ORDER

NEW YORK CITY LOFT BOARD fn the MaUer of the Applications of

PETER MIGNOLA, DANIEL AYCOCK, PATRICK W EDER, JOHN REINECK, SARAH MCMILLAN, KEITH McCULLOCH, DANIEL GORMAN, MIYUKI GORMAN, ISABEL WILSON, KATRINA VONNEGUT, TIMOTHY ROSENTHA L, J EREMY SLATER, TAMIKA RIVERA, TIVONA BlEGEN

ORDER

Loft Board Order No. 4509

Docket Nos: TR·0797 TR-0822 TR·0828 TR·0851 TR-0960 TR-0963 TR-0964 TR-1 001

RE: 143-155 Roebling Street 1-19 Hope Street 314-330 Metropolitan Avenue Brooklyn, New York

IMD No: 30062

The Loft Board accepts in part and rejects in part, the report and recommendation of Administrative Law Judge Kevin F. Casey, dated May 29, 2013 ("Report").

BACKGROUND

On August 31, 2010, Peter Mignola, occupant of the third floor unit of 143 Roebling Street. also known as 1-19 Hope Street, and 314-330 Metropolitan Avenue, Brooklyn, New York ("Building"), fi led an application seeking Article 7-C coverage pursuant to Multiple Dwelling Law ("MOL") § 281(5). The Loft Board docketed the application as TR-0797. On December 16, 2010, Metroeb Realty Corp. ("Metmeb"), predecessor-in-interest to Redsky JZ Roebling, LLC ("Owner"), current owner of the Building, filed an answer'. On December 17, 2010, Saral1 McMillan, occupant of unit 2E at 147 Roebling Street in the Buitding, filed an answer.

On November 1, 2010, Daniel Aycock, occupant of the ground floor unit at 147 Roebling Street and Patrick Weder, occupant of unit 38 at 153 Roebling Street, filed a joint application seeking Article 7-C coverage purouant to MOL § 281 (5). The Loft Board docketed the application as TR-0822. On November 12, 2010, they filed an amended application. On December 15, 2010, Metroeb filed an answer. On December 17, 2010, Ms, McMillan filed an answer. On July 29, 2011 , Owner filed an answer to the amended application. On August 17, 2011, they filed a second amended application, clarifying the parameters of Mr. Weder's unit. On August 29, 2011, Metroeb Realty Corp. filed an answer to the second amended application.

On November 8, 2010, John Reineck, occupant of unit 5E at 153 Roebling Street, filed an application seeking Article 7-C coverage pursuant to MOL § 281(5}. The Loft Board docketed the application as TR-OB28. On December 15, 2010, Melroeb Realty Corp. filed an answer. On December 17,2010, Ms. McMillan filed an answer_ On June 16, 2011, Mr. Reineck filed an amended application and on June 23, 2011 , he filed a second amended application. On July 29, 2011, Metroeb filed an answer to the second amended application,

On January 3, 2011, Sarah McMi llan, occupant of the unit 2B at 147 Roebling Street also known as the second floor at 153 Roebling Street fjled an application seeking Article 7-C coverage pursuant to MOL § 281(5), The Loft Board docketed the application as TR-0851. On February 18, 2011, Metroeb filed an answer.

1 In 2012, the Building WClS owneu by Metroeb Realty COlp. In 201 4, the Builuir,y was sold to Owner, Redsky JZ Roebling. LLC,

On September 8, 2011, Keith McCulloch, occupant of unit 5A, Daniel and Miyuki Gorman, occupants of unIt 5B; and Katrina Vonnegut and Isabel Wilson, occupanls of u,' )1 5C. each at 153 Roebling Street, filed a jotnt application seeking Article 7·C coverage pursuanl to MOL § 281 (5). The Loft Boord docketed the applicatitlll d::. TR-G960. On OClober 14, LU11, Mel rocb Really Corp. filed an answer_

On September 26, 2011 , Timothy Rosenthal and Jeremy Slater, Mr. AyClJCk's roommates in the ground floor unit at 147 Roebling Street , filed a JOint apphcatlon seeking protected occupant status of the unit. Tile Loft Board docketed the application as TR-0963 On October 27, 2011. Metroeb filed an answer.

On September 26,2011, Tamika Rivera, Mr. Weder's wife and occupant of unit 38 at 153 Roebling Street, filed an application seeking protected occupant status. The Loft Board docketed the application as TR-0964. On October 27. 2011, Metroeb Realty Corp. filed an answer.

On February 14, 201 2, Tivona Biegen, occupant of uotl 4A at 153 Roebling Street, filed an application seeking Article 7-C coverage of her unil pursuant to MOL § 281(5) and protected occupant status. The Loft Board docketed the application as TR·l 001. On March 20, 2012. Metroeb Realty Corp filed an answer.

The loft Board transferred the coverage appl1cations to the Office of Administrative Tnals and Hearings ("OATH"), which assigned the case to AdmlOlstrative Law Judge Kevin F. Casey for adjudication.

On February 9, 2012, Metroeb filed an initial registration application, listing each of the units seeking coverage above, and listing most of the applicants as protected occupants, except for Mr. Rosenthal, Mr. Slater. Mr. Mignota. Ms. Rivera. Ms. Gorman, and Ms. Wilson. Metroreb registered the units but indicated on the registration application that it intended 10 coni est Article 7 -C coverage.

In an email datedMay9. 2013fromherattorney.Ms. Vonnegut withdrew her coverage claim in TR-0906. On May 29, 2013, Judge Casey issued the Report

In the Report, Judge Casey recommended a finding of Article 7~C coverage pursuant to MOL § 281(5) for the Building and the follOWing 9 IMO units:

• The third floor unit at 143 Roebling Street; • The ground floor unit at 147 Roebling Street; • Unit 28 at 147 Roebling Street a.k.a the second floor at 153 Roebling Street; • The third floor unit at 1S3 Roebling Street denominated as the green area; • Unit 4A at 153 Roebling Street, • Units SA, 5B, 5C at 153 Roebling Street; and • Unit 5E at 153 Roebling Street.

We accept Judge Casey's recommendations for Article 7-C coverage pursuant to MOL § 281(5) of the first eight units listed above. In a stipu lation dated February 23, 2015, Owner and Mr. ReinecK settled the coverage claims for unit 5E.

Judge Casey also found that Mr_ Aycock, Mr. Rosenthal, Mr. Slater, Mr. McMillan, Mr. Mignola, Mr. Weder, Ms. Rivera , Ms_ Biegen. Mr. McCulloch, Mr. and Mrs. Gorman, Mr. Wilson and Mr. Reineck are protected occupants of their respective unit. We accept Judge Casey's recommendations that Mr. Aycock, Ms. McMillan, Mr. Mignola. Mr. Weder, Ms. Biegen, Mr. McCulloch, and Mr. Gorman are protected occupants of their respectiVe unil However, for the reasons set forth below. v:e reject his recommendation thai Mr. Slater, Mr. Rosenthal, Ms. Rivera. and Ms. Gorman are protected occupants.

ANALYSIS

Here. we are called upon to make two determinations. The first is to determine Article 7-C coverage under Mult Iple Dwelling Law ("MOL") for the units listed above. Having determined the eligible units, the second determination Is to identify who is a protected occupant.

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The first determination is made under MOL § 281. as amended, which sets forth the statlltory criteria for Arlicle 7-C coverage. The second is made under 29 Rules of the City of New York ("29 RCNY-) § 2-09(b). which is the section of Title 29 that governs in determinations about protected occupancy.

A. COVERED UNITS2

In 2010 and again in 2013, the New York State Legislature amended § 281 to, among other things. expand the definition of an IMD, by adding MOL § 281 (5) . Coverage under MDL § 28 1 (5) requires, among other things, lhat the building was occupied for manufacturing, commercial. or warehollse use, lacks a residential cet1ificate of occupancy, is not owned by a municipality , and has been OCCUPied by three or more families living independently from one another for twelve consecutive months beginning on January 1 :'2008 through December 3

11, 2009 ("Window Period"). Coverage under MDL §

281(5) also requires Ihat a unit 1) may not be located in a basement or cellar; 2) must have at. least one entrance that does not lequire passage through another residential unit, 3) must have at least one window openmg onto a street or a lawful yard or court; and 4) must be atleasl400 square feet in area.

Owner does not dispute that the building has been occupied for commercial use or that it lacks a certificate of occupancy. See, Tr. at 7-10. Nor does Owner argue that it does not meet the other eligibility requirements thai each unit have a door. a requisite window, not be located in a basement and be larger than 400 square feel. Id. For most of the units, Owner disputed the residential use of the units based on different theories.

