order new york city loft board gil seon pak...
TRANSCRIPT
ORDER
NEW YORK CITY LOFT BOARD In the Matter of the Application of
GIL SEON PAK, JUNG HUR AND HYOBIN AHN
ORDER
Loft Board Order No. 4334
Docket No. TR-1068
RE: 46-48 Old Fulton Street Brooklyn, New York
IMD No. 30093
The New York City Loft Board accepts in part and rejects in part the Report and Recommendation ("Report") of Administrative Law Judge Ingrid M. Addison dated October 9,2014. The Loft Board remands the protected occupant status claims for Gil Seon Pak and Jung Hur for further proceedings consistent with this Order.
BACKGROUND
On March 4, 2013, Gil Seon Pak 1, Jung Hur and Hyobin Ahn ("Tenants"), the occupants of the first floor rear unit ("Unit"), in the building located at 46-48 Old Fulton Street, Brooklyn, New York ("Building") filed an application seeking Article 7 -C coverage for the Unit pursuant to § 281 (5) of the Multiple Dwelling Law ("MDL").
The Loft Board transferred the case to the Office of Administrative Trials and Hearings ("OATH"), which assigned the case to Administrative Law Judge Ingrid M. Addison for adjudication.
On June 6, 2013, American International 2010, Inc. ("Owner"), the owner of the Building, filed a registration application for the Building pursuant to MDL § 281 (5). The registration application listed five units for coverage but Owner did not include the Unit.
On July 22, 2013, Owner filed an answer opposing the application, arguing that Tenants did not residentially occupy the premises during the window period as two of the applicants, Gil Seon Pak and Jung Hur, moved to Maine.
On March 11,2014, Owner filed an amended registration application, registering an additional unit for six units in the Building. Again, Owner did not register the Unit.
In the Report, Judge Addison found that Tenants had resided at the Unit since early 2007, when Ms. Pak executed a rental agreement with the previous landlord and that Tenants resided in the Unit for at least twelve consecutive months during the window period. Accordingly, Judge Addison found that the Unit is an IMD unit pursuant to MDL § 281 (5). Moreover, Judge Addison found that Ms. Ahn, who continues to reside in the unit, and Ms. Pak and Mr. Hur are the protected occupants of the Unit.
We agree with Judge Addison's finding that the Unit is an IMD. However, for the reasons explained below, we must remand the application for further findings of fact regarding Ms. Pak and Mr. Hur's claims of protected occupancy status.
ANALYSIS
1 Ms. Pak legally changed her name in December 2005, from Kil Sun Pak to Gil Sean Pak.
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A. The Unit is an Interim Multiple Dwelling pursuant to MDL § 281(5)
MDL § 281 sets forth the definition of an interim multiple dwelling ("IMD") unit. In 2010 and again in 2013, the New York State Legislature amended the MDL to, among other things, expand the definition of an IMD, by adding MDL § 281(5).
Specifically, MDL § 281 (5) defines an IMD to include buildings, structures or portions thereof that are located in a city of more than one million persons which were occupied for residential purposes as the residence or home of any three or more families living independently from one another for a period of twelve consecutive months during the period commencing January 1, 2008, and ending December 31, 2009 ("Window Period"). In addition, the unit: 1) may not be located in a basement or cellar; 2) must have at least one entrance that does not require passage through another residential unit; 3) must have at least one window opening onto a street or a lawful yard or court; and 4) must be at least 400 square feet in area.
Ms. Ahn's testimony that the Unit is approximately 1,300-1,400 square feet, has three windows that look out onto Doughty Street, and is accessible from the street through a separate door at the rear of the Building (Tr. 13-14) went unchallenged. The Owner challenged Tenants' assertion that they residentially occupied the Unit during the Window Period.
The record shows that tenants moved into the Unit pursuant to a two-year agreement ("Agreement") between Ms. Pak and the former landlord, Donald Bar, for a period commencing on March 6, 2007 and ending on March 5, 2009. Tenants offered a substantial amount of documentation in support of their claim that they residentially occupied the Unit for at least 12 consecutive months during the Window Period. The evidence included federal income tax returns, Social Security statements, documents from the Social Security Administration, Department of Homeland Security and Hunter College, where Ms. Ahn is pursuing an advanced degree. Each of these documents listed the Building as the Tenants' address, and all were dated during the Window Period. Accordingly, the Loft Board finds that the Unit satisfies the requirements set forth under MDL § 281 (5), and is an IMD unit.
B. Further Findings of Fact are Necessary to Determine Protected Occupancy Status
Judge Addison found that all three applicants are protected occupants of the Unit. We reject Judge Addison's recommendation with regard to Ms. Pak and Mr. Hur and remand the case for further fact-finding.
In the Report, Judge Addison began her analysis of protected occupancy status for Ms. Pak and Mr. Hur, by observing: "the question is whether residency for 12 consecutive months during the Window Period automatically qualifies Pak and Hur as protected occupants". Report at 11. This is incorrect. Residency of the unit for twelve consecutive months during the Window Period only determines whether or not the unit itself is an IMD unit, not protected occupancy status.
Tenants' attorney argued that in order for the unit to be covered, it is not required to be the primary residence of the applicant. This is correct. Primary residence is not required for Loft Law coverage of a unit. See, Matter of DeCesare, et al., Loft Board Order No. 227 (May 15, 1985), aff'd, BOR Realty Corp. v. New York City Loft Bd., 70 N.Y.2d 720 (1987) (primary residence during the statutory window period was not required for Article 7-C coverage of a building).
However, in determining protected occupancy status, the issue is not whether Ms. Pak and Mr. Hur lived there during the window period. Rather in this instance, because Ms. Pak is the prime lessee of the Unit, the issue is whether the Unit is her primary residence.
Under Title 29 of the Rules of the City of New York § 2-09(b)(4), the prime lessee is deemed to be the residential occupant qualified for protection only if he or she can prove that the unit is his or her
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I.mmary residence. If the prime lessee fails to prove that such unit is their primary residence, any rights of such person to recover the unit are extinguished
The record contains evidence that Ms. Pak has a residence in Portland, Maine since 2009 and still pays rent for the Unit. However, there was no finding as to whether the Unit is Ms. Pak's primary residence. Finally, before we can determine Ms. Ahn's status, we must first determine the primary lessee's status.
CONCLUSION
Based on the foregoing, the Loft Board finds that the Unit is covered pursuant to MDL § 281 (5). The Loft Board remands the application to OATH for a determination of whether the Unit is Ms. Pak's primary residence. The Loft Board's decision regarding Ms. Ahn's protected occupancy status will be held in abeyance until a decision is made regarding the protected occupancy status of Ms. Pak.
DATED: November, 202014
C i\.,q"V Alexandra Fisher Chairperson
Board Members Concurring: Barowitz, Kurzman, Fisher, Delaney, Bolden-Rivera Foggin, Schachter, Shelton
DATE LOFT ORDER MAILED: NOV 262014
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Matter of Pak OATH Index No. 2447/13 (Oct. 9, 2014), adopted in part, rejected in part and remanded, Loft
Bd. Order No. 4334 (Nov. 20, 2014) [Loft Bd. Dkt. No. TR-1068; 46 Old Fulton Street, Brooklyn, N.Y.]
