hughes unit

opens onto Wythe Avenue and is closest to Wythe Avenue. Thus, had respondent followed the

same approach that it utilized regarding the Schwartz/Castro, Lasagni, and Asfour units, it would

have compared the floor elevation of the Hughes unit to the curb elevation on Wythe Avenue.

This would have resulted in a finding that the Hughes unit is not a basement because its

measured floor elevations are above the curb levels on Wythe Avenue.

Instead, respondent puts forth a second methodology, for both the Hughes unit and the

other units. Respondent contends that the floor elevation in the Hughes unit, and indeed, in

every unit, should be compared with the average curb level of both Wythe Avenue and South 6th

Street. Respondent’s assertion that each unit should be compared to the average curb level of the

building incorporates the approach set forth in section 4(33) of the MDL, involving buildings

which face more than one street. I do not agree that this is the proper standard, for several

reasons.

First, section 4(33) defines “curb level” specifically “for the purpose of measuring the

height of any portion of a building.” The “height” of a building is defined in section 4(35) of the

MDL as “the vertical distance from the curb level to the level of the highest point of the roof

beams” (or in the case of a building with pitched roofs, the vertical distance from curb level to

the mean height level of the gable or roof above the vertical street wall). Therefore, section

4(33) applies when measuring the height of a building from curb level to the roof. Here, the

height of the building is not in issue. Section 4(33), therefore, is not relevant.

Moreover, respondent’s argument that the elevation of each unit must be compared to the

average curb level of both Wythe Avenue and South 6th Street overlooks that the determination

of whether a unit is covered under the Loft Law is an individualized assessment of whether that

unit meets the coverage criteria. See MDL § 281(5) (Lexis 2016) (“the term ‘interim multiple

dwelling’ shall include buildings . . . which were occupied for residential purposes as the

residence or home of any three or more families living independently from one another for a

period of twelve consecutive months . . . provided that the unit . . . .”) (emphasis added). Thus,

a rational interpretation of the statute and rules looks to the curb level of the street closest to the

unit in determining whether or not the particular unit is below curb level. This is particularly the

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case with the Hughes unit, which faces only Wythe Avenue and is a considerable distance from

South 6th Street. It is illogical and would frustrate the remedial purpose of the Loft Law to

exclude the Hughes unit from coverage because it is below the curb level on South 6th Street or

the average of the curb levels of Wythe Avenue and South 6th Street, when it is above the curb

level of Wythe Avenue, the street which it faces. See Ancona v. Metcalf, 120 Misc. 2d 51, 55-56

(Civ. Ct. N.Y. Co. 1983) (“The Loft Law is a remedial statute . . . . Given the choice of two

interpretations of the Loft Law, one restricting coverage and one broadening it, the remedial

nature of the legislation forcefully argues for the adoption of the latter course.”).

Comparing the floor elevation of a unit to the curb level of the street closest to it is

consistent with section 12-10 of the Zoning Resolution, which indicates that on through lots, the

curb level “nearest to a story (or portion of a story)” should be used to determine if the story or

portion of a story is a basement. Although not mandatory, because the building is not on a

through lot, section 12-10 is instructive because it specifically addresses how to determine if a

story or portion of a story is a basement, which is the issue here.

Accordingly, I make the following findings, based upon a comparison of the floor

elevations in each individual unit to the curb level of the closest street to the unit.

Schwartz/Castro unit

Mr. Peachy did not dispute that the Schwartz/Castro unit is located in a basement, as it is

almost three feet below curb level. His contention that the unit actually comprised two “stories,”

one a foot and a half tall, was not compelling, since a story, by definition, is the space between

the level of a finished floor and the level of the next higher finished floor, not how stories are

counted for the purpose of measuring height of a building. MDL § 4(36) (Lexis 2016).

Moreover, the Survey and testimony establish that the Schwartz/Castro unit is located

closest to South 6th Street and that the unit is accessed directly from that street (Peachy: Tr.

1571; Meltzer: Tr. 1950; Pet. Ex. 54; Resp. Ex. QQ). The top curb level elevation measurements

on South 6th Street which correspond to the perimeter of the unit are 36.84 feet and 37.64 feet

(Pet. Ex. 76). Every point of elevation measured within the “One Story Brick,” which includes

the Schwartz/Castro unit, is below both of those measurements. Thus, the Schwartz/Castro unit

is located in a basement, as defined in section 4(38) of the MDL.

I am sympathetic to petitioners’ argument that the unit can be legalized by raising the

floor level. I also agree with petitioners that the rationale for excluding basements under the

2010 amendments to the Loft Law, which was to ensure tenant health and safety, seem

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particularly inappropriate when applied to the Schwartz/Castro unit. For example, the New York

City Mayor’s letter in support of the 2010 amendments noted that “[t]he bill also addresses

health and safety concerns by excluding units that are located in cellars and basements . . . . The

types of units excluded pose significant safety concerns during conversion and are particularly

difficult to conform to the fire and building codes.” The Schwartz/Castro unit, however, has

three large windows which are above the curb level on South 6th Street, open directly onto South

6th Street, provide light and air to the unit, and amply satisfy the window requirement under

section 281(5) of the Loft Law (Peachy: Tr. 1571). See also Saladino, OATH 2412/13 at 3

(discussing windows in unit). The unit is also directly accessible by both a door and the

windows on South 6th Street (Peachy: Tr. 1571; Meltzer: Tr. 1950; Pet. Ex. 54; Resp. Ex. QQ).

Were this unit not excluded from coverage, there seems to be no reason why it could not be

legalized.

Yet the plain language of the Loft Law, as amended in 2010, excludes basements from

coverage. Petitioners’ argument that the Schwartz/Castro unit is not excluded from coverage

because it is a “noncomplying first floor” is not persuasive. Petitioners’ argument, which relies

upon the possibility of legalization, would effectively negate the basement exclusion under the

plain language of the Loft Law. See Doctors Council v. NYC Employees’ Retirement System, 71

N.Y.2d 669, 674-75 (1988) (“It is fundamental that a court, in interpreting a statute, should

attempt to effectuate the intent of the Legislature, and where the statutory language is clear and

unambiguous, the court should construe it so as to give effect to the plain meaning of the words

used.”) (quoting Patrolmen’s Benevolent Assn. v. City of New York, 41 N.Y.2d 205, 208 (1976)).

Accordingly, under the 2010 amendments to the Loft Law, I find that the

Schwartz/Castro unit is located in a basement and thus ineligible for coverage.

Hughes unit

The Hughes unit is accessed by Wythe Avenue, which is the nearest street to the unit

(Hughes: Tr. 205; Pet. Exs. 15a, 50t, 54). The unit is nowhere near South 6th Street, and, as

indicated on the Survey, its floor elevations are higher than the top curb level elevation

measurements on Wythe Avenue which correspond to the perimeter of the unit. The Hughes

unit, therefore, is not located within a basement.

Lasagni and Asfour units

According to Mr. Meltzer’s testimony, both the Lasagni and Asfour units are closer to

Wythe Avenue than to South 6th Street. Moreover, the Lasagni and Asfour units are accessed by

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an alleyway which opens onto Wythe Avenue (Asfour: Tr. 573-75, 582-83; Peachy: 2261-262;

Pet. Ex. 54). Thus, it is rational, for the purpose of determining whether they are below curb

level, to compare their floor elevation to the curb level on Wythe Avenue. According to the

Survey, none of the elevation measurements within the “One Story Brick,” which includes the

Lasagni and Asfour units, are below the curb level measurements on Wythe Avenue.

Accordingly, the Lasagni and Asfour units are not located in a basement.

I am aware of certain incongruities in this finding. The Lasagni and Asfour units are

located in the same “One Story Brick” as the Schwartz/Castro unit. Mr. Peachy testified that the

Lasagni, Asfour, and Schwartz/Castro units are all on the same “story.” Further, the measured

elevations of the floors of the three units range from 34.75 feet to 35.00 feet and are therefore

within a very small variance (Dicce: Tr. 2194-196; Pet. Ex. 76). Moreover, the two windows on

the east wall of the Asfour unit, which is at the back of the unit, are only a “couple [of] inches”

above the ground outside (Tr. 1112; Pet. Ex. 24). Dr. Asfour testified that he is five feet and

seven inches tall and that when he stands inside the unit the bottoms of the windows are above

his head (Tr. 1112), which suggests that the Asfour unit is at least several feet below the ground

level of the lot behind the unit.

However, for purposes of determining whether the basement exclusion for coverage

applies, the issue is whether the Lasagni and Asfour units are below curb level. The relationship

of the floor elevation within a unit to the lot outside the unit does not appear to be relevant. The

Lasagni and Asfour units, while physically located in the same “One Story Brick” as the

Schwartz/Castro unit, are, unlike the Schwartz/Castro unit, located closer to Wythe Avenue than

to South 6th Street and are accessed by Wythe Avenue. Thus, comparison of their floor

elevation to the curb level on Wythe Avenue is appropriate.

Summary

In sum, I find that, as narrowly defined by section 281(5) of the Loft Law, the

Schwarz/Castro unit is located in a basement, but the Hughes, Asfour, and Lasagni units are not

located in a basement.

Do the units have qualifying windows?

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The Loft Law also requires that for a unit to be covered it must have “at least one window

opening onto a street or a lawful yard or court as defined in the zoning resolution for such

municipality . . . .” MDL § 281(5) (Lexis 2016).

The parties dispute whether the Hughes, Asfour, and Lasagni units have qualifying

windows. Petitioners assert that the Hughes unit has three windows which qualify the unit for

coverage: one which looks onto Wythe Avenue, one in the kitchen which looks onto an outer

court, and a lot line window. Petitioners contend that a window in the Lasagni unit, which looks

onto the same outer court as the kitchen window in the Hughes unit, is a lawful qualifying

window. Petitioners also argue that a structure which existed for several months in 2013 and ran

from an opening in the wall of the Asfour unit to the window in the Lasagni unit, qualifies the

Asfour unit for coverage. Finally, petitioners assert that the Asfour unit has one and a half

lawful lot line windows. Respondent denies that the window alleged to be in the Hughes unit

which looks onto Wythe Avenue is part of the Hughes unit; asserts that the windows in the

Hughes and Lasagni units which look onto the outer court do not qualify because the court is not

a “lawful court” within the definition of the Zoning Resolution; denies that the structure built in

2013 can provide the basis for a qualifying window for the Asfour unit; and asserts that lot line

windows in the Hughes and Asfour units do not qualify for coverage.

Lot line windows in Hughes and Asfour units

Petitioners assert, based upon Matter of Doris, OATH Index Nos. 2542/14 & 2543/14

(July 10, 2015), adopted, Loft Bd. Order No. 4511 (Apr. 21, 2016), that the Hughes and Asfour

units have lot line windows which qualify the units for coverage because they look onto a

“lawful yard” on 66 South 6th Street, which is the adjacent lot. See MDL § 281(5) (Lexis 2016).

In Matter of Doris, Administrative Law Judge Casey held that section 281(5) does not

require that a qualifying window face a yard or court which is on the same zoning lot as the

IMD. Thus, he found that a lot line window qualified a unit for coverage because it faced a legal

“rear yard,” as defined by the Zoning Resolution. He concluded that if this posed a “potential

legalization issue,” it was “not a basis” for denying coverage. Id. at 8 (citing Matter of 902

Assocs., Loft Bd. Order No. 1555 (May 4, 1994), aff’d, 229 A.D.2d 351 (1st Dep’t 1996)). In

adopting Matter of Doris, the Loft Board held, based upon the plain wording of MDL § 281(5),

that a “lawful yard” need not be on the same zoning lot as the unit for which coverage is sought.

Loft Bd. Order No. 4511 at 2-3. See also Matter of Tenants of 224-228 North 7th Street, OATH

Index No. 1720/14 at 3-10 (Nov. 4, 2015) (finding the lot line windows in two units to be

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qualifying windows for purposes of coverage where they faced lawful yards, albeit on a different

zoning lot).

Respondent acknowledges that the units have lot line windows (Tr. 2392), but disputes

whether they look onto a “lawful yard.” The Zoning Resolution defines a “yard” as “that portion

of a zoning lot extending open and unobstructed from the lowest level to the sky along the entire

length of a lot line, and from the lot line for a depth or width set forth in the applicable district

yard regulations.” ZR § 12-10. Petitioners assert that under section 12-10 of the Zoning

Resolution the yard in the adjacent lot is a lawful “rear yard.” Section 12-10 of the Zoning

Resolution defines “rear yard” as “a yard extending for the full length of a rear lot line.”

According to Mr. Peachy, the windows in both units look out onto the same rear yard.

The rear yard is on an adjacent lot, containing a four-family residence with the address of 66

South 6th Street (Tr. 2372-374, 2380, 2410-412). The lot line window in the Hughes unit is

located at the back of the unit and can be opened (Tr. 2374).5 The Asfour unit contains one and a

half lot line windows, with the half lot line window being split between the Asfour and

Schwartz/Castro units (Tr. 2410-412). Although the lot line windows in the Asfour unit “are

meant to be openable” (Tr. 2411), the window that is split between the Asfour and the

Schwartz/Castro units cannot be opened because of the partition that divides it (Tr. 2411).

The yard in the adjacent lot measures 48 feet in depth (Tr. 2379; Pet. Ex. 79). There is an

eight-foot high “ramshackle, dilapidated and rickety” plywood fence in the yard which is

attached to the west side of 401 Wythe Avenue. The fence does not demarcate the property line

on the lot adjacent to the building. Rather, the fence is located approximately eight feet and six

inches north of the property line on the adjacent lot, so that it separates the lot. The lot line

windows in the Asfour and Hughes units are located on different sides of the fence, as confirmed

by a Department of Buildings tax map (Tr. 2378, 2380-381, 2408-410).

The portion of the yard that is adjacent to the Hughes lot line window is shown below.

The fence is partially visible in the bottom right corner.