1. The Gro und Floor Unit at 147 Roebling Street.

We accept Judge Casey's recommendation that ground floor unit at 147 Roebling Street is an IMD unil.

The Loft Board accepts Judge Casey's rejection of Owne('s contennon that the residential use by four occupant.s created single-room occupancies, As the Loft Soold held in Matterar I{uonen, Loft Board Order No. 4333 (Oct. 24 , 2014), where. as here. the occupants reside in the entire unit as rOOnlmates, each witll exclusive use of I)is bedroom. but shared use of a common kitchen, living room, and bathroom, the space constitutes a single IMD unit, rather than separate units.

We also accept Judge Casey's rejection of Owner's contention that the use of the front part of the unit. as an art gallery during specific days and time, precluded coverage of the unit. The front portion -the space used as a gallery - was not partitioned from the back of the unit where the bedrooms are located. The record shows that even when tl1e gallery was open to the public, the back area of the unil was freely accessible from that space. The record also shows that when the front portion was not being used as an art gallery, tenants used the space as a living room. Thus, although there is some commercial activity in the front portion of the unit, the same space was also used for residential purposes; therefore, it is part of the IMD unit.

The Loft Board finds that the ground floor at 147 Roebling Street ;s an tMD unit pursuant to MDL § 281(5).

2. Unit 28 at 147 Roebling St reetfThe Second Floor 31153 Roebling Street

We accept Judge Casey's recommendation that the second floor unit at 147 Roebling Street is an IMD unit.

2 Because there are discrepancies in the addresses of some of the units at issue here between the coverage applications and the registration application, we use the addresses for the units as described in Judge Casey's Report.

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The Loft Board rejects Owner's allegation that the unit was a commercia! rooming house simply because it was shared by several roommates and finds that the second floor at 147 Roebling Street is an IMO unit pursuant to MOL ~ 281(5).

The loft Board finds that the second floor at 147 Roebling Street is an IMO unit pursuant to MOL § 281(5).

3. The Third Floor Unit at 147 Roebling Street

We accept Judge Casey's recommendation that the third floor unit at 147 Roebling Street is an IMO.

We agree with Judge Casey that the recording stud io does not preclude coverage of the entire unit. The recording studio area is less than 25% of the unit and was neither separated nor distinct from the residential areas of the unit As with the art gallery, when the area is not used commercially, it is used residentially. The area has couches and chairs. See, Tr. at 502-503.

We also agree with Judge Casey that Mr. Mignolia's home in Long Island is not relevant in determining whether the third floor is an IMD unit. It has long been settled that primary residence is not relevant in determining whetber a unit is subject to Article 7-C coverage. See, Kaufman v. Am. Electro(ax CO/p., 102 A.D.2d 140 (App Oiv. 1s1 Oep't 1984).

The Loft Board finds that the third floor at 147 Roebling Street is an IMO unit pursuant to MOL § 281(5).

4. Unit 38 al153 Roebling Street: The Green Area

We accept Judge Casey's recommendation that unit 38 at 153 Roebling Street IS an lMD.

Owner did not dispute Mr. Weder and Ms. Rivera's residential use of unit 38 during the Window Period. Therefore. we agree with Judge Casey that unit 38 - described as the green area on the floor plan diagram - is an IMD unit pursuant to MOL § 281(5). See, Floor Plan Diagram - Exhibit 36. We also agree that the other part of the leased space - the red area - is not part of the IMD unil As Judge Casey noted, coverage for the red area is not before the Loft Board.

Owner argued that Mr. Weder remains responsible to it for the rent of the entire leased premises, including the red area. We agree with Judge Casey; the application only raised a coverage claim for unit 38 Coverage for the red area and the rent issue are not issues before the Loft Board at this time.

The Loft Board finds that the green area or unit 38 at 153 Roebling Street is an IMD unit pursuant to MOL § 281(5).

5. Unit 4A at 153 Roebling Street

We accept Judge Casey's recommendation that unit 4A in 153 Roebling Street is an IMD pursuanl to MOL § 281(5) .

Owner argued thai the application should be denied because Ms. Biegen rented her bedroom as an individual unit, which was less than the requisite square footage of MOL § 281(5). We accepted Judge Casey's rejection of Owner's argument. As Judge Casey correctly noted, Ms. Blegen's application did not seek a finding of Article 7 -C coverage for her individual bedroom, but rather for the entire unit 4A as one residential unit. See, Report at 14.

The Loft Board finds that unit 4A at 153 Roebling Street is an lMO unit pursuant to MOL § 281(5)

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6, Units SA, 58 and 5C at 153 Roebling Street.

We accept Judge Casey's recommendation that units 5A, 58 and 5C at 153 Roebling Street are IMO units ~Ulsucmt to MOL § 281(5). The documentary evidence presented for these uIIlI::> !shuw IhCtI th~ units were residentially occupied prior to and throughout the Window Period.

The l oft Board finds that units 5A, 5B and 5C at 153 Roebling Street are each IMD units pursuant 10 MOL § 281 (5).

B. PROTECTED OCCUPANTS

1. Standard for Determining Protected Occupant Status

The rules in 29 RCNY § 2-09(b) guide the Loft Board in making determinations about Article 7-C protection for residential occupants commonly referred to as protected occupant status. In his Report, Judge Casey summarized the standard for determining protected occupant status citing only to §§ 2-09(b)(1) and (2). See, Report at 4. However, as discussed below, his analysis is incomplete because he does not consider the subsection of the rule set forth in § 2-09(b)(4) of the Loft Board rules" See,ld.

Section 2-09(b)(1) provides that except as otherwise provided in the rule the occupant in possession of a covered IMD unit is the protected occupant of the unit. Therefore, before the Board can make a determination under (b)(1) , the Board must first consider the rule as a whole, including the provisions in (b)(2), (b)(3) and (b)(4). This means that any analysis of the rule must include consideration of the provisions in § 2-09(b)(4), if applicable. Thus, according to the plain language of § 2-09(b)(4), the prime lessee is the residential occupant entitled to Article 7-C protection, if the residential unit is his or her primary residence. If the unit is not their primary residence, the prime lessee's right to the unit is tenninated. This is the only subsection of § 2-09(b) where primary residence is a factor.

Where there is no prime lessee, § 2..Q9(b)(1) through (3) determine eligibility for protected occupant status depending on whether occupancy began before or after the effective date of the applicable law. However, where there is a prime .lessee, § 2-09(b)(4) governs. In that event, the prime lessee is deemed to be the residential occupant qualified for protection under Article 7-C, if the prime lessee can prove that the residential unit covered as part of an IMD is his or her primary residence, even if another person is in posseSSion.

Judge Casey, relying on V(ac/los v. New York City Loft Board, 70 N.Y.2d 769, 770, (1987): Kaufman v. American Efectrofax Corp" 102 AD. 140 (App Div. 1" Dep't 1984): and UWe West 12"' Street Realty v. /Ilconiglios, 19 Misc, 3d 508 (N.Y. eiv. Ct. 2008) afrd, 23 Mise.3d 28 (App Term 15

( Dep't 2009) stated that for the purposes of determ ining protected occupant status, primary residence is irrelevant. See, Report at 11 . This misstates the holdings in these cases. Since 1984, Ihe courts and the Loft Board have consistently held that in determining Article 7~C coverage for a build ing or unit, primary residence is not required . In each of the cases cited by Judge Casey, the issue being resolved was one of coverage for the building, not protected occupant status.

1. Ground fl oor at 147 Roebling Street

Judge Casey found that Mr. Aycock, Mr. Slater and Mr. Rosenthal are all protected occupants of the ground floor unit. We disagree. Under the analysis described above, only Daniel Aycock is the residential occupant qualified for Artide 7-C protection.

In December 2004, Mr. Aycock and Mr. Baldwin signed a lease extension with the then-DINner extending the lease to December 2008. See, Aycock Lease Amendment. dated December 1, 2004. ThUS, Mr. Aycock and Mr. Baldwin are the prime lessees of the ground floor unit. Mr. BaJd'Nin has not made a claim for coverage in this application.

Although Judge Casey made no findIngs of primary reSidence, we find that based on the documentary evidence in this record, including the records from Verizon, Board of Elections, banks, various phone companies and his driver's license, Mr. Aycock demonstrated that the ground floor at 147 Roebling Street is his primary residence. Mr. Aycock, Mr. Slater and Mr. Rosenthal each credibly testified that Mr. Aycock continued to reside in the unit almost every day even after he married in May 2010. See,

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Tr. at 67-88, 102, 144. Thus. under 29 RCNY § 2-09(b)(4), we find that Mr. Aycock, the prime lessee, is the protected occupant of the unit. Further, we note Ihatlhe Loft Board's determination thai Mr. Aycock is the protected occupant of the ground floor unit is without prejudice to any daims Mr. Baldwin may have for protected occupanl status.