Petitioners applied for coverage of a first floor unit at the subject premises, under the 2010 amendments to the Loft Law. ALJ found that the three petitioners resided at the premises for at least 12 consecutive months during the window period. There was undisputed proof that the unit met the Loft Law's size, window, and access requirements. Thus, the first floor rear of the premises is an IMD unit. The evidence also supported that petitioner Ahn continues to reside at the premises, and is entitled to protected occupancy status. Petitioners Pak and Hur moved to Maine in 2009, but as prime lessees, they continue to pay rent, and retain some furniture and clothing at the premises, which they occasionally visit. Accordingly, all three petitioners are entitled to protected occupancy status under the Loft Law and their applications should be granted.
Loft Board adopts finding that unit is an IMD unit. The Loft Board remands for determination as to whether Pak and Hur can show the loft is their primary residence as required for protected occupancy status under section 2-09(b)(4) of the Board's rules. Loft Board's decision regarding Ahn's status will be held in abeyance until Pak's status is determined.
NEW YORK CITY OFFICE OF ADMINISTRATIVE TRIALS AND HEARINGS
In the Matter of GIL SEON PAK, JUNG HUR, & HYOBIN AHN
Petitioners
REPORT AND RECOMMENDATION
INGRID M. ADDISON, Administrative Law Judge
Petitioners Gil Seon Pak, Jung Hur, and Hyobin Ahn ("petitioners" or "applicants"), filed
an application with the Loft Board on March 4, 2013 (Loft Board Docket No. TR-I068), for a
finding that they are the protected occupants of the first floor rear unit of an interim multiple
dwelling ("IMD") located at 46 Old Fulton Street, Brooklyn, New York ("premises"), pursuant
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to section 281(5) of Article 7-C of the Multiple Dwelling Law ("MDL" or "Loft Law") (ALJ Ex.
1). Respondent owner, American International 2010, Inc., registered all but the first floor unit as
covered units on March 11, 2014 (Pet. Ex. 1 at 2).
Respondent, whose answer was due by April 9, 2013, was declared in default when it
failed to file a timely answer. Respondent filed its answer on or about July 22, 2013,1 after the
applicants posed no objection to vacating the default. In its answer, respondent asserted that the
applicants did not residentially occupy the premises during the window period and therefore did
not satisfy the requirements for coverage under the MDL (ALJ Ex. 2).
The Loft Board referred the matter to this tribunal. Despite attempts at settlement, no
resolution was reached, and a hearing was held on July 22 and September 11, 2014. At the
hearing, applicants Gil Seon Pak and Jung Hur testified with the assistance of a Korean
interpreter. Hyobin Ahn also testified. The applicants also presented documentary evidence.
Respondent appeared by counsel only.
For the following reasons, I find that the first floor rear of the premises is an IMD unit,
having been occupied for 12 consecutive months during the inquiry period by Hyobin Ahn, who
continues to reside there. She is therefore the protected occupant of the unit, and her application
should be granted. The evidence proved that petitioners Gil Seon Pak and J ung Hur, who are the
prime lessees, resided at the unit for at least 12 consecutive months during the window period,
and moved to Maine in 2009. But, they left some clothing and furniture at the premises,
continue to pay rent, and occasionally visit the unit. They therefore qualify for protected
occupancy status, and their applications should be granted.
ANALYSIS
The subject building is a four-story building with six registered IMD units on floors 2, 3
and 4 (Pet. Ex. 1 at 2). Applicants Hyobin Ahn, Gil Seon Pak and Jung Hur are seeking
coverage ofthe first floor rear unit of the premises.
To qualify for coverage, the applicants must establish, among other things, that (1) they
resided at the premises for a period of 12 consecutive months during January 1, 2008 and
December 31, 2009; (2) their unit has at least one entrance that does not require passage through
1 Respondent's principals reside in Florida and there appeared to be legitimate reasons for respondent's untimely ) answer, including the retention of counsel in New York.
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another residential unit to obtain access to the unit; and (3) it has at least one window opening
onto a street or a lawful yard or court. Mult. Dwelling Law § 281(5) (Lexis 2014). Under
section 2-09(b)(1) of the Loft Board rules, "the occupant qualified for protection under Article 7-
C is the residential occupant in possession of a residential unit, covered as part of an IMD." 29
RCNY § 2-09(b)(1) (Lexis 2014).
Ms. Ahn's testimony that the space occupied by the applicants is approximately 1,300 to
1,400 square feet, has three windows that look out onto Doughty Street, and is accessed from the
street through a separate door at the rear of the building went unchallenged (Tr. 13-14). Thus,
the only issues in dispute are whether the unit was residentially occupied for 12 consecutive
months during the window period and whether the applicants are entitled to coverage as
protected occupants.
Residential Occupancy of the Premises During the Window Period
The evidence supports a finding that all three applicants resided in the first floor rear of
the premises for at least 12 consecutive months during the window period. However, applicants
Gil Seon Pak and Jung Hur, who are married, and their eight-year-old son Luis, relocated to
Maine in 2009.
Hyohin Ahn
Applicant Hyobin Ahn is Ms. Pak's niece (Tr. 7). The three applicants, and Luis, moved
into the subject premises in early 2007, pursuant to a two-year "Share Rental Agreement" with
former landlord Donald Bar, for a period commencing on March 6, 2007 (Ahn: Tr. 6, 8, 17; Pak:
Tr. 58-59, 61, 63; Pet. Ex. 32). The agreement states that "This is a commercial rental - no
services - basically raw loft space" and names all three applicants and Luis as the intended
occupants of the space (Pet. Ex. 32). Mr. Hur testified that he is an artist and needed a studio and
living space (Tr. 113). The space was not suitable for residential occupancy, so the landlord's
son and someone later hired by Ms. Pak and Mr. Hur, created living quarters in 2007, which
included three bedrooms, a storage room, a bathroom with a bathtub, sink and toilet, and a
washer and dryer. They also created a kitchen in which they installed cabinets, a stove, and a
refrigerator, and overhead lighting (Ahn: Tr. 8-11,28; Pak: Tr. 59-61; Hur: Tr. 127-28; Pet. Exs.
3H, K, M).
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Ms. Ahn, who was a student at Hunter College when she moved into the premises,
testified that a bed, desk, a chest of drawers and a clothes closet were purchased for her room as
well as for Luis's room. Ms. Pak's and Mr. Hur's bedroom contained a television, bed and two
big "drawers" where they stored their clothes and personal effects (Tr. 16-18, 32-33). Ms. Ahn
drew a rough sketch ofthe unit's configuration after it had been altered (Tr. 12-13; Pet. Ex. 2). It
showed four bedrooms, a kitchen, living room, and bathroom. Ms. Ahn occupied the bedroom at
the lower left side of the drawing until 2010, while Luis occupied the one at the upper left side.
Another bedroom at the lower part of her drawing ("front bedroom") was occupied by Ms. Pak,
who concurred with the configuration, and Mr. Hur, while the bedroom on the upper right was
used for storage only ("storage room") (Ahn: Tr. 16-17,26-27,29; Pak: Tr. 61-62, 85).
