| Madeline D'Anthony Enters., Inc. v Sokolowsky |
| 2012 NY Slip Op 09144 [101 AD3d 606] |
| December 27, 2012 |
| Appellate Division, First Department |
| Madeline D'Anthony Enterprises, Inc., Plaintiff, and ZCAM LLC,Appellant, v Robert (Robbie) Sokolowsky et al.,Respondents. |
—[*1] Borah Goldstein Altschuler Nahins & Goidel PC, New York (Paul N. Gruber of counsel), forrespondents.
Order and judgment (one paper), Supreme Court, New York County (Judith J. Gische, J.),entered May 19, 2011, which to the extent appealed from as limited by the briefs, granteddefendants' cross motion for summary judgment on their first counterclaim and declared that thesubject building is an interim multiple dwelling (IMD) pursuant to section 281 (5) of article 7-Cof the Multiple Dwelling Law and that defendant Robert Sokolowsky is a protected occupant,unanimously modified, on the law, to declare that Sokolowsky's unit is an IMD unit covered bysection 281 (5), and that he is the protected occupant of the unit, and otherwise affirmed, withoutcosts.
Defendant Sokolowsky occupies a unit on the 5th floor of the building. His lease, effectiveSeptember 1, 2007, states that the premises were to be used as an office and that he residedelsewhere.
Effective June 21, 2010, the Loft Law was amended to add Multiple Dwelling Law §281 (5) (L 2010, ch 147, § 1), which created a new qualifying window period under whichresidential units may qualify for coverage as IMDs. Section 281 (5) defines an IMD as anybuilding that: (1) at any time was occupied for manufacturing, commercial, or warehousepurposes; (2) lacks a certificate of compliance or occupancy (CO) pursuant to section 301 of thechapter; (3) is not owned by a municipality; and (4) was occupied "as the residence or home ofany three or more families living independently from one another for a period of twelveconsecutive months during the period commencing" January 1, 2008, and ending December 31,2009, provided that the unit (i) is not located in a basement or cellar and has at least one entrancethat does not require passage through another residential unit to obtain access to the unit, (ii) hasat least one window opening onto a street or a lawful yard or court as defined in the zoningresolution for such municipality, and (iii) is at least 550 square feet in area.
In determining whether or not a structure is an IMD, the proponent for coverage bears theburden of proving that three units were residentially occupied as required by the statute duringthe [*2]window period (see Laermer v New York City LoftBd., 184 AD2d 339 [1st Dept 1992], lv denied 81 NY2d 701 [1992]). In order for aunit to qualify as a covered residence, "it must possess sufficient indicia of independent living todemonstrate its use as a family residence" (Anthony v New York City Loft Bd., 122AD2d 725, 727 [1st Dept 1986]). This includes a showing that the premises have been converted,at least in part, into a dwelling (id.). Where only a small portion of the space is devoted toresidential use, and residential amenities are lacking, the premises are not covered (see Matterof Amann v New York City Loft Bd., 262 AD2d 234, 234-235 [1st Dept 1999]). Forcoverage purposes, a unit need not be the sole residence of the occupant during the windowperiod (see Matter of Vlachos v New York City Loft Bd., 70 NY2d 769, 770 [1987];Kaufman v American Electrofax Corp., 102 AD2d 140, 142 [1st Dept 1984]).
To obtain summary judgment, the movant "must make a prima facie showing of entitlementto judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of anymaterial issues of fact" (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986];Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). Once this showing has beenmade, the burden shifts to the party opposing the motion "to produce evidentiary proof inadmissible form sufficient to establish the existence of material issues of fact which require atrial of the action" (Alvarez, 68 NY2d at 324; Zuckerman, 49 NY2d at 562).
Here, notwithstanding the motion court's inaccurate recitation of certain of the tenants'periods of residency, the record establishes that the 2d, 3d and 5th floor units were occupied bythree separate families for residential purposes for 12 consecutive months during the requisitewindow period of January 1, 2008 through December 31, 2009 in violation of the CO for thoseunits (see Multiple Dwelling Law § 281 [5]; Laermer, 184 AD2d at 340).
The CO provides for commercial use of the 1st floor as a theater, offices on the 2d, 3d and5th floors, and a caretaker's apartment on the 4th floor. Sokolowsky swore from personalknowledge that from fall 2006 to August 2009, Kimberly Burns lived in the 3d floor unit; fromspring 2007 to August 2009, Joseph Kushner and Vanessa Brown lived in the 4th floor unit; andfrom 2004 until September 2009, Roman Milisic and M.J. Diehl lived in the 2d floor unit. Healso swore that the units "were configured and utilized for residential purposes for all of 2008and most of 2009 until the other tenants vacated after a long court battle."
Sokolowsky also submitted affidavits from the prior litigation in which (1) Burns stated thatthe 3d floor unit was configured for residential use; that she resided there from November 1,2006 through October 31, 2008; that the 1st floor contained a commercial unit; and that floors 2through 5 contained one residential unit each; and (2) Kushner stated that he lived in the 4th floorunit with his wife and son from May 1, 2007 through April 30, 2008. Sokolowsky also submittedthe stipulation of settlement from that litigation which required Kushner and Burns to vacatetheir units by August 31, 2009 and Milisic by September 30, 2009.