We reject Judge Casey's conclusion that an occupant is a protected occupant so long as he residentlal1y occupies Ihe IMO unit. See, Report p. 1. Even though Mr. Slater and Mr. Rosenthal occupied the unit p(ior to the effective date of the law, because Ihere IS a prime lessee who is seeking coverage, they are not protected occupants at this time.

2. Unit 28 at 147 Roeb ling Street or Second Floor at 153 Roebling Street

Judge Casey found that Sara McMillan is the protected occupant of the unit. Although we agree with Judge Casey that Ms. McMillan is a protected occupant, we do so for different reasons.

Ms. McMillian is the prime tessee of the unit. See, McMillan Lease, dated July 10, 2006 and LeDse Amendment dated January 19,2008. As suell, pursuant to § 2-09(b)(4), Ms. Millan must show Ihat Ihe unil is her primary residency. Although Judge Casey made no findings about primary residence, we find that based on the documentary evidence in Ihis record , which Includes her driver's license, Ms. McMillan demonstrated that the second floor at 147 Roebling Street is her primary residence. Therefore, pursuant to 29 RCNY § 2-09(b)(4), she is the protected occupant of the unit.

3. The Third Floor Unit at 143 Roebling Street

Mr. Mignota is the protected occupant of the unit. Although we agree with Judge Casey's recommendation that that Mr. Mignola is the protected ocx:upant of the unit, we disagree with his analysis.

Mr. Mignola 's lease, dated April 12, 1991, is part of the Loft Board's files. Acx:ordingly, as Ihe prime lessee, he is the protected occupant, if the unit is his primary residence. Although the Report made no findings about Mr. Mignota's primary residence, we are able to make a determination based on the evidence In the record. The record includes certified records from the Board of Elections and utility bills listing the third floor at 143 Roebling Street as Mr. Mignolia's address. The record also indudes the testimonies of Mr. Mignola, his father and his wife, which confirm that while Mr. Mignola's wife and children lived in Brookhaven, Mr. Mignola, generally resided in the unit from Sunday nights through Friday mornings and keeps many of his possessions, including his musical instruments at the unil See, Tr. at 496, 533, 784-787.

Accordingly, we find that the third floor unit at 143 Roebling Street is Mr. Mignola's primary residence and he is the protected occupant of his unit.

4. Unit 38 at 153 Roebling Street

Judge Casey found that Mr. Weder and Ms. Rivera are protected occupants of unit 38 also known as the green area. We agree that Mr. Weder is a protected occupant. but not for the same reason and we disagree that Ms. Rivera is a protected occupant.

Mr. Weder is a prime lessee. He and Jeff Zimmerman signed two lease extensions. The last tease extension ended on January 31, 2011 . Mr. Zimmerman is not seeking protected occupant status in this case.

As discussed above, the space leased by Mr. Weder was subdivided into two separate units prior to Ihe WindQVol Period. Mr. Weder occupies residentially only a portion of the leased premises. On the diagram used during the hearing, the area was described as the green area. Under 29 RCNY 2-09(c){5) , in certain circumstances, a prime lessee may seek to recapture a subdivided unit, but Mr. Weder does not seek to do so. In this application, he only seeks coverage for the space he actually occupies - unit 38.

Although Judge Casey made no findings about primary reSidence, the documentary evidence in the record, including his tax returns, shows thai unit 38 is Mr. Weder's primary residence. Thus, under 29 RCNY § 2-09(b)(4), Mr. Weder is the protected occupant of unit 38.

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However, as stated above, where, as here, there IS a pnme lessee who uses the U!11\ as l1is or her prlrnary residence, non-prime Jessee occupants are not occupants Qualified for protection pursuant to 29 RCNY § 2-09(b)(4). I\lthougl1 Ms. Rivera, Mr. Weders wife, occupies lhe Unit, she is not protected occupant at Uk:> till I\:!. A~ Mr. Wedel"s spouse occupying the Unit as her pnrnary residence, she is entitled to succession rights in Mr. Weder's absence, pursuant to 29 RCNY § 2.08.1 and she will be entitled to be named on the initIal tease that IS issued upon removal from the Loft Board's jurisdiqion.

We find that Mr. Weder is the protected occupant of the unit 3B at 153 Roebling Stree\. Further, we note that the Loft Board's determination that Mr. Weder is the protected occupant of unit 38 is without prejudice to any claims Mr. Zimmerman may have for protected occupant status.

5. Unit 4A at 153 Roebling Street

Judge Casey recommended a finding that Tivona Biegen is the protected occupant of unit 4A at 153 Roebling Street. We agree.

Ms. Biegen established that she has resided in the unit since 2009, prior to the effective date of the law and she remains in possession. See, Postal Service Change of Address. The prime lessee, Andrew Bradfield, does not live in the unit and he is not seeking protected occupant status in this case_ See, Tr. 959. We note that Mr. Bradfield was served with the application, but did not answer.

Because no prime lessee is claiming protected occupancy status for this unit and her occupancy started before the effeclive of the law, she need not derj10nstrate that the unit is her primary residence. In addition, whether or not Owner consented to her occupancy is not an issue. See, 29 RCNY § 2-09{b)(2).

Therefore, pursuant to §§ 2-09(b)(1) and (b)(2), Ms. Biegen is the protected occupant of unit 4A

6, Units 5A, 59 and 5C at 153 Roebling Street

In the Report, Judge Casey recommended that Mr. McCulloch, Mr. and Mrs. Gorman and Ms. Wilson are protecled occupants of their respective units. The Loft Board agrees that Mr. McCulloch, Mr, Gorman and Ms. Wilson are protected occupants.

Mr. McCulloch and Mr. Gorman are prime lessees of units SA and 5B respectively and they seek protected occupant status for their units.

Atthough Judge Casey made no findings of primary residence, the documentary evidence in the record establish thaI both Mr. McCulloch and Mr. Gorman use their units as their primary residence. The documentary evidence in the record includes Mr. Gorman's tax records, bank records and driver'S license and Mr. McCulloch's tax records, Board of Elections records, and driver's license. Based on these records, the Loft Board finds that the Mr. McCulloch and ,Mr. Gorman occupy their respective units as their primary residence.

However, as slated above, where, as here, there is a prime lessee who uses the unit as his or her primary residence, non-prime lessee occupants are not occupants qualified for protection pursuant to 29 RCNY § 2-09{b)(4). Although Ms. Gorman, Mr. Gorman's wife, occupies the Unit, she is no! protected occupant under Article 7-C at this time. As Mr. Gorman's spouse occupying the Unit as her primary residence, she is entitled to succession rights in Mr. Gorman's absence, pursuant to 29 RCNY § 2-08.1 and she will be entitled to be named on the initial lease that is issued upon removal from the Loft Board's jurisdiction. RSC § 2522.5(g)(1).

Regarding unit 5C, Ms. Vonnegut is the unit's prime lessee. However, Ms. Vonnegut moved out of the unil in 20 11 and her attorney withdrew tler claim to protected occupancy status in an email dated May 9, 2013. See, Email.

Ms. Wilson seeks protected occupant status for unit SC. According to her testimony, she moved into the unit in September 2009, prior to the effective dale of l11e law. See, Tr. al 899. TI'8 documentary evidence corroborated her testimony. See, pay stubs, rent checks dated in 2009 and 2010. AccordIngly, as a residentTal occupant who has been residing in unit SC at 153 Roebljng Street prior to the effective

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date of the law, she has demonstrated that she is the protected occupant pursuant to 29 RCNY § 2-09(b)(1) and (2).

CONCLUSION

Accordingly, the claims for coverage of the following units in the Building are granted:

1. the ground floor unit at 147 Roebling Street; 2. Unit 2B at 147 Roebling SlreeVsecond floor unit at 153 Roebling Street, 3. thelhird f!oorunitat 143 Roebling Street 4. Unit 3B al1 53 Roebling Street, 5. Unit4Aat 153 Roebling Street, 6. Unit 5A al 153 Roebling Street, 7. Unit 58 at 153 Roebling Street and 8. Unit 5C at 153 Roebling Streel

Mr. Reineck's coverage for unit 5E and protected occupant claims are deemed settled pursuant to an agreement dated February 23, 2015. In the agreement, Owner withdrew its challenge to coverage of unit 5E South. Owner agreed that unit SE South is an IMD unit and that Mr. Reineck is the protected occupant of Unit 5E South. See, Agreement, dated February 28, 2015. In exchange, Mr. Reineck agreed 10 surrender unit 5E North to the Owner.

