Three tenants of a loft on Bleecker Street applied for coverage under the Loft Law. ALJ Astrid B. Gloade granted their application, finding that the evidence at trial showed that the building is an interim-multiple dwelling (“IMD”), that applicants’ units are covered, and that applicants are the protected occupants. Testimony of the applicants and their associates, along with photographs and other documents, demonstrated that four units in the building were independently occupied as residences during the 12-month statutory window period. Matter of Gatein, OATH Index Nos. 2121/13, 1033/14, & 2233/14 (May 13, 2016).
In a coverage and protected occupancy application with many novel legal issues, including whether a unit is located in a basement and therefore excluded from coverage, ALJ Faye Lewis found that five of the six units met the requirements for coverage, the building is an IMD, and three of the applicants are protected occupants. ALJ Lewis found that in determining whether a unit is located in a basement under the Loft Law, its floor elevation should be compared to the curb level of the closest street. Using this method, she found that only one unit, which otherwise qualified for coverage, is located in a basement. As to whether the units have legal windows, ALJ Lewis found: that lot line windows qualify a unit for coverage; windows opening onto the building’s alleyway qualify for coverage because the alleyway is a legal outer court under the definition in the Zoning Resolution, which does not have a size requirement; a tunnel-like structure from one unit leading to a window in another unit, created by an applicant and post-dating the coverage application, is not a window; and a window in a garage space opening onto a street is not part of one of the applicant’s unit. Another unit met the size requirement of the Loft Law and was residentially occupied, even though the tenant had signed an affidavit stating it was used for commercial purposes. Further, a roof space was not part of an applicant’s unit because he did not have exclusive use of the space, nor was that issue properly before her in a coverage application. As to protected occupancy, ALJ Lewis found that while one of the applicants does not currently live at the building, he is a protected occupant because he remains in possession of his unit. She determined that two other applicants who currently live at the building, one of whom is a prime lessee, are also protected occupants. Matter of Saladino et. al., OATH Index Nos. 2412/13 & 1879/14 (May 20, 2016).