Applicant Ahn's Free-Hand Sketch of the 1st Floor Rear of the Premises (Pet. Ex. 2)
Documents to Support Abn 's Residency During Window Period
Ms. Ahn presented undated photographs of the premises which she claimed to have taken
in 2012 or 2013 (Tr. 25-29; Pet. Exs. 3A-N). They show indicia of residential occupancy of the
premises. For instance, the room which Ms. Ahn identified as hers contained a bed, a desk with
a laptop computer, a chair, a floor-length mirror propped against one wall, and a space heater
(Tr. 25-26; Pet. Ex. 3A). Luis's bedroom showed a small bedside table with a lamp, and the
)
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partial view of a bed with its coverlet turned back (Tr. 26; Pet. Ex. 3B). Ms. Ahn identified three
different rooms in the photos as Ms. Pak's and Mr. Hur's bedroom. The first room contained a
bed, a desk on which there were multiple folders and a desk lamp, and various wall displays
including what appeared to be a calendar (Tr. 27-28; Pet. Exs. 3C, G). The other two rooms
were furnished differently from each other and from the first one. One appeared to contain a
chest of drawers, a clothes hamper, and a waste paper basket. No bed was discernible. The other
contained a bed jammed up against a wall, in what appeared to be very cramped space (Tr. 28-
29; Pet. Exs. 31, J). Multiple views of the living room showed a large sofa and chair, and a free
standing display cabinet (Tr. 27-28; Pet. Exs. 3D, E, F, L). The unit also contained a kitchen
with a stove, refrigerator, sink, and a large table (Tr. 28-29; Pet. Exs. 3H, K). A partial photo of
the bathroom showed a bathtub, what appeared to be a sink with vanity, and a washer and dryer
stacked between the bathtub and sink (Tr. 29; Pet. Ex. 3M).
Ms. Ahn graduated from Hunter College in 2009, decided to attend graduate school, and
continues to reside at the premises (Tr. 32-33). Her bank statements from December 2007
through July 2009, and from December 2009 through June 2010, listed the subject premises as
her address, as did her credit card statements from January through August 2010 (Pet. Exs. 7, 8,
9)? Ms. Ahn submitted correspondence dated August 22, 2008, and March 18, 2009, from the
Social Security Administration regarding her application for a Social Security card (Pet. Ex. 10).
She submitted a copy of an 1-797 notice of action from the Department of Homeland Security,
dated January 15, 2009, granting her application for employment authorization (Pet. Ex. 6).
Both federal agencies addressed Ms. Ahn at the subject premises. Ms. Ahn's transcripts from
Hunter College's Registrar's Office dated October 16, 2008 and March 17, 2009, and a tuition
billing statement dated May 30, 2008, also show the Cadman Plaza West alternate address for
the premises (Pet. Exs. SA-C). In addition, Ms. Ahn's temporary visitor driver's license, issued
on March 23, 2010, with an expiration date of December 31, 2012, displayed her address as 46
Old Fulton Street, Brooklyn (Pet. Ex. 4).
This tribunal and the Loft Board have considered evidence of a tenant's intent to make
his or her unit a residence, such as the receipt of mail at the unit, whether the unit's address is
2 Petitioner's exhibits 8 and 9 reflect the address as 46 Cadman Plaza West, which Ms. Ahn claimed to be an alternate address for the building (Tr. 38-39). Upon review of the Property Profile overview at the New York City Department of Buildings website, I notified counsel that I was taking official notice that 46 Cadman Plaza West is indeed an alternate address for 46 Old Fulton Street.
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used for voter registration, driver's license, and other official documents, and whether the tenant
has maintained another residence. See, e.g., Matter of Gareza, OATH Index Nos. 2061112 &
760113 at 8 (Dec. 12,2012), accepted in part, rejected in part, Loft Bd. Order No. 4243 (Feb. 20,
2014) (receiving mail and tax documents at the address, using the address on a bank account, and
being registered to vote at the address was evidence of residential use); Matter of the Tenants of
141-155 S. Fifth Street, Loft Bd. Order No. 1739, 15 Loft Bd. Rptr. 199,212 (Jan. 19, 1995)
(tenant's listing the loft address as his home address on tax returns and marriage certificate, and
his homeowner's insurance policy on the unit, evinced an intent to build himself a home); Matter
of Mussman, Loft Bd. Order No. 905, 9 Loft Bd. Rptr. 50, 59 (May 25, 1989) (finding that tenant
did not residentially occupy the unit based in part on automobile registration, automobile
insurance, and voter registration reflecting another address plus the tenant's inability to explain
why his wife resided at that address without him); Matter of Muschel, Loft Bd. Order No. 33, 1
Loft Bd. Rptr. 27, 30 (Nov. 23, 1983) (documents such as tax returns, checks, and a passport,
indicating the loft was applicant's residence, was persuasive because "the Board considers where
one holds oneself out as residing as probative of where one resides in fact.").
I find that Ms. Ahn's testimony that she resided at the premises for at least 12
consecutive months during the inquiry period and that she continues to reside there is supported
by her documentary evidence, particularly the official documents from federal and state
agencies, and from her college, where she is pursuing an advanced degree. This evidence, along
with the testimony that the space was fully configured for residential use with bedrooms, a
kitchen, and a bathroom, is sufficient to find that the unit is an IMD and that Ms. Ahn is a
protected occupant who is entitled to coverage under the Loft Law.
Gil Seon Pak and JU11g Hur
The testimony and evidence supported a finding that petitioners Gil Seon Pak and Jung
Hur resided at the premises for at least 12 consecutive months during the window period but that
they moved to Maine in 2009.
When they moved into the premises in early 2007, Ms. Pak and Mr. Hur worked at
"Kirara," a restaurant in the West Village (Ahn: Tr. 32-33; Pak: Tr. 62). The testimony
conflicted in terms of what room Ms. Pak and Mr. Hur actually occupied. Upon review of Ms.
Ahn's sketch, Ms. Pak agreed that she and her husband occupied the front bedroom (Tr. 61-62,
85). But, Mr. Hur claimed that that room did not have and never had a bed and insisted that he
)
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used it as his office while he and Ms. Pak occupied the storage room which was converted to
their bedroom after four months of construction work (Tr. 151, 153, 155). For their room, they
purchased a queen-sized bed with a mattress and backboard (Tr. 155-56). There were no
photographs depicting the configuration he described in his room.
Applicants Pak and Hur purchased a restaurant in Maine in September 2008 (Ahn: Tr. 48;
Pak: Tr. 76; Hur: Tr. 138, 142-43). Mr. Hur moved to Maine in January 2009, preceding his
wife and son, who followed in the summer of the same year (Ahn: Tr. 18-19,47; Pak: Tr. 76;
Hur: Tr. 138). The restaurant has 30 employees which has remained constant since they opened,
and it is open for business seven days a week (Pak: Tr. 87-88; Hur: Tr. 143-44). For his first few
months in Maine, Mr. Hur lived on the third floor of the three-story building that housed the
restaurant (Tr. 138). When Ms. Pak and Luis moved to Maine, the family moved into a rented
house in Cape Elizabeth. Luis, who was ten years old when he moved to Maine, was enrolled in,
and has attended school in Maine since 2009 (Ahn: Tr. 49-50; Pak: Tr. 76, 86-87; Hur: Tr. 138,
169).
