Matter of Romano OATH Index No. 2661/14 (Nov. 18, 2015), adopted, Loft Bd. Order No. 4459 (Jan. 21, 2016)

[Loft Bd. Dkt. No. TR-906, 265-271 Douglass Street, Brooklyn, N.Y.]

In this coverage application, petitioner established that two units were residentially occupied for 12 consecutive months during the window period. Petitioner failed to establish that a third unit was residentially occupied for 12 consecutive months during the window period. Petitioner’s coverage application should be denied. _______________________________________________________

NEW YORK CITY OFFICE OF

ADMINISTRATIVE TRIALS AND HEARINGS

In the Matter of JOHN ROMANO

Petitioner ______________________________________________________

REPORT AND RECOMMENDATION

FAYE LEWIS, Administrative Law Judge

This is a Loft Law coverage application filed by John Romano, a tenant at 269 Douglass

Street, Brooklyn, New York, pursuant to section 281(5) of the Multiple Dwelling Law, as

amended on June 21, 2010, and title 29 of the Rules of the City of New York (“RCNY”). Mr.

Romano seeks a determination that the buildings at 265-271 Douglass Street are a horizontal

multiple dwelling and an interim multiple dwelling (“IMD”) under the Loft Law, and that his

unit, 3rd floor west, is a covered unit. The owner of the buildings, Fortune JD, LLC, asserts that

petitioner has failed to prove coverage and that his application should be denied.

A trial on the application was previously held, limited to petitioner’s horizontal multiple

dwelling claim. The Loft Board rejected a report and recommendation which found that the

buildings did not constitute a horizontal multiple dwelling, and remanded for a determination of

the remaining coverage issues. Matter of Romano, Loft Board Order No. 4260 (Mar. 20, 2014).

A three-day trial was subsequently held, at which petitioner testified and presented the testimony

of four additional witnesses: Robert Gaver, Carl Lasowitz, Dana Matthews, and Geraldine Engel.

Respondent did not present any witnesses, but relied on documentary evidence and cross-

examination of petitioner’s witnesses. Following trial, post-trial briefs were submitted, after

which the record closed.

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Petitioner seeks coverage under the 2010 amendments to the Loft Law, which added

section 281(5) to the Multiple Dwelling Law L. 2010, Ch. 135 § 1 (eff. June 21, 2010) (adding

MDL § 281(5)); L. 2010, Ch. 147 § 1 (eff. June 21, 2010) (amending MDL § 281(5)). The

amendments essentially added a new qualifying window period, from January 1, 2008 through

December 31, 2009. To qualify as an IMD, a building must have been “occupied for residential

purposes as the residence or home of any three or more families living independently from each

other for a period of 12 consecutive months during the period commencing January 1, 2008, and

ending December 31, 2009.” The law also imposes certain coverage exceptions, relating to

windows, access to the unit, and location in a basement or cellar.1 Mult. Dwell. Law § 281(5)

(Lexis 2015).

The parties agreed that none of the coverage exceptions apply and that the sole issue to be

determined is whether there was the requisite residential occupancy during the window period

(Tr. 9). Petitioner asserts that there were three units in 265-269 Douglass Street that were

occupied residentially during this period: his unit, a unit rented by Karl Lasowitz; and a unit

rented by Dana Matthews. In its post-trial submissions, respondent challenges the proof as to

petitioner’s unit and the Matthews unit, and does not address residential occupancy in the

Lasowitz unit.

In order to establish residential occupancy of a unit, petitioner must establish “sufficient

indicia of independent living to demonstrate its use as a family residence,” plus some evidence

“that the premises have been converted, at least in part, into a dwelling.” Anthony v. NYC Loft

Bd., 122 A.D.2d 725, 727 (1st Dep’t 1986) (citations omitted); see also 29 RCNY § 2-08(a)(3).

The residential use of the unit may not be incidental to the commercial use. Matter of Ukai,

OATH Index Nos. 1394/14 and 1220/15 at 24 (Nov. 2, 2015) (citing Franmar Infants Wear, Inc.

v. Rios, 143 Misc. 2d 562 (App. Term 1st Dep’t 1989). The determination of occupancy

“requires a case by case analysis in which no one factor is determinative.” Matter of Boyers,

1 In its entirety, section 281(5), as amended in 2010, defines an IMD as any building that: (1) at any time was occupied for manufacturing, commercial, or warehouse purposes; (2) lacks a certificate of compliance or occupancy pursuant to section 301 of this chapter; (3) is not owned by a municipality; and (4) was occupied for residential purposes as the residence or home of three or more families living independently from one another for a period of 12 consecutive months during the period commencing January 1, 2008, and ending December 31, 2009, provided that the unit is not located in a basement or cellar and has at least one entrance that does not require passage through another residential unit to obtain access to the unit, has at least one window opening onto a street or a lawful yard or court as defined in the Zoning Resolution for such municipality, and is at least 400 square feet in area. Mult. Dwell.

Law § 281(5) (Lexis 2015).

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OATH Index Nos. 1338/12 at 13 (Feb. 10, 2014). Among the factors considered are “the

presence of permanent improvements, such as bathrooms, bathing facilities, closets, and walls

erected to separate living areas, and the presence of non-permanent items reflecting residential

use such as refrigerators, stoves, and beds.” Id. See, e.g., Matter of Pels, OATH Index No.

2481/11 at 5-6 (June 20, 2012), adopted, Loft Bd. Order No. 4161 (June 20, 2013),

reconsideration denied, Loft Bd. Order No. 4208 (Dec. 12, 2013) (finding the installation of a

kitchen, stove, refrigerator, cabinets, a desk and shelves, and the addition of walls to separate the

living area and an additional doorway, were sufficient indicia of independent living and

conversion); Matter of 333 PAS CoO Tenants Group, OATH Index No. 968/08 at 16 (June 30,

2009), adopted, Loft Bd. Order No. 3552 (Nov. 19, 2009) (finding refrigerator, stove, bedroom

with built-in closets, and a bathroom with mirrors “sufficient proof of conversion to residential

use”).

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). Circumstantial

evidence of a tenant’s intent to make a unit his or her residence may also be considered. Ukai,

OATH 1394/14 at 26; Zhao, OATH 2225/14 at 8. This includes the receipt of mail at the unit,

and whether the unit’s address is used for voter registration, bank and other financial records, tax

returns, checks, driver’s license records, insurance documents, and similar purposes. See Matter

of Gareza, OATH Index Nos. 2061/12 & 760/13 at 8 (Dec. 12, 2012), adopted in relevant part,

Loft Bd. Order No. 4243 (Feb. 20, 2014) (receiving mail at address, using the address on a bank

account, and being registered to vote at address was evidence of residential use).

Evidence that a tenant maintained another residence during the window period does not

preclude a finding of residential occupancy. Madeline D’Anthony Enterprises v. Sokolowsky,

101 A.D.3d 606, 607 (lst Dep’t 2012), citing Vlachos v. NYC Loft Bd., 70 N.Y.2d 769, 770

(1987); Ukai, OATH 1394/14 at 26-27 (“For coverage purposes . . .a unit need not be the sole

residence of the occupant during the window period”). However, evidence of additional

residency elsewhere may be considered in assessing if there is adequate proof of window period

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occupancy. See Ukai, OATH 1394/14 at 26-27 (considering evidence that tenant maintained a

residence in upstate New York but finding sufficient evidence of residential occupancy for 12

consecutive months during the window period); Multiple Dwelling Law § 4(1) (“Wherever the

word or words ‘occupied,’ ‘is occupied,’ ‘used’ or ‘is used’ appear, such word or words shall be

construed as if followed by the words ‘or is intended, arranged or designed to be used or

occupied.’”).