Owner is hereby directed to file an amended registration application that lists unit 4A at 153 Roebling Street, and unit 5ES rather than unit 5 at 153 Roebling Street. with the Loft Board within thirty days of the mailing date of this Order. Failure to do so may result in enforcement proceedings. which may result In the imposition of fines.

The claims of protected occupant status for Mr. Aycock. Mr. Mignola, Ms. McMillan, Mr. Weder, Mr. McCulloch, Mr. Gorman, Ms. Witson and Ms. Biegen are granted, and the claims for protected occupant status for Mr. Stater, Mr. Rosenthat, Ms. Rivera and Ms. Gorman are denied. Ms. Vonnegut's claims are deemed withdrawn without prejudice.

Dated: April 21, 2016

Alexandra Fisher Chairperson

Board Members Concurring: Carver, Barowitz, Gregory, Fisher, Bolden-Rivera Schachter. Shelton

Board Members Dissenting: Delaney

DATE LOFT BOARD ORDER MAILED: APR 292016

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Mutter of Migllo[u OATH Index Nos. 248211 1,2483111,248411 I, 240112, 80~1 1 2 ,

809112, 810112 & 1616112 (May 29, 2013) [Loft Bd. Dkt. Nos. TR-797, 822, 828, 851, 960, 963, 964, & 1001 ,

143- I 53 Roebling Street, Brooklyn, N. Y.)

Petitioners proved that they are pt'Otected occupants of interim multiple dwelling units entitled to coverage under the Loft Law.

NEW YORK CITY OFFICE OF ADMINISTRATIVE TRIALS AND HEARINGS

In the Matier of PETER MIG NOLA, JOHN REINECK, DANIEL AYCOCK, PATRICK WEDER, SARAH McMILLAN, TIVONA BlEGEN, KEITH McCULLOCH, DANIEL GORMAN, MIYUKI GORMAN, ISABEL WILSON, TIMOTHY ROSENTHAL, JEREMY SLATER, AND TAMIKA RIVERA

Petitioners -against-

METROEB REALTY CORPORATION Respondent

REPORT AND RECOMMENDATION

KEVIN F. CASEY, Adminis/I'(J/ive Law Judge

Petitioners applied to the Loft Board, under section 28 1(5) of the Multiple Dwelling Law

(MDL) for findings that they are protected occupants of an interim mUltiple dwelling (IMD)

located at 143-155 Roebling Street, also known as 1-1 9 Hope Street, and 3 14-330 Metropolitan

Avenue, Brooklyn, New York. See Mult. Dwell. Law Art. 7-C (the Loft Law); 29 RCNY §§ 2-

08, 2-09(b) (Lexis 2012).' Respondent, the corporate owner of the building, opposed the

applications and the Loft Board referred the matter to this tribunal for a hearing. 29 RCNY § 1-

06G)(2)(ii) .

At the nine-day hearing, which ended on September 21, 2012, petitioners presented

twenty witnesses and respondent called three witnesses. The parties also offered documentary

I Another petitioner, Katrina Vormegut, withdrew her appl ication after the hearing.

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evidence and, following post~hearing submissions, the record was closed on April 2, 2013 . For

the reasons below, petitioners ' coverage applications should be granted.

ANALYSIS

The five-story building is located at 143-155 Roebling Street, Brooklyn, Block 2368, Lot

1, also known as 1-19 Hope Street, and 314-330 Metropolitan A venue (Pet. Exs. 1, 18).

Petitioners seek findings that the building is covered by the MDL § 281(5) and that they are

protected occupants of qualifying units with in the building. Respondent contends that petitioners

are not covered by MDL § 281(5) because they are commercial tenants or roommates.

Preliminary Issue

This matter concerns SiX consolidated coverage applications; it does not address a

building registration and de-coverage application submitted by respondent after this consolidated

hearing had commenced.

On February 9. 2012, while this matter was pending, respondent registered the building

and listed all of the petitioners -- except Rosenthal, Slater, Rivera, SiegeD, and Miyuki Gordan-­

as protected occupants under MDL § 281 (5) . Respondent also registered as protected occupants

Lincoln Schnur-Fislunan and Emily Abate, who were not parties to this consolidated coverage

application, and Vonnegut, who withdrew her coverage application.

On March 27, 2012, the Loft Board received a decoverage application from respondent.

Respondent argued that the building, units, and occupants were not covered by the Loft Law

because the building did not contain three residential units fo r twelve consecutive months during

the window period; the units did not have required windows, area size, and separate entrances;

and roommates or subtenants were ineligible for coverage.

All of the -tenants who are petitioners in this consolidated coverage application submitted

answers in opposition to the landlord ' s decoverage application. Other tenants also submitted

answers oppos ing decoverage, but those tenants -- Steven Fishman, Troy Fuller, Elizabeth Fuller,

Lincoln Fishman, Brooke Lovell, Vanessa Liberati, and Vonnegut -- are not parties in this

consolidated coverage application. The Loft Board referred the decoverage application to this

tribunal, which received the referral on May I I, 20 I 2.

-3-

Many of the issues rai sed in the decoverage application are discussed in this report and

recommendation. However, this report does not directly address the decoverage application

because it was not received by this tribunal until after the petitioners had presented their

evidence, none of the parties referred to it during the hearing, and it was not mentioned in the

post-hearing memoranda. Moreover, none of the parties moved to consolidate the decoverage

and coverage appl ications and, although the decoverage and coverage applications overlap, the

palties are not identical.

TIle coverage applications for each unit are discussed below.

Multiple Dwelling Law § 281(5)

Tb be covered by the Loft Law, the building must: (1) have once been occupied for

manufacturing, commercial. or warehouse use; (2) lack a certificate of compliance or occupancy;

(3) not be owned by a municipality; and (4) have been occupied as the residence or home of any

three or more families living independently from one another for twelve consecutive months

during the "window period," from January 1, 2008 to December 31, 2009. Mult. Dwell. Law §

281 (5).

There is no dispute that the building has been occupied for commercial use. it lacks a

certificate of occupancy. and it is not owned by a municipality (Tr. 81-82, 86-88; Pet. Exs. 1,

18). The credible evidence also showed that the building was occupied as the residence of three

or more families living independently from each other for twelve consecutive months during the

window period. Thus, the building is an IMD covered by the Loft Law.

A residential IMD unit entitled to coverage must: (1) not be located in a basement or

cellar: (2) have at least one entTance that does not require passage through aoother residential

unit to obtain access to the unit; (3) have at least one window opening onto a street or lawful

yard or court as defined in the zoning resolution for such municipality; and (4) be at least 400

square reet in area. Id.; see also 29 RCNY § 2-08(a)(4)(iii). To qualify for coverage, a unit must

possess "sufficient indicia of independent living to demonstrate its use as a family residence."

Madeline D 'Anlhony Enterprises, Inc. & ZCAM LLC v. Sokolowksy, JOJ A.D.3d 606, 607 (1st

Dep ' t 20 12). An applicant must show that the unit has "been cOllverted, at least in part, into a

dwelling." [d. The unit is not covered if "only a small portion of the space is devoted to

residential use, and residential amenities are lacking." Id.; see also 29 RCNY § 2-08(a)(3). No

-4-

one factor is controlling. See Matter oj Soufh J Jill Street Tenants Association, OATH Index Nos.

1242196, 1243196, 1244/96 at 39-40 (Mar. 30,1999), adopted, Loft Bd. Order No. 2397 (Apr.

29, 1999) ("regulations defining a residential unit were deliberately left open-ended to allow for

a more f1exible approach to coverage detennination").

None of the petitioners' lmits are located in a basement or cellar and all of the units have

at least one entrance that do not require go ing through another residential unit to obtain access.

Respondent argued that some of the petitioners had windowless bedrooms with less than 400

square feet of area (Memorandum of Han,), Shapiro at 7, February 7, 20t3). But petitioners

never argued that a bedroom was a qualifying unit. Instead, each petitioner argued that his or her

bedroom was part of a larger unit with residential amenities, including a kitchen, bathroom, and

living room (Memorandum of Margaret Sandercock at II , April 2, 20 13). Each unit had

windows facing the street and at least 400 square feet of area (Tf. 77, 287, 394, 726, 757, 818,

902, 922). Thus, petitioners' units were eligible for coverage.