The testimony of the three applicants conflicted regarding the use of the premises after
Mr. Hur moved to Maine. Ms. Ahn testified that in January 2009, Ms. Jeung, a family friend and
Ms. Pak's legal ward, came to live at the premises. Ms. Jeung moved into the front bedroom,
while Ms. Pak and Mr. Hur moved to the storage room. Ms. Jeung left for college in the middle
of2010 (Tr. 21-24). Mr. Hur corroborated Ms. Ahn's testimony that when Ms. Jeung moved in,
she was given the front bedroom (Tr. 149, 160). But according to him, Ms. Jeung lived at the
premises for approximately two years, from summer 2009 until 2011, when she returned to
Korea (Tr. 150, 174).
Ms. Pak initially testified that no one occupied the front bedroom after she and her
husband went to Maine (Tr. 91-92, 97). Instead, she identified Ms. Ahn's bedroom as the one
occupied by Ms. Jeung (Tr. 101). Later, she stated that the front bedroom was used by Ms.
Jeung from 2009 until she left for college in June or July 2010 (Tr. 102-03). Ms. Pak also
testified that the front bedroom remained vacant even to this day and was not sublet to anyone.
Yet she indicated that "even now my son is staying in that room right now for summer school"
(Tr. 91-92). She also said that in 2009, "a friend" stayed in her son's bedroom. But she could not
recall the specific period during which that person stayed (Tr. 92-95).
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Ms. Pak testified that when they moved to Maine, they only took some of their clothes
because "we knew that we were going to come back, and we knew that we were going to go back
and forth a lot, so we didn't bring anything except for part of our clothes, not all of it" (Tr. 76).
The remainder of their clothes was left in the storage room which contained a closet. In the front
bedroom, they left a bed, a small closet, a television, and a throw rug (Tr. 86). They took no
furniture because Ms. Pak expected to "go back and forth often" and Mr. Hur "knew that [they]
would return to New York" (Pak: Tr. 77, 83; Hur: Tr. 140; Ahn: Tr. 19,21). So they even left
their son's bed (Tr. 79)
Mr. Hur testified that when Ms. Jeung moved into the front bedroom, she purchased her
own bed which she threw out before leaving (Tr. 174-75). Contrary to his wife's testimony, Mr.
Hur stated that he took his television to Maine (Tr. 140). He also offered convoluted testimony
that a number of beds in the unit, including his son's, became broken and had to be thrown out
(Tr. 157-61).
The three applicants testified as to Ms. Pak's and Mr. Hur's sporadic visits to the
premises after their move to Maine.
Ms. Pak's Visits from Maine
According to Ms. Ahn, Ms. Pak returns every month and stays for "sometimes three or
four days, sometimes five-six days." When she comes, she sleeps in the storage room (Tr. 21,
23).
Ms. Pak testified that after September 2009, she returned about two to three times per
month to check on Ms. Jeung, attend to personal matters, and meet with her accountant. Her
visits would span two to three days, or sometimes an entire week. She would stay in the storage
room where she slept on a "thick blanket" (Tr. 80, 98). She claimed that in "Oriental" culture,
some people do not use beds (Tr. 98).
Mr. Hur testified t~at effective September 2009, his wife returned to New York at least
once per month, and would stay five or six days (Tr. 164).
Mr. Hur's Visits from Maine
Ms. Ahn testified that after Mr. Hur moved to Maine, he returned to Brooklyn every two
months, and while the length of his stay depended upon his art business, he generally stayed
about three or four days, or sometimes even six days (Tr. 19-20).
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Ms. Pak testified that from 2009 through June 2010, Mr. Hur returned to New York,
sometimes to purchase ingredients for the restaurant, and sometimes for art shows. His visits
would last two or three days or sometimes a week. Like her, he would stay in the storage room
on the blanket which is folded and put away after use (Tr. 82-83, 98-99, 100-01).
Mr. Hur testified that from September 20083 and throughout 2009, he returned to the
premises twice a month, every other week, to purchase supplies and quality ingredients for the
restaurant (Tr. 139, 144-45). In 2009, when he visited, he would leave Maine on a Saturday
night, get to New York on Sunday, and return to Maine on Thursday. But his routine changed in
2010, because he was commissioned for an art exhibition at the White Box Gallery in New York,
scheduled for summer 2011 (Tr. 145-46; Pet. Ex. 33). In preparation for his exhibition, he spent
about 20 days each month at the premises (Tr. 147). When he stayed in New York, he would use
both the storage room and the front bedroom. At one point, he testified that he and his wife did
not visit New York at the same time (Tr. 164). But he also testified that if they came to New
York together, they would sometimes stay in Luis's old bedroom (Tr. 163-66).
Documents to Support Pak s and Hur's Residency During Window Period
Ms. Pak and Mr. Hur submitted copies of their joint tax returns for 2007 and 2008 which
listed the premises as their address. Their claim for child and dependent care credit which was
attached to their tax return, disclosed the New York City public school that their son attended
(Tr. 64-65; Pet. Exs. 12-13). Social Security statements dated February 2008 and February 2009,
and a letter from the Social Security Administration in 2008, were addressed to Ms. Pak at the
subject premises (Tr. 74; Pet. Exs. 20-21). Likewise, Social Security statements dated August
2008 and August 2009, were addressed to Mr. Hur at the subject premises (Pet. Ex. 31).
Ms. Pak and Mr. Hur also submitted: 1) copies of cable company bills to June 2010, and
National Grid statements to August 2013 (Pet. Exs. 14, 25); 2) copies of Ms. Pak's bank
statements from January 2008 to January 2009, and Mr. Hur's bank statements from two
different banks for March 2008 through February 2010, and December 2007 through December
2010 (Pet. Exs. 15, 18-19, 26-27); 3) cancelled checks for rent payments from January 2009
through December 2009, and from June 29, 2010 to January 2014 (Pet. Exs. 24N-GG); 4) Ms.
Pak's credit card records from January 2008 through December 2009, and Mr. Hur's credit card
statements from January 2009 through June 2010, with transaction pages for the 2010 statements
3 Mr. Hur had previously testified that he moved to Maine in January 2009 (Tr. 138).
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omitted (Pet. Exs. 16-17, 28-30); and 5) documents relating to Ms. Pak's hospitalization during
the window period (Pet. Ex. 22). All the documents displayed the subject premises as Ms. Pak's
and Mr. Hur's address.
In his closing arguments and post-hearing brief, applicants' counsel argued that to be
covered, the unit is not required to be the primary residence of the applicant (Tr. 182-84; Pet.
Brief at 3). Counsel is correct. Neither the Loft Law nor the Loft Board rules require that the
unit for which an applicant seeks coverage must be his or her primary residence. See Vlachos v.
NYC Loft Bd, 70 N.Y.2d 769,770 (1987); BOR Realty Corp. v. NYC Loft Bd, 129 A.D.2d 496
(1st Dep't 1987), aff'd, 70 N.Y.2d 720 (1987); Matter of Cohen, OATH Index No. 2015/12 at 4-
5 (Aug. 23, 2013), adopted, Loft Bd. Order No. 4261 (Mar. 20, 2014); Matter of Pels, OATH
Index No. 2481111 at 11-12 (June 20, 2012), adopted, Loft Bd. Order No. 4161 (June 20,2013).