With these considerations, I turn to a discussion of the units in question.

Carl Lasowitz

Petitioner presented proof that Mr. Lasowitz residentially occupied his unit on the second

floor of 265 Douglass Street through the testimony of Mr. Lasowitz and other witnesses,

including Mr. Gaver, the prior owner of the building. Petitioner also presented documentary

evidence that showed that Mr. Lasowitz used his unit as a residence.

Mr. Lasowitz was a credible witness. He gave consistent, forthright testimony on direct

and cross-examination about his occupancy and use of the unit, which dated to the early 1980s.

Moreover, Mr. Lasowitz is not an applicant and no longer lives in the building. He appears to

have no personal stake in the outcome of the proceeding. Although Mr. Lasowitz did not present

photographs of his unit during the window period, he described the work he had done to add a

bathroom and kitchen, explained the layout of the unit, including the placement of fixtures,

appliances, and furniture, and drew a detailed diagram of the unit. The fact that Mr. Lasowitz’s

testimony was corroborated by other witnesses also enhanced its reliability. See Dep’t of

Sanitation v. Menzies, OATH Index No. 678/98 at 2-3 (Feb. 5, 1998), aff’d, NYC Civ. Serv.

Comm’n Item No. CD 98-101-A (Sept. 9, 1998) (the factors considered in assessing witness

credibility include witness demeanor, the consistency of a witness’s testimony, supporting or

corroborating evidence, witness motivation, bias, or prejudice, and the degree to which a

witness’s testimony comports with common sense and human experience in determining

credibility).

Mr. Lasowitz testified that he moved into the building in 1983 and left in 2011,

decamping for Staten Island, after Mr. Gaver sold the building to the new owner. He lived at the

building exclusively for that entire period, except for four years in the mid-1990s when he lived

with a woman elsewhere in Brooklyn (Tr. 112, 135, 163). Once he moved in, he installed a

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bathroom after obtaining permission from Mr. Gaver to do so. He also took down a partition

wall, which had divided the unit into two rooms, and “set up [the space} for living” (Tr. 115).

More specifically, he installed a hotplate, microwave, and refrigerator in a kitchen area. The

kitchen area was adjacent to another area where he had a futon, coffee table, and desk. There

was also a bedroom with a bed, table, and television, which was set off from the rest of the space

by a screen door (Tr. 117).

Mr. Lasowitz considered the area with the bedroom, kitchen, desk and futon to be his

“living space’ (Tr. 525). He used the rest of his loft mostly as work space for his business, where

he created Tiffany-style stained glass lamps (Tr. 504). The “live” and “work” areas were

“mostly” separated from each other, with some overlap (Tr. 510). There was a bathroom with a

bathtub, commode, and sink in the work area, and there was also a sink outside the bathroom.

He used the bathroom as needed, including the two sinks.

On the diagram which Mr. Lasowitz drew to demonstrate the layout of his unit, he

labeled the various portions of his unit as well as the appliances, fixtures, and items of furniture

(Pet. Ex. 5). Petitioner also introduced photographs which Mr. Lasowitz testified documented

areas of his unit, as it looked after he moved out in 2011 (Tr. 146; Pet. Exs. 4a-4d). These

photographs corroborated Mr. Lasowitz’s testimony about the work he did in the unit,

particularly his installation of the bathroom. For example, Mr. Lasowitz testified that a

photograph of a bathtub, toilet, sink and hot water heater showed the bare bones of his bathroom,

which during the window period also had a shower curtain, a cover for the hot water heater, and

additional flooring (Pet. Ex. 4c; Tr. 151). Similarly, he testified that disconnected pipes shown

in a photograph had previously been connected to the work sink outside his bathroom, before he

removed the sink when moving out of the unit (Pet. Ex. 4b; Tr. 146).

Circumstantial evidence indicating Mr. Lasowitz’s intent to make the unit his home

included bank records and automobile insurance documents. The bank records consist of

portions of bank statements for each month in 2008, for both Mr. Lasowitz’s personal bank

account (in his own name) and his corporate account (in the name of Karl Studio). The address

on both accounts is 265 Douglass Street (Pet. Exs. 2a, 2b). Similarly, the automobile insurance

documents, for the period February 2008 through February 2009, show that Mr. Lasowitz

maintained insurance using his name and the address of 265 Douglass Street (Pet. Ex. 3).

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Mr. Lasowitz acknowledged that he did not have credit card, electrical, cell phone, or

Direct TV bills dating to 2008 and 2009. He testified that he did not keep such re cords, and

could not get credit card or Con Edison records going back to 2008 or 2009 (Tr. 171-75). This

testimony was entirely plausible. There is no discernible reason why Mr. Lasowitz would have

kept such old records, particularly given that he moved “from Brooklyn to Staten Island with …

45 years’ worth of equipment” (Tr. 171). Moreover, the fact this tribunal routinely authorizes

subpoenas for the production of such old records suggests that they are difficult to obtain simply

by request. Mr. Lasowitz also testified that he did not have gas service for his unit, which was

also credible, given that the building has not been legalized for residential use.

Mr. Lasowitz admitted signing an “estoppel agreement” with Mr. Gaver on June 21,

2006, which included a statement that he had “no claim of any sort” against the owner, that he

used the unit “solely for commercial purposes,” and that if he had slept in the unit previously,

that was “in violation of the lease” and without the consent of the owner. In the agreement Mr.

Lasowitz further represented that he would use the unit for commercial purposes only (Resp. Ex.

B). However, Mr. Lasowitz provided context for the agreement which established that he signed

it under threat of eviction. He testified that he had complained to Mr. Gaver about toxic fumes

emanating from the laundromat downstairs and had withheld rent because of this and issues with

the heat (Tr. 164, 453, 464, 466, 467). In response, Mr. Gaver told him that he would be evicted

if he did not sign the agreement (Tr. 164, 167). In similar fashion, Mr. Lasowitz testified that

Mr. Gaver threatened to evict him for living in the unit whenever he complained about being

overcharged for electrical use (Tr. 116).

Mr. Gaver also recalled telling Mr. Lasowitz that he had to sign the “estoppel agreement”

after a dispute over rent payments (Tr. 33). Consistent with the suggestion in the agreement that

Mr. Lasowitz might have been sleeping in the unit, Mr. Gaver testified that he believed Mr.

Lasowitz “might be sleeping there off and on” (Tr. 25). Although Mr. Gaver sold the building to

the current owner in March 2009, he testified that he continued to run his textile business in the

building for six to nine months afterwards (Tr. 17, 19; Resp. Ex. C), and thought that Mr.

Lasowitz “might have still been sleeping” in his unit in 2008 and 2009 (Tr. 25).

Accordingly, Mr. Lasowitz’s execution of the estoppel agreement under duress does not

diminish his credible testimony that he lived in the unit starting in the 1980s and continued to do

so during the window period and beyond.