An applicant qualified for protection under MDL 281 (5) is a «residential occupant" in

possession ofa covered res idential unit prior to June 21 , 2010. See 29 RCNY § 2-09(b)( J); see

also Maller oj Gurkin, OATH Index No. 489112 at 23 (Dec. 14, 2012); Wyman v. Hoberman,

OATH index No. 2653/11 at 5 (June 22, 2012). A residential occupant who took occupancy

prior to June 21, 2010, is entitled to coverage even if the occupant does not have a written lease

or occupied the unit without the landlord's consent. 29 RCNY § 2-09(b)(2); see also 545 Eighth

Ave. Assocs. v. NYC Loft 8d., 232 A.D.2d 153, 154 (I st Dep' t 1996) (residential occupants in

possession on the requisite dates are protecte.d occupants); Korn v. Batista, 131 Misc. ?d 196,

200 (Sup. Ct. N.Y. Co.), ajJ'd, 123 A.D.2d 526 (lst Dep't 1986) ("The Loft Law was designed to

protect all residenti.al occupants whether or not they are in privity of contract with the

landlord."); Dworkin v. Duncan, 11 6 Misc. 2d 853, 862 (N.Y- Civ. Ct. 1982) (the Loft Law' s use

of the more elastic term "residential occupanf' rather than "tenant" was designed to relieve fact­

finders "from the strictures of more traditional and stable housing arrangements. ").

The credible evidence established that each petitioner was the residential oocupant of a

covered unit prior to June 21, 2010, the effective date ofMDL § 28](5). Thus, the petitioners'

are protected occupants and their coverage applications should be granted.

-5-

Daniel Aycock, Thomas Rosenthal, and Jeremy Slater (Ground Floor Unit)

Daniel Aycock testified that he has lived in the ground floor unit at 147 Roebling Street

Since 1998 (Tr. 53). Jeremy Slater testified that he has lived there since 2000 and Tom

Rosenthal testified that he moved in 2003 (Slater: Tr. 147; Rosenthal: Tr. 90). Another

roommate lived in the space during the window period, but he longer lives there and did not file

a coverage application (Tr. 52).

Accordjng to respondent's diagram, the area of the unit is more than 3200 square feet

CRespo Ex. B). The unit has two sections, referred to by the parties as the "front" and the "back,"

separated by a door without a lock (Tr. 114). The front has an entrance from Roebling Street

(Tr. 1002; Resp. Ex. B). [n the back, a fire door leads to a gated alley (Tr. 1248-51).

The area of the front section is approximately 1460 square feet. It includes 767 square

feet of open space, a 156 square-foot office, and 537 square feet of storage space (Tr. 71-73, 201 ;

Resp. Ex. B). Petitioners claim that the open space is used as an art gallery from I :00 to 5:00

p.m. on Fridays, Saturdays, and Sundays (Tr. 102, 145-46; 155, 159, 1200). The roommates lise

that space to relax and socialize the rest of the week (Tr. 71-73 , 255-56, 270). Aycock operated

the art gallery, worked in the office, and used most of the storage space ('fr. 85, 195. 253).

To get to the back section, people enter from Roebling Street and walk through the front

section (Tr. 232). The back section, with an area of more than 1770 square feet, has four

bedrooms, a Jiving room, a kitchen, and a bathroom (Tr. 86; Pet. Ex. 16; Resp. Ex. B). The area

of each bedroom is from 178 to 200 square feet; the living room is approximately 500 square

feet; the kitchen, equipped with an oven, range, and microwave, is more than 350 square feet;

and the bathroom, equipped with a tub, toilet, and sink, is about 150 square feet (Tr. 74-75; Pet.

Ex. B). Aycock, Rosenthal, and Slater and the fourth roommatc each had their own bedroom and

they shared the common areas of the back section (Ir. 74, 147,230-32).

Aycock signed a lease extension in 2007 (Tr. 200). During the window period, he paid

the landlord approximately $5,800 per month to rent the entire unit (Tr. 59, 222, 232). He

contributed $2,000 a month towards the monthly rent and collected thc remainder from his thrce

roommates, charging each of them $954 per month (Tr. 107, 122, 149,168,222).

Respondent's witness claimed that the entire space was commercial and they questioned

whether petitioners lived there. For example, respondent's assistant manager Zalmen Labin

testified that the space which the petitioners referred to as Aycock's bedroom, was an office (Tr.

-6-

993, 1046-47). Labin claimed that Aycock worked at the ground floor unit during the day and

left at night (Tr. 1042). Though Labin conceded that the unit had bedrooms, he said that he did

not know who lived there (Tr. 11 00). Labin had heard the names Slater and Rosenthal, but he

did not know them (Tr. 1047, 1095, 11 04).

Vice president and general manager Jacob Weber testified that the ground floor unit was

«absolutely" commercial (Tr. 1130, 1188). When he saw people in the unit, he assumed that

they were "off the street" visitors to the gallery (Tr. 1147, (148). Corporation president Aaron

Berger testified that all of the building' s tenants rented for commercial purposes (Tr. 1188). He

said that "most of the time" the art gallery was open all day and be only found out last year that

Aycock had been living in (he building (Tr. 1160-61 , 1172).

J found petitioners' witnesses more credible than respondent's witnesses. Petitioners'

witnesses offered detailed testimony supported by ample documentary evidence, tncluding

government records, bank statements, utility bills, and photographs (Pet. Exs. 6, 8, 10, 11-14, 19-

21 , 23-27). Rosenthal's tax relum li sted a Westchester address, but he credibly testified that it

was his parents' addres.<; where he only stayed a few nights per year (Tr. 110, 124). See Maller

o/Gurkin, OA TH 489112 at 16 (because a person may reside at more than one address, proof that

wi tness listed one address on a tax return i's not inconsistent with testimony tJlat witness also

resided at a different address). The rest of petitioners' evidence showed that Aycock, Rosenthal,

and Slater lived in the ground Ooor unit of respondent's building during the window period.

In contrast, respondent's evidence was unpersuasive. Respondent's witnesses portrayed

themse lves as hands-on managers who were intimately fami lial' with the building. Remarkably,

none of them seemed to know who occupied the ground floor unit.

Respondent argued that Slater and Rosenthal are not protected occupants because they

had no dealings with the landlord. That argument lacks merit. The relevant inquiry is whether

Slater and Rosenthal residentially occupied the unit during twelve consecutive months of the

window period. 29 RCNY § 2-05(a). They are protected occupants even if they had no dealings

with the landlord. See 545 Eighth Avenue Assoc., 232 A.D.2d at 154 (residential occupant

entitled to coverage "even if the occupant is not a prime tenant and even if the landlord did not

consent to a sublet, assignment or subdivision, as long as the occupant was in possession prior

to" effective date of statute); Kaufman, 102 AD.2d at 142-43 (same).

-7-

Respondent's claim that the groul1d floor unit was a Single Room Occupancy (SRO) unit

or a rooming house (Kesp. Mem. at 7) is also mistaken. The Multiple Dwelling Law defines

"single room occupancy" as "occupancy by one or two persons of a single room, or of two or

more rooms which are joined together, separated from a ll other rooms within an apartment in a

multiple dwelling, so that the occupant or occupants thereof reside separately and independently

of the other occupant or occupants of the same apartment." MDL § 4(16). That is not the

situation here. The ground floor unit is a residential dwelling where four roommates each have

their own bedroom but they share a kitchen, bathroom, living room, and other common space.

See 29 RCNY § 2-08(0)(3); Madeline D'Anthony Enterprises, 111c., 101 A.D.3d at 607.

Although there was some commercial activity, the unit is mostly residential. The

credible evidence showed that Jess than one-half of the space is used less than one-half of the

time for commercial activity. Aycock, an illustrator and graphic designer, worked in a small

office in the front section (Tr. 249-250). He has no paid employees (Tr, 203, 213, 248). The

large open space is an art gal lery 15 hours per week, from Friday through Sunday, 1:00 p.m. to

6:00 p.m. (Tl'. 73,238; Pet. Ex. 16). The rest of the time it serves as a living room. Though the

storage area was usually locked, the key was next to the door, accessible to all the occupants (Tr.

203,247,264). Because the unit was primari ly residential and the occasional commercial use

occurred in an area that was accessible to all of the occupants, the entire unit is an IMD. Cf

Dalo v. NYC Loft Bd., 157 A.D.2d 461 , 463 (I" Dcp't 1990) (where 2000 square feet of tenant's

2800 square foot loft was used exclusively for physically separate woodworking business with

mUltiple employees, portion of spaced devoted to woodworking business, with separate

entrances and keys, not covered by Loft Law).

Aycock, Rosenthal, and Slater are protected occupants because they li ved in the ground

floor unit prior to June 21, 2010. Respondent suggested that Aycock may have moved out

shortly before June 21, 2010, but petitioner proved otherwise. Aycock married Kathleen Vance

in May 2010 and Vance had her own apartment elsewhere in Brooklyn, but petitioners'

witnesses credibly testified that Aycock spent most of May and June 2010 living in the grOlllld

floor unit at Roebl ing Street (Aycock: Tr. 87-88; Slater: Tr. 144). After the wedding, respondent

served Aycock with an eviction notice (Tr. 87. 257. 1198). To avoid the risk of losing the space

where he had lived and worked fOT more than a decade, Aycock stayed in his Roebling Street

apartment (Tr, 87),

-8-

Sarah McMillan (2nd Floor Unit)

McMillan, a movie and television set director, testified that she has lived in a second

floor unit at 147 Roebling Street since 2004 (Tr. 275-76, 279). Documentary evidence, including

a driver's license, phone hilts, and photographs, supported her testimony (Tr. 292-93; Pet. Exs.