5 Petitioners’ counsel sought to admit evidence as to two additional lot line windows in the Hughes unit that she

asserted would qualify for coverage. I did not permit petitioners to do so, despite Mr. Peachy testifying during the

reopened trial that the Hughes unit has additional lot line windows which abut a different adjacent lot, which on

June 21, 2010 was a vacant lot (Tr. 2387). In so doing, I noted that the reopening was limited to the lot line

windows in the Hughes and Asfour units which counsel identified in her motion to reopen (Tr. 2395).

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(Pet. Ex. 77a).

The portion of the yard that is adjacent to the Asfour lot line windows is shown in the

photograph below. It contains an above-ground pool (Tr. 2376, 2379). The photograph also

depicts the back of the residential building at 66 South 6th Street, and a concrete platform which

raises the finished concrete surface about 12 inches above the mean grade and extends from the

sides of the lot line and from the basement terrace structure of the residential building at 66

South 6th Street to the plywood fence (Tr. 2376-378).

(Pet. Ex. 77d).

Mr. Peachy testified that the rear yard depicted in the photographs is legal under section

12-10 of the Zoning Resolution (Tr. 2374, 2379-380). The residential building on the adjacent

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lot is zoned for commercial use and is in a C-4 district, such that the district yard regulations for

residential districts apply (Tr. 2379, 2380).6 The rear yard meets the depth requirements under

the applicable regulations (Tr. 2379). Mr. Peachy acknowledged that the rear yard is obstructed

by the swimming pool, the concrete platform, and the fence, but asserted that these are

permissible obstructions under the residential bulk regulations, which allow them so long as they

have a maximum height of eight feet (Tr. 2379, 2380). The plywood fence is eight feet in height,

and the yard, therefore, is “unobstructed” from the lowest level to the sky (Tr. 2379, 2380). Mr.

Peachy believed that there were no impermissible obstructions in place on June 21, 2010, the

base date of the 2010 amendments to the Loft Law (Tr. 2442-443).

Mr. Peachy acknowledged that he gave contrary testimony before the reopening,

indicating that under section 277(7) of the MDL, the lot line windows did not qualify for

coverage (Tr. 1771-774). However, he asserted that in light of Matter of Doris, he has realized

his previous testimony was “not correct,” because section 277(7) of the MDL relates to

legalization, not coverage. When questioned about legalization, he asserted that 401 Wythe

Avenue might be able to meet the light and air requirements for legalization by an easement but

acknowledged that the owner of the adjacent property was not required to provide an easement

(Tr. 2341). He also acknowledged that the owner of the adjacent property was not precluded

from erecting another building or other structure exactly to the property line (Tr. 2425).

Mr. Costa, the architect presented by respondent, differed with Mr. Peachy’s conclusions.

He stressed that a yard “cannot be defined by an adjacent property” (Tr. 2464). Rather, a yard

“can only be defined in relationship to the window and the building in which . . . the yard has to

exist” (Tr. 2464). Mr. Costa did not dispute Mr. Peachy’s testimony that the yard was the

appropriate size under the Zoning Resolution and that the obstructions were permissible.

Counsel for respondent acknowledged that the photographs in evidence accurately reflect the

“current condition of the premises” and did not contend that the premises looked differently in

the past (Tr. 2442).

Mr. Peachy’s testimony about the size of the yard and permissible obstructions

comported with relevant portions of the Zoning Resolution. See ZR § 34-11 (in a C4 district,

residential bulk regulations apply to residential buildings); ZR § 34-112 (in C4-3 district, the

bulk regulations for an R6 zoning district apply); ZR § 23-47 (in R6 zoning districts, “a rear

6 This was consistent with Mr. Meltzer’s testimony that, because the building is located in a C4-3 zoning district, the

residential bulk regulations for residential districts apply (Tr. 1963).

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yard with a depth of not less than 30 feet shall be provided at every rear lot line on any zoning

lot”); ZR § 23-44(a)(18) (accessory swimming pools may not exceed eight feet in height).7

The issue presented is whether the yard on an adjacent lot is a “lawful yard,” as required

by section 281(5) of the MDL, even though it is on another zoning lot. As discussed above, a

“lawful yard” is not required to be on the same zoning lot as the unit for which coverage is

sought. See Matter of Doris, Loft Bd. Order No. 4511 at 3. This is consistent with the plain

wording of section 281(5) of the MDL and the general proposition that coverage and legalization

are distinct issues. See Matter of Tenants of 224-228 North 7th Street, OATH 1720/14 at 9

(“legalization and coverage are to be addressed separately”); Matter of Doris, OATH 2542/14 &

2543/14 at 2-3; Matter of Gurkin, OATH Index No. 489/12 at 21 (Dec. 14, 2012), adopted, Loft

Bd. Order No. 4186 (Oct. 17, 2013); Matter of Gallagher, OATH Index Nos. 2594/11 & 2596/11

at 24 (Aug. 16, 2012) (coverage under section 281(5) was intended to be “distinct from

legalization”).

Petitioners have presented sufficient evidence that the lot line windows in the Hughes and

Asfour units open onto the “lawful yard” of an adjacent lot. This satisfies the minimum

requirements of section 281(5) of the MDL. The lot line windows, therefore, are qualifying legal

windows under the MDL.

Hughes unit: Window Opening onto Wythe Avenue

The parties dispute whether a window which looks onto Wythe Avenue is located within

the Hughes unit, such that it should count as a lawful qualifying window. The evidence shows

that Mr. Hughes and his roommates used the space directly behind this window to store their

belongings and socialize. Petitioners assert this space was part of the Hughes unit, while

respondent contends that Mr. Hughes’ use of the space was, at best, a service provided by the

prime lessee, Jeanne Costello.

Reproduced below are two diagrams of the portion of 401 Wythe Avenue that includes

the Hughes unit.

7 Section 23-44 of the Zoning Resolution, which enunciates permitted obstructions in required yards or rear yard

equivalents, provides a maximum height for fences in front yards, but does not specifically reference fences in rear

yards. ZR § 23-44(a)(9). It does indicate, however, that walls in “any yard or rear yard equivalent,” other than front

yards, are not to exceed eight feet in height. ZR § 23-44(a)(20).

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(Pet. Ex. 7) (Resp. Ex. M)

The bottom portion of each diagram shows that there are three doors (including a sliding

garage door) and one window, all facing Wythe Avenue. The door to the left is the door going

upstairs to the second floor. Next to that door is the window at issue (labeled “wind” on

Respondent’s Exhibit M). Next to the window is the sliding garage door. Next to the sliding

garage door is the door labeled as “401 lst Fl Door” on Petitioners’ Exhibit 7 (“first floor door”).

In order to access the Hughes unit, one must enter through two doors. The first door is

the first floor door (Pet. Exs. 7, 15a, 16j, 16k). That door leads into the space behind the sliding

garage door (“the garage space”). About 15 to 20 feet behind the sliding garage door is a second

door labeled on Petitioners’ Exhibit 7 as “Frank entrance” and on Respondent’s Exhibit M as

“Frank Hughes Door.” That second door opens into the kitchen in the Hughes unit (Hughes: Tr.

233-36; Pet. Ex. 16i).

The garage space is shown, in part, by the photograph below. The window at issue is not

shown, but is to the right of the sliding garage door.

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(Pet. Ex. 16h). The garage space extends further back, and is comprised of two separate areas:

the front portion of the space, closest to the street (“front portion”), and a storage space toward

the rear (“storage space”). The approximate configuration of the two areas is shown on the

above diagrams by a dotted line separating the spaces, although there is no evidence that there

was actually a physical separation of the areas (Hughes: Tr. 375; Pet. Ex. 7; Resp. Ex. M).

Mr. Hughes testified that he moved into his unit on Wythe Avenue in 2007 after learning

about the building through an ad placed by Ms. Costello on Craigslist (Tr. 158, 163, 170). As

“Jeanne Costello Designs,” an event planning business, Ms. Costello had a lease for the entire

ground floor of 401 Wythe Avenue, including the apartment space. The lease ran from January

1, 2008, through December 31, 2010, and was renewed for one year on January 1, 2011 (Pet.

Exs. 8, 9). Initially, Mr. Hughes rented directly from Ms. Costello. However, sometime in 2011,

because Ms. Costello was frequently late with her rent payments, agreements were reached

where Mr. Hughes paid his rent directly to Mr. Dahan, rather than to Ms. Costello (Tr. 388-89,

526). At this point, Mr. Hughes paid Mr. Dahan $2,500 a month (Tr. 389; Resp. Ex. K), while

Ms. Costello paid Mr. Dahan $400 a month (Tr. 389). Ms. Costello’s last rent under the lease

had been $2,900 (Tr. 389; Pet. Ex. 9). Ms. Costello testified that she was not sure precisely what

space was included in the $400 rent, because her agreement with Mr. Dahan was verbal.

However, she continued to use the storage space for her business and the front portion to access

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her business (Tr. 1838, 1844). Mr. Hughes, however, concluded that Ms. Costello was paying

for the use of both the storage space and the front portion (Tr. 389, 390).

Mr. Hughes and Ms. Costello both testified that Mr. Hughes rented the apartment space

during the window period (Hughes: Tr. 166; Costello: Tr. 1815, 1816-817). They described the

apartment space differently, however. Ms. Costello, who ran her event planning business out of

the storage space, testified that the apartment space was the space behind her “work area” (Tr.

1815). According to Ms. Costello, the apartment space contained several bedrooms, a kitchen,

and a bathroom, as outlined in purple on Respondent’s Exhibit M, reproduced above (Tr. 1822,

1834). By contrast, Mr. Hughes, when asked what the “apartment space” included, testified that

“the kitchen, the bathroom, the rooms in the back and then part of the front space I had – I could

use as well” (Tr. 166). Mr. Hughes testified that he rented out some of the rooms in the

apartment space to roommates for a “good part” of 2008 and 2009 (Tr. 274). He referred to the

first floor door on Wythe Avenue (Pet. Exs. 15a, 16j, 16k) as “my front door” (Tr. 205) or “the

front door of the apartment,” even though it opens into the front portion of the garage space (Tr.

235, 236).

Further, Mr. Hughes testified that there was a lock on the first floor door during the

window period, which could be opened from the exterior of the building using a key (Tr. 236;

Pet. Exs. 16j, 16k ). By contrast, the door to the apartment space could be locked only from

inside the apartment space (Tr. 261-62, 371-72). Mr. Hughes’ testimony was contradicted,

however, by Ms. Costello, who testified that the apartment space had a separate lock and key,

and that she had a key to the apartment so she could use the bathroom inside the space (Tr. 1849,

1850).

The credible evidence established that Mr. Hughes and his roommates never rented or

used the storage space in the rear of the garage space. The storage space was used exclusively

by Ms. Costello for her event planning business. Ms. Costello would do sewing and make signs

there and she would also store certain items (Hughes: Tr. 163-64, 168, 169, 250).8

By contrast, Mr. Hughes and his roommates used the front portion of the garage space a

great deal. When Mr. Hughes moved into his unit in 2007, he began to use the front portion to

store his personal belongings such as bicycles, musical instruments, sound equipment, and

clothes. He continued to use the front portion in this way during the window period (Hughes: Tr.

8 According to Mr. Hughes, Mr. Dahan began to store a car in the storage space beginning in spring or summer of

2013 (Tr. 169).

- 29 -

167, 206-08, 230, 244, 251, 351-52; Ziegler: Tr. 806; Saladino: Tr. 1466-467; Pet. Exs. 15c, 16q,

16r). He also played his saxophone in the front portion, and his roommates held band practice

there (Hughes: Tr. 164, 167-68, 251, 381-82, 383-84; Ziegler: Tr. 805-06, 808; Saladino: Tr.

1466-467). After the window period, Mr. Hughes continued to use the front portion for storage

and to play his saxophone, and he also installed a sauna and a ping pong table (Hughes: Tr. 164,

167, 379, 382). At no point did Mr. Hughes and his roommates ask Ms. Costello for permission

to use the front portion (Hughes: Tr. 390). Ms. Costello confirmed that Mr. Hughes and his

roommates used the front space as a “catch-all place,” including for hanging out, playing ping

pong, and for storage (Tr. 1846, 1856-857).

Respondent asserts that Ms. Costello used the whole garage space exclusively for

commercial purposes (Resp. Br. at 22). That assertion is not supported by the record, which

shows that Mr. Hughes and his roommates used the front portion of the garage space for storage

and for recreation. However, I do not agree with petitioners that the space was part of Mr.

Hughes’ unit. Mr. Hughes and his roommates did not have exclusive use of the front portion of

the garage space. Both Ms. Costello and Mr. Dahan had a key to the first floor door on Wythe

Avenue (Hughes: Tr. 336-37). Ms. Costello used the front portion to access the storage space

directly behind it (Tr. 163-64, 168, 169, 250), and to store certain items, such as ladders

(Hughes: Tr. 211, 221-22, 244, 378) and her bicycle (Costello: Tr. 1845, 1852). Ms. Costello

did not ask permission of Mr. Hughes before she walked through the front portion (Hughes: Tr.

379). Although Ms. Costello characterized the front portion as a “common area” for the use of

“whoever rented the larger space” (Tr. 1846), she indicated that she shared it with the renters (Tr.

1857). Additionally, the front portion had electrical meters (Tr. 392), and Mr. Ziegler testified

that he had a key to the first floor door and let Con Edison employees into the front portion to

read the meters (Tr. 686, 689).

Moreover, Mr. Hughes’ testimony that his “apartment space” included various rooms and

the “use” of “part of the front space” is consistent with respondent’s assertion that Ms. Costello

rented only the apartment space to Mr. Hughes, and that Mr. Hughes’ use of the front portion of

the garage space was, at best, akin to a “required service” (Resp. Br. at 23). A “service” claim of

this type is not properly heard in a coverage case. See Matter of Gallo, OATH Index No.

2401/13 at 25 (Oct. 10, 2014) (finding that petitioners’ claim that use of the basement for storage

was a base date service “is not properly before this tribunal as part of their coverage

application”), adopted, Loft Bd. Order No. 4349 at 5 (Jan. 15, 2015) (“Judge Gloade correctly

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found that a claim pursuant to 29 RCNY § 2-04(c) was not properly before the Loft Board.”),

reconsideration denied, Loft Bd. Order No. 4426 (Sept. 17, 2015).