In addition to the affidavits and stipulation, Sokolowsky submitted (1) architectural drawingsprepared on behalf of plaintiff dated February 25, 2008, which showed that there were residentialunits on the 2d to 5th floors that contained bedrooms, living areas, full kitchens and bathrooms;and (2) records showing that the Department of Housing Preservation and Development issued49 violations on the building, and the Environmental Conservation Board issued 20 violations,including several relating to unauthorized residential use. In 2009, violations were issued notingunauthorized residential occupancy from the 2d to 5th floors.
These submissions sustained defendants prima facie burden of establishing that in violationof the CO: (1) Sokolowsky has resided in the 5th floor from September 2007 to date; (2) Milisicresided in the 2d floor unit as of September 2004 and was authorized by the stipulation to [*3]remain there until September 30, 2009; (3) Burns resided in the 3dfloor unit as of November 1, 2006 and was authorized by the stipulation to remain there untilAugust 31, 2009; (4) Kushner resided in the 4th floor unit as of May 1, 2007 and was authorizedby the stipulation to remain there until August 31, 2009; and (5) the units were configured forresidential use. Thus, even if the 4th floor unit is not counted because the CO allowed itsresidential uses, albeit as an accessory apartment, the 2d, 3d, and 5th floors were occupiedresidentially from January 1, 2008 to August 31, 2009, a period of more than 12 consecutivemonths.
The former tenants' affidavits, which provided firsthand accounts of their residential usewere properly considered by the motion court (see Rosado v Phipps Houses Servs., Inc., 93 AD3d 597, 597-598[1st Dept 2012]; Conforti v Goradia, 234 AD2d 237 [1st Dept 1996]). While thestipulation settling that action contains a statement by the tenants that the building and units atissue "are not covered by [Multiple Dwelling Law] Article 7-C, [and] that [tenants]. . . are not protected, regulated or stabilized tenants of their respective units," thatlegal conclusion does not alter the factual statements made in their affidavits. Indeed, thestipulation was executed prior to the effective date of Multiple Dwelling Law § 281 (5), atwhich time a different window for Loft Law coverage applied.
Plaintiff did not submit sufficient proof to raise an issue of fact as to whether these unitswere occupied for residential purposes for 12 consecutive months during the requisite windowperiod, or as to whether the other requirements of Multiple Dwelling Law § 281 (5) weremet. "Mere conclusory assertions, devoid of evidentiary facts, are insufficient for this purpose, asis reliance upon surmise, conjecture or speculation" (Smith v Johnson Prods. Co., 95AD2d 675, 676 [1st Dept 1983]). "Facts appearing in the movant's papers which the opposingparty does not controvert, may be deemed to be admitted" (Kuehne & Nagel v Baiden, 36NY2d 539, 544 [1975]).
Nor is there merit to plaintiff's reversion argument. In Matter of Schenkman v Dole(148 AD2d 116 [1st Dept 1989], lv denied 75 NY2d 704 [1990]), this Court held that indeciding whether a building qualifies as an IMD under the Loft Law, the sole question is whetherthe building was occupied residentially by three or more families during the statutory windowperiod. A subsequent reduction in the number of occupied residential units cannot affect theremaining residential tenants' rights to Loft Law protection (id.). Here, coverage forSokolowsky's 5th floor unit was established by showing that the three or more units wereoccupied for residential purposes for 12 consecutive months during the requisite window period(id.; see also Matter of Moran, OATH Index No. 2016/00 at 40-41 [Feb. 7, 2002]["Clearly, a unit may be covered for legalization purposes, yet be deregulated for rent purposes. . . (A) sale of fixtures under Multiple Dwelling Law § 286 (6), or a sale ofrights pursuant to § 286 (12) . . . can take a unit out of rent regulation statuswithout eliminating it as a covered unit for legalization purposes"], adopted Loft Bd.Order No. 2726 [Apr. 18, 2002]).
In any event, while plaintiff averred that the units on the 2d, 3d and 4th floors have remainedempty, it did not establish that they were converted back to commercial use (see Acevedo v Piano Bldg. LLC, 70AD3d 124 [1st Dept 2009] [because the owner maintained the residential use of the unit andclaimed exemption from regulation, rather than converting it to nonresidential under 29 RCNY2-10 (c), the unit remained subject to rent stabilization by virtue of the Emergency TenantProtection Act of 1974]; Walsh v Salva Realty Corp., 2009 NY Slip Op 31573[U], *8[Sup Ct, NY County 2009] ["Under the Loft Board Rules, where there is a sale of rights by atenant in an IMD unit, and the unit remains residential, the owner remains subject to allrequirements of the Loft Law and the Loft Board, 'except that the Unit is no longer subject to rentregulation where coverage [*4]under Article 7-C (the Loft Law)was the sole basis for such rent regulation' "]).
The motion court's finding as to coverage should have been restricted to the 5th floor, thesole unit at issue.
We have considered plaintiff's remaining arguments and find them unavailing.Concur—Andrias, J.P., Sweeny, Catterson, Moskowitz and Manzanet-Daniels, JJ.[Prior Case History: 31 Misc 3d 1220(A), 2011 NY Slip Op 50745(U).]