29,31.-32,35,45). The unit has five bedrooms, two living rooms, a kitchen, and a bathroom (Tr.

285-86), TIle space is approximately 1,800 square feet and the area of each bedroom is from 105

to 178 square feet (Tr. 286, 313).

In 2008, the rent was $3,250 per month (pet. Ex. 28). McMillan and four roommates

each paid a proportionate share of the rent based on the size of their own bedrooms (Tr. 28 1,

285; Pet. Ex. 30). McMillan co-signed a lease for the unit in 2006, she collected each

toommate's share. and she paid the monthly rent to the landlord (Tr. 290; Pet. Ex. 28). During

the window period, there were always five people living in the unit (Tr. 312). Roommates

moved in and out, including McMillan who temporarily moved Oll t for two months in 2009 (Tr.

323-24, 327-28). Emily Abate, a roommate wbo has lived in the unit since 2008 but was not

seeking coverage, corroborated McMillan's testimony (Tr. 379).

Respondent conceded that McMillan was the prime tenant (Labin: Tr. 1052-53 ~ t 114-15).

However, respondent argued that McMillan was not a protected occupant because she engaged in

strictly commercial activity, operating a "rooming bouse" with four boarders (Resp. Mem. at lO­

ll). Petitioner countered that McMillan was not operating a business~ she was living in an

apartment that she leased and shared with four roommates (Pet. Mem. at 8).

McMillan did not operate a rooming house. She shared expenses with four roonunates.

They each had their own bedroom and they all had access to the kitchen, bathroom, and living

rooms. 29 RCNY § 2-08(0)(3).

McMillan could have up to four roommates and still qualify as a protected occupant.

Under the Loft Board's ru les, for a residential unit to be deemed an lMD, qualifying for coverage

under the Loft Law-, the unit must "be the res idence or home of a 'family' as defined in" MDL §

4(5). 29 RCNY § 2-08(a)(4)(i)(A). The Multiple Dwelling Law's definition of "family"

includes "a person occupying a dwelling and maintain ing a household, with not more than four

boarders, roomers or lodgers .... A ' boarder,' 'roomer' or ' lodger' residing with a family shall

mean a person living within the household who pays a consideration for such residence .... "

-9-

MDL § 4(5). This statute has been long been interpreted to mean that a person who maintains a

common household may «rent out rooms to not more than four other people," Levine v.

Finkelstein, 274 A.D. 628, 634 (J st Dep't 1949). That is consistent with the plain wording of

the statute which reters to a boarder, roomer, or lodger "residing with a family."

Because McMillan 's unit was residentially occupied for twelve consecutive months and

she lived there prior to June 21, 2010, the unit is covered by the Loft Law and McMillan is a

protected occupant.

Peter Mignola (3rd Floor)

Audio engineer Peter Mignola testified that he has lived in a third iloor unit at 143

Roebling Street since 1991 (Tr.481 ·82). The entire space is approximately 3,000 square feet

(Tr. 518; Pet. Exs. 55; Resp. Ex. K). Mignola described the unit as having four , similarly sized,

connected sections with a common entrance: one-quarter of the unit is next to the elevator

entrance and includes a small bedroom; one-quarter is a sbared open space; one-quarter is a

music recording and production studio; and one-quarter includes a larger bedroom, a full

bathroom, a dining room, and kitchen equipped with a stove, sink, and refrigerator (Mignola: Tr.

482,50 1,636,641; Labin: Tr. 998,1067; Pet. Ex. 55; Resp. Ex. F). Documentary evidence,

including utility bills and photographs of the kitchen, appliances, and bedroom, supported

Mignola's testimony (Tr. 50S-SIS; Pet. Exs. 2, 56, 57).

During the window period, Mignola paid respondent $5,000 per month rent for the unit

(Tr. 661). A roommate, ((jrsten Thoen, paid Mignola from $1,000 to $1,500 per month to live in

the small bedroom (Tr. 661). Mignola normally worked weekday overnight shifts at a television

network in Manhattan (Tr. 485, 491). On weekdays, Mignola usually returned to Roebling Street

to sleep (Tr, 489-90, 492, 605). On weekends, he drove to Brookhaven, Long Island,

approximately 70 miles from Manhattan, where his wife and children live (Tr. 492-93, 605-06,

~77, 709). Mignola's fami ly occasionally spent weekends with him at Roebl ing Street (Tr. 608).

In his spare time, Mignola performed mus ic and operated the recording and production

studio in his Roebling Street apartment (Tr. 492). Mignola estimated that the recording and

production studio generated about 5% of his annual income (Tr. 609). Aided by a personal

assistant and a few unpaid interns, Mignola provided professional recording, engineering, and

production services for musicians in the studio one or two days per week (Tr. 504). Teruhisa

·10-

Uchiyama, who worked in the recording studio as an unpaid intern during the window period,

testified that there were approximately five to seven recording sessions per month and "a lot of

the time" nothing was happening (Tr. 1258).

For most of the window period, the lUlit's open space was empty. Occasionally. Mignola

entertained guests there and musicians rehearsed there (Tc. 615), Mignola's roommate, Thoen,

also used that space for photo shoots and to entertain guests (614, 627),

Mignola ' s testimony was supported by his wife, Sara, and his father, GeJUlaro. Sara

Mignola testified that, after marrying Mignola in 2000, they ijved together at the Roebling Street

space for four years (Tc. 784-85). Following the birth of their first child, they moved to Long

Island (Tr. 785). Because tbe commute was from ninety minutes to three hours, depending on

the traffic, her husband continued to stay at Roebling Street and returned to Long Island on

weekends (Tc. 786-87). Gennaro Mignola, who helped install the plumbing, lighting, and

carpentry in the Roebl ing Street space, confirmed that his son usually stayed there on weekdays

(Tr. 531 ·12, 543, 538-39, 550·51).

According to respondent, Mignola ' s unit was commercial space (Resp. Mem. at 8-9),

General manager Jacob Weber testified that, about thirty times per year, he saw Thoen arriving

in the morning and leaving in the afternoon (Tr. 1155, 1158-59). It looked to Weber as if Thoen

used her space as a photography studio and "every time" that Weber went to the recording studio

there were musicians recording there (Tr. 1134, 1157). Weber and assistant manager Labin

testified that half the unit, including the kitchen and dining areas, were for the recording studio

(Tr. 1004-08, 1074, t 134, 1157; Resp. Ex. K). Berger testified that he never saw Mignola, he

had "no idea" that Mignola had a job in Manhattan, and he did not learn until last year that

Mignola lived in tite unit (Tr. 1157. 1185, 1188·89).

J gave little weight to respondent's witnesses who offered sweeping claims based on

limited observations. For example, Weber testified that he was onl y inside Mignola's unit on

seven to nine occasions during the two years of the window peA'iod (Tr. 1151, 1156). Berger said

that he could not estimate how often he had been in the unit (Tr. 1185). Similarly. Labin

testified that he was inside the Mignola unit four or five times during the window period (Tr.

1064-65).

-11-

In contrast, petitioners presented compelling evidence that the Mignola unit was used

mostly for residential purposes. The recording studio occupied less than one-quarter of the entire

unit and it was used commercially only a few days a week. The open space, which was another

quarter of the unit, was used even less frequently for commercial activity. And the other half of

the unit was primari ly used for residential purposes. It is a residential unit that an occupant

occasionally lIses for work. Under these circumstances, the whole unit is an IMD. Cf Dala, 157

AD.2d at 463 (where most of a unit is used exclusively for a separate business, with a separate

entrance, the portion of the unit devoted to separate business in not covered by Loft Law).

Respondent presented evidence that in late 2010 or early 201 1. after the window period,

Mignola's new roommate, Owen Black, began advertising that the open space was available for

$200 to $400 per day (Labin: Tr. 1079; Weber: Tr. 1160, 1330; Resp. Ex. I). Because thaI

activity occurred after the window period and there was no evidence how often Black actually

rented the space out, that evidence was irrelevant to the coverage application.