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Additional evidence of Mr. Lasowitz’s residential occupancy was provided through the

testimony of Ms. Matthews and Mr. Romano. It was undisputed that Ms. Matthews was a tenant

on the second floor of 267 Douglass Street beginning in the 1990s and continuing through 2011,

and that she ran a photography business, Vintage Vignettes, out of her unit. Ms. Matthews

testified that she lived in the unit until 2001, when she moved out because of concerns about the

toxicity of fumes on her developing family. However, she continued to run her business from

the unit (Tr. 304, 305). Although Ms. Matthews’s testimony was not precise as to dates, she

testified that, as far as she knew, Mr. Lasowitz always lived in the unit (Tr. 294). She indicated

she went into his space a few times and he came into her unit once and taught her how to cut

glass (Tr. 323).

Mr. Romano also testified that Mr. Lasowitz lived in his unit in 2008 and 2009 (Tr. 677).

Mr. Romano described the unit, including a messy workspace with debris from Mr. Lasowitz’s

work (Tr. 683), “lamps everywhere” (Tr. 684), and what he thought was a “living space,” based

upon the presence of furniture and a bathroom (Tr. 582). Moreover, Mr. Romano described

seeing Mr. Lasowitz walking his dog in the park across the street from the building “at any

number of hours day or night,” “as late as 2:00 or 3:00 in the morning and as early as 5:00 in the

morning” (Tr. 681). Apart from the dog walking, Mr. Romano recalled seeing Mr. Lasowitz’s

1970s Buick “always parked in front of his space” (Tr. 680).

Thus, considering Mr. Lasowitz’s credible testimony, the testimony of other witnesses,

the photographs, and the documentary evidence, I find that petitioner established that Mr.

Lasowitz residentially occupied his unit for 12 consecutive months during the window period.

Dana Matthews

The evidence regarding residential occupancy of Ms. Matthews’s unit on the second floor

of 267 Douglass Street during the window period was much more equivocal.

Ms. Matthews gave credible testimony, supported by photographs (Pet. Exs. 8a-8d), that

she moved into this unit in 1997, renovated the space, and lived there until 2001. After that she

continued to run her photography business out of the space, until the new owner, who had bought

the building from Mr. Gaver, “kicked [her] out” of her space (Tr. 306).2 Ms. Matthews

2 Although Ms. Matthews did not recall when this occurred, the record indicates that she vacated the space as of July 15, 2011 (Resp. Ex. G).

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explained that it took six or seven months to renovate the space (Tr. 271). She and her partner

removed walls, removed “ugly” tiling from floors and “1950s paneling” from the walls, redid the

lighting, removed six toilets, and painted, among other work (Tr. 271). The space was divided

into different areas. The front portion was an area with couches and chairs where she did

photography and met with business clients (Tr. 265, 314; Pet. Ex. 8b). There was a kitchen and a

bathroom with a toilet and sink near this space (Tr. 270, 314). The kitchen had a table,

microwave, stove, and sink (Tr. 342; Pet. Ex. 8c), and was used by commercial subtenants and

staff, as well as by herself and other people who lived in the unit (Tr. 270, 314). The unit also

had a small refrigerator, but it was kept in the darkroom, which was in a separate area of the unit,

towards the back (Tr. 342, 343; Resp. Ex. I (drawing of unit showing darkroom as “DR”)).3 The

“live” portion of the space was subdivided from the rest of the unit by three French doors (Tr.

265). The “live” space contained a loft bed on a platform and a separate bathroom, with a

bathtub, toilet, sink, and a table with a mirror (Pet. Ex. 8d). Ms. Matthews testified that she

painted the bathroom and installed the bathtub and sink there after she moved in (Tr. 270). Ms.

Matthews drew a diagram to illustrate the layout of the space (Resp. Ex. I).

Although Mr. Gaver testified that he did not think Ms. Matthews lived in the unit and saw

no indication it was being used residentially (Tr. 41, 79), he acknowledged that he only saw the

front portion of the space, which had an office (Tr. 40). His testimony failed to refute Ms.

Matthews’s testimony that she lived in the unit until 2001 and renovated it, as well as the

photographs showing a sleeping loft, a kitchen with appliances, and a bathroom with a bathtub,

sink, and toilet. There is ample evidence of residential occupancy and of conversion of the unit.

The real issue, with regard to Ms. Matthews’s unit, is whether it was residentially

occupied for twelve consecutive months between January 1, 2008, and December 31, 2009. On

this the parties disagree. Ms. Matthews testified that after she moved to another home to live,

she rented out both commercial and residential space in the loft to multiple tenants to help pay

the rent for the unit (Tr. 352). In 2008 and 2009, she had approximately three commercial

subtenants, who stayed between six months to two years (Tr. 308). She also rented space on a

shorter-term basis, for example, for “some yoga stuff at night” and to a dance troupe that needed

rehearsal space at night for several weeks (Tr. 352). She did not remember the identities of all

3 According to Ms. Matthews, the refrigerator was not kept in the kitchen because the space was instead taken up by a stove, which required the kitchen’s 220 volt outlet (Tr. 342).

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the subtenants, because “there were many people” (Tr. 308). Apart from the commercial tenants,

she recalled two residential tenants who occupied the “live space”: a chef, whose name she did

not recall, and Susan Dawkins (Tr. 350). She did not recall when the chef lived in the “live

space” (Tr. 351), but recalled that Ms. Dawkins was a longer-term tenant.

However, Ms. Matthews could not recall precisely when she rented to Ms. Dawkins.

Asked when she met Ms. Dawkins, she answered, “Maybe 2007. . . I’m not sure” (Tr. 309).

Asked when Ms. Dawkins started living in the loft, she testified that she thought it was after

2006, but could not specify further: “2007, 2008. I’m not sure” (Tr. 310, 311). Asked when Ms.

Dawkins vacated the space, she answered, “I can’t give you an exact date” (Tr. 310). Asked if it

“could have been in 2008,” she replied, “Could have been in 2009. I’m not, I’m not sure” (Tr.

311). She emphasized that she was “not absolutely sure about any of the dates” but, “I mean

between 2006, 2007, 2008 when she was definitely in the live space . . . I mean, I tried to keep it

occupied as I needed the income” (Tr. 312).

I found Ms. Matthews to be a credible witness, in large part because she was careful to

acknowledge that she did not remember precise dates. However, by her own admission, she

could not say whether Ms. Dawkins lived in the unit for 12 consecutive months between January

1, 2008 and December 31, 2009.

The documentary evidence which petitioner introduced relating to the unit was not

helpful in resolving when Ms. Dawkins occupied the unit. Petitioner introduced two documents:

copies of four deposit tickets from the Vintage Vignettes bank account (Pet. Exs. 9a-9d); and two

documents from the New York City Board of Elections pertaining to Ms. Dawkins (Pet. Exs. 7a,

7b). The four deposit slips have the name “S. Dawkins” written on them, together with a

numerical notation (Pet. Exs. 91-9d). Ms. Matthews testified that the writing on the tickets was

hers (Tr. 278). The relevant deposit tickets are dated February 4, 2008, March 10, 2008, May

10, 2008, and June 2, 2009. The dates are all handwritten.