I am cognizant that in order to access his unit, Mr. Hughes must enter through the first

floor door on Wythe Avenue and walk through the front portion of the garage space. It is also

unclear what type of lock existed on the door to the apartment space during the window period.

However, because Mr. Hughes did not have exclusive use of the front portion, I find that the

front portion of the garage space is in the nature of a common lobby. It is not a vestibule or

hallway which is part of the Hughes unit. Cf. Matter of Schuss, OATH Index No. 2066/12 at 11

(Mar. 25, 2013), adopted in part, rejected in part, Loft Bd. Order No. 4393 (May 21, 2015)

(where a tenant leased the ground floor and installed a private front entrance hallway into his

unit, the private hallway was “part of” his unit, and a transom window within the hallway was a

qualifying window for purposes of Loft Law coverage).

In sum, I find that the window looking onto Wythe Avenue, which is contained in the

front portion of the garage space, is not part of Mr. Hughes’ unit and thus, is not a lawful

qualifying window within the meaning of the Loft Law.

Hughes and Lasagni windows facing the alleyway

Both the Hughes and Lasagni units have windows which look out onto what the parties

describe as an alleyway. The alleyway is “L” shaped. The longer portion of the “L” leads from

the gate labeled “397” (which opens onto Wythe Avenue) to the exterior wall of the Lasagni

unit, where a window is located (Pet. Exs. 24a, 24c). That window in the Lasagni unit looks

down the alleyway, towards the gate (Pet. Ex. 24c). The gate is tall, appearing to be the height of

a person (Pet. Ex. 24a). The shorter portion of the “L” extends towards the south and ends at a

section of the exterior wall of the Hughes unit, where there is another window (Peachy: Tr. 1957-

958; Asfour: Tr. 573-74; Resp. Ex. RR). That window is located in the kitchen of the Hughes

unit (Tr. 227, 1957-958; Pet. Exs. 16c, 16d; Resp. Ex. RR).

Except for the gate on Wythe Avenue, the alleyway is surrounded by an exterior wall of a

garage which is part of the building, the exterior wall of a corner lot which is located on a

separate block and lot, and a section of the exterior wall of the Hughes and Lasagni units (Pet.

Exs. 24b, 24c). Mr. Peachy characterized the longer portion of the alleyway, leading to Wythe

Avenue, as a “dogleg” (Tr. 1576). The photographic evidence shows that this longer portion is

open to the sky (Pet. Ex. 24c). The shorter portion of the alleyway is unobstructed except for the

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platform to the fire escape stairs leading to the Saladino unit, which Mr. Peachy indicated is a

permissible obstruction under the Zoning Resolution (Tr. 2304, 2295-96).9

Below is an image of the alleyway.

(Pet. Ex. 54).

At issue is whether the alleyway is “a lawful yard or court as defined in the zoning

resolution for such municipality.” MDL § 281(5) (Lexis 2016). Petitioners argue that the

alleyway is an “outer court” under the Zoning Resolution (Pet. Br. at 17-18; Peachy: Tr. 1727,

1783-784, 2232). Section 12-10 of the Zoning Resolution defines a “court” as “either an inner

court or an outer court.” It defines an “outer court” as:

any open area, other than a yard or portion thereof, which is

unobstructed from its lowest level to the sky and which, except for

one opening upon:

(a) a front lot line;

9 Although not cited by either party, the residential bulk regulations list fire escapes as a permissible obstruction in

outer courts, without size limitation. See ZR § 23-87(f) (“permitted obstructions in courts”).

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(b) a front yard;

(c) a rear yard; or

(d) any open area along a rear lot line, or along a side lot line

having a width or depth of at least 30 feet, and which open area

extends along the entire length of such rear or side lot line; and

is bounded by either building walls, or building walls and one or

more lot lines other than a front lot line.

Respondent contends that the alleyway does not satisfy the definition of an outer court

because it is undersized. However, the requirement in section 12-10 of the Zoning Resolution

that an outer court have a “width or depth of at least 30 feet” applies only to an outer court with

an opening upon “a side lot line.” This is not the case here. Mr. Meltzer testified that the

alleyway “is bounded by building walls and/or lot lines on all sides except for the opening on the

front lot line facing Wythe Avenue” (Resp. Br. at 14). Thus, section 12-10(a), describing an

“open area” with an opening upon a “front lot line,” is applicable, and it does not contain any

size requirement.

Respondent also asserts that the alleyway must meet the size requirements set forth in the

residential bulk regulations (Resp. Br. at 15-17). According to Mr. Meltzer, under the residential

bulk regulations, a court is required to be at least 30 feet deep and have a minimum area of 1,200

square feet (Tr. 1963). Mr. Peachy acknowledged that an outer court in a newly constructed

building must be 1,200 square feet and must have one dimension of at least 30 feet (Tr. 2234),

but testified that in an existing building, a courtyard may be legalized if it is 375 square feet or

more in area (Tr. 2301).

Although neither party cited that portion of the residential bulk regulations requiring a

minimum size of 1,200 square feet for outer courts,10

Mr. Peachy cited section 15-026(c)(2) of

the Zoning Resolution (Tr. 2300), appearing to mean section 15-024(c)(2). Section 15-024(c)

establishes “special bulk regulations for certain pre-existing dwelling units, joint living-work

quarters for artists and loft dwellings,” and specifically provides, for a unit that is found by the

Loft Board to be a covered IMD, that the unit shall contain one or more windows that “open onto

10

A review of the residential bulk regulations showed that the reference to 1,200 square feet as a minimum size

pertained to inner courts. See ZR § 23-851(b) (“[i]n the districts indicated, the area of an inner court shall not be

less than 1,200 square feet . . .”).

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. . . a court with a minimum dimension of 15 feet perpendicular to such required window and 375

square feet or more in area.” ZR § 15-024(c)(2)(i)(c). Mr. Peachy acknowledged that the square

footage of the alleyway here is lower, approximately 345 square feet in total (Tr. 2234). Mr.

Meltzer calculated the square footage of the space at approximately 216 square feet (Tr. 1994).

Respondent further claims that the residential bulk regulations require, for any outer court

that is less than 30 feet wide, that the width of the outer court must be at least one and one-third

the depth of the court (Resp. Br. at 16). Respondent contends that the purported outer court did

not meet this requirement, because the “dogleg” is not really part of the court (but is an “outer

court recess”),11

making the width of the alleyway “significantly less” than one and one-third of

its depth (Resp. Br. at 17, 14-17).

Section 15-024(c) appears to be the applicable standard for determining whether the

alleyway in question complies with the bulk regulations. However, whether or not the alleyway

meets the bulk regulations, or is otherwise permissible as a “noncomplying outer court” (Tr.

2234), as Mr. Peachy testified, is a question for legalization, not coverage. As noted above,

coverage and legalization are distinct issues. The coverage issue is circumscribed by section

281(5) of the MDL: whether the units have windows “opening onto” a “lawful yard or court as

defined in the zoning resolution.” There is no statutory basis for going beyond section 12-10 of

the Zoning Resolution, which defines “court” and “outer court,” and does not impose a size

requirement upon outer courts with an opening upon a front lot line. Neither does section 12-10

reference, in any manner, bulk regulations, whether residential or special bulk regulations for loft

dwellings. The fact that there may be legalization issues involving purported “courts” does not

pose a bar to coverage, if the requirements of section 12-10 are otherwise satisfied. See Matter

of Doris, OATH 2542/14 & 2543/14 at 8-9, adopted, Loft Bd. Order No. 4511 (Apr. 29, 2015);

see also Matter of Schuss, OATH Index No. 2066/12 at 11 (Mar. 25, 2013), adopted in relevant

part, rejected in part, Loft Bd. Order No. 4393 (May 21, 2015) (the Loft Law, unlike the

Building Code, does not impose minimum light requirements for windows, and concerns

regarding the adequacy of windows are legalization rather than coverage issues).

Accordingly, I find that the windows in the Hughes and Lasagni units open onto a

“lawful court,” as required by the MDL.

11

This differed from Mr. Meltzer’s testimony that the “dogleg” is not part of the court because it is a “side yard”

(Tr. 1995).

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Although not necessary for this finding, I reject petitioners’ alternate argument that the

window in the Lasagni unit looks onto Wythe Avenue (Pet. Br. at 14). The issue is what the

Lasagni window “opens onto.” The Lasagni window opens onto a court, not a street. The street

is approximately 30 feet away. Moreover, the view from the window to the street has been

largely obstructed, since 2009, by a solid metal gate (Tr. 1454-455; Pet. Exs. 24c, 50n, 51d).

The photograph below shows the gate.

(Pet. Ex. 24c).

I am aware that the Loft Board has construed the phrase, “opening onto” as “providing a

view of a particular area, or ‘facing.’” Matter of Schuss, Loft Bd. Order No. 4393 at 3 (May 21,

2015). The issue in Matter of Schuss, however, was whether an inoperable window “opened

onto” a street because it directly faced the street. This is not the case here. The window in the

Lasagni unit does not directly face a street. Even considering that the Loft Law is to be

“liberally construed in favor of coverage,” Matter of Gurkin, OATH 489/12 at 21, adopted, Loft

Bd. Order No. 4186, it would stretch the meaning of “opening onto” beyond a reasonable

interpretation to conclude that the window in the Lasagni unit opens onto Wythe Avenue because

the space above the gate on Wythe Avenue, some 30 feet away, appears to be visible from that

window. I find, therefore, that the Lasagni unit does not have a window “opening onto” a street,

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within the meaning of section 281(5) of the Loft Law, although it does have a window “opening

onto” a “lawful court.”

“Clerestory” in Asfour unit

Petitioners contend that a structure which Dr. Asfour built in his unit in July 2013 and

connected to the window in the Lasagni unit, created a legal window which qualifies his unit for

coverage under section 281(5), even though the structure no longer exists (Pet. Br. at 18-21). I

disagree.

In July 2013, at the “recommendation” of Mr. Peachy, who told Dr. Asfour that he

“needed a window facing the street” and one which would provide “cross-ventilation,” Dr.

Asfour made a hole in his wall and created a tunnel to a window in the Lasagni unit (Tr. 579-80,

601, 1113-114, 1135). Dr. Asfour explained he created an opening in the west-facing wall of his

unit and built a “boxed-in” platform extending to the upper half of the window in the Lasagni

unit which opens to the alleyway (Tr. 579-84, 602-03; Pet. Exs. 25b, 25c, 25d). Mr. Peachy

described this structure, which he termed a “clerestory,” as “like a tunnel that goes from the

[Asfour] apartment to the legal window” in the Lasagni unit (Tr. 1584).12

He further explained

that a “clerestory” is a “type of window” that is located in the “upper portion of the wall” (Tr.

1585). He testified that the window in the Lasagni unit is approximately 80 years old and existed

during the window period (Tr. 1579). Dr. Asfour testified that before he constructed the

“clerestory,” he asked the tenants living in the Lasagni unit for “consent” and “after a few

conversations” they agreed (Tr. 605-06, 609-10). However, Dr. Asfour never discussed the

structure with Mr. Dahan before it was built (Tr. 1135).

The owner removed the construction by taking down the platform and patching up the

opening on the Lasagni unit side with cement and plywood (Tr. 585-86, 601, 604-05; Pet. Ex.

25a). Dr. Asfour acknowledged receiving a letter dated August 22, 2013, signed by Mr. Dahan,

on behalf of Dasa Realty Corp., charging him $670.00 for the cost of removing the structure.

Further, he testified that removal of the “clerestory” by the owner occurred before the date of the

letter (Tr. 619-21; Pet. Ex. 26a). He also received letters from the landlord dated August 28,

2013, and September 3, 2013,13

which threatened legal action if he did not pay for the cost of

12

The Merriam-Webster dictionary defines “clerestory” as “an outside wall of a room or building that rises above an

adjoining roof and contains windows.” See http://www.merriam-webster.com/dictionary (last visited May 5, 2016). 13

The September 3, 2013 letter is addressed to “Julien Asfour” and provides in part that “[y]ou have not paid a debt

owed to Dasa Realty Corp. which you incurred on October 03, 2013” (Pet. Ex. 26c). This letter predates the alleged

date of the incurred cost by the owner and Dr. Asfour testified that there were “some typos at some point” in the

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removal (Tr. 610-11; Pet. Exs. 26b, 26c). Dr. Asfour later closed his side of the opening to

create sound insulation after neighbors complained about noise (Tr. 586, 604).

Petitioners argue that the window in the Lasagni unit is a “legal window” and existed

during the window period and on the effective date of the Loft Law (Pet. Br. at 20). Moreover,

although petitioners acknowledge that the “clerestory” did not exist during the window period or

on the effective date of the Loft Law, they assert that neither the Loft Law nor the Loft Board

Rules require that the structure have existed on those dates to qualify the Asfour unit for

coverage (Pet. Br. at 20). Respondent maintains that the “clerestory” does not count as a legal

window because it did not exist during the window period and on the effective date of the Loft

Law, currently does not exist, was built without the permission of the owner, and was never part

of Dr. Asfour’s unit (Resp. Br. at 20, 25-29).

Respondent’s position is persuasive. First, although the window in the Lasagni unit,

which I have found lawful, existed on the effective date of the Loft Law, the window in the

Lasagni unit cannot serve as a qualifying window for Dr. Asfour’s unit. See MDL § 281(5)

(Lexis 2016) (an IMD to include “portions” of buildings, “provided that the unit . . . has at least

one window opening onto a street or a lawful yard or court . . .”) (emphasis added).

To the extent that petitioners suggest that the “clerestory” itself is a qualifying window, I

disagree. The structure no longer exists. Even when it existed, it was not a window. Rather, it

was a tunnel-like structure leading to a portion of the window in the Lasagni unit. Moreover,

the tunnel was not part of the Asfour unit, apart from the opening in the wall of the Asfour unit

leading to the tunnel. The remainder of the structure was in the Lasagni unit. The fact that the

tenants in the Lasagni unit may have given Dr. Asfour permission to build a tunnel-like structure

to their window does not mean that the tunnel or the window in the Lasagni unit somehow

became part of the Asfour unit.