Nor does it matter that Mignola advertised the music studio's avai lability for overnight

stays, a full kitchen "stocked upon request," and "plenty of room to bunk down and take a nap or

spend the weekend for lockout sessions by request" (Tr. 1007; Resp. Exs. C, L) . -Mignola

credibly testified that, during the window period, 110 musicians stayed overnight (Tr. 612),

It is also irrelevant that Mignola has a home in Long [sland, where his family lives. He is

a covered occupant at Roebling Street as long as he residential ly occupied a covered unit; it did

not have to be his primary res idence. See Vlachos, 70 N.Y.2d at 770 ("[t]here is no requirement

for Loft Law coverage that residentially occupied units be the primary residence of their

tenants"); see also Kaufman, 102 A.D.2d at 142 (unit covered by Loft Law even though occupant

maintained a separate primary residence); Little West 121h St. Realty L.P. v. inconiglios, 19 Misc.

3d 508, 516-17 (N.Y. Civ. Ct. 2008) ajJ'd, 23 Mise.3d 28 (App. Term 1" Dep' t 2009) ("the

initial determination regarding Loft: Law coverage depends on whether three or more units were

occupied for residential purposes during the window period. not on whether they were occupied

as the primary residences of their tenants") .

The evidence established that M ignola's unit was used primarily for residential purposes,

he resided there for twelve consecutive months during the window period, and he occupied the

unit prior to June 21, 2010. Thus, the unit is an [MD and Mignola is a protected occupant.

-12-

Patrick Weder and Tamika Rivera (3rd F loor)

Cabinet maker Patrick Weder and his wife Tamika Rivera have lived in a third floor unit

of 153 Roebling Street for about fifteen years (Weder: Tr. 345, 413; Rivera: Tr. 460; Pel. Exs.

46-53). Weder leased approximately 3,900 square feet of space li'om the landlord (Tr. 4 13). In

2005, with respondent's consent, Weder divided the space into two sections (Tc. 392). Each of

the two sections has a separate kitchen, bathroom, and locked entrance (Rivera: Tf. 1083).

Weder and Rivera live in a 1,800 square-foot section, which they referred to as the "green

arca" on a diagram of the unit (Tr. 354, 446; Pet. Ex. 36). The other section, referred to as the

"red area," has six bedrooms that Weder rented to subtenants (Rivera: Tf. 1037). The two

sections are cOImected by an emergency door, which Weder only uses to replace a circuit breaker

or adjust the hot water (Tr. 359, 425). Once or twice a year, he also uses the freight elevator in

the red area (Tr. 440).

During the window period, Weder paid respondent $7,000 per month rent for the entire

space (Tr. 422, 437). To cover that amount, Weder contributed $1,300 per month for the green

area and he collected $900 to $1,250 a month from each occupant of the red area (Tr. 423).

Weder paid for utilities and a cleaning service fo r the entire space. He also paid a friend to

collect rent from the red area and find replacement subtenants, if necessary (Tr. 420).

Respondent's witnesses did not dispute that Weder leased the entire space, that he lived

in one section, that he used an agent to rent out bedrooms in the other section, and that both

sections have separate kitchens and entrances (Labin: Tr. 1037-38, lO84, 1088-90; Resp. Mern.

at 12). However, respondent argued that the "red area" is not covered by the Loft Law and

Weder is responsible for the rent for the entire space (Resp. Mem. at t 2).

Petitioner argued that the space leased by Weder should be considered two different

units, the green area and the red area, and Weder and his wife Rivera are protected occupants of

the green area (Pet. Mem. at 24).

Respondent's premise seems to be that a leased unit cannot be divided. That is mistaken.

The relevant inquiry is how the space was configured and used during the window period. See

Matter oj Grant, OATH Index No. 186411 0 at I I (Nov. 17, 2010) (one leased unit reconfigured

and occupied as two units results in two IMD units); see also Matter oj Schwartz, Loft Bd. Order

No. 4 J 3 (Aug. 15, 1986) (three floors leased as one unit but occupied as three units during

window period constitutes three IMD units).

-13-

Weder divided the leased space into two scparately·occupied. self-contained units before

the window period. They should be considered two separate units. See S. Axelrod Co. , Inc. II.

Me/ Dixon Studio, Inc., 122 Misc.2d 770, 782 (Civ. Ct. N.Y. Co. 1983) (wbere tenant divided

leased space into two separate studios with separate locked entrances and residential amenities,

each space deemed a separate unit for purposes of Loft Law coverage); Matter of DeGraw,

OATH Index No. 625/96 at 23 (Apr. 25, 1997), remanded, Loft Bd. Order No. 2 114 (May 22,

1997), adopted/allowing supplemental reparl and recommendation, Loft Bd. Order 2126 (Aug.

28, 1997) (upholding finding that leased unit had been divided into two separately occupied units

prior to the relevant window period).

Weder and Rivera are protected occupants of the green area that they residentially

occupied for twelve consecutive months during the window period. It is a separate independent

living unit. 29 RCNY § 2-08(a)(3). The red area is a separate section and its occupants did not

seek coverage. On this record, there is simply too little evidence to discem whether that section

should also be covered under MDL § 281 (5).

Tivona Biegen (Unit 4A)

Social worker Tivona Biegen testified that she has lived in Unit 4A at 153 Roebling

Street, since January 17,2009 (Tr. 920, 937). She supponed her testimony with documentary

evidence, including postal records, bank statements, tax retums and photographs (Tr. 922, 934;

Pel. Exs. 113 , ] 16,122-125). The area of unit 4A is 1,420 square feet. It has three bedrooms

and a common area with a shared kitchen, bathroom, and dicing room (Tr. 933-36, 957).

During the window period, at least one of Biegeo's roommates, Jonathan Wellerstein,

lived there for at least twelve consecutive months (Tr. 967, 97 1). Biegen paid $1,250 a month

for use of one bedroom and the common area (Tr. 962). Her roommates, who 8re oat seeking

coverage, paid $1 ,150 and $900, for their bedrooms and use of the common area (Tr. 964). Rent

payments were collected by Andrew Bradfield, a fOInler tenant who leased the entire unit from

respondent for $3,170 (Tr. 970-73).

Respondent 's witness, assistant manager Labin, described Unit 4A as a three-bedroom

apartment (Tr. 1035-36). Yet Labin claimed that he did not know Biegen's first name and he did

not know what she looked like (Tr. 1080). Respondent also argued that Biegen was not a

protected occupant because she is a roommate or subtenant without possessory rights to other

-14-

bedrooms in the loft, her bedroom was less than 400 square feet, and she had no contact with the

landlord (Resp. Mem. at 7).

The credible evidence established that unit 4A was res identially occupied for twelve

consecutive months during the window period and Siegen resided there prior to June 21, 2010.

Thus, she is a protected occupant of a covered unit. Contrary to respondent's claim, it does not

matter that Biegen ' s bedroom is smaller than 400 square feet. The entire unit, including the

kitchen, bathroom, and living room, is 1,420 square feet, which is more than the minimum

required for an IMD unit. MDL § 281 (5), Nor does it matter that Biegen lacked privity with

respondent. See 545 Eighth Avenue Assoc., 232 A,D.2d at 1 S4 (residential occupant entitled to

coverage "even if the occupant is not a prime tenant and even if the landlord did not consent to a

sublet, assigruncnt or subdivision, as long as the occupant was in possession prior to" effective

date of statute); Kaufman, 102 A.D.2d at 142-43 (same).

Keith McCulloch, Daniel Gorman, a nd Isabel Wilson (Units SA, 58, and SC).

Keith McCulloch, a painter, testified that he has lived in a fifth floor unit at 153 Roebling

Street for nearly ten years (Tr. 714). In 2003, he leased the entire space, with an area of about

3,600 square feet (Tr. 715, 744-45; Pet. Ex. 61). Beginning in 2006, he leased a smaller 900

square foot portion of the unit, referred to as SA, for $2,800 per month and he continued to live

in that space throughout the window period (Tr. 745; Pet. Ex:. 63). SA has a bathroom and a

kitchen and McCulloch lives there with two roommates who are not seeking coverage (Tr. 726).

Daniel and Miyuki Gorman have lived in unit 58 for at least five years (Tr. 753-54).

They initiaiJy rented the space from McCulloch, but they signed a lease with respondent in April

2009 (Tr. 754-55; Pet. Ex. 71). The lmit is approximately 770 square feet and it has a toilet,

bathtub, stove, refrigerator, kitchen (Tr. 756-57).

Isabel Wilson testified that she moved into 5C in September 2009 (Tr. 899). The unit has

four bedrooms, a bathroom., living room, and kitchen (Tr. 901 -02). At first, Wilson lived there

with a roommate Katrina Vonnegut, who bad a lease (Tr. 899). When Vonnegut moved out

about a year ago, Wilson notified respondent and continued to pay the monthly rent by check

(Tr. 899,912). Wilson continued to live in the unit with three roommates and the four of them

split the rent equally (Tr. 9 12-13).