Clearly, the period from February 4, 2008 through June 2, 2009 encompasses more than

12 months during the window period. However, for several reasons, I find the deposit tickets

unreliable in establishing when Ms. Dawkins occupied the units. First, as Ms. Matthews

acknowledged, on the February 4, 2008 and March 10, 2008 deposit slips, the writing, “S.

Dawkins,” is notably darker than the other writing on the slips, and the number showing the total

amount of deposits appears to have been written over another number (Pet. Exs. 9a, 9b). The

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May 10, 2008 deposit slip, by contrast, only has the notation for Ms. Dawkins, and the number,

“800” (Pet. Ex. 9c). On the June 2, 2009 deposit slip, Ms. Dawkins’s name does not appear to be

darker than any other writing, but the number, “800,” which also appears on the slip, looks as if

it may have been written over something else (Pet. Ex. 8d). Ms. Matthews could not explain

why her deposit slips looked that way, with “markings behind markings,” other than to say that

she is “not a bookkeeper” and that in her checkbook, behind each deposit slip there were three or

four carbon copies (Tr. 285). Ms. Matthews said that she does not know if the original deposit

slips exist, because she made the copies many years ago (Tr. 284). She acknowledged that she

did not have copies of rent checks submitted by Ms. Dawkins or copies of bank statements

showing deposits in 2008 and 2009 (Tr. 333).

Although I found Ms. Matthews to be a credible witness, without having the original

deposit tickets or better copies, it is questionable whether the copies in evidence accurately

reflect payments from Ms. Dawkins received on the dates recorded on the deposit slips.

Moreover, given the substantial gap between the third deposit slip, dated May 10, 2008, and the

last deposit slip, dated June 2, 2009, a reasonable inference that Ms. Dawkins lived in the unit

between May 2008 and June 2009 cannot be drawn. Thus, the deposit slips fall short of

establishing a period of occupancy over 12 consecutive months.

The Board of Election documents cast further doubt on whether the deposit slips reliably

demonstrate when Ms. Matthews lived in the unit. The first document is a copy of an address

change form submitted by Ms. Dawkins, dated March 1, 2007, which appears to show a change

of address from 267 Douglass Street to an address in Jamaica, Queens (Pet. Ex. 7a). The second

document (Pet. Ex. 7b) is a computerized activity summary, which appears to show a change of

address from 267 Douglass Street to the same Queens address on March 14, 2007, and then a

change from the Queens address to an address in Manhattan on October 23, 2008. Thus, the

Board of Election records conflict with the deposit slips, which show rent received from Ms.

Dawkins on three dates in 2008 and one date in 2009.

Moreover, neither Mr. Lasowitz nor Mr. Romano was able to reliably testify about when

Ms. Matthews lived in the unit. Mr. Romano testified that Ms. Matthews was his neighbor, but

he did not specifically recall meeting any of her subtenants (Tr. 575, 676). He explained, “. . . I

wouldn’t know a subtenant from a friend, from a visitor” (Tr. 676). Mr. Romano did testify that

he believed that somebody was living in Ms. Matthews’s unit between 2008 and 2009,

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explaining that at night when he was home, he was “very, very aware of the activities going on,”

and that he “just had a sense that someone was living in that space” (Tr. 678). When asked if he

had that belief because he heard noise at night, he replied, “Yes, I think so,” and added that this

was especially so in the summer, when he had the windows open (Tr. 678). However, Mr.

Romano did not provide any further detail about when he heard the noise, or whether he saw

people coming into or leaving Ms. Matthews’s unit late at night or early in the morning.

Accordingly, Mr. Romano’s testimony that he heard noise at night was insufficient to show

residential occupancy, particularly given Ms. Matthews’s testimony that she rented to numerous

short and long-term commercial tenants, including those needing the space at night. Similarly,

Mr. Romano’s testimony that “independent conversations” with Ms. Matthews led him to

“believe” that people lived in that space, and that “the assumption . . . was that she had

subtenants,” was insufficient to establish residential occupancy of the unit for 12 consecutive

months during the window period (Tr. 679).

Taken as a whole, Mr. Lasowitz’s testimony relating to the use of Ms. Matthew’s loft

during the window period was equivocal. At one point, when asked if either Ms. Matthews or

other people were living in the loft in 2008 and 2009, Mr. Lasowitz replied, “Yes” (Tr. 125).

However, when asked a less leading question about the use of the space in 2008 and 2009, he

was less certain, testifying, “Well, there were different people that occupied the space” (Tr. 124).

When asked if those people were living in the space, he testified:

I couldn’t say exactly yes or no. I know there were people in the space because when somebody is living next door to you, you’ll know it. And, I live there and slept there so I could hear people or a person that was occupying or in that space. Now, I can’t give you dates and times . . . . But many times I had to let tenants in [the evening] because the lock was broken.

(Tr. 125). When asked if he knew Ms. Dawkins, Mr. Lasowitz explained that he knew her

because the mail addressed to her was “misdelivered many times,” including on the steps and in

his mailbox (Tr. 125). However, when asked if he connected Ms. Dawkins with a particular unit,

Mr. Lasowitz testified that he was never introduced to Ms. Dawkins and never said hello to her,

so he would not be able to identify her (Tr. 127). He explained that there were artists “in and

out” of Ms. Matthews’s unit in 2008 and 2009 and “activity in that space” (Tr. 462).

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Thus, a fair reading of Mr. Lasowitz’s testimony is that while he thought there were

people living in Ms. Matthews’s space, he was not sure as to when the space was occupied or

who occupied it.

Accordingly, although I credit Ms. Matthews’s testimony that she subleased the loft to

Ms. Dawkins to live in, neither her testimony, nor the documentary evidence, nor the testimony

of Mr. Lasowitz and Mr. Romano, established when Ms. Dawkins lived in the loft. Thus,

petitioner cannot rely upon Ms. Dawkins’s tenancy to establish residential occupancy of the loft

for 12 consecutive months during the window period. See Matter of 180 Varick Street Corp.,

OATH Index No. 2049/04 at 6-7 (Oct. 29, 2004), adopted, Loft Bd. Order No. 2885 (Nov. 18,

2004) (rejecting coverage claim “[I]n the absence of proof that someone was living in the units

continuously for the entirety of the window period”).

Petitioner contends, however, that Ms. Matthews residentially occupied the space in 2008

and 2009, asserting that, for coverage purposes, the unit need not be the sole residence of the

occupant during the window period. Petitioner is correct. See Vlachos, 70 N.Y. 2d at 770;

Sokolowsky, 101 A.D.3d at 607; Ukai, OATH 1394/14 at 26. However, there must still be

sufficient indicia of residential occupancy during the window period. There is no question that

Ms. Matthews stopped living in the loft in 2001. Ms. Matthews did testify, however, that she

occasionally returned to the unit to sleep. However, she was not sure how often she did so. She

testified that she would “occasionally” sleep in the loft in 2008 and 2009, “possibly” once or

twice a month, “maybe” three times in one month (Tr. 317). She stressed that she was “not sure”

and “didn’t keep track of the nights” she spent in the loft (Tr. 317). She testified, “[S]ome

months I maybe spent a week there,” but it was “very sort of erratic” and she “can’t say” (Tr.