Additionally, Dr. Asfour never asked permission of the owner to build the structure.

There is no evidence from which to infer that Dr. Asfour had the right to create a hole in his wall

to another tenant’s unit and build a structure in the other unit. Nor is it rational to conclude that

the Legislature intended to permit a tenant to resort to self-help and cut a hole through a wall into

a neighbor’s unit, without permission of the owner, in an attempt to satisfy the window

requirement of the Loft Law.

letters which possibly “had to do with the dates” (Tr. 620). It is therefore unclear from the record as to exactly when

the owner removed the “clerestory,” but at most the “clerestory” existed from July 2013 to October 2013.

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Accordingly, I find that the structure, referred to as a “clerestory,” which no longer exists,

did not create a lawful window in the Asfour unit.14

Size of Ziegler unit

Respondent argues that the Ziegler unit is not eligible for coverage because it is

partitioned into two separate units, neither of which satisfies the Loft Law size requirement

(Resp. Br. at 30-32). A unit qualifies for coverage under the Loft Law only if it is “at least four

hundred square feet in area.” MDL § 281(5) (Lexis 2016).

Noam Elia, an assistant to the owner since 2011 and a previous tenant at the building (Tr.

2012-13), testified that he has been in the Ziegler unit “several times,” including in 2004, 2005,

2006, 2010, 2011, 2012, and through the present (Tr. 2031-33). However, Mr. Elia

acknowledged that he did not live in or visit New York from 2007 to 2009 (Tr. 2051-52). He

testified that in 2004, for the first time, he saw that the Ziegler unit was divided into two spaces,

and that in 2010, it was also configured that way (Tr. 2068). At the entrance of the unit there

was a platform that was approximately six feet by six feet and two separate doors, one to the left

and one to the right with locks (Tr. 2033). Although Mr. Elia indicated that he only accessed the

door to the left, he testified that from 2010 until Mr. Ziegler vacated the unit there were “always

subtenants living” in the space behind the right door (Tr. 2033, 2036-37). He was able to

observe the right side of the unit because the door was sometimes open (Tr. 2037). According to

Mr. Elia, the space was approximately 150 to 200 square feet and had a shower, table, and lofted

bed (Tr. 2037-38).

Yosef Rapoport testified that he has done maintenance, construction, and renovation

work for the owner since 2006 (Tr. 2105-106). At the end of 2008, he did maintenance work at

the building and was in the Ziegler unit at least three times (Tr. 2106). When he opened the door

to the unit there was “a small vestibule with a door on the right and a door on the left” and there

were locks on both of the doors (Tr. 2107). According to Mr. Rapoport, when he opened the

door on the right there was a window straight ahead and near the window was “another tiny

room” (Tr. 2107-108). There was also a “hot water heater right in back of the door and a shower

right in back” (Tr. 2108). The “front room” was around seven feet by thirteen feet and the

14

Because I have found that the “clerestory” itself is not a qualifying window, I need not address petitioners’

argument that the Loft Law and applicable Loft Board Rule (29 RCNY § 2-08(a)(4)(G)(iii)(C)) do not provide a

time frame for when a legal window must exist.

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“small room” on the right side was approximately six feet by ten feet (Tr. 2108). Mr. Ziegler

would answer when Mr. Rapoport knocked on the door to the left side (Tr. 2109). Someone

other than Mr. Ziegler would answer whenever he knocked on the door to the right side (Tr.

2109).

According to Mr. Ziegler, his unit, including the bathroom, was approximately 800

square feet (Tr. 827). The unit was “one big place with a small bedroom off to the side.” Mr.

Ziegler always slept in the “big space” (Tr. 831). He testified that from 2003 to 2007 he “had

one or two roommates that used to come into [his] place and be in [his] space” and that they had

a “separate room” (Tr. 828). This was an “occasional thing” as one person “lived there for a

couple of months and then another guy” but having roommates in his unit never worked out (Tr.

828). In September 2007, as discussed below at page 54-55, Mr. Ziegler’s stepchildren came

from Ecuador to live with him. They stayed until about August 2008, before moving to a nearby

apartment (which Mr. Ziegler moved to in May of 2013). While the children lived with him, his

stepdaughter stayed in the “second bedroom in [the] front” of his unit (Tr. 830-31, 1258, 1265-

267; Pet. Ex. 38d). Mr. Ziegler testified that because his rent and electric bills kept increasing,

sometime in 2009 or 2010 he decided to separate the apartment and “make two rooms out of

[the] place and rent one to somebody else to offset the expenses” (Tr. 679, 735-36, 827-28).

Until he moved out in 2013, different tenants rented the smaller space Mr. Ziegler made for

living purposes and as storage (Tr. 681, 726-29).

Mr. Saladino testified that he frequently visited the Ziegler unit during 2008 and 2009

(Tr. 1479, 2128, 2131, 2140). According to Mr. Saladino, Mr. Ziegler’s wife and stepchildren

lived in the unit from the early part of 2008 until the end of 2008 or middle of 2009; the

stepchildren lived in the “little bedroom” which is now in the “cut-off zone” (Tr. 1479-480,

2134). At that point, Mr. Ziegler’s space consisted of a “big room” and also a “nice sized room”

at the front of the space with a lofted bed (Tr. 1506-509). In 2009 or early 2010, Mr. Ziegler

created the vestibule at the entrance with two doors in order to partition off a portion of his unit

(Tr. 1480-481, 1527-528, 2132-135). Mr. Ziegler “divided things up” because “he wanted to

rent the room out” in order to make money (Tr. 1538, 2132, 2139). Mr. Saladino testified that

Mr. Ziegler never had subtenants before the partition was built. If Mr. Ziegler had rented out the

“tiny baby room,” Mr. Saladino would have known because he would have seen the tenants in

the common spaces (Tr. 1528, 2139-140). Mr. Saladino concluded that Mr. Ziegler was

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“probably just confused about when exactly things were up and running in terms of that” (Tr.

2140). He agreed with Mr. Rapoport’s testimony as to the size of the new space (Tr. 2134).

Considering Mr. Ziegler and Mr. Saladino’s testimony, which was credible as to the

configuration of the Ziegler unit, I find that the unit was not separated until sometime after Mr.

Ziegler’s stepchildren moved out in about August 2008. I therefore do not credit Mr. Elia’s

testimony that the Ziegler unit was already divided into two spaces in 2004. I do not believe Mr.

Elia’s recollection of dates to be precise, especially considering that he did not visit the building

during the window period (Tr. 2051-52).

Although I find that Mr. Ziegler separated his unit into two spaces after his stepchildren

moved out in approximately August 2008, petitioners did not establish whether this occurred at

the end of 2008, which would be consistent with Mr. Rapoport’s testimony, or whether it was in

2009 or 2010, as Mr. Ziegler and Mr. Saladino testified. However, the size of the space that was

portioned off was between 150 to 200 square feet (Pet. Reply Br. at 9; Resp. Br. at 30).

According to Mr. Ziegler’s unrebutted testimony, the size of the unit is approximately 800 square

feet in total. Thus, the larger portion of Mr. Ziegler’s divided unit, which he continued to

occupy, is approximately 550 to 600 square feet, in compliance with the Loft Law’s size

requirement.15

Saladino roof

Petitioners seek a finding that the roof area adjacent to the fire escape entrance to the

Saladino unit (“the roof area”) is either part of the unit or is an amenity which was in use on the

effective date of the Loft Law, entitling Mr. Saladino to continued use of that space (Pet. Br. at

25, 28). Respondent disputes that the roof area is part of the Saladino unit. Further, respondent

asserts that a required service claim may not be considered in a coverage proceeding (Resp. Br.

at 24-25).

15

The parties did not brief whether the unit should be covered as one unit or two units. It is fair to conclude,

however, that although petitioners established that the unit was residentially occupied during the window period (as

discussed below at pages 53-60), petitioners did not establish that the entire unit was residentially occupied as one

unit during the window period and on the effective date of the 2010 amendments. See Matter of Gallo, Loft Bd.

Order No. 4349 at 2-3 (Jan. 23, 2015) (finding that a covered unit was residentially occupied during the window

period and on the effective date of the 2010 amendments as two separate units).

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Reproduced below is a photograph of the steps leading up to the exterior fire escape door

on the side of Mr. Saladino’s unit, a small patio-type area outside the door, which Mr. Saladino

termed the “fire escape structure” (Tr. 1451), and a portion of the roof area.

(Pet. Ex. 50k).

As seen in the photograph, the roof area is slightly below the fire escape structure. The

fire escape stairs lead up from the alleyway, discussed above at 30, and end at a door (“the fire

escape door”) used by Mr. Saladino to enter his unit. The Saladino unit can also be accessed

through the building’s front door on Wythe Avenue, which leads to steps going upstairs (Tr.

1465, 1529; Pet. Exs. 50s, 50t).

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The below photograph fully depicts the disputed roof area, designated by a hand-drawn

perimeter.16

The fire escape door is visible, located directly under the awning.

(Pet. Ex. 50f).

The roof area includes a portion of the roof above Dr. Asfour’s unit (Tr. 565). Indeed,

immediately next to the roof area is the skylight in Dr. Asfour’s unit (Tr. 1443).

Mr. Saladino acknowledged that he has never paid rent for use of the roof area (Tr. 1616-

617). Mr. Saladino’s lease, commencing on October 1, 2008, and ending on September 30,

2009, for the “Second Floor Rear Loft,” makes no mention of the roof area (Pet. Ex. 46). Mr.

Saladino testified, however, that he has had “constant, ongoing usage” of the roof area outside

the fire escape door since he moved into the building (Tr. 1408). When Mr. Saladino first moved

16

It is unclear who drew the square, but the photograph was admitted during the direct examination of Mr. Saladino

and the parties did not contest that the area within the square represented the disputed roof area (see Tr. 1443). Mr.

Saladino acknowledged drawing the circle on the photograph, which he testified represents the door to Mr. Dahan’s

office (Tr. 1444-445). Mr. Saladino represented that Mr. Dahan could see the deck from his office (Tr. 1451), which

Mr. Elia disputed (Tr. 2027-28).

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in, he hosted music shows and had parties; he admitted that there were “really loud, obnoxious,

[and] distracting things” going on during that time (Tr. 1400-01, 1614, 1640). Respondent

submitted a letter dated June 27, 2005, addressed to Mr. Saladino, from the owner’s general

manager which, among other things, stated: “[y]ou are not permitted to have any parties

whatsoever on the roof of the building since this is a violation not only of the terms of the Lease

but the New York City code . . .” and “[t]he roof is not part of the Lease and you cannot use it”

(Resp. Ex. FF).

Mr. Saladino recalled receiving a letter of this nature (Tr. 1615), and testified that he

understood it to mean that he could not have parties on the roof on top of his unit (Tr. 1636). He

did not understand it as prohibiting him from using the roof outside his fire escape door (Tr.

1636). He testified that over the years when people collected on the roof on top of his unit, Mr.

Dahan would come over and tell them to get down (Tr. 1615). Indeed, from the time he moved

in he understood the owner’s policy as to the use of the roof on his unit to be “to stay off” and

“don’t let people go up there” (Tr. 1635). He believed Mr. Dahan was concerned because, until

recently, there was no building on the adjacent lot, so it was “just a big pit” (Tr. 1450).

However, Mr. Saladino did not recall receiving any written notices from Mr. Dahan about his use

of the roof after 2005 (Tr. 1637).

Moreover, Mr. Saladino asserted that he was “not actively” told he could not use the roof

area -- the roof in front of the fire escape door (Tr. 1615). On cross-examination, however, he

acknowledged that Mr. Dahan’s position might have changed over the years, “when it’s

convenient” (Tr. 1616). Mr. Saladino testified that Mr. Dahan had asked him at times not to use

the roof, although it was unclear whether Mr. Saladino was referring to the roof on top of his unit

or the roof in front of the fire escape door (Tr. 1617). Mr. Saladino stressed that he used the roof

in front of the fire escape door daily during the summers of 2009 and 2010, to sit or meet with

friends (Tr. 1637).

Dr. Asfour recalled that when he moved into the building in 2007 there were items such

as a cooler, folding chairs, potted plants, plastic sheets, tools, and plywood on the roof of his unit

(which is the same as the roof area in dispute) (Tr. 537, 566, 1137-139). Mr. Saladino and his

roommates would also walk across the roof area to enter and leave the Saladino unit and many of

the tenants in the building and friends of Mr. Saladino socialized on the roof area (Asfour: Tr.

565-66). This created noise and leaks in Dr. Asfour’s unit, and both Dr. Asfour and Mr.

Saladino recalled having several discussions about this issue (Asfour: Tr. 562, 564-66, 1136-137,

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1140-141; Saladino: Tr. 1408). His testimony was corroborated by Corinne or “Coco” Dolle,

who has a child with Dr. Asfour and testified that she lived with him at Wythe Avenue from

2009 to 2012, and spent time with him there beginning in about 2007 (Tr. 275-77). Ms. Dolle

recalled “a lot of disputes” about the roof area, due to heavy usage by Mr. Saladino and his

roommates, as well as other people who socialized on the roof (Tr. 286).

Dr. Asfour and Mr. Saladino eventually discussed building a roof deck so nobody would

have to walk directly on the roof area surface and so there would be an outdoor sitting area for

people to use “commonly” (Asfour: Tr. 566, 1145-146; Saladino: Tr. 1408). They also decided

to share the costs, labor, and use of the deck (Asfour: Tr. 566). Dr. Asfour testified that they had

Mr. Dahan’s permission to build the deck but he could not recall whether he was present for that

discussion or if only Mr. Saladino spoke to Mr. Dahan (Tr. 566-67, 1146-149, 1172).