Applicants' counsel relied primarily on Matter of Pels, arguing that it was most compelling and
controlling in this case (Pet. Brief at 2).
In Matter of Pels, the applicant leased a unit in 1985 as a sculpting studio ("loft unit").
She simultaneously leased a penthouse apartment in the same building for residential purposes.
In 1993, while teaching at a university in Iowa, she sublet the penthouse apartment. Before
moving, however, she added a bedroom to the loft unit so she would have somewhere to sleep
when she visited New York during her teaching year. When her teaching assignment ended, she
returned to New York but was unable to regain possession of the penthouse from the sub-lessee.
She therefore took up residence in the loft unit, made physical improvements to it, and continued
to live there. The owner argued, among other things, that Pels was not entitled to coverage
because she was not an actual resident during the period she was away teaching in Michigan.
Matter of Pels, OATH 2481111 at 10. Administrative Law Judge Tynia Richard found that the
applicant proved that her residence in Detroit "was at most temporary," and that Pels was the
protected occupant of the unit. She made this finding despite the fact that Pels was away for two
and a half years, had registered and insured her car in Michigan, paid taxes in Michigan, had
registered to vote there and spent most of her time there. The proof that Pels had every intention
ofreturning to her residence in New York at the end of her teaching engagement, and eventually
did so was sufficient to establish that Pels occupied the unit as a residential tenant. Id
This case is distinguishable from Matter of Pels, in that Ms. Pels traveled back and forth
during the window period, and the tribunal had to address whether her itinerant schedule
- 11 -
negatively impacted her residency in her loft during the window period, and thus her
qualification for coverage. Here, there was never a question as to where Ms. Pak and Mr. Hur
resided during the window period. Their testimony and the official documents submitted, such
as their federal income tax returns and statements from the Social Security Administration were
indisputable and sufficient for me to find that they resided at the premises for at least 12
consecutive months during the window period. Thus, window-period occupancy is not at issue.
The question is whether residency for 12 consecutive months during the window period
automatically qualifies Pak and Hur as protected occupants.
Section 2-09(b)(1) of the Loft Board rules provides that "the occupant qualified for
protection under Article 7-C is the residential occupant in possession of a residential unit,
covered as part of an IMD." 29 RCNY § 2-09(b)(1) (Lexis 2014). Thus, a separate inquiry into
whether Pak and Hur are residential occupants in possession of the subject unit even though they
reside in Maine, is warranted.
As an initial matter, Ms. Pak's and Mr. Hur's testimony regarding the frequency of their
visits to New York and where they slept was inconsistent and often confusing. Their counsel
suggested that their confusing testimony stemmed from their lack of fluency in English (Tr. 182).
But I was not persuaded by that explanation. The in-person interpreter often repeated
translations for both parties and asked for clarification of their answers. The interpreter also
provided clarification if either party was unable to understand any of the questions posed. This
appeared more likely than not to be a case of confusion caused by petitioners' urgent attempt to
convey that they have not surrendered their right to the premises, despite the fact that there is
little about their move to Maine that could be considered temporary. They made a significant
financial investment when they purchased a restaurant with 30 employees, and appear to have
settled in Maine, hundreds of miles away from New York. They enrolled their son in school in
Maine. They purchased furniture for their new home, and by all accounts, disposed of broken
furniture from the subject premises. But for the following reasons, none of this affects their
entitlement to protected occupancy status.
In spite of their inconsistencies regarding the frequency of their visits to New York, their
testimony was sufficiently corroborated by Ms. Ahn for me to find that Ms. Pak and Mr. Hur
periodically visited and stayed at the subject premises where they left some furniture. Ms. Ahn's
photos, taken in 2012 and 2013, display a unit with all the trappings of residential use, not just in
- 12 -
her bedroom, but in the other bedrooms and the kitchen. It would be difficult to fathom that by
herself, Ms. Ahn created the lived-in appearance in all the rooms, simply to persuade this
tribunal that Ms. Pak and Mr. Hur frequently use the premises. Moreover, the evidence
established that Mr. Hur did indeed have an art exhibit in August 2011, supporting his testimony
that he returned to New York and stayed at the premises in preparation for the exhibition (Pet.
Ex. 33).
The only rental agreement that petitioners presented was the one that they executed in
2007 with the former landlord. That expired in March 2010. So there appears to be no current
lease in effect. Ms. Pak and Mr. Hur are nonetheless the prime lessees,4 and continue to remain
in privity with the landlord by paying the rent which the landlord continues to accept. Notably,
they have not sublet their rooms. Their niece, who is in graduate school, continues to reside at
the premises. No evidence was presented that she ever contributed to the rent, even prior to Ms.
Pak's and Mr. Hur's move to Maine in 2009. While they provided no cancelled checks for the
first six months of 201 0, and there was no explanation why the first cancelled check that they
submitted for 2010 was dated June 29, 2010, approximately one week after the passage of the
2010 amendments to the Loft Law, respondent submitted nothing to challenge that the rent was
ever paid by anyone other than Ms. Pak or Mr. Hur.
In short, I found that petitioners Pak and Hur moved to Maine in 2009, but they remained
connected to the premises, and retained the right to possess and occupy it at any time by virtue of
their continued rent payments. Therefore, they, as well as Ms. Ahn, are entitled to be recognized
as protected occupants ofthe unit.
Accordingly, the applications of Ms. Pak and Mr. Hur should be granted.
FINDINGS AND CONCLUSIONS
1. Petitioners Ahn, Pak and Hur resided at the first floor rear unit of the subject premises since early 2007, when Ms. Pak executed a rental agreement with the landlord.
4 Pursuant to the Loft Board rules, "Prime lessee means the party with whom the landlord entered into a lease or rental agreement for use and occupancy of a portion of an IMD, which is being used residentially, regardless of whether the lessee is currently in occupancy or whether the lease remains in effect." "Privity means a direct contractual relationship between two parties, which may be established explicitly, implicitly or by operation of law." 29 RCNY § 2-09(a) (Lexis 2014).
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2. All three petitioners resided at the premises for at least 12 consecutive months during the window period.
3. Since there is no dispute as to the other criteria under section 281(5) of the Loft Law for qualification as an IMD unit, the first floor rear unit of the subject premises is an IMD unit.
4. Petitioner Ahn, who continues to reside there is the protected occupant ofthe first floor rear unit of the premises.
5. Petitioners Pak and Hur moved to Maine in 2009, but retain the right to possess the premises by continuing to pay rent and occasionally staying at the premises when they visit New York. They are therefore entitled to be recognized as protected occupants.
RECOMMENDATION
The coverage application of all three petitioners should be granted.
October 9,2014
SUBMITTED TO:
RICK D. CHANDLER, P.E. Chair
APPEARANCES:
DAVID FRAZER, ESQ. Attorney for Petitioners
SMITH & SHAPIRO Attorneys for Owner BY: HARRY SHAPIRO, ESQ.
Ingrid M. Addison Administrative Law Judge
Matter of Pak OATH Index No. 2447113 (Oct. 9,2014)
[Loft Bd. Dkt. No. TR-I068; 46 Old Fulton Street, Brooklyn, N.Y.]