318). Ms. Matthews also said that when she returned to the loft to sleep, she did not sleep in the

bed in the “live” space, because the “bed space was rented” (Tr. 318).

I found Ms. Matthews’s testimony to be credible, but insufficient to establish residential

occupancy. Generally, such intermittent and occasional use of a space is insufficient to establish

residential occupancy. See Anthony v. NYC Loft Bd., 122 A.D.2d 725, 727-28 (1st Dep’t 1986)

(choreographer's overnight stays in her dance studio for several months of intense rehearsals

insufficient to establish residential occupancy); Matter of Addis, OATH Index No. 1574-75/02

(Nov. 25, 2002), adopted, Loft Bd. Order No. 2772 (Jan. 9, 2003) (residential occupancy not

established where tenant slept no more than a few nights per month at the unit during the

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window period); Matter of Mussman, Loft Bd. Order No. 905, 9 Loft Bd. Rptr. 50, 58 (May 25,

1989) (coverage denied where occupant's occasional overnight stays fell short of establishing

“independent living”).

The exception is if a residential tenant does not actually live in his or her space during the

window period or a portion of the window period due to personal or business travel, or

schooling, but keeps his or her personal belongings in the space, and intends to return to the

space full-time to live. Pels, OATH Index No. 2481/11 at 7-11 (residential occupancy found

where tenant was a professor who lived away from loft during window period because of an out-

of-state teaching engagement, but kept her belongings in the loft, returned to the loft regularly

during school breaks, intended to return full-time to the loft, and, in fact, did return to the loft

after her job ended); Ukai, OATH 1394/14 at 28-29 (finding that college student occupied the

loft during the window period even though he was a student at an out-of-state school, where he

continued to use the loft as his “base” and “evinced an intent to have the premises be considered

his home”); 333 PAS CoO Tenants Group, OATH 968/08 at 21-22 (residential tenant’s

testimony that he spent about half his time away from the loft on business travel in Europe

during the window period did not preclude a finding of residential testimony, because tenant

intended to return to his loft residence and “[t]here was no evidence that he ever gave up his right

to the unit, not his expectation of continued residential occupancy within the unit.”); see see also

Coronet Properties Co. v. Brychova, 122 Misc. 2d 212, 213-14 (Civ. Ct. N.Y. Co. 1983), aff’d,

126 Misc. 2d 946 (App. Term, 1st Dep’t 1984) (Individuals “engaged in itinerant occupations do

not lose their domicile by virtue of their constant travel.”).

Here, by contrast, Ms. Matthews stopped living in the loft in the early 2000s. There was

no evidence that she kept her belongings in the loft, apart from what she used in her photography

business. Similarly, there was no evidence that Ms. Matthews intended to return to the loft again

to live. Unlike Ms. Pels, who rented out a portion of her loft to two artists to use as a

commercial studio but who reserved residential use of the loft to herself, Pels, OATH 2481/11 at

9, Ms. Matthews testified that after she found another place to live, she sublet the residential

portion of the space, although she could not precisely recall when. Accordingly, petitioner

cannot rely upon Ms. Mattthews’s intermittent stays in the loft to establish residential occupancy

for 12 consecutive months during the window period.

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In sum, petitioner did not prove that the Matthews unit was residentially occupied for 12

consecutive months between January 1, 2008, and December 31, 2009.

John Romano

On balance, the proof relating to Mr. Romano’s unit on the third floor of 269 Douglass

Street supports a finding that he residentially occupied the unit during the window period.

Mr. Romano testified that he leased his unit on the third floor of 269 Douglass Street

since 1997 (Tr. 398). He used the unit purely for commercial purposes, setting up a woodshop

in which he built furniture until the end of 2001, when he was struck by a car and had to close his

business. After this he became a consultant for a developer, but continued to use the loft for his

business (Tr. 605). When he first rented the unit in 1997, Mr. Romano lived with Geraldine

Engel, his former partner and the mother of his older son, in their apartment in Manhattan (Tr.

399). Mr. Romano and Ms. Engel later moved to an apartment on Sixth Avenue in Brooklyn

(Tr. 398-99). In early 2008, Mr. Romano’s mother, who lived in Florida, became very ill, and

Mr. Romano spent a lot of time traveling back and forth to take care of her. During this time, he

was not working and “was looking for things to do” while he was in New York (Tr. 614). He

had a subtenant, Kristina, who had started living in the loft since early 2007 (Tr. 608), and had

complained about the hallway bathroom, which was the only available bathroom and was shared

by about 15 employees working in the business next door (Tr. 613). With the consent of Mr.

Gaver, Mr. Romano began to construct an interior bathroom in the loft (Tr. 402, 403, 411, 571-

72). The bathroom took a while to build, as Mr. Romano needed to run plumbing lines from the

basement, and he proceeded in stages (Tr. 411-412).

On May 17, 2008, Mr. Romano’s mother passed away (Pet. Ex. 12). That same month,

he decided to separate from Ms. Engel and move into the loft to live (Tr. 403). Kristina was still

living in the loft and remained there until June or July 2008 (Tr. 424), during which time Mr.

Romano installed a temporary partition between her living space, which is where the kitchen is

now, and the rest of the unit (Tr. 608). He also continued to work on the bathroom. Although

Mr. Romano was a little unclear as to dates, he estimated that he installed a toilet and sink in the

bathroom in either late early April or late May, 2008 (Tr. 613) or June 2008 (Tr. 650). Mr.

Romano testified that he installed tile “probably” within a few weeks after installing the toilet

and sink (Tr. 651), and installed a bathtub much later (Tr. 651). He could not recall when he

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installed the bathtub, but he believed he acquired it towards the end of 2008 (Tr. 651). He

finished the bathroom with the assistance of friends and “various people in the industry,”

including a “wonderful tile layer” who came in on the weekends (Tr. 650). He indicated he

completed the bathroom in 2009, but did not specify when (Tr. 631).

Mr. Romano testified at length about other work that he did in the unit, including work on

a kitchen area. He testified that when he first moved in, in May 2008, there was no refrigerator,

sink, or stove in the unit. He purchased a hotplate, to use instead of a stove (Tr. 420). In June

2008, someone gave him a small refrigerator, but it did not work, so he bought another smaller

refrigerator and then had the broken one repaired (Tr. 644). He also installed cabinets in the

kitchen area, and, “probably” about March 2009, just before his current partner, Karen Zieff,

moved into the loft, salvaged a larger refrigerator from a construction site which he then installed

(Tr. 644-45). He bought a bed and installed a five-drawer bureau and borrowed garment racks

from Mr. Gaver’s space on which to hang clothes (Tr. 6751). Further, with Mr. Gaver’s

permission, he replaced several windows that were old and malfunctioning (Tr. 411, 421, 572-

73). Mr. Romano estimated that he replaced the windows in mid-April or May of 2008, when

the weather was nice (Tr. 573).

Mr. Romano acknowledged that he did not install a kitchen sink or stove until much later,

despite having roughed out the plumbing for the kitchen sink when he put in the bathroom (Tr.