In 2009, Dr. Asfour and Mr. Saladino, along with help from Mr. Saladino’s friends,

began to build the deck (Asfour: Tr. 567, 1151; Saladino: Tr. 1409). They constructed a wooden

platform that year and completed the deck construction in May 2010 (Saladino: Tr. 1409, 1420,

1643). When it was finished the deck had a wooden surface which was 18 feet wide by 24 feet

long, covered a little more than one-third of the Asfour unit’s roof, and had fences along the

sides which were approximately four to five feet high (Asfour: Tr. 622-23, 1153-56; Saladino:

Tr. 1419; Pet. Exs. 47a-47c).

Several of petitioners’ witnesses described the roof area as a common space and testified

that they spent time on it, including during the window period. Dr. Asfour testified that the roof

area was a “common area” and that he would spend time there sitting in the sun about once or

twice a month (Tr. 562, 565-66, 1141-142). According to Ms. Dolle, the roof area was a

“common space” that “everybody was using” (Tr. 286). Tenants socialized there in the summer,

in addition to Mr. Saladino and his roommates using the roof area to access their unit (Tr. 286,

302). There were chairs on the roof area and they sometimes had barbeques (Tr. 298, 302).

Similarly, Mr. Ziegler testified that the roof area was a “common space for pretty much

everybody” who lived in the building (Tr. 684). He recalled seeing Dr. Asfour, Mr. Lasagni, Mr.

Saladino, and other tenants on the roof area (Tr. 684). In particular, he remembered sitting on

the roof area with his wife and stepchildren and barbequing almost daily during the summer of

2008 (Tr. 867). Ms. Schwartz testified that she was on the roof area approximately 15 times a

summer during 2008, 2009, and 2010. She went largely at the invitation of Dr. Asfour, but also

used the roof area to access her own roof (Tr. 1934-935). Further, Mr. Saladino indicated that

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besides the people who lived in the building, the owner and people who managed the building

had access to the roof area because they had a key to the alleyway gate (Tr. 1449-50).

The testimony of petitioners’ witnesses reveals that Mr. Saladino did not have exclusive

use of the roof area during the window period or on the effective date of the Loft Law. Mr.

Ziegler recalled sitting on the roof area during 2008, along with other tenants. Dr. Asfour and

Mr. Saladino decided jointly to build a deck during that time. Dr. Asfour testified credibly that

they agreed to share the use of the deck and told the other tenants they could use the deck as long

as they were mindful of noise and the time (Tr. 566-67, 1146). He specifically recalled telling

Ms. Schwartz and Mr. Castro that they could use the deck (Tr. 567). Ms. Dolle, similarly,

testified that there was a kiddy pool on the deck for her daughter, who was born in May 2010,

and “we had umbrellas and we had a bunch of plants, and we were growing tomatoes and herbs”

(Tr. 287). They also had small parties and barbeques on the deck (Tr. 288). Ms. Schwartz

corroborated Dr. Asfour’s testimony that the deck was intended as a “common space” by

testifying that she was invited by Dr. Asfour to use the roof when “they were making it more

beautiful” and was there “many times” during 2010 (Tr. 1935).

According to petitioners, Mr. Dahan would come up onto the roof on his own initiative,

without permission from Mr. Saladino (Saladino: Tr. 1449), and he was on the deck during 2009

and 2010 (Asfour: Tr. 1175-76, 1195; Saladino: Tr. 1633-634; see also Dolle: Tr. 296-97, 307).

Mr. Saladino testified that he was on the roof with Mr. Dahan three or four times during 2009

and three to five times during 2010 (Tr. 1633-634). In 2009, when Mr. Dahan visited, the state

of the deck construction was “modest,” with some surface boards installed (Tr. 1641-642). Mr.

Saladino acknowledged that the construction was “in constant flux,” because he had stacks of

lumber in the alley which he would bring up to the roof in stages, so sometimes the roof looked

“like an install” and other times it looked “like stacks of materials” (Tr. 1653). Although he did

not know what Mr. Dahan saw in 2009, by May 2010 the decking looked “really good” (Tr.

1643). At no time, either in 2009 or 2010, did Mr. Dahan ask Mr. Saladino to remove the

decking materials or the finished deck. Nor did Mr. Dahan tell Mr. Saladino to stop using the

roof area (Tr. 1633-634, 1639-640). According to Mr. Saladino it was not until after he filed the

coverage application with the Loft Board that Mr. Dahan told him that he was not permitted to

use the roof (Tr. 1637). Mr. Saladino testified that after he filed his coverage application, Mr.

Dahan said, “you fucked with us and now we’re gonna fuck with you” (Tr. 1409).

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By a written notice dated April 4, 2013, Mr. Dahan warned Mr. Saladino, “you are in

violations of your tenancy by altering the demised premises without any prior consent of the

landlord nor Building Department and Fire Department” (Resp. Ex. GG; Saladino: Tr. 1617).

The notice also stated, “[y]ou must with no further delay: Stop said alterations and constructions,

remove your belongings from my roof . . .” (Resp. Ex. GG). Mr. Dahan had workers remove the

deck in spring 2013, prior to the April 3, 2013 letter (Saladino: Tr. 1530, 1638; Asfour: Tr. 567-

68). When asked whether he continues to use the roof, Mr. Saladino testified “not so much” but

that he does use the fire escape area (Tr. 1638).

Mr. Elia testified that Mr. Saladino built the deck “illegally,” without Mr. Dahan’s

permission, and that Mr. Dahan at “some point observed” the deck and told Mr. Saladino he had

to remove the structure (Tr. 2030). Because Mr. Saladino did not comply with Mr. Dahan’s

instructions, he sent his workers to remove the deck (Tr. 2030). According to Mr. Elia, this was

in keeping with Mr. Saladino’s pattern of “always keeping stuff in the building, in the hallways,

on the roof,” which leads Mr. Dahan to send his employees to remove the “belongings or

garbage, and objects” (Tr. 2030).

In determining whether the roof area is part of Mr. Saladino’s unit, the fact that Mr.

Saladino’s lease is silent as to use of the roof is not determinative. In Shepherd v. Seril, 118

A.D.2d 422 (1st Dep’t 1986), the court held that the tenants whose leases were silent as to the

use of the roofs adjacent to their units had a right to the continued use of the roof spaces. The

court found the tenants’ testimony that the showing of their prospective apartments included a

viewing of the roof areas which were already being used as patios, together with the constant use

of the roof areas as patios for as long as 20 years, showed that “the owner had a common plan or

scheme with respect to the penthouse apartments.” Id. at 424. Guided by this case, the Loft

Board in Matter of Smulka, Loft Bd. Order No. 1914 at 13 (Feb. 29, 1996), found that the roof

area adjacent to an applicant’s loft was part of his unit where he had built a wooden deck because

the owner’s representative knew about the deck shortly after it was built, commented that “it

looked good,” never requested that the tenant remove the deck or discontinue using the space,

and continued to renew his leases and accept rent. Thus, Matter of Smulka considered whether

the owner knew about the tenant’s use of the roof space and consented, even implicitly, to this

use.

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In its brief (Resp. Br. at 25), respondent cites to Matter of Nelson, Loft Bd. Order No.

1161, 12 Loft Bd. Rptr. 246 (Mar. 14, 1991), where the Loft Board found the roof area adjacent

to the applicant’s loft was not part of his unit because he did not prove that use of the roof was

included in his original verbal rental agreement or that he used the roof with the approval and

consent of the current owner. The current owner had asked the applicant to stop using the roof

for storage. The Loft Board found that the applicant did not have “explicit consent from the

owner to use the roof; nor did [he] prove that the roof was explicitly part of his lease agreement.”

Id. at 250. Other Loft Board determinations appear to require proof that the owner explicitly

consented to use of the roof. See Matter of Minjak Company, Loft Bd. Order No. 181, 2 Loft Bd.

Rptr. 47B (Mar. 6, 1985) (for right to continued use of roof, tenant must show roof was explicitly

in lease description of the premises or included by rules of interpretation); see also Matter of

Mittelsdorf, Loft Bd. Order No. 1197, 12 Loft Bd. Rptr. 357, 374 (May 30, 1991), aff’d sub

nom., Ashley v. NYC Loft Bd., 200 A.D.2d 537 (1st Dep’t 1994) (Loft Board rejected two

residential tenants’ claims to roof terraces, citing Matter of Minjak and Nelson, and found

tenants’ proof, which demonstrated only the landlord’s knowledge of the tenants’ recreational

roof uses, was inadequate to establish the owner’s “explicit consent” to the roof terraces).

Respondent also cites to Jossel v. Filicori, 235 A.D.2d 205 (1st Dep’t 1997), where the

court upheld an injunction preventing a tenant from using a rooftop extension with a terrace

since his lease made no mention of the space and he received numerous warnings from the

owner, including formal notices in writing. The court noted that the owner commented the

tenant had a “green thumb,” made a brief appearance at a party on the rooftop, and corresponded

with the tenant about building a fence so his young daughter would not fall off the roof, but held

that this did not outweigh the formal written exchanges between the parties noting that the tenant

was not permitted to use the roof. Further, the tenant did not dispute that his use of the roof was

impermissible.

Here, I credit the testimony of petitioners’ witnesses that the owner was often on the roof

and after 2005 did not demand that they stop using the roof area or that they remove the deck

until they filed their coverage application. Mr. Dahan’s repeated visits to the roof area and his

lack of objection to the tenants’ use of the roof area and the deck establish that he knew of and

appeared to permit their use. Moreover, Dr. Asfour testified that Mr. Dahan gave permission to

build the deck.

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However, there is no evidence that the roof area was intended to be part of Mr.

Saladino’s unit. The roof area is on top of part of Dr. Asfour’s unit, is not included in Mr.

Saladino’s lease, and Mr. Saladino does not need to use the roof area to access his unit. Instead,

he can access his unit either by walking through the front door on Wythe Avenue or by going up

the fire escape stairs and onto the fire escape area just outside his unit. Moreover, the roof area

was used by many of the tenants. Mr. Saladino did not have exclusive access to or use of the

roof area. Dr. Asfour, Ms. Dolle, Mr. Ziegler, and Ms. Schwartz used the roof area even before

the deck was built, sitting in chairs that were on the roof area, barbequing and otherwise

socializing. Ms. Schwartz also used the roof area to access her own roof area when needed. The

deck itself was conceived and built jointly by Dr. Asfour and Mr. Saladino, and there is no

evidence that Mr. Saladino was able to restrict Dr. Asfour’s use of the deck. Moreover, once the

deck was built, the roof area continued to be used by the other tenants.

In sum, Mr. Saladino did not have exclusive possession of the roof area, and thus I find

that it is not part of his residential unit. See Prospect Owners Corp v. Sandmeyer, 62 A.D.3d 601

(1st Dep’t 2009) (tenants’ use of roof space was pursuant to a revocable license where parties did

not intend roof use to be included in the leased premises and tenants failed to prove exclusive

possession); see also Askinazy v. Prince 156 Assoc., L.P., 2009 N.Y. Misc. LEXIS 6100 (Sup.

Ct. N.Y. Co. Sept. 1, 2009).

In the alternative, petitioners cite to section 2-04(c) of the Loft Board Rules in asserting

that Mr. Saladino should have continued use of the roof area as a building amenity. That section

of the Loft Board Rules, titled “Additional lease agreement services,” provides:

In addition to those services mandated by §2-04(b) of this Rule,

landlords must maintain and continue to provide to residential

occupants services specified in their lease or rental agreement. In

the absence of a lease or rental agreement, landlords must provide

those services to residential occupants which were specified in the

lease or rental agreement most recently in effect in addition to

those services mandated in §2-04(b) above. There must not be any

diminution of services. Nothing contained in these rules allows

reduction in the prior services supplied by mutual agreement where

those services exceed the services mandated by §2-04(b) above.

Where the prior services are below those mandated by §2-04(b),

the services mandated by §2-04(b) must be provided.

29 RCNY § 2-04(c) (Lexis 2015). Petitioners also rely on Matter of Newmann, OATH Index

No. 2680/08 (Oct. 30, 2008), adopted, Loft Bd. Order No. 3502 (Apr. 23, 2009), and Matter of

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McGehee, OATH Index No. 1306/00 (Dec. 1, 2000), aff’d, Loft Bd. Order No. 2599 (Dec. 19,

2000), in support of their claim (Pet. Br. at 28).

These cases, however, involved applications for diminution of services in buildings that

were already determined to be IMDs. The pending application is for coverage. And, as noted

above at 28-29, service claims are not properly before the Loft Board in a coverage case. See

Matter of Gallo, Loft Bd. Order No. 4349 at 5. Accordingly, I find petitioners’ request that the

roof area be declared an amenity under section 2-04(c) of the Loft Board Rules to be unavailing.

Coverage/Window Period Occupancy, and Protected Occupancy Issues

Hughes unit (coverage/window period occupancy, and protected occupancy)

In order to qualify for coverage, a unit must be residentially occupied for 12 consecutive

months during the window period. MDL § 281(5) (Lexis 2016). Although respondent

contended that there was insufficient evidence that Mr. Hughes residentially occupied his unit17

during the window period (Resp. Br. at 36), there is no dispute that the unit itself was

residentially occupied.

In addition to direct testimony about residential use, residential occupancy may be

established by “evidence of indicia of residential living such as furniture, personal effects, and

photographs of the unit being used residentially.” Matter of Zhao, OATH Index No. 2225/14 at

7 (Aug. 12, 2015); Matter of Gurkin, OATH Index No. 489/12 (Dec. 14, 2012), adopted, Loft

Bd. Order No. 4186 (Oct. 17, 2013) (petitioners provided evidence of residential occupancy in

the nature of residential furniture, receipts, personal effects, and photographs).

Here, the credible evidence established that the unit was residentially occupied during the

window period, both by Mr. Hughes and a number of his roommates. Mr. Hughes testified that

he moved into the unit in 2007, renting his apartment from Ms. Costello, who was renting the

entire ground floor from Dasa Realty. Ms. Costello was the prime lessee during the window

period, but acknowledged that she stopped living in the unit once she began subletting to Mr.