Petitioners applied for coverage of a first floor unit at the subject premises, under the 2010 amendments to the Loft Law. AU found that the three petitioners resided at the premises fur at least 12 consecutive months during the window period. There was undisputed proof that the unit met the Loft Law's size, window, and access requirements. Thus, the first floor rear of the premises is an IMD unit. The evidence also supported that petitioner Ahn continues to reside at lhe premises, and is entitled to protected occupancy status. Petitioners Pak and Hur moved to Maine in 2009, but as prime lessees, they continue to pay rcnt, and retain some furniture and clothing at the premises, which they occasionally visit. Accordingly, all three petitioners are entitled to protected occupancy starus under the Loft Law and their applications should be granted.
NEW YORK CITY OFFICE OF ADMINISTRATIVE TRIALS AND HEARINGS
In the Matter of GIL SEON PAl{, lUNG HUR, & HYOBIN AHN
Petitioners
REPORT AND RECOMMENDATION
INGRID M. ADDISON, Administrative Law Judge
Petitioners Gil Seon Pak, Jung Hur, and Hyobin Ahn ("petitioners" or "applicants"), filed
an application with the Loft Board on March 4, 2013 (Loft Board Docket No. tR-1068), for a
finding that they are the protected occupants of the first floor rear unit of an interim multiple
dwelling ("IMD") located at 46 Old Fulton Street, Brooklyn, New York ("premises"), pursuant .
to section 281(5) of Article 7-C of the Multiple Dwelling Law ("MDL" or "Loft Law") (AU Ex.
1). Respondent owner, American Internatiunal 2010, Inc., registered all but the first floor unit as
covered units on March 11,2014 (Pet. Ex. 1 at 2).
- .-;... _ .... ... -
-2 -
Respondent, whose answer was due by April 9, 2013, was declared in default when it
failed to file a timely answer: -Respondent filed its answer on or about July 22,2013,1 after the
applicants posed no objectIon to vacating the default. In its answer, respondent asserted that the
applicants did not' residentially o'ccupy-the-premises during the window period and therefore did
not satisfy the requirements for coverage under the MDL (ALJ Ex. 2).
The Loft Board referred the matter to ihis tribunal. Despite attempts at settlement, no
resolution was reached, and a hearing was held on July 22 and September 11, 2014. At the
hearing, applicants Gil Sean Pak and Jung Hl1r- testified with the assistance of a Korean
interpreter. Hyobin Ahn also testitied. The .applicants _~so presenled _~ocumentary evidence.
Respondent appeiried by counsel only.---
For the following reasons, I find that the first floor rear of the premises is an IMD unit,
having been occupied for 12 consecutive months during the inquiry period by Hyobin Ahn, who . . continues to reside there. She is therefore the protected occupant of the unit, and her application
should be granted. The evidence proved that petitioners Gil Sean Pale and Jung Hur, who are the -- ' ~.~ - ...
prime lessees, resided at the unit}pr at least 12 corisecutiv:e months during the window period,
and moved to Maine in 2009. But, they left some clothing and furniture at the premises,
continue to pay rent, and occasionally visit the unit. They therefore qualify for protected
occupancy status, and their applications should be granted.
ANALYSIS
The subject building is a four-story building with six registered IMD units on floors 2, 3 . --
and 4 (Pet. Ex. 1 at 2). Applicants Hyobin Ahn, Gil Sean Pak and Jung Hur are seeking
coverage of the first floor rear unit of the_premises.
To qualify for coverage, the applicants must establish, among other things, that (1) they
resided at the premises for a periDd of 12 consecutive months during January J, 2008 and ••• .- II"- •
Decem~~c3J, 2009; (2) their u~~t.has at least one entrance that does not require passage through
another residential unit to obtain access to the unit; and (3) it has at least one window opening
onto a street or a lawful yard or court. Mult. Dwelling Law § 281(5) (Lexis 2014). Under
section 2-09(b)( 1) of the Loft Board rules, "the occupant qualified for protection under Article 7-
I Respondent's principals reside in Florida and there appeared to be legitimaLe reasons for respondent's untimely answer, including the retention of counsel in New York.
C is the residential occupant in possession of a residential unit, covered as part of an IMD." 29
RCNY § 2-09(b)(I) (Lexis 2014).
Ms. Ahn's testimony that the space occupied by the applicantsjs approximately -l,300to
1,400 square feet,-has three·windows that lQok out onto Doughty·Street; and·is·oocessed from the
street through a separate door ·at the re.ar of the building went tmchallenged (Tr. 13-14). Thus,
the only issues in dispute are whether the unit was residentially occupied for 12 consecutive
months during the window period and whether the applicants are entitled to coverage as
protected occupants.
Residential Occupancy of the Premises During the Window Period
The evidence supports a ·finding· Lhat: all thre.e applicants resided in the fltst.flo·o( rear of
the premises for at least 12 consecutive months during the window period. However, applicants
Gil Seon Pak and lung Hur, who are married, and their eight-year-old son Luis, relocated to
Maine in 20.09.
Hyobin Ahn
Applicant Hyobin Ahn is Ms.-Pak'g--1l1ece (Tr. 7). The three applicants, and Luis, moved
into the -subject_premises in early 20.0.7; pursuant to a two-year "Share Rental Agreement'! · with
former landlord Donald Bar, for a period commencing on March 6, 2007 (Ahn: Tr. 6, 8, 17; ·Pak:
Tr. 58-59, 61, 63; Pet. Ex. 32). The agreement states that "This is a commercial rental - no
services - basically raw loft space" and narries all three applicants and Luis as the intended
occupants of the space (Pet. Ex. 32). Mr. Hur testified that he is an artist and needed a studio and
living space err. 113). _ The space was not. suitable fofresidential .occupancy-, so-the landlerd'~
son and someone later hired -byMS:: ·Pak and Mr. Hur, created living quarters in 20.07, which
included three oedtooms-; a storage room, a bathroom· with a bathtub, sink and toilet, and a
washer and dryer. They also created a kitchen in which they installed cabinets, a stove, and a
refrigerator, and overhead lighting .(Ahn: Tr. 8-11 , 28; Pak: Tr. 59-61; Hur: Tr.·127-28; Pet. Exs.
3H;· K, M). _._
Ms;: Ahn, who was __ a _student at Hunter College..: when she- moved into the premises;
testifiedJhat a bed, desk, a chest of·drawersand ·a clothes.:closet were purchased focher room as
well as for Luis's room. Ms. Pak's and Mr. Hur's bedroom contained a television, bed and two
big "drawers" where they stored their clothes and personal effects (Tr. 16-18, 32-33). Ms. Ahn
- 7 -
-Appl icants Pak aha Hur purchased-'a restaurant~:in.Maine inSeptemb.er 20Q8 (Ah1i::-Tr. 48;
Pak: Tr. 76; Hur: -Tr. 138, 142-43). Mr. Hut" moved to Maine in January 2009, 'preceding his
wife and son, who followed in the summer of the same year (Alm: Tr. 18-19, 47; Pale Tr. 76;
Hur: Tr. 138). The restaurant.has 30 employees which has remained constant since they opened,
andit is-open for business sevenuays a week (Pak: Tr.'87-88-;-Hur: Tr. 143"44). For his·-fIrst few
months in Maine, Mr. HUI lived on the· third floor of the three-story building that housed the
restaurant ('Tr.- 138). When Ms. Pak. and Luis moved to Maine, the family moved into a- rented
house in Cape Elizabeth. Luis, who was ten years old when he moved to Maine, was enrolled in,
and has attended school in Maine since 2009 (Ahn: Tr. 49-50; Pak: Tr. 76, 86-87; Hur: Tr. 138,
169).