644). During that time he did the dishes in the bathroom sink (Tr. 643). He explained that he

waited to install the sink because he had not yet obtained the large refrigerator and “didn’t want

to commit” without knowing what the refrigerator would look like (Tr. 644). He thought he

bought the stove, consisting of an electric range and oven, “somewhere in the middle” of 2010,

after his hotplate burned out (Tr. 425, 629). Photographs taken of the unit on April 26, 2010,

show a large refrigerator, but neither a sink nor a stove, thus demonstrating that neither was

installed until sometime later (Pet. Ex. 14a; Resp. Exs. R1, R4).

Similarly, Mr. Romano acknowledged that it was not until late summer 2010, “probably,”

that he built partitions in the unit to make two separate bedrooms (Tr. 630). His older son spent

a few weeks with him in the unit in the summer of 2010, helping to build the bedrooms (Tr. 642).

His son mostly lived on campus when he was in school, but stayed with him on breaks, except

when he was traveling. Mr. Romano’s son moved into the loft to live full-time beginning in May

2013, when he graduated from college (Tr. 642).

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Mr. Romano testified that he and Ms. Zieff had a son in August 2011 (Tr. 630).

Currently, he, Ms. Zieff, his older son, and his younger son all live in the loft (Tr. 629, 630).

Mr. Romano’s testimony was supported in large part by documentation. This included

various receipts, dated from May 2008 through November 2008, showing his address at 269

Douglass Street: a May 13, 2008 receipt from PC Richard for a refrigerator (Pet. Ex. 13a); a July

11, 2008 receipt from Crate and Barrel for an ottoman and bookcase (Pet. Ex. 13c, 13d); an

August 4, 2008 shipping manifest for a headboard, footboard and rail (Pet. Ex. 13e); an August

29, 2008 receipt from Sleepy’s for a mattress and box spring (Pet. Ex. 13f); a September 2, 2008

receipt from The Company Store for a mattress pad (Pet. Ex. 13g); an October 10, 2008 receipt

from United Feather & Down for a mattress pad (Pet. Ex. 13k), a September 5, 2008 receipt from

John & A Store Front Inc., for the replacement of double hung windows as well as a missing

screen (Pet. Exs. 13h, 13i); and a November 8, 2008 receipt from Dykes Lumber for sheetrock,

metal, and other material (Pet. Ex. 13j). The receipts for the ottoman and the sheetrock and other

material show the shipping address as 269 Douglass Street (Pet. Exs. 13c, 13d, 13j), while the

invoice for the mattress and box spring states that the material was to be delivered, and that the

“street address,” similarly, was 269 Douglass Street (Pet. Ex. 13f). Thus, the receipts support

Mr. Romano’s testimony that he moved into the loft and took some rudimentary steps to turn it

into a home, such as buying a bed and other furniture, a small refrigerator, and replacing

windows.

In addition to the receipts, petitioner introduced photographs of the loft (Pet. Exs. 14a-

14l). Mr. Romano originally testified that exhibits 14a-14g were taken at the end of 2008 or in

2009, and that photos 14h through 14l, which show the loft in a more developed state, were taken

in late 2010 or early 2011 (Pet. Ex. 415). At respondent’s request, however, Mr. Romano

obtained metadata information from his computer which showed that the first set of photographs

(14a-14g) were actually taken on April 21, 2010 and April 26, 2010, after the window period

(Resp. Exs. 1- 7). Mr. Romano testified that Ms. Zieff had taken these photographs with an

iPhone (Tr. 624), and given them to him (Tr. 624, 633). His “assumption” was that the

photographs were from 2009 or 2010 because Ms. Zieff said she had retrieved them from a file

labeled “2009/2010” (Tr. 633).

In its post-trial brief, respondent characterizes Mr. Romano’s initial testimony that the

photographs were taken in 2008 or 2009 as an intentional “attempt to deceive” this tribunal

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(Resp. Post-Trial Br. at 30). I was not so persuaded, particularly given Mr. Romano’s

acknowledgment that when he first moved into the loft, and continuing for some time thereafter,

he had neither a sink nor a stove in the kitchen. Mr. Romano also testified that other

photographs (Pet. Exs. 14h-14l), depicting a finished kitchen with two refrigerators, a stove, and

a sink, a partition with two bedrooms, and a bathroom, complete with bathtub and tiling, were

not taken until late 2010 or early 2011 (Tr. 415). Had Mr. Romano really wanted to be deceitful,

he could have testified that these photographs, which show a finished bathroom and kitchen,

were also taken during the window period. He did not.

Moreover, the evidence that exhibits 14a-14g were taken in 2010, rather than earlier, has

little effect upon Mr. Romano’s testimony about work he did in the loft, other than to establish

that the large refrigerator, depicted in exhibits 14a and 14e, was not actually installed in the

kitchen until sometime in 2010. The date that the large refrigerator was installed, however,

makes little difference for the purpose of assessing residentially occupancy. Mr. Romano

testified that he purchased a small refrigerator in May 2008, and petitioner produced the invoice

for this purchase. Given all the other testimony, it is reasonable to infer that Mr. Romano

installed this small refrigerator in his loft at Douglass Street soon after he purchased it.

Further, I found Mr. Romano to be generally credible in describing the construction

process. Respondent posited that Mr. Romano’s testimony about when he installed a toilet and

sink was suspect for several reasons, including that he claimed to have started to build the

bathroom while his mother was critically ill in Florida, and also that he acknowledged sustaining

a clavicle fracture in a motorcycle accident in September 2008 (Tr. 433; Pet. Ex. 15). I do not

agree. Mr. Romano gave a plausible explanation for why he started the work on the bathroom,

explaining that he was not working while his mother was ill and decided to use his time in New

York to start to build the bathroom, in response to his subtenant’s complaints. Regarding the

motorcycle accident, I credited Mr. Romano’s testimony that he installed the toilet and shower in

the spring or summer of 2010, and that he had help installing the bathroom, including the tile,

from co-workers and friends.

In finding Mr. Romano credible, I am aware, as respondent highlights, that he has not

always filed tax returns or paid his debts (Resp. Post-Tr. Br. at 30). Mr. Romano acknowledged

that did not file individual tax returns in 2008, 2009, and 2010, and his company, Samuel John

Inc., did not file corporate tax returns for 2008 and 2009 (Tr. 598, 600). Mr. Romano had a

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history of unpaid parking tickets (Pet. Ex. 17) and multiple judgments were entered against him

for unpaid debts (Tr. 691, 692). Mr. Romano had an explanation for some of these incidents, for

example, a judgment involving a motorcycle sale where he claimed misrepresentation by the

buyer (Tr. 689). That notwithstanding, he appears to have has displayed a certain lack of

judgment in financial matters, most seriously taxes. However, this does not mean that he lied at

trial about when he moved into the loft and what improvements he made, particularly given the

documentation which corroborates his testimony.

Moreover, Mr. Romano’s testimony about the improvements he made in the loft was

corroborated, albeit to a limited degree, by Mr. Gaver. Mr. Gaver denied ever seeing a kitchen

or bathroom in Mr. Romano’s unit and did not recall if he visited the space in 2008 or 2009 (Tr.

45, 58). However, he recalled Mr. Romano asking for permission to change the windows,

replacing the windows, and starting to do plumbing work for the bathroom (Tr. 57-58).

In sum, petitioner established that in 2008 and 2009, Mr. Romano installed a small

refrigerator and hot plate, and a bathroom with a sink, toilet, and bathtub, replaced several old

windows, and bought furniture, including a bed. This is sufficient to show that he took steps to

physically convert the commercial use of the space to a residential use. See Anthony, 122 A.D.

