Opinion
85829/06.
Decided April 16, 2008.
The petitioner was represented by: Ray A. Ammirati, Esq., Of Counsel, Wenig, Saltiel Greene LLP, Brooklyn, NY.
The Respondents were represented by: Steven W. Smollens, Esq., Law Office of Steven W. Smollens, New York, NY.
In this holdover proceeding, the petitioner is seeking an order granting summary judgment pursuant to CPLR 3212 on the ground that the subject premises is illegal as not being protected by either the Loft Law or rent stabilization.
The respondents, herein, have resided in the premises located at 73 Washington Avenue, Brooklyn, New York 11205, Apt. 2R, which consists of 2 bedrooms, a full kitchen and full bath, since July 1999.
This matter was initially commenced in Part 52 as a commercial matter. Upon respondent's motion for an administrative order referring this matter to the Housing Part, Judge Richard Velasquez granted the relief, stating in part: "Petitioners have provided no facts whatsoever to support its claim that the subject premises are commercial in use."
The thrust of petitioner's argument is that the subject premises was never converted from commercial to residential use within the statutory "window period" necessary for loft coverage.
MDL § 281(1) defines the "window period" to include units that on December 1, 1981 were occupied for residential purposes since April 1, 1980 by 3 or more families living independently of one another.
See, Residential Landlord and Tenant in NY, § 6:88
Petitioner avers that case law supports its position that current usage as a residence is illegal and cannot be cured by a future variance. In furtherance of its argument, the petitioner claims that "since unit 2R and the entire building remained unoccupied during the window period', 73 Washington Avenue does no qualify as an interim multiple dwelling under Article 7C of the MDL." (Pet. Atty Aff. ¶ 25)
As "proof" to show that the Loft Law was not complied with, the petitioner submits a bare-bones, 1½ page affidavit from the former owner of the building, Roberto Bramilla, who purchased the building in 1980 and sold it in 1999. His only relevant statement, which is not in dispute, is that the respondents did not occupy the subject building during the window period. Mr. Bramilla does not, however, address what, if anything, he did to encourage or prevent the legal conversion of his building from commercial to residential use during the almost 20 years that he owned it, or whether there were other residential tenants in the building in addition to the respondents and what, if any, landlord and tenant relationship he may or may not have had with them.
As a result of legislative amendments over the years, Art. 7C of the MDL was extended several times, the last being from June 30, 1999 to March 31, 2001, to give owners the opportunity to come into compliance with the Loft Law. This last extension covers the period of the respondents' occupation. MDL § 280, as amended, Laws of 2002, Ch. 37, Part C § 3
In response to Mr. Bramilla's statement, the respondents note, in paragraph 14 of their joint Affidavit in Opposition:
Mr. Bramilla offered no facts about the building he once owned relating to the certificate of occupancy, the multiple dwelling status, the registration of rent with DHCR, the number of tenants who lived in the building during the 20 years of his control, how he and his partners rented out apartments in the building, how he and his partners collected rent for two decades and about how he and his partners made 73 Washington Avenue into an eight apartment building.
Similarly, there is no proof submitted by the petitioner itself as to what has transpired in the past 9 years that it has owned the subject building.
The respondents further point out that they are not seeking Loft Law coverage at this juncture, but are seeking the protection of the Emergency Tenant Protection Act (ETPA) of 1974.
While both parties agree that the subject premises are located in an M1-2 Light Manufacturing Commercial Zone in which residential use is prohibited, the respondents seek to prove that other buildings within the same zone have been converted to residential use as a result of variances issued by the city.
The petitioner submits an affidavit from Mitchell S. Ross, Esq., whose practice has focused on Land Use and Zoning Law, which states that "the M1-2 zone does not allow this building to be used residentially." (¶ 3)
To counter this affidavit, the respondents submit an affidavit from Christopher Carrano, Registered Architect, who states that "73 Washington Avenue is located in an M1-2 District in a neighborhood that contains numerous residential buildings and where variances have been issued for converting the existing manufacturing buildings to residential use." (¶ 5) "The trend in this M1-2 District distinctly reveals that the evolution of the buildings in the District from former abandoned use to residential use." (¶ 6)
In support of its position, the petitioner relies on the following four cases: Wolinsky v. Kee Yip Realty Corp. , 2 NY3d 487 , 779 NYS2d 812, 812 NE2d 302 (2004) [failure to occupy unit residentially during the window period precludes application of the Loft Law]; Corastor Holding Co. v. Mastny , 12 Misc 3d 13 , 816 NYS 817 (AT 2nd Dept., 2006) [illegal loft conversions not covered by loft law will no longer receive rent stabilization protection regardless of whether a commercial unit can be legalized without loft coverage], American Package Co. v. Kocik , 12 Misc 3d 1166 (A), 820 NYS2d 841 (2006) and 142 Fulton LLC v. Hyatt, 14 Misc 3d 1223(A), 839 NYS2d 434 (2007).