The testimony of the three applicants conflicted regarding the use of the premises after
Mr. Hur moved to-Maine. Ms. -Ahn testified that in January-2009, Ms. Jeung, a family friend and
Ms. -Pak'sle.gal ward, caf!le to live at the-premises. Ms. Jeung moved into the -front bedroom,
while Ms. Pak and Mr. Hur moved to-the storage room._ Ms. Jeung left for college in the middle
of 2010 (Tr. 21-24). Mr. Hur corroborated Ms. Ahn's testimony that when Ms. Jeung moved in,
she was given the front bedroom (Tr. 149, 160). But according to him, Ms. Jeung lived at the
premises for approximately two_ years, from 'sLimmer-2009 sntil 2011, when she returned to
Korea (Tr. 150,114) . . -- -,. - .
- _. -Ms. Pa::k_5nitially test.ified that no one occupied the front bedroom after she and her
husband went to_ Maine-(Tr. 91-9.2,.97). Instead, she identified Ms. Ahn's bedroom as the one
occupied by Ms. Jeung (Tr. 101). Later, she stated that the front bedroom was used by Ms.
Jeung from 2009 ~ntil she left for college in June or July 2010 (Tr. 102-03). Ms. Pak also
testified ,thaUhe front bedroom- remained vacant even to this day and was not sublet to -ari.yone;
Yet .she indicated· that "even noW' my son -is s4\.ying in that -room right now for stHtuner school"
(Tr. 91-92); ·She also said that in 2009, "a_friend" stayed-in her son's·bedroom. But she could not
recall the specific period during which that person stayed (Tr. 92-95).
Ms. Pak testified that when they moved to Maine, they only took some of their clothes
because "we knew that we Were going.to. come back; and we knew that we were going to go back
and forth a lot, so we didn't bring anything except for part Of our clothes, not all of it" (Tr. 76).
The remainder of their clothes was. left in.tOOstorage room which contained a CloSet. III the ·front
bedroom, they left a bed, a small closet, a television, and a throw rug (Tr. 86). They took no
-_ raJ_.~_
:=. ............... ... _.0-
furniture because Ms. Pak expected to "go back and forth often" and Mr. Hur "knew that [they]
would return to New York" (Pak: Tr. 77, 83; Hur: Tr. 140; Ahn: Tr. 19, 21). So they even left
their son's bed (Tr. 79)
Mt: Hur testified that when Ms. Jeung moYed: into the-[ronr-bedroom, she·pur.chased her
own:bed which she threw out before leaving. eIr. 174-75). Contrary to his wife's testimony, Mr.
Hur stated that he took his television to Maine (Tr. 140): He.also offered convoluted testimony
that a number of beds in the unit, including his son's, became broken and had to be thrown out
(Tr. 157-61).
The three applicants testified as to Ms. Pak's and Mr. Hur's sporadic visits to the
premises after their move to Maine.
Ms, Pak's Visits from'Maine
According t6 Ms. Ahn, Ms. Pak returns every month and stays for "sometimes·three or
four days, sometimes five-six days." When she comes, she sleeps in the storage room (Tr. 21,
23).
Ms. Pak testified that after Septembef 2009, she returned about two to three·times:per
month to- check-on Ms. Jeung, attend to' personal matters, and meet with ·her. accountanL Her
visits would span two to three days; or sometimes an entire· week. She. wauld·stay·in the-storage
room where she slept on a "thick blanket" (Tr. 80, 98). She claimed that in "Oriental" culture,
some people do not use beds (Tr. 98).
Mr. Hur t~stified that effective September 2009, his wife returned to New York at least
once per month, and would'stay five or six days (Tr:-l64) .
. Mr·.' HUf~S Visits . .from Maine
Ms. Ahn testified that after Mr. Hur moved to Maine, he returned to Brooklyn every1wo
months, and while the length of his stay depended upon his art business, he generally stayed
about three or four days, or sometimes even six days (Tr. 19-20).
Ms. Pak testified that from_2009 through June 2010, Mr .. Hur rdurned to New York,
sometimes to purchase ingredients for the restaurant, and sometimes for art shows;' His visits
would last two·t>r thr.ee days or sometimes a week; . Like· her; he would· stay in the storage room
on the blanket which is folded and put away after use (Tr. 82-83, 98-99, .1.00-01).
- 9 -
Mr. Hur testified· that from September 20083 and throughout 2009·, he retunie.d to the
pr.emises twice a month,_ every other week, to purchase "Supplies and quality ingredients· for the
restaurant (Tr~ 139, 144-45). In 2009, when he visited, he would leave Maine on a Saturday
night, get to New York on Sunday, and return to Maine·o.n Thursday. But his routine changed in
2010, because he was commissioned for an art exhibition at the White Box Gallery in New York,
scheduled for· summer 2011 (Tr. 145-46; Pet-Ex. 33}, :.'In pre.paration for his exhibition, he spent
about 20 days each month at the premises (Tr. 147). -When he stay~dinNew.York, be_ would use
both the storage room and the front bedroom. At one point, he testified that he and his wife did
not visit New York at the same time (Tr. 164). But he also testified that if they came to New
York together, they would sometimes stay in Luis's old bedroom (Tr. 163-66).
Document to Support PaR's and {-Iu.r'-s, Residency -Durj ng Window Period
-- . ___ __ M~ .. Pak and Mr.-Hur submitted copies_Df their joint- tax rctu.."lis for 2007-and 2008 w.hich
listed the premises as their address. Their claim for child and dependent care credit which was
attached to thdr tax return, disclosed the New York City public school that their son attended
(Tr. 64-65; Pet. Exs. 12-13). Social Security statements dated February 2008 and February 2009,
and a letter: from the Social Securit~ Administration in 2008, were addressed ·to Ms. Pak- at the
subject-premises (Tr-, 74; Pet. Exs. ·20-21). LikeWise; SociaL Security statements-dated August
2008 andAugust.2009, were addressed to Mr. Hur at the subject premises (Pet. Ex. 31).
Ms. Pak and Mr. Hur also submitted: 1) copies of cable company bills to June 2010, and
National Grid statements to August 2013 (Pet. Exs. 14, 25); 2) copies of Ms. Pak's bank
statements from January 2008 to January 2009, and Mr. Hur's bank statements from two
different banks-for March 2008_through;febntary 2010, and December 2007 through December
2010 (Pet. Exs. :15; ·18-19, 26-27); 3) cancelled checks_fOLrent payments from January 2009
through.December-2009, and from June 29, ·201-0 to January 2014 (Pet. Exs. 24N-GG); 4) Ms.
Pak's credit card records from January 2008 through December 2009, and Mr. Hur's credit card
statements from January 2009 through June 2010, with transaction pages for the 2010 statements
omitted (pet. Exs. 16-17,28-30); and 5) documents relating to Ms.. .Pak's hospitalization during
the windmv_.period (Pet. Ex. 22). All the .documents displayed.thtumbject l?ren'lises as Ms. Pak's
and Mr. Hur's address.