2d at 727 (“The showing of residential use must be accompanied by a showing that the formerly

commercial premises, the domestic use of which is claimed, physically reflect that use, i.e., that

the premises have been converted, at least in part, into a dwelling”); 333 PAS CoO Tenants

Group, OATH 968/08 at 33 (June 30, 2009) (rejecting the proposition that specific types of

bathing and kitchen facilities are required for a showing of conversion and finding the issue is

that “residential use of the loft independent from its commercial use must be shown”); c.f. Matter

of Boyers, OATH 1338/12 at 25-26 (insufficient conversion where loft used as a commercial

gym and dance and artist studio); Matter of Wada, OATH Index No. 1519/96 at 25 (July 25,

1997), adopted, Loft Bd. Order No. 2156 (Oct. 10, 1997) (insufficient physical conversion where

though tenant placed bed in the loft behind a movable partition, he had no bathroom, kitchen,

running water, appliances or fixtures in his space).

Petitioner also established that Mr. Romano lived in the space during the window period.

Mr. Romano’s testimony that he lived in his unit was supported by corroborating testimony,

primarily Ms. Engel’s. Ms. Engel testified that Mr. Romano moved out of their home on 6th

Avenue in Brooklyn in May 2008 and moved to Douglass Street, where he currently lives (Tr.

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371). Although Ms. Engel did not visit Mr. Romano at Douglas Street until recently, she

testified that their son, who was about to enter college, visited his father that summer and slept

there occasionally (Tr. 371). Their son entered college in 2009, living on campus (Tr. 371, 384).

In the summer between freshman and sophomore years (summer 2010), he spent some time with

her and some time with his father (Tr. 384). The next summer, he stayed on campus some of the

time and also went to Europe (Tr. 385). Although respondent asserts that Ms. Engel has an

interest in the outcome of this proceeding, because her son could arguably gain protections under

the Loft Law, Ms. Engel struck me as a credible witness. She certainly does not live at Douglass

Street, and individually has nothing to gain or lose if Mr. Romano wins his coverage application.

There is no doubt, moreover, that Ms. Engel would remember such a major occurrence as the

month that her former partner moved out of their home.

Mr. Lasowitz further corroborated Mr. Romano’s claim of residential occupancy during

the window period. Mr. Lasowitz recalled Mr. Romano “being in and around the . . . area for

many . . .years,” and testified that “at one point it emerged that he was living there and putting

flooring and windows and Mr. Gaver agreed that it was okay” (Tr. 473, 474). Although Mr.

Lasowitz’s recollection of dates was not precise, his recollection that Mr. Romano lived in his

unit when he installed new windows dovetails with Mr. Romano’s testimony about when he

lived in the unit.

Mr. Romano’s testimony that he began living in the loft was also supported by the

documentation relating to physical conversion, discussed above, and to a certain degree, by other

documentation showing his address at 269 Douglass Street. Mr. Romano’s driver’s license and

registration card, and car insurance documents from July 2008 through April 2009 (Pet. Ex. 16)

reflect his address as 269 Douglass Street (Pet. Ex. 16), as do as do multiple parking tickets and

notices and judgments relating to the parking tickets, issued from September 2008 through April

2009 (Pet. Ex. 17). Emergency room discharge papers issued to Mr. Romano on September 7,

2008 also list his address as 269 Douglass Street (Pet. Ex. 15). Further, certain financial and

utility account statements reflect the 269 Douglass Street, although they predate May 2008, when

Mr. Romano testified he moved there. These records include: credit card statements from

December 2007 through January 2010 (Pet. Ex. 21); E-Z pass records from January 2008

through September 2008 (Pet. Ex. 20); and Verizon and AT&T bills from December 2007

through March 2010 (Pet. Exs. 23, 24).

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Conversely, few documents in the record show an address for Mr. Romano during the

window period other than 269 Douglass Street. For example, a doctor’s bill, dated September

15, 2008, shows Mr. Romano’s address as the 6th Avenue address at which he and Ms. Engel

previously resided together (Resp. Ex. Q). Further, cable bills for 6th Avenue show Mr.

Romano’s name as the account holder from January 2008 through December 2009 (Resp. Ex. L).

Although there was no explanation provided for the doctor’s bill, I found Ms. Engel’s testimony

dispositive as to when Mr. Romano moved out of their residence. Regarding the cable account,

Ms. Engel testified that it previously been in Mr. Romano’s name, that there was a password

involved that she did not know, and that it was simply easier to leave the account in Mr.

Romano’s name than to change it (Tr. 391). I found this explanation entirely plausible under the

circumstances.

Thus, there is a significant of amount of testimonial and documentary evidence

supporting Mr. Romano’s assertion that he lived at 269 Douglass Street during the window

period. Respondent urges, however, that I should draw an adverse inference against petitioner

based upon his failure to call either Ms. Zieff or his older son as a witness, namely, that Mr.

Romano lived with Ms. Zieff on Court Street during the window period, rather than on the third

floor of 269 Douglass Street. Respondent’s request is predicated 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). In both

civil and criminal cases, drawing such an inference has been held appropriate if four

“preconditions” are met: (1) the witness's 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. DeVito, 22 N.Y.3d at 165-166; see also

Zhao, OATH 2225/14 at 10 (discussing adverse inference).

The taking of an adverse inference against a party means that “the strongest inferences

may be drawn against [that party] which the opposing evidence in the record permits.” Noce v.

Kaufman, 2 N.Y.2d 347, 353 (1957) (citations omitted). However, “the inference cannot take

the place of evidence; it cannot supply a deficiency in the other party's case nor can it be

regarded as proof of any essential fact . . . .” Laffin v. Ryan, 4 A.D.2d 21, 26 (3d Dep't 1957),

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citing Kezer v. Dwelle-Kaiser Co. et al, 222 A.D. 350, 356 (4th Dep't 1927) (failure to call a

witness does not fill in a gap in an adversary's case).

Here, Mr. Romano testified that he met Ms. Zieff in November 2008 and she moved in

with him in April or early May 2009 (Tr. 401, 402). Ms. Zieff owned, and still owns a

condominium unit on Court Street in Brooklyn (Tr. 639, 640, 667). According to Mr. Romano,

when she moved in with him Ms. Zieff leased her condominium to a subtenant for a year (Tr.

639). After the year the subtenants moved out and Ms. Zieff leased the unit again (Tr. 674). Ms.

Zieff is a professional photographer. Online business guides, accessed in January 2015 and

December 2014, give the address for her business as the Court Street condominium (Resp Exs. S,

T).

Ms. Zieff was initially on petitioner’s trial list, but petitioner indicated on the second day

of trial that he would not be calling her as a witness (Tr. 233). This decision followed

respondent’s request, on the first day of trial, that Ms. Zieff be precluded from testifying for

petitioner unless she complied with the two subpoenas that respondent had issued to her before

trial: one calling for her testimony, and the other calling for her to produce certain documents

(Tr. 93-94, 96). Although petitioner denied that Ms. Zieff was under his “control,” I indicated

that I would consider respondent’s request for preclusion, considering her relationship with Mr.

Romano (Tr. 94, 96, 98).