Hughes (Tr. 1816-817). Her last lease expired on December 31, 2011 (Pet. Ex. 9). Ms. Costello

could not remember precisely when she “gave up” the lease (Tr. 1850).

Further, Mr. Hughes explained that he was “really drawn” to the unit because he was

looking for a space where he could live and work. Because he does yoga and inversion therapy

17

As discussed above, at pages 24-29, the reference to Mr. Hughes’ unit is to his apartment space and does not

include the garage space.

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he hoped to have a movement studio in the front portion of the garage space (Tr. 158, 166).

When he moved in, the unit had a bathroom with a bathtub, sink, and toilet, a kitchen with a

refrigerator, countertop, sink, stove, and two bedrooms in the back (Tr. 159, 170, 171; Pet. Ex.

7). Petitioners submitted photographs of the unit, which Mr. Hughes testified accurately depict

the appearance of the unit in 2007. The photographs show his room with a bed, the bathtub,

toilet, and sink in the bathroom, and the kitchen area with a stove and oven, cabinets, and table

with chairs (Pet. Exs. 16b, 16e, 16f, 16g, 16m, 16n, 16p; Tr. 226-43).

After he moved in, Mr. Hughes added walls to create a living room area and additional

bedrooms so there were five bedrooms in total (Tr. 170-71, 504). From 2008 through 2010, he

always maintained his own bedroom and friends lived in the other rooms “a good part of the

time” (Tr. 171, 373-74, 527-28). He originally rented to his previous roommates and also found

renters through friends and eventually advertised on Craigslist (Tr. 374, 523-24). This living

arrangement continued until Mr. Hughes moved out of the building to live with his girlfriend at

the end of 2012 (Tr. 157).

Mr. Hughes testified that, even though he paid rent for the apartment space to Ms.

Costello until 2011, from the time he moved in he was the person “running” the apartment space

(Tr. 163, 166, 373, 522-23, 525-26). He collected the rent from the other tenants in his unit and

gave it to Ms. Costello and he would personally pay for the difference in rent if not all of the

rooms were occupied by roommates (Tr. 518, 525-26). Moreover, he paid the monthly bills in

order to maintain the space, including the Con Edison and National Grid bills which he paid for

through Ms. Costello’s account (Tr. 520-21, 525). He paid for Cablevision through an account

in his own name (Tr. 521-22). From 2008 through 2010, he also owned the furnishings in the

unit, replaced the refrigerator, bought a new couch, did most of the cleaning, and paid for

cleaning supplies and bed bug extermination (Tr. 523-25).

Mr. Ziegler and Mr. Saladino corroborated Mr. Hughes’ testimony. Mr. Ziegler testified

that he saw Mr. Hughes “everyday practically” coming in and out of the building and he

sometimes saw Mr. Hughes in the garage when the door was open, playing instruments or doing

massage (Tr. 867).

Mr. Saladino similarly corroborated Mr. Hughes’ testimony that he lived in the unit

during the window period. He testified that he was acquainted with Mr. Hughes, was in his unit

many times in 2008, 2009, and 2010, and believed that Mr. Hughes resided in his unit on the

effective date of the Loft Law (Tr. 1465-666, 1476-477, 1619, 1620-624). Mr. Saladino visited

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Mr. Hughes to communicate about problems in the building, such as leaks, and to play ping

pong, and he also paid Mr. Hughes for massage therapy, which took place in the apartment space

(Tr. 1620-622). He recalled that Mr. Hughes had tenants who were in a band (Tr. 1466).

Moreover, Ms. Costello testified that she rented the apartment space to Mr. Hughes

during the window period. She continued to use the storage space for her business and saw Mr.

Hughes “frequently” (Tr. 1834).

Documentary evidence also corroborated petitioners’ contention that Mr. Hughes lived in

the unit during the window period and on the effective date of the Loft Law. Mr. Hughes’ bank

statements from January 2008 to August 2010 list his address as 401 Wythe Avenue (Pet. Ex.

18). His New York State and federal tax returns for 2008 and 2009 similarly list his home

address as 401 Wythe Avenue, apt. no. 1 (Pet. Exs. 10, 11, 13, 14).

As a whole, the testimonial and documentary evidence, including the testimony of Mr.

Saladino and Mr. Ziegler, photographs and bank statements, demonstrate that the unit was

residentially occupied by Mr. Hughes and a number of roommates for at least 12 consecutive

months during the window period.

The remaining issue, as to the Hughes unit, is whether Mr. Hughes should be declared the

protected occupant of his unit. The Loft Board Rules state that the occupant qualified for

protection, unless otherwise provided, “is the residential occupant in possession of a residential

unit, covered as part of an IMD.” 29 RCNY § 2-09(b)(1) (Lexis 2015). If the residential

occupant in possession of an IMD unit is not the “prime lessee,” the consent of the landlord to a

sublet is not required to establish protected occupancy if the occupant “was in possession” of the

unit prior to the base date of the Loft Law, here June 21, 2010. 29 RCNY § 2-09(b)(2) (Lexis

2015). A “prime lessee” is defined as “the party with whom the landlord entered into a lease or

rental agreement for use and occupancy of a portion of an IMD, which is being used

residentially, regardless of whether the lessee is currently in occupancy or whether the lease

remains in effect.” 29 RCNY § 2-09(a) (Lexis 2015).

Here, there is no basis to find that Mr. Hughes is the “prime lessee.” There is no

evidence that he ever held a lease with Dasa Realty or Mr. Dahan. Rather, as discussed above at

pages 26-27, during the window period and on the effective date of the Loft Law, Mr. Hughes

paid rent to Ms. Costello, who was the prime lessee. In approximately 2011, Mr. Hughes began

paying rent directly to Mr. Dahan. According to Mr. Hughes, a check dated August 26, 2011,

from Mr. Hughes to “Dassa Realty Corp” for “rent” in the amount of $5,000, reflected a two-

- 51 -

month rent payment to the owner (Resp. Ex. R; Tr. 399-400). Mr. Hughes continues to pay rent

directly to the owner (Tr. 396).

Section 2-09(b)(1) is written in the present tense, stating that the occupant qualified for

protection, unless otherwise provided, “is the residential occupant in possession” (emphasis

added). Nevertheless, section 2-09(b)(2) is written in the past tense, alluding to whether an

occupant “was in possession” (emphasis added) prior to the base date of the amended Loft Law.

Recent decisions have tended to analyze both whether the occupant was in possession before

June 21, 2010 and whether he remains in possession. See Matter of Mignola, Loft Bd. Order No.

4509 at 7-8 (Apr. 29, 2016) (tenant, who is not a prime lessee, who resides in her unit and has

done so since September 2009, was found to be a protected occupant under sections 2-09(b)(1)

and (2) because she “has been residing in [her] unit . . . prior to the effective date of the law”),

adopting in part, rejecting in part, OATH Index Nos. 2482/11, 2483/11, 2484/11, 240/12,

808/12, 809/12, 810/12 & 1616/12 (May 29, 2013); see also Matter of Pak, OATH Index No.

2447/13 at 12 (Oct. 9, 2014) (looking at both window period occupancy and current relationship

with the unit), adopted in part, rejected in part and remanded, Loft Bd. Order No. 4334 (Nov.

20, 2014); Matter of Gallo, Loft Bd. Order No. 4349 at 4-5 (Jan. 15, 2015) (same).

Here, Mr. Hughes was “in possession” during the window period because he resided in

his unit from 2007 through the end of 2012. As he was “in possession” before the base date of

the 2010 amendments, the consent of the landlord is not required in order for him to establish

protected occupancy. See 29 RCNY § 2-09(b)(2) (Lexis 2015); 545 Eighth Avenue Associates v.

NYC Loft Board, 232 A.D.2d 153 (lst Dep’t 1996).

In making this finding, I note that even though Mr. Hughes listed his home address on his

2008 New York State tax return as Wythe Avenue, he also checked a box on the 2008 return

indicating that he did not maintain living quarters in New York City during 2008 (Pet. Ex. 10;

Tr. 195). However, Mr. Hughes credibly testified that he did not live anywhere other than

Wythe Avenue during 2008 or 2009 (Tr. 196). Considering that testimony, the other evidence

that he resided in the unit in 2008 and 2009, and that he listed his home address as Wythe

Avenue on the 2008 return, I find that the checked box on the 2008 return is not determinative of

his residential status in 2008. Cf. Ansonia Assoc., 130 A.D.3d at 454 (in the context of the Rent

Stabilization Code, finding a rent-stabilized tenant’s claim of primary residency to be “logically

incompatible” with her deduction of her entire rent as a business expense on three separate tax

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returns). In any event, the 2009 state and federal returns consistently support Mr. Hughes’

testimony that he lived in the unit throughout 2009.

Further, I find that Mr. Hughes remains “in possession” even though he has lived

elsewhere with his girlfriend since the end of 2012 (Tr. 157, 176, 410). Under the case law,

tenants may be “in possession” of their unit, even when they live elsewhere, if they continue to

pay rent and maintain a sufficient nexus to the unit. See Matter of Pak, OATH 2447/13 at 12

(finding prime lessees who resided in the premises for 12 months during the window period but

who moved to Maine in 2009 to be “in possession” of the unit because they periodically visited

and stayed at the premises, maintained furniture there, and “retained the right to possess and

occupy it at any time by virtue of their continued rent payments”).18

Cf. Matter of Gallo, Loft

Bd. Order No. 4349 at 4-5 (finding that prime lessee was not “in possession” of her unit even

though she continued to pay rent, where she lived elsewhere during the window period and at the

time of trial, had subdivided her unit and subleased it, and could not “convincingly prove even

sporadic use of the premises during the Window Period”).

Mr. Hughes continues to pay rent directly to Mr. Dahan. Although he sublets his unit, he

had done so even when he resided in the unit during the window period. Moreover, Mr. Hughes

credibly testified that when he moved to live with his girlfriend he did not take any furniture and

the “majority of [his] personal belongings are still in [his] bedroom” (Tr. 172-73). I credited his

testimony that he visits the unit about once a week because he has a cat still living there and to

check in on “different things,” such as plumbing problems (Tr. 410). Considering that Mr.

Hughes continues to pay rent to the owner, visits the unit frequently, monitors issues with the

unit, and keeps the majority of his possessions and his cat in the unit, I find that he remains “in

possession” of the unit. Therefore, he is qualified for protection under sections 2-01(b)(1) and 2-

01(b)(2) of the Loft Board Rules.

In making this finding, I have considered but am not persuaded by respondent’s argument

that, under section 2-09(b)(5) of the Loft Board Rules, Mr. Hughes is not entitled to a finding of

protected occupancy because he currently lives elsewhere with his girlfriend and is subletting all

of the bedrooms in the unit (Resp. Br. at 37). Mr. Hughes has acknowledged living elsewhere

and subletting the bedrooms (Tr. 420-24, 531, 533). Section 2-09(b)(5), however, is relevant

18

Although Matter of Pak was remanded for a determination, under the Loft Board’s recent interpretation of section

2-09(b)(4) of the Loft Board Rules, as to whether the unit was the “primary residence” of the prime lessees, the

Board did not pass upon whether or not the prime lessees were “in possession.”

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only to a “prime lessee in possession,” which Mr. Hughes is not. Section 2-09(b)(4), which also

applies to prime lessees, is similarly irrelevant.

Further, although Ms. Costello was the prime lessee, she testified that she did not live in

the unit after 2007 (Tr. 1815). She is also not currently in possession, because she “gave up” the

lease and stopped paying rent to the owner in approximately 2011. She is not entitled to

coverage under section 2-09(b)(1). Nor, as a prime lessee, would she be entitled to coverage

under the Loft Board’s recent reinterpretation of section 2-09(b)(4), because she does not reside

in the unit. See Matter of Mignola, Loft Bd. Order No. 4509 at 7 (finding that prime lessee is not

entitled to protection where she moved out of the unit in 2011).

Respondent also contends that one of Mr. Hughes’ current subtenants, Christopher

Holmes, occupied the unit on the base date of the Loft Law and did not receive written notice of

this proceeding (Tr. 38). Mr. Hughes at one point acknowledged that Mr. Holmes resided in the

unit on the base date (Tr. 481-82), but later said that he was “getting the dates confused” because

there were “a lot of people to be keeping track of” and he did not keep records (Tr. 495-97, 446).

Mr. Hughes’ testimony about when particular subtenants, including Mr. Holmes, lived in the unit

was murky, at best (see Tr. 171, 381, 446, 290-97, 489-90; Resp. Ex. L).

However, assuming arguendo that Mr. Holmes was present on the effective date of the

2010 amendments, petitioners submitted a notarized affidavit from Mr. Holmes dated June 19,

2014, which provides, “I have been made aware of the 2010 Loft Law and the implications the

statute may have on my right of occupancy of the first floor unit at 401 Wythe Avenue,

Brooklyn, New York, and I do not wish to apply for Loft Law coverage” (ALJ Ex. 4). Further,

petitioners submitted proof that the Loft Board coverage application, initial amended application,

second amended application, and the 2014 coverage application (TR-1158), were all served upon

Mr. Holmes at his last known address on June 3, 2014. Thus, when Mr. Holmes submitted an

affidavit indicating that he did not wish to apply for “Loft Law coverage,” he was aware of the

pending applications.

In sum, Mr. Hughes, who is not a prime lessee and who resided in the premises during

the window period and on the base date of the Loft Law, and remains “in possession” of the unit,

is the occupant qualified for protection of the unit under sections 2-09(b)(1) and 2-09(b)(2) of the

Loft Board Rules.

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Asfour unit (coverage/window period occupancy, and protected occupancy)

As noted above, the parties stipulated that Dr. Asfour residentially occupied his unit

during the window period and on the base date of the 2010 amendments (Tr. 2354). Dr. Asfour

testified that he did not have a lease for the unit (Tr. 1082-83), and that he continues to live in the

unit (Tr. 537), which respondent did not dispute. Thus, under the Loft Board Rules, Dr. Asfour

is the occupant qualified for protection. See 29 RCNY § 2-09(b)(1), (2).