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Wilson also presented evidence tbat 5C was previously occupied by Elizabeth Seklir.

Steven Seklir, Sr. , an attorney, testified that his daughter lived in 5C from 2004 until she moved

out in August 2009 (Tc 888-89).

McCulloch, the Gormans, and Wilson supported their testimony with documentary

evidence including driver's licenses, voting records, utility statements, tax returns, and

photographs (Pet. Exs. 3, 64·89, 106-110). Respondent' s witness, assistant manager LabiD,

knew that McCulloch and the GOimans lived in SA and 5C, respectively, but he did not know

Wilson (Tr. 1054-55).

As petitioners' counsel noted, respondent did not dispute that SA, 58, and SC were

residentially occupied for twelve consecutive months or dlat petitioners occupied those units

prior to June 21 , 2010 (Memorandwn of David Frazer, March 5, 20 13). Based on the und isputed

evidence. McCulloch, the Gordans, and Wilson are protected occupants of their respective units.

John Reineck (Unit SE)

Reineck testified that he has lived at 153 Roebling Street, unit 5E, for seven years (Tr.

801-02). In 2007 he signed a lease for the entire space, which is approximately 3,200 square feet

(Tr. 807-08, 816; Pe t. Ex. 93). This unit is similar to the Weder unit. It is divided into two

sections, cOIUlected by locked doors (TI'. 87 1-72). The sections each have a separate entrance,

kitchen, bathroom, living room, and windows facing the street (Tf. 822-23; Pet. Ex. 95).

Reineck and two roommates lived in one section, referred to on diagrams and by the

parties as the "striped space," which has three bedrooms (Tr. 850) 862; Pet. Ex. 95). In the other

section~ there are five bedrooms, none of which is larger than ISO square feet (Tr. 1049).

According to Reineck, he does not have a key to the entrance to the other section (Tr.

822, 825). The connecting doors between the sections are locked and rarely used (TT. 824-25).

The elevator opens into Reineck 's section (Tr. 864-65). On rare occasions, when people in the

other section need to use the elevator, they contact Reineck to unlock the cOJrnecling doors and

building management to schedule the elevator (Tr.. 864-65, 873).

During the window period, Reineck paid monthly rent of $7,000 for the entire 3,200

square-foot space (Tr. 850). Reineck and his two roommates eacb paid $800 for their own

bedroom and use of the shared space in their section (Tr. 850-51). One of Reineck's roommates

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collects the remaining $4,600 per month from the people jiving in the other sectioo (Tr. 829, 846,

859).

Petitioners argued that Reineck's space should be treated as the same as the Weder

space (Pet. Mem. at 25). It is a leased space that was divided into two separate, independent

units with separate locked entrances. Respondent does not dispute that Reineck and his

roommates li ve in the striped area (Resp. Mem. at 13). However, respondent argues that

Reineck operates the other half of the space as if it was a rooming house and, thus, none of the

space is covered by the Loft Law (Resp. Mem. at 13),

As with the Weder's space, unit 5E should be considered two separate units and the

section occupied by Reineck and his roonunales should be considered onc unit. See S. Axelrod

Co. , Il1c., 122 Misc.2d 770 at 782; Matler of DeGraw, OATH 625/96 at 23. The striped space

was res identially occupied for twelve consecutive months during the window period and it meets

all of the other requirements for coverage. And Reineck should be deemed a protected occupant

of the striped space because he resided there prior to June 21, 20 I O. As for the other half of the

space, the w]slriped unit, its occupants did not seek coverage and the record is insufficient to

discern whether that section met the requirements for coverage under lVIDL § 285(5).

FINDINGS AND CONCLUSIONS

1. Petitioners proved that the building located at 143-155 Roebling Street is an interim mUltiple dwelling under the Loft Law.

2. Petitioners Aycock, Rosenthal, and Slater are protected occupants of the ground floor unit, which is a covered Mit.

3. Petitioner McMillan is a protected occupant of the second floor un it, which is a covered unit.

4. Petitioner Mignola is a protected occupant of the third floor unit, wh ich is a covered unit.

S. Petitioners Weder and Rivera are protected occupants of the portion of the third floor unit referred to as the "green area," which is a covered uni t.

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6. Petitioner Biegen is a protected occupant of Unit 4A, which is a covered unit,

7. Petitioners McCulloch, Daniel and Miyuki Gorman, and Wilson are protected occupants of Units SA, 58, and 5C, respectively. which are covered units.

8. Petitioner Reineck is a protected occupant of the portion of Unit 5E referred to as the "striped space," which is a covered unit.

RF.COMM f:NI>ATlON

Petitioners' applications should be granted.

May 29, 2013

SUBMITfED TO:

ROBERT D. LiMANDIU Chair

APPEARANCES:

GOODFARB & SANDER CO CK, LLP

Kevin F. Casey Administrative Law Judge

Attorneys/or Petitioners Mignola, Ay cock, Rosenthal, Slater, Weder, Rivera, McMillan, Biegen, and Reineck BY, MARGARET SANDERCOC K, ESQ.

DA VlD FRAZE R, ESQ. Allorney f or Petitioners McCulloch. Daniel and Miyuki Gorman, and Wi/son

SMITH & SHAPmo, LLP Attorneys/ or Respondent BY, HARRY SHAPIRO, E SQ.

Opinions from April 21, 2016 Meeting

15) Mignola, et. aI., 143-155 Roebling Street, TR-0797

Opinion of Chuck Delaney

As the tenant representative on the loft Board, I voted against the proposed order. r agree with the

decision to cover the units, but r have serious concerns regarding the determination of who is and who

isn't a protected occupant among the applicants.

I have written opinions on several cases where the Board has applied its new (and r believe wrong)

reasoning to the Question of who is a protected occupant. In this very complicated case, the Board finds

a number of units to be covered but then cherry picks who is a protected occupant by applying portions

of Rule 2-09. In my view, 2-09 was written to address situations where there is a dispute between

people in units that were sublet, subdivided or assigned. For over 30 years the Board did not use this

test, but now it has decided to apply 2-09 without giving the public any notice or opportunity to

comment.

In this case we see determinations that find two husbands to be protected occupants because their

names appear on leases while their respective wives are determined not to be protected occupants,

despite the fact that alJ the individuals were in place on June 21, 2010 and for a significant period of

time before that. Instead, it declares tha t the two women are entitled to "succession rights. " r don't

know of any requirement regarding having one's name on a lease with regard to the requirements for

coverage under the loft law via either MOL 281.1 or 281.5. In fact, the reason there are coverage

criteria for IMDs is because the legislature understood that most of the leases that were written were

sham leases that often were designed to conceal the true use of a unit . I believe these determinations

to be ultra vires and I hope that this group of applicants has the interes t and the resources to contest

this decision in another forum. I would refer the applicants to the section of the dissent I wrote from

the May 2015 docket In TR-0974, 73 Leonard Street, Application of Ker ry Schuss; Monico Forrestall and

Moxwelf Schuss headed "Who is the protected occupant of this unit?"

The other troubling aspect of this order is that it offers opinions about whether or not a given unit is the

primary residence of an individual. It is well settled that the key question regarding coverage of a unit is

whether it is used residentially. If an individual does not use a unit as a primary residence, the issue of

primary residence may be grounds for an eviction proceeding in court after coverage ;s determined, but

that is not an issue that is handled by the loft Board.

This case heads down two separate, slippery slopes. r hope it is reviewed.

NOTICE

A party aggrieved by a determination of the l oft Board may file an application for reconsideration ofthe determination. Under 29 RCNY § 1~07(b). an aggrieved party must serve the reconside rat ion application on the affected parties to the prior proceeding. Service of the application sha ll be completed in accordance with 29 RCNY § 1-06. The aggrieved party must then file the application at the loft Board's office along with proof of service and the required application fee. Under sect ion 1-07{b), "(t)o be considered timely, a reconsideration app li cation must be received by the Loft Board within 30 days of the date of mailing by the loft Board of the determination so ught to be reconsidered."

Pursuant to;[9 RCNY §1-07(d):

A loft Board determination pursuant to section 1-06 if these ru les sha ll be the final agency determination for the purpose of judicial review, unless a timely app lica tion for reconsideration ofthe determination has been filed. In such case, (I) if the Loft Board modifies o r revokes the underlying order, such revocation or modification shall be deemed the final agency determination from which judicia l review may be so.ught; (ii) if the Loft Board denies the reconsideration application, the underlying order shall be_ deemed the final agency determination; and (iii) if the Loft Board decided the reconsideration app lication by remanding the matter to the hearing officer for further proceeding, neither the underlying order nor the remand order shall constitute a final agency dete rmin ation, and no judicial review may be sought until such time as the loft Board issues a final agency determination follOWing the remand.