RELEVANT CASES
In Wolinsky v. Kee Yip Realty Corp., supra, the Court of Appeals held that illegal conversions that do not fall within the window period do not fall under the ambit of the ETPA. "The statute was not intended to foster future illegal conversions or undermine legitimate municipal zoning prerogatives. If the prior-enacted ETPA already protected illegal residential conversions of manufacturing space, significant portions of the loft law would have been unnecessary." Id. at 493
While this case is cited for the proposition that any conversion from commercial use to residential use that does not conform to the Loft Law prevents ETPA coverage, it should be noted that if the city had amended the zoning resolution to include residential use in the zone at issue, "such steps could make residential loft units like the tenants' legal or capable of being legalized." Id.
Thus, the Court of Appeals did not preclude legalization under any and all circumstances where compliance within the window period was not met.
In the Second Department, the case of Gloveman Realty Corp. v. Jeffries , 18 AD3d 812, 795 NYS2d (AD 2nd Dept.,2005) has caused some controversy as a result of its holding. Notwithstanding the fact that the subject premises therein were located in a district where residential use is permitted, the appellate Division simply adopted the end result of Wolinsky v. Kee Yip Realty Corp., supra, without distinguishing the facts between the two cases and applying the exception that the Court of Appeals set forth. As a result, other cases cited by the petitioner, such as Corastor Holding Co. v. Mastny, supra, and American Package Co. v. Kocik, supra, merely followed suit. In reaching a decision in American Package Co. v. Kocik the court was "constrained" by Gloveman Realty Corp. v. Jeffries "until the Appellate Division vacates it order or the order is reversed on appeal".
In 142 Fulton LLC v. Hyatt, 14 Misc 3d 1223(A), 839 NYS2d 434 (2007), cited by the petitioner, the court "declare[d] that the defendants' units are not subject to the Loft Law". However, a careful reading of that decision indicates that it actually supports the position of the respondents, herein. This recent case discusses the "seemingly conflicting decisions" regarding loft space not occupied during the window period "with the crucial issue being whether the space is capable' of being converted to legal occupancy under the provisions of the Zoning Resolution." It notes that other courts have taken a contrary view to Wolinsky v. Kee Yip Realty Corp., supra, and Gloveman Realty Corp. v. Jeffries, supra .
For example, in 480-486 Broadway LLC v. No Mystery Sound, Inc., 11 Misc 3d 1056A, 815 NYS2d 494, the court found, inter alia, that the respondent presented significant factual allegations concerning whether the premises was set up for residential use when the respondents moved in. It held that " Wolinsky follows a line of cases that have held that rent stabilization protection under the ETPA can be afforded to premises that are not covered by the Loft Law, so long as the premises are capable of being legalized."
In 47 Thames Realty LLC v. Robinson , 16 Misc 3d 1105 A, the court denied petitioner summary judgment on the ground that the respondent violated her lease by using her premises as a residence in violation of zoning laws and held that she raised a genuine issue of fact as to whether the residential use may be made legal or that the petitioner could get a variance.
Citing 480-486 Broadway LLC v. No Mystery Sound, Inc., supra, the Appellate Division, First Department, in Duane Thomas LLC v. Wallin , 35 AD3d 232 (2006) held that it appeared the unit at issue "is capable of being legalized, and may therefore be subject to rent stabilization."
Notwithstanding its conclusion that the subject premises in 142 Fulton LLC v.Hyatt, supra, was not covered by the Loft Law, the court relying on Duane Thomas LLC v. Wallin, supra, stated:
Pursuant to this holding, I find that defendants' unit may be subject to the ETPA, but no proof has been submitted on the present motion as to what work is necessary to legalize the units and what steps, if any, have been taken to effect such legalization.
Thus, despite the fact that the units were not subject to the Loft Law, the court pointed out that ETPA was not foreclosed upon submission of proper evidence that they are subject to legalization.
Finally, in Matter of 315 Berry Street Corp. V. Hanson Fine Arts, 39AD3d 656, 835 NYS2d 262 (AD 2nd Dept., 2007), the Appellate Division, citing Duane Thomas LLC v. Wallin, supra, affirmed the Appellate Term, which affirmed the Civil Court in denying summary judgment to the respondents to the extent of determining that the subject premises are subject to the ETPA of 1974 and the rent stabilization law and code where the petitioner "knew of and acquiesced in the unlawful conversion, at the expense of the occupants, of the unit from commercial to residential use [and] that the applicable zoning generally permits residential use. . .".
Based on the foregoing, the Court finds that the petitioner has not met its burden to establish that there are no factual issues to be determined.
The affidavit of the former owner, who has had no interest in the subject premises for 9 years, is the only person called upon by the petitioner to provide a statement on its behalf. As stated above, there is no dispute that Loft Law protection is not applicable here, but numerous other questions, as previously noted need to be resolved before it can be determined if the petitioner is entitled to possession of the subject premises.
Accordingly, the petitioner's motion for summary judgment is denied. The matter is restored to the calendar for May 22, 2008 for all purposes.
This constitutes the decision and order of the Court.