Respondent’s contention that Dr. Asfour’s claim for protected occupancy should be

denied because he is the prime lessee of a rent-stabilized apartment (Resp. Br. at 36) is

unavailing. Dr. Asfour acknowledged that he maintained a rent-stabilized apartment on Mott

Street in Manhattan during the window period, and still holds the lease for the address. During

the window period, the rent-stabilized unit was “partially” used by a former wife (Tr. 1066-68,

1207-208), and it is currently used by a friend (Tr. 541, 542, 1066, 1202). A lease listing Dr.

Asfour as a tenant shows that he signed a two-year renewal commencing on February 1, 2013,

and ending on January 31, 2015, for a rent-stabilized unit on Mott Street (Resp. Ex. V).

However, there is nothing in the Loft Board Rules which permits an otherwise eligible

tenant to be denied protected occupancy status because he may hold a lease for a rent-stabilized

apartment. The case cited by respondent in its brief is inapposite because it deals with whether a

tenant can maintain his rent-stabilized lease when he has a primary residence elsewhere. See

Rocky 116 L.L.C. v. Weston, 186 Misc. 2d 251, 253 (App. Term, 1st Dep’t 2000) (declining to

give effect to a non-primary residence waiver contained in a stipulation between a rent-stabilized

tenant and his predecessor landlord and discouraging “[t]he practice of permitting tenants to

stockpile rent-stabilized apartments”).

Accordingly, Dr. Asfour’s application for protected occupancy should be granted.

Ziegler unit (coverage/window period occupancy)

Petitioners and respondent dispute whether the Ziegler unit was residentially occupied for

12 months during the window period. Respondent instead contends that Mr. Ziegler “chose to

re-convert” his unit to “a non-residential premises after September 2008” (Resp. Br. at 32). I do

not agree. Petitioners’ credible evidence establishes that Mr. Ziegler residentially occupied his

unit for at least 12 consecutive months during January 1, 2008, through December 31, 2009, as

required for coverage under the Loft Law. See MDL § 281(5) (Lexis 2016).

Mr. Ziegler testified that he moved into apartment 2F on the second floor of the building

in March 1996 and lived there until May 2013 (Tr. 670, 674-75, 678). His unit had a stove,

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refrigerator, and shower the entire time he lived at the building, along with two beds and a couch

(Tr. 734-36, 831). Petitioners submitted photographic evidence showing that the Ziegler unit

was residentially occupied, including photographs of the kitchen with a stove and refrigerator,

Mr. Ziegler and his wife preparing food, a table his wife decorated for Christmas, and Mr.

Ziegler’s bed (Pet. Exs. 38f, 39a-39f; Tr. 1276-277, 1283-1304). Petitioners also presented

additional documentary evidence to show that Mr. Ziegler lived at his unit in 2008 and 2009: a

renters’ insurance policy for apartment 2F at 401 Wythe Avenue in Mr. Ziegler and his wife’s

names for the period of April 2008 to April 2009 (Pet. Ex. 28); Mr. Ziegler’s New York State

driver’s license which was valid from 2005 until 2013 and indicated that his address was 401

Wythe (Pet. Ex. 29; Tr. 711); Mr. Ziegler and his wife’s 2008 New York State tax return which

listed their mailing address as 401 Wythe Avenue (Pet. Ex. 30); he and his wife’s joint 2008

federal income tax return, indicating that their home address was 401 Wythe Avenue (Pet. Ex.

31); and telephone subscriber information for Mr. Ziegler at 401 Wythe Avenue, Apt. 2F from

June 2002 through March 2013 (Pet. Ex. 37).19

In 2007, Mr. Ziegler’s stepchildren arrived from Ecuador and began living with him in

his unit (Tr. 830). Copies of plane tickets and boarding passes, along with photographic

evidence of the children when they arrived at John F. Kennedy International Airport in New

York, establish that the children flew from Ecuador to Miami, and then New York, on September

6, 2007 (Pet. Exs. 38a, 40a-40c; Tr. 1249). Copies of their visa paperwork and social security

cards are also dated September 2007 and were mailed to the building (Pet. Exs. 41a, 41b, 42a,

42b). Further, Mr. Ziegler testified that photographs of his wife and stepchildren at the building

and inside his unit were taken in 2007 and 2008 (Pet. Exs. 38b-38g; Tr. 1258-280).

Mr. Ziegler and his wife signed a lease on August 27, 2008, for an apartment on North

5th Street in Brooklyn (Resp. Ex. U). Mr. Ziegler testified that it was his wife’s decision to

apply for the apartment. She brought home the application from her church and filled it out (Tr.

892, 930). Moreover, when their application was approved, and his wife told him that he could

not bring “90 percent” of his “stuff” to the new apartment, he felt that his wife did not really

want him to move (Tr. 929). Mr. Ziegler further testified that after his wife and stepchildren

19

Although Mr. Ziegler and his wife’s joint 2009 federal tax return (Pet. Ex. 35) lists their home address at North

5th Street, that is not inconsistent with Mr. Ziegler’s testimony, discussed below, that his wife and stepchildren

moved to that address in August 2008.

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moved to the new apartment, he continued to mostly live at Wythe Avenue (Tr. 669, 674-75,

830, 860-63). He candidly explained that after they signed the lease, he:

[i]mmediately moved some things that she allowed me to move,

but she didn’t allow basically my lifestyle and I was, like I said,

some kind of culture shock over it. And I was used to being up at

night working with my music and my art. And I was not

accustomed to being in a new apartment and, you know, where

everybody goes to sleep very early and it’s very quiet. I was more

used to being able to function as I wanted to. And where there I

felt a little constricted and . . . I was very shocked that she wasn’t

allowing me to bring my stuff there. And I didn’t know what to do

so I stayed mostly at the old place.

(Tr. 676). He had “a few things” at the apartment on North 5th Street but he kept “most of [his]

stuff” at the building after his wife moved out (Tr. 677). For example, he kept his clothes at the

building and he testified that “[m]y stuff stayed. Everything that was mine, my record collection,

my music equipment, my computer . . . I had a bed there. I had everything left there that she

didn’t want and now I kind of expanded the space a little bit made it freed up for me to operate

without her there” (Tr. 677).

According to Mr. Ziegler, he was on “shaky ground” with his wife during that time and it

seemed like “she didn’t want [him] really to be” at the North 5th Street apartment (Tr. 676-77).

From September 2008 through 2010, he slept in his unit at Wythe Avenue four to five nights a

week and “periodically” slept at the apartment on North 5th Street “to try to get adjusted over

time” and “to see if a little distance between [he and his wife] would work things out a little

better” (Tr. 677, 737-38, 865). From 2009 to 2012, Mr. Ziegler’s unit “had everything that was

still [his] there that [his] wife didn’t want” and the unit operated as his “house/work space” (Tr.

678). Mr. Ziegler testified that in the spring of 2013, he moved to North 5th Street where his

wife and stepchildren reside (Tr. 678).

Mr. Ziegler acknowledged that he was arrested at the building in June 2012 on drug

charges, while he was smoking marijuana in his unit, and that he pleaded guilty to criminal

possession of a controlled substance in April 2014 (Tr. 764, 917, 922; Pet. Ex. 32). He admitted

that in December 2011, he sublet a portion of his space to an individual who in 2012 was found

dead in the apartment (Tr. 728, 730). That subtenant was thought to have been murdered (Tr.

1482). Further, Mr. Ziegler testified openly about his troubled youth and family, and his history

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of mental health issues (Tr. 767-68). Overall, I found Mr. Ziegler to be an exceptionally candid

witness.

It is undisputed that Mr. Ziegler signed the lease for the apartment at North 5th Street in

August 2008 (Resp. Ex. U; Tr. 860-62). However, I credit his testimony that his wife was the

one who actively pursued the lease and that he merely signed the document, provided his assets,

and attended one or two interviews (Tr. 885-87, 892). He testified that “[a]t the last minute, I

didn’t want to sign . . . I didn’t think we’d ever get this thing” but that his wife is the “boss” and

he has “been demoted to being nobody” (Tr. 892). In particular, Mr. Ziegler’s frank statement

that he “stayed mostly at the old place” rather than move with his wife to North 5th Street in

August 2008 because his wife “didn’t allow basically [his] lifestyle” was refreshingly candid. I

credit Mr. Ziegler’s testimony that he slept at the apartment on North 5th Street two to three

nights a week during the window period to try to adjust, while spending the rest of his time and

keeping most of his possessions, including his bed and clothes, a large record collection, and

drums, at the building (Tr. 678).

Moreover, Mr. Ziegler’s testimony about residing at 401 Wythe Avenue was amply

corroborated by both Mr. Saladino and Ms. Schwartz. Mr. Saladino vividly recalled that Mr.

Ziegler lived in the building during the window period and that his wife and stepchildren lived

there during the early part of 2008 (Tr. 1478-481, 1525-529, 1629-630, 2128-132, 2140-158).

During the window period, he saw Mr. Ziegler “pretty much daily” because Mr. Ziegler was

there “all the time” (Tr. 1481, 1525). Mr. Saladino testified that “when [Mr. Ziegler] was home .

. . he was always playing his music all day long and he would be there late and doing his thing

there . . . he’s a big personality” (Tr. 1481). Mr. Ziegler was “a loud guy” and, in addition to

hearing him play the drums, Mr. Saladino heard him on the telephone, in the hallway, going

down the stairs, and running in and out of the building (Tr. 1527). Mr. Saladino testified that “so

you know he’s home. You can’t not know it” (Tr. 1527). Ms. Schwartz also credibly testified

that Mr. Ziegler lived in the building, even after his wife and stepchildren moved out, and she

specifically recalled that Mr. Ziegler would call her and Mr. Castro at all times of the day about

the heat (Tr. 1887-891, 1922-923, 1927-928).

Although Mr. Elia testified about his observations of the Ziegler unit, he admitted that he

did not visit the unit during the window period (Tr. 2051-52). And, although Mr. Rapoport

testified that he was in the Ziegler unit in 2008 and did not see either a kitchen or bed on the left

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side of the unit (Tr. 2110), that testimony was not credible given the photographic evidence of a

bed, refrigerator, and stove in the unit.

Respondent asserts that Mr. Ziegler’s testimony that he lived at the building during the

window period should not be credited because he signed an affidavit dated August 6, 2013,

stating: “In 2008 and 2009, and on June 21, 2010 I have used the demised premises [the second

floor at 401 Wythe Avenue] for commercial purposes only in general and in particular I had my

music studio there” (Resp. Ex. P). The affidavit further provides that Mr. Ziegler “willingly

returned possession” of the unit to Mr. Dahan on May 13, 2013 (Resp. Ex. P). I disagree with

respondent’s contention. Mr. Ziegler testified that although his initial lease for the premises was

a commercial lease (Resp. Ex. P; Tr. 905), he had been living in his unit since 1996 (Tr. 905). A

great deal of testimony, including that of Mr. Saladino, supports a finding that he lived there.

Moreover, the credible evidence establishes that Mr. Ziegler signed the affidavit under threat of

being sued.

Following Mr. Ziegler’s arrest in June 2012, the City of New York filed a nuisance action

against the building and the owner, alleging that an informant had purchased marijuana in the

building on two occasions in May 2012 and that marijuana, pills, and related paraphernalia were

recovered during a search of the building in June 2012 (Resp. Ex. Q). Mr. Ziegler testified that

he showed Mr. Dahan the nuisance papers after he found them on the door at the building and, as

a result, Mr. Dahan coerced him to sign the affidavit by threatening to sue him and “spend a

million dollars to get [him] out” of the building (Tr. 754-56, 761, 769-71, 783-90, 900-07, 1347;

Resp. Ex. Q). According to Mr. Ziegler, he was shown the affidavit and told that he would not

be sued if he signed it (Tr. 754, 904). Although Mr. Ziegler gave somewhat unclear testimony as

to whether the affidavit was notarized in his presence, I credit his testimony that he signed the

document, even though it was not accurate, because he felt coerced and threatened (Tr. 751-57,

904-06, 1392-395; Pet. Exs. 36, 44; Resp. Ex. P).

Mr. Elia testified that he drafted the affidavit at the direction of Mr. Dahan and was

present when Mr. Ziegler signed the affidavit (Tr. 2041-42). According to Mr. Elia, the affidavit

was in response to the summons and complaint from the City which alleged that there were

illegal activities taking place in the Ziegler unit (Tr. 2041). The attorney handling the case had

told Mr. Elia that Mr. Ziegler needed to be “removed” from the building because “he’s a

nuisance to the neighborhood” and that if he was removed they could possibly “stipulate the

summons and complaint” (Tr. 2041). Mr. Dahan and Mr. Elia then met with Mr. Ziegler to

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discuss “the circumstances and the future of his tenancy” (Tr. 2041). Mr. Elia explained the

situation to Mr. Ziegler, who was “upset,” and they “negotiated some sort of settlement” which

included that Mr. Dahan would not sue him and he would receive “a few months free with no

rent to move out” (Tr. 2041). Mr. Ziegler requested that the terms be put in writing and Mr.

Dahan told Mr. Ziegler he also needed to confirm in writing that he would “be removed” from

the space “free, willingly” and he would return the key (Tr. 2041-42). Mr. Elia testified, “[s]o

[Mr. Ziegler] agreed, we negotiated . . . the terms of this affidavit” (Tr. 2041). According to Mr.

Elia, he asked Mr. Ziegler whether he was willing to sign an affidavit “reflecting” the coverage

application, which listed Mr. Ziegler as an affected party, not an applicant, and Mr. Ziegler

agreed (Tr. 2042; ALJ Ex. 3). Mr. Elia testified that Mr. Ziegler also told him in these

discussions that he used the space commercially (Tr. 2042).

Mr. Rapoport similarly testified that because of “a drug issue” in Mr. Ziegler’s apartment,

the affidavit was prepared, indicating that Mr. Ziegler was giving up the apartment (Tr. 2113-

114). He testified that Mr. Ziegler signed the document in Mr. Dahan’s office in front of him,

Mr. Dahan, Mr. Elia, and his brother, who is a notary (Tr. 2113, 2114).