Following petitioner’s announcement that he would not be calling Ms. Zieff,

respondent’s counsel asserted that he expected Ms. Zieff to testify and produce documents, in

response to his subpoenas, and indicated that if she did not, he would ask that an appropriate

inference be made (Tr. 233, 235).

Ultimately, Ms. Zieff never appeared or produced any documents in response to

respondent’s subpoenas. Petitioner called neither Ms. Zieff nor Mr. Romano’s older son, now 23

and employed full-time, to testify (Tr. 555). During trial, respondent’s counsel stated that he was

considering seeking a subpoena to compel Mr. Romano’s son to testify, but chose not to do so

(Tr. 553, 555).

At the close of trial, respondent asked for an adverse inference based upon petitioner’s

failure to call Ms. Zieff and Mr. Romano’s son, whom he argued would be expected to have

material testimony about where Mr. Romano lived during the window period (Tr. 707-08).

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The circumstances surrounding petitioner’s decision not to call Ms. Zieff are troubling,

since petitioner only decided not to call Ms. Zieff as a witness after respondent had urged that

she be required to produce documents responsive to its subpoena as a precondition for testifying.

Mr. Romano confirmed that Ms. Zieff had initially been scheduled to appear on the second day

of trial, stating that child care had been arranged, but then her testimony had been “cancelled”

(Tr. 672). No reasonable explanation was ever provided for why Ms. Zieff had failed to comply

with respondent’s subpoenas, which demanded her attendance and production of documents on

the first day of trial. Mr. Romano testified that he did not think Ms. Zieff had the chance to look

for the documents that were demanded in respondent’s subpoena, because after she moved into

the loft, she put all her “documents and personal items” in storage, and as she is “caring for a

child,” had not “had the time to go look for them” (Tr. 673). This was not persuasive. Ms. Zieff

may indeed be a busy person, but the assertion that she had no time at all in which she could look

for the requested documents was not credible.

However, the taking of an adverse inference is not appropriate unless certain

preconditions are met. Here, as to both Ms. Zieff and respondent’s son, these preconditions

were not entirely satisfied. Ms. Zieff and respondent’s son appear to be knowledgeable about a

material, indeed critical, issue in this case, involving whether Mr. Romano residentially occupied

his loft during the window period. Moreover, both appear to be “available” to the petitioner, and

under the petitioner’s “control,” by virtue of their familial relationship to Mr. Romano.

Respondent’s son is, of course, his son, and Ms. Zieff is his partner and mother of their child.

Both Ms. Zieff and respondent’s son, moreover, live with respondent. See People v. Gonzalez,

68 N.Y.2d 424, 429 (1986) (“[I]f a witness, although theoretically ‘available’ to both sides, is

favorable to or under the influence of one party and hostile to the other, the witness is said to be

in the ‘control’ of the party to whom he is favorably disposed, and an unfavorable inference may

be drawn from the failure to call the witness”); see also Prince, Richardson on Evidence § 3-140

(Lexis 2008) (noting that missing inference “may attend a party’s failure to call a near relative,”

(citations omitted). However, it is likely that their testimony would be “cumulative” of Mr.

Romano’s testimony about his occupancy of the loft, so that an adverse inference would not be

warranted. See DeVito, 22 N.Y.3d at 166 (N.Y. 2013) (“[A] n uncalled witness's testimony may

properly be considered cumulative . . . when it is cumulative of testimony or other evidence

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favoring the party controlling the uncalled witness.”). An adverse inference is not appropriate

when the testimony would likely be cumulative.

Moreover, even assuming arguendo that an adverse inference were taken against Mr.

Romano because he did not call his son or Ms. Zieff as witnesses,4 the inference would be

limited. Respondent did not offer any evidence which contradicted Mr. Romano’s testimony that

Ms. Zieff moved in with him at Douglass Street, nor the testimony that Mr. Romano’s son

visited him at Douglass Street during the window period and sometimes stayed over. Respondent

offered no evidence which contradicted the testimony relating to Mr. Romano’s son. Regarding

Ms. Zieff, respondent introduced online records showing the Court Street address as the address

for her photography business in 2014 and 2015. These records do not show that Ms. Zieff lived

at the condominium five years earlier. Taking the strongest possible inference which the

opposing evidence permits also does not lead to the conclusion that Ms. Zieff lived on Court

Street in 2009. Petitioner’s failure to call Ms. Zieff does not permit the use of an inference to

“fill in” this evidentiary gap. Laffin, 4 A.D.2d at 26; see also Police Dep't v. Turner, OATH

Index No. 2439/10, mem. dec. at 3 (Apr. 29, 2010) (declining to draw adverse inference based

upon respondent’s failure to testify); Police Dep't v. Hutchinson, OATH Index No. 2502/10,

mem. dec. at 3 (May 14, 2010) (same); Dep't of Sanitation v. Richins, OATH Index No. 167/01

at 14 (Oct. 15, 2001) (declining to draw inference from respondent’s failure to testify that he

engaged in a drug transaction, where there was insufficient evidence on petitioner’s case to

establish the nature of the items exchanged between respondent and the alleged drug dealer).

Instead, the most that could be inferred on this record is that Mr. Romano stayed at Ms. Zieff’s

unit for some period of time before she sublet the unit. This would not defeat the evidence that

he lived at Douglass Street, given the evidence of physical conversion and residential occupancy

of the unit beginning in May 2008. See generally Madeline D’Anthony Enterprises, 101 A.D.3d

at 607, citing Vlachos, 70 N.Y.2d at 770; Ukai, OATH 1394/14 at 26 (a unit “need not be the

sole residence of the occupant during the window period,” so long as there is sufficient proof of

residential occupancy in the unit).

4 It is possible that Ms. Zieff might give limited non-cumulative testimony, for example, regarding when she sublet her condominium unit on Court Street.

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In sum, considering the evidence as a whole, including both the testimony of Mr.

Romano and Ms. Engel, and the substantial documentary record, I find that Mr. Romano’s unit

was residentially occupied for 12 consecutive months during the window period.

FINDINGS AND CONCLUSIONS

1. The buildings at 265-271 Douglass Street have already been

found to be a horizontal multiple dwelling.

2. The parties agree that none of the coverage exemptions under the 2010 amendments apply and the sole issue is whether or not three or more units in 265-271 Douglass Street were residentially occupied during the window period.

3. Mr. Lasowitz’s unit on the second floor of 265 Douglas Street was residentially occupied for 12 consecutive months during the window period.

4. Mr. Romano’s unit on the third floor of 269 Douglass Street

was residentially occupied for 12 consecutive months during the window period.

5. Petitioner failed to establish that Ms. Matthew’s unit on the second floor of 267 Douglass Street was residentially occupied for 12 consecutive months during the window period.

RECOMMENDATION

Petitioner has failed to establish the prerequisites for Loft Law coverage: that three units

in the building were residentially occupied for 12 consecutive months during the window period.

Petitioner’s application should be denied.

Faye Lewis Administrative Law Judge

November 18, 2015

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SUBMITTED TO: RICK D. CHANDLER, P.E. Commissioner APPEARANCES: GEORGE LOCKER, ESQ. Attorney for Petitioner JASON DAVIDSON, ESQ. EMILY MACHIZ PRAGER, ESQ. Attorneys for Respondent