150 West 26th Street Corp. v. Galowitz

• Decision Date: 05 June 1986
• Citation: 121 A.D.2d 214,502 N.Y.S.2d 1021
• Parties: TH STREET CORP., Plaintiff-Respondent, v. Lori Jane GALOWITZ, Defendant, and Rosemary Ricchio, Defendant-Appellant. 150 WEST 26TH STREET CORP., Plaintiff-Respondent, v. Bruce THOMPSETT, Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

Page 1021

502 N.Y.S.2d 1021

121 A.D.2d 214

150 WEST 26TH STREET CORP., Plaintiff-Respondent, v. Lori Jane GALOWITZ, Defendant, and Rosemary Ricchio, Defendant-Appellant.

150 WEST 26TH STREET CORP., Plaintiff-Respondent, v. Bruce THOMPSETT, Defendant-Appellant.

Supreme Court, Appellate Division,

First Department.

June 5, 1986.

B.R. Fertel, New York City, for plaintiff-respondent.

R. Projansky, New York City, for defendants-appellants.

Before SULLIVAN, J.P., and ASCH, FEIN, KASSAL and ELLERIN, JJ.

MEMORANDUM DECISION.

Orders and judgments, Supreme Court, New York County (Martin Evans, J.), entered October 8, 1985, ejecting defendants Picchio and Thompsett from their respective apartments, and order of the same court and Justice, entered the same date, denying said defendants' motion to vacate its earlier decision to grant ejectment, unanimously reversed, on the law and the facts, with costs and disbursements, and the matter remanded to Trial Term for a hearing to determine the amount that defendant Thompsett should pay plaintiff for the use and occupancy of the entire 1800 square feet of space of his residential loft.

Defendants are loft tenants under separate commercial leases for second floor lofts in plaintiff's building at 150 West 26th Street. The premises were let to defendants in 1979 for residential purposes with the representation that the building was being converted to residential use. After defendants took occupancy and converted their respective premises to residential use with the installation of residential fixtures, plaintiff sought a variance to convert the building to residential use. In the summer of 1980, approximately one year after the tenants had taken occupancy, the Board of Standards and Appeals granted the variance for the upper floors, but denied it as to the second floor. In 1982, after defendants' leases had expired, Article 7-C of the Multiple Dwelling Law, generally known as the "Loft Law", was enacted. In accordance with the "grandfathering" provisions of section 15-021(c) of the New York City Zoning Resolution, defendants, together with the other residential tenants in the building, made a timely application for a Determination of Residential Loft Occupancy with the New York City Planning Commission. Meanwhile, plaintiff commenced these two ejectment actions in 1983, claiming that defendants were holdovers whose occupancy was illegal. Plaintiff also sought the reasonable value of defendants' use and occupancy of the premises since the expiration of their leases. Defendants claimed the protection of the Loft Law, arguing that, pursuant to Multiple Dwelling Law § 281, their lofts and the building qualify as an interim multiple dwelling (IMD). Though their applications for certification of their apartments for residential use were apparently being given favorable consideration by the time of the trial herein, defendants had not yet received a final certificate from the Chairman of the Planning Commission.

Subdivision 1 of section 281 of the Multiple Dwelling Law defines an IMD as any building or portion thereof which, in a city of more than one million persons, "(i) at any time was occupied for manufacturing, commercial, or warehouse purposes; and (ii) lacks a certificate of compliance or occupancy pursuant to section three hundred one of this chapter; and (iii) on December first, nineteen eighty-one was occupied for residential purposes since April first, nineteen hundred eighty as the residence or home of any three or more families living independently of one another." At trial, defendants showed that the building met these statutory criteria even though the administrative certificate of the Chairman of the City Planning Commission had not yet been issued. They demonstrated that the building had been used solely for commercial purposes before plaintiff began subletting to residential tenants in 1979; and that as of June 21, 1982, the effective date of the Loft Law, the building lacked a residential certificate of occupancy (C.O.). Although a temporary residential C.O. had been issued for a single apartment on the fifth floor, it had expired by its own terms before the statute's effective date. In fact, plaintiff never claimed that the building had a proper C.O. which exempted it under Multiple Dwelling Law § 281(1)[ii]. Rather, plaintiff claimed that an intradepartmental memorandum from the acting Commissioner of the Department of Buildings to another official was the equivalent of a C.O. This memorandum, however, authorized the issuance of only a temporary C.O., and only on condition plaintiff complied with certain requirements, including the installation of smoke detectors in all the units. The smoke detectors were never installed and the conditions were never met. Furthermore, even had the memorandum been a temporary C.O., instead of a conditional authorization for the issuance of one, the premises would still not be exempt from Loft Law coverage and IMD status since the Loft Board's regulations (New York City Loft Board Coverage Regulations (1)(B...