It is apparent that Mr. Ziegler signed the affidavit because he was threatened with a

lawsuit as a result of the arrest and the nuisance action, and did not want to be sued. He may

have also, as Mr. Elia testified, said in discussions prior to signing the affidavit that he used the

space commercially. Any such representation, made around the drafting of the affidavit, is, like

the affidavit itself, utterly unreliable. As Mr. Ziegler testified, “I said, sir, what do I gotta do to

not be sued? [Mr. Dahan] said, you sign here. And that’s all I did” (Tr. 754). See Matter of

Romano, OATH Index No. 2661/14 at 6 (Nov. 18, 2015), adopted, Loft Bd. Order No. 4459

(Jan. 21, 2016) (a tenant’s execution of an “estoppel agreement” which indicated he used his unit

only for commercial purposes was signed under threat of eviction and thus “does not diminish

his credible testimony that he lived in the unit . . . during the window period and beyond”).

Respondent also highlights that petitioners listed Mr. Ziegler as a commercial tenant on

their coverage application (Resp. Br. at 33). Mr. Saladino testified, however, that he filled out

the coverage application, which was received by the Loft Board on September 21, 2012, and

chose to list Mr. Ziegler as a commercial tenant, because Mr. Ziegler did not want to participate

in the process or be covered and because he could move in with his family at the apartment on

North 5th Street (Tr. 1517-520). It was also clear that Mr. Saladino did not believe Mr. Ziegler

to be the ideal neighbor. Mr. Ziegler would often leave his door open, frequently played drums,

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played music loudly over a speaker so that it would vibrate into Mr. Saladino’s unit until nine or

ten in the evening, talked loudly on the telephone, and would run up and down the stairs (Tr.

1527-528). Mr. Saladino testified that he would try “actively” to avoid Mr. Ziegler by using the

fire escape stairs to enter his unit (Tr. 1530). Mr. Saladino’s testimony as to why Mr. Ziegler

was listed as a commercial tenant was credible.

In its post-trial brief, respondent requested for the first time that I draw an adverse

inference against petitioners for failing to call Mr. Ziegler’s wife to testify as to when Mr.

Ziegler no longer residentially occupied his unit (Resp. Br. at 34). Respondent’s request is based

upon the “uncalled witness” or “missing witness” jury charge, which instructs a jury that it may

draw an adverse inference predicated upon the failure of a party “to call a witness who would

normally be expected to support that party’s version of events.” DeVito v. Feliciano, 22 N.Y.3d

159, 165 (2013). Drawing such an inference has been held appropriate if four “preconditions”

are met: (1) the witness’ knowledge is material to the trial; (2) the witness is expected to give

noncumulative testimony; (3) the witness is under the “control” of the party against whom the

charge is sought, so that the witness would be expected to testify in that party’s favor; and (4) the

witness is available to that party. Id. at 165-66.

Here, I found Mr. Ziegler to be a credible witness, whose testimony that he continued to

reside in the unit after his wife and stepchildren moved was thoroughly corroborated by Mr.

Saladino and Ms. Schwartz. There is no basis to believe that had Mr. Ziegler’s wife been called

as a witness, her testimony would have been anything other than cumulative. Thus, drawing an

adverse inference would be inappropriate, and I decline to do so. See also People v. Gonzalez,

68 N.Y.2d 424, 427 (1986) (mere failure to produce a witness at trial is insufficient to justify an

adverse inference instruction; instead “it must be shown that . . . the witness would naturally be

expected to provide noncumulative testimony favorable to the party who has not called him”);

Dep’t of Correction v. Angrum, OATH Index Nos. 2066/04, 2067/04, 2252/04, 2253/04,

2255/04, 2256/04, 2257/04 at 19 (Feb. 7, 2005) (adverse inference inappropriate where “there

was no indication that the testimony of any of the five witnesses would be contrary to the

testimony of respondents”).

In sum, the evidence demonstrates that Mr. Ziegler continued to live in his unit during the

window period, even though his wife and stepchildren moved out in approximately August 2008,

and even though he stayed over at his wife’s apartment several nights a week. See Vlachos v.

NYC Loft Bd., 70 N.Y.2d 769, 770 (1987) (“There is no requirement for Loft Law coverage that

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residentially occupied units be the primary residences of their tenants.”) (citations omitted). I

find that the Ziegler unit was residentially occupied for at least 12 consecutive months during the

window period. Mr. Ziegler is not an applicant, so the issue of protected occupancy need not be

reached.

Lasagni unit (coverage/window period occupancy)

Respondent did not dispute that the Lasagni unit was residentially occupied during the

window period (Resp. Br. at 1-2), and there was ample evidence that the unit was indeed

residentially occupied during that period. Mr. Lasagni testified that he lived on the ground floor

of the building, in the unit next to Dr. Asfour’s and under Mr. Saladino’s, from approximately

2004 to the beginning of 2010 (Tr. 90-92, 93, 98). The unit had a bathroom with a toilet, sink,

and shower, and a kitchen with an electric stove, sink, and cabinet (Tr. 93). Several of

petitioners’ other witnesses credibly testified that the Lasagni unit was residentially occupied

during the window period (Asfour: Tr. 556-57, 559-60; Saladino: Tr. 1482-483, 1500; Ziegler:

Tr. 684-86; Dolle: Tr. 281).

Petitioners also submitted photographs of the Lasagni unit which, according to Mr.

Saladino, who took the photographs in 2014, reflect how the unit has been configured since Mr.

Lasagni lived there (Tr. 1489, 1490-499). The photographs show a living area with a couch and

wooden ladder leading to an elevated space (Pet. Ex. 51g), which Mr. Lasagni testified he had

constructed in order “to share the space” (Tr. 93). Dr. Asfour clarified that the elevated space

built by Mr. Lasagni was a “loft, bed area” (Tr. 560). Mr. Saladino similarly testified that the

unit had a mezzanine and a bed (Tr. 1483). The photographs also show that in that same living

area there is a kitchen along one of the walls with a refrigerator, stove, sink, and cabinets (Pet.

Ex. 51j).

I thus find that the Lasagni unit was residentially occupied during the window period.

Mr. Lasagni is not an applicant, so the issue of protected occupancy need not be reached.

Saladino unit (coverage/window period occupancy, and protected occupancy)

The parties stipulated that Mr. Saladino residentially occupied his unit during the window

period and on June 21, 2010 (Tr. 2353). Moreover, Mr. Saladino testified at length about his

residency at 401 Wythe Avenue and produced bank statements and tax documents showing his

address as 401 Wythe Avenue during the window period (Pet. Exs. 48a-48d). Mr. Saladino

testified that he continues to reside on the second floor at 401 Wythe Avenue with his wife and

pets (Tr. 1398, 1421), which respondent did not dispute. Since Mr. Saladino held a lease for his

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unit from October 1, 2008, to September 30, 2009 (Pet. Ex. 46), he is a prime lessee. See 29

RCNY § 2-09(a) (Lexis 2015). Mr. Saladino is a protected occupant under sections 2-09(b)(1)

and 2-09(b)(2), as he is currently in possession and took possession of his unit prior to June 21,

2010.

The Loft Board has recently concluded, however, that protected occupancy for prime

lessees is to be resolved under section 2-09(b)(4) of the Loft Board Rules, which it interprets as

requiring that a prime lessee establish that the unit is his primary residence. Matter of Mignola,

Loft Bd. Order No. 4509 at 5. This interpretation imposes upon a prime lessee a requirement

that is not applicable to statutory tenants or assignees under sections 2-09(b)(2) or 2-09(b)(3),

and represents a major departure from long-standing precedent, stretching back to the rule’s

promulgation in 1983. See generally Matter of Ukai, OATH Index Nos. 1394/14 & 1220/15 at

32-33 (Nov. 2, 2015) (discussing cases); Matter of MKF Realty Corp., Loft Bd. Order No. 2822

at 4 (Sept. 18, 2003) (in reconsideration application filed after an order granting coverage and

protected occupancy, rejecting argument that “the unit be proved to have served as the tenants’

primary residence”); Matter of Dawe, Loft Bd. Order No. 1403, 14 Loft Bd. Rptr. 65, 71 (Mar. 3,

1993) (finding individual to be the protected occupant of second floor unit, based on proposition

that a residentially occupied unit need not be the primary residence of a tenant under the Loft

Law); Matter of Tenants of 141-151 South Fifth Street, Loft Bd. Order No. 1300, 13 Loft Bd.

Rptr. 234A, 249 (Jan. 30, 1992) (“It is well-established . . . that [applicant] need not establish

that the loft was her primary residence in order to obtain I.M.D. coverage or a finding of

protected occupancy.”) (emphasis added); see also 577 Broadway Real Estate Partners v.

Giacinto, 182 A.D.2d 374 (lst Dep’t 1992) (outgoing tenant need not show that he occupied his

unit as his primary residence in order to sell fixtures).

Moreover, although the Loft Board has highlighted that section 2-09(b)(4) provides that

the prime lessee “is deemed to be the residential occupant qualified for protection . . . if the

prime lessee can prove that the residential unit is his or her primary residence, even if another

person is in possession,” the rule also states that a prime lessee “must exercise, in a court of

competent jurisdiction, his or her right to recover the unit upon the expiration or termination of

the sublease under the terms of which the prime lessee or sublessor is the immediate overtenant .

. . .” 29 RCNY § 2-09(b)(4)(i) (Lexis 2015) (emphasis added). Thus, construed together, the

import of section 2-09(b)(4) is to provide a prime lessee with a mechanism to go to court to

recover the leased unit upon the expiration of a sublease, if he can prove that the unit is his

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primary residence. See Bishar v. Dukas, 129 Misc. 2d 652, 656 (June 24, 1985) (interpreting

section 2-09(b)(4) as permitting a right to recover by the prime lessee); Matter of Smulka, Loft

Bd. Order No. 1914 at 10 (same).

Here, the parties did not raise the issue of primary residence, as relates to Mr. Saladino,

most likely because the case was heard prior to the Loft Board’s decision in Matter of Mignola.

However, the owner did not challenge Mr. Saladino’s testimony that he resides at Wythe

Avenue. Moreover, the undisputed testimony shows that Mr. Saladino resided in his unit at 401

Wythe Avenue during the window period and on the base date of the Loft Law, and that he

continues to do so. There is no evidence on the record to suggest that he lives anywhere other

than Wythe Avenue and that Wythe Avenue is not his primary residence. Thus, even if section

2-09(b)(4) were to apply, which I believe it does not, Mr. Saladino should be found to be a

protected occupant.

Schwartz/Castro unit (coverage/window period occupancy, and protected

occupancy)

As discussed above, I have found that the Schwartz/Castro unit is located in a basement

and therefore does not qualify for coverage. Thus, Ms. Schwartz and Mr. Castro are not

protected occupants. For purposes of completeness, however, I note that the parties stipulated

that the unit was residentially occupied during the window period, that Ms. Schwartz testified

that she has lived in the unit for about nine years (Tr. 1866), and that I found in my pre-trial

memorandum decision that both Ms. Schwartz and Mr. Castro lived in the unit since 2005,

including on the base date of the 2010 amendments (ALJ Ex. 10).

FINDINGS AND CONCLUSIONS

1. The building at 401 Wythe Avenue/62 South 6th Street,

Brooklyn, New York, is a horizontal multiple dwelling.

2. The Schwartz/Castro unit is located in a basement and does

not qualify for coverage under the Loft Law.

3. The Asfour, Lasagni, and Hughes units are not located in a

basement.

4. The lot line windows in the Asfour and Hughes units open

onto a lawful yard.

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5. The tunnel-like structure which existed for several months

in 2013 from the Asfour unit to the Lasagni window was

not a window, nor did its existence transform the Lasagni

window into a qualifying window in the Asfour unit.

6. The Lasagni and Hughes units have windows which open

onto a lawful court.

7. The window located in the garage space facing Wythe

Avenue is not part of the Hughes unit and does not qualify

as a lawful window under the Loft Law.

8. The Ziegler unit is at least 400 square feet in area.

9. The Lasagni, Hughes, and Ziegler units were residentially

occupied for 12 consecutive months during the window

period.

10. Petitioners proved that the Asfour, Lasagni, Hughes,

Ziegler, and Saladino units qualify for coverage under the

Loft Law.

11. Petitioners proved that the building located at 401 Wythe

Avenue/62 South 6th Street, Brooklyn, New York, is an

interim multiple dwelling under the Loft Law.

12. Mr. Hughes is the protected occupant of his unit.

13. Ms. Costello, who is listed as an applicant on the original

application, is not a protected occupant.

14. Dr. Asfour and Mr. Saladino are the protected occupants of

their respective units, where they currently reside.

15. Ms. Schwartz and Mr. Castro are not the protected

occupants of their unit, since it is excluded from coverage

as a basement. However, their unit otherwise satisfies all

prerequisites for coverage and they otherwise satisfy the

requirements for protected occupancy.

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16. The roof is excluded as part of the Saladino unit as Mr.

Saladino did not have exclusive use of the roof and a claim

pursuant to section 2-04(c) of the Loft Board Rules is not

properly before this tribunal in this case.

RECOMMENDATION

Based on my above findings, I recommend that the Loft Board deny the Schwartz/Castro

application for coverage and protected occupancy. I recommend that the Loft Board grant

petitioners’ application for coverage of the Asfour, Lasagni, Hughes, Ziegler, and Saladino units.

I further recommend that the Loft Board deny Ms. Costello’s application for protected

occupancy, but that the Board find Dr. Asfour, Mr. Saladino, and Mr. Hughes are the protected

occupants of their units.

Faye Lewis

Administrative Law Judge

May 20, 2016

SUBMITTED TO:

RICK D. CHANDLER, P.E. Chairperson

APPEARANCES:

MARGARET SANDERCOCK, ESQ.

Attorney for Petitioners DAVID BRODY, ESQ. JASON FROSCH, ESQ. Attorneys for Respondent