3 Mr. Bur had previously testified that he moved to Maine in January 2009 (Tr. 138).
)
- 10~· . ----- - -'.:-:;
In his closing arguments and post-hearing brief, applicants' counsel argued that to be
covered, the unit is-not required to be the primary residence of the applicant (Tr. 182-84; Pet.
Brief at 3). CounseI-is -correct.---Neithcnhe Loft Law nor the Loft Board rules require that the
unit for which an applicant seeks coverage must be his or-her primary residence. See Vlacl'tos v.'
NYC Loft Bd., 70 N.Y.2d 769, 770 (1987); BOR Realty Corp. v; NYC Loft Bd., 129-A.D.2d 496
(1st Dep't 1987), aff'd, 70 N.Y.2d 720 (1987); Matter of Cohen, OATH Index No. 2015/12 at 4-
5 (Aug. 23,2013), adopted, Loft Bd. Order No. 4261 (Mar. 20, 2014); Matter of Pels, OATH
Index No. 248JI11 at 11-12 (June 20, 2012), adopted, Loft Bd. Order No. 4161 (June 20,2013).
Applicants' counsel relied primarily on. Matter ofPels,--ar.guing-that it was most compelling and
controlling-in this Gase (Pet. Brief ar2):
In Matter of Pels, the applicant leased a unit in 1985 as a sculpting studio ("loft unit").
She simultaneously leased a penthouse apartment in the same building for residential purposes.
In 1993, while teaching at a university in Iowa, she sublet the penthouse apartment. Before
tiioving,-hpwever, she added-a bedroom to the loft-unit so she would have somewhere-la-sleep
when she visited New York during her teachirrg year. When her teaching -assignment-ended, she
returned to New York but was unable to -regain possession of the penthouse from the sub-lessee,
She therefore took up residence in the loft unit, made physical improvements to it; and continued
to live there. The owner argued, among other things, that Pels was not entitled to coverage
because she was not an actual resident during the period she was away teaching in Michigan.
Matter oFPeis, OATH 2481111-at -10. Administr~tive Law Judge Judge Tynia Richar(f found
that the applicant proved that her residence in Detroit-"was at most temporary," and that Pels-was
the protected occupant of the unit. She made -this finding despite the fact that Pels was away "for
two and a half years, had-registered and insured her car in Michigan, paid taxes in Michigan, had
registered to vote there and spent most of her time there. The proof that Pels had every intention
of returning to her residence 'in New York at the end of her teaching engagement, and eventually
did sv-was sufficient to establish that Pels occupied-the unit-as· a residential tenant.--ld.
This -ease -i-s distingliishabie:from Matter of Pels~:in that Ms;:Pels traveled-back arid- forth
during the window -.period, -and the tribunal had- to address whether her itineraflt schedule
negatively impacted her residency in her loft during the window period, and thus her
qualification for coverage. Here, there was never a question as to where Ms. Pale and Mr. Hur
resided during the window period. Their testimony and the official documents submitted, such
)
- 0:"': - - __ ......
. ~----
---~.,~, -;-'-
~ l:t;::-. _~ ___ ~-
"-- -· ... -- --
as their federal income tax returns and statements from the Social Security Administration were
indisputable and sufficient for me to find that they resided at the premises for at least 12
consecutive months during the window period. Thus, window-period occupancy is, not at issue.
The question is whether residency for-- 12 consecutive months during the window period
automatically qnalifies Pak and Hur as protected' occupants. ---
Section 2-09(b)(1) of the Loft Board rules provides that "the occupant qualified for
protection under Article 7~C is the residential occupant in possession of a residential unit,
covered as patt of an IMD." 29 RCNY § 2-09(b)(1) (Lexis 2014). Thus, a separate inquiry into
wh~ther.Pak-alld Hut: are residential occupants in possession_of the su~iect unit even· though they
reside iii Mainc;·is warranted.
As an initial matter, MS:.:P.ak's and Mr. Hur's testimony. regarding the ·frequency of their
visits to New York and where Lhey slept was inconsistent and often. confusing. Their counsel
suggested that their confusing testimony stemmed from their lack of fluency in English (Tr. 182).
But I was not persuaded by .. that explanation. The in-person interpreter often repeated
translations for both parties·..and asked for clarificatioii-'of their answers. The interpreter also
p.mYided clarification if-either party was unable· to. understand any· of the questions posed.-·This
appeared more likely than not to be a case of confusion cau-sed by petitioners' urgent attempt to
convey that they have not surrendered their right. to the premises, despite the fact that there is
little about their move to Maine that could be considered temporary. They made a significant
financial inves.tment when .they purchased_.a .restaurant with 30 -~mployees, and appearto 'have
settled in Maine, hundreds of miles away-from New York . . _They- enrolled their son in school in
Maine. -- They pur.chased furniture for ·their ·new home,- ·and by ·all accounts, . .disposed of broken
furniture from the subject premises. But for the following reasons, none of this affects their
entitlement to protected occupancy status.
In spite of their inconsistencies regarding the frequency of their visits to New York, their
testimony was slJfficiently--coIToboraled by Ms~-Ahn for me to find that'Ms.Pak and Mr. Hur
periodicaIly visited and: stayed at the subject premises where· they left ·some·furniture. ·Ms. Ahn's
photos, taken in 2012 and 2013, display a unit with all the trappings of residential use, not just in
her bedroom, but in the other bedrooms and the kitchen. It would be difficult to fathom that by
herself, Ms. Ahn created the lived-in appearance. in all the rooms, simply to persuade this
tribunal that Ms. Pak and Mr. Hur frequently. use the premises. Moreover, the evidence
.~--
·-·estahffshed:that Mr;·Hur did indeed· have an art-exhibit in August.2011,-sup OIting his testiin6rii
that he returned to New York and stayed at the premises in preparation for the exhibition (Pet.
Ex. 33).
The. only rental .. agreemenLthat .petitioners presented was the_one_ that they executed in
2007 with the· former landlorcl~ -That expired in March 2010. So there appears to he no current
lease in. effect_ Ms, Pak and Mr. Hur are nonetheless _the prime lessees,4 and continue to retmun
in privity with the landlord by paying the rent which the landlord continues to accept. Notably,
they have-not sublet their rooms. Their niece~· who is in graduate school, continues to reside at
the premises. No evidence was presented that she ever contributed to the rent, even prior to Ms.
Pak's and-·Mr;cHur's move to Maine in 2009. While they provided no cancelled checks for the
first six months of-201D, and there· was- no explanation why the first cancelled check that they
submitted for 2010 was dated June. 29~ .. 20-l0,. approximately one \veek after·the passage of the
2010 amendments to the Loft Law, respondent submitted nothing to challenge that the rent was
ever paid by anyone other than Ms. Pak: or Mr. Hur.
In short, I found that petitioners Pak: and Hur moved to Maine in 2009, but they remained
connectedto.the premises, and retained the right to possess .and occupy it at any time·by virtue:rif
their.c.olItinued rent'payments. Therefore, they, as well· as Ms. Ahn, are entitled to be recognized
as protected occupants of the unit; ····
Accordingly, the applications of Ms. Pak: and Mr. Hur should be granted.
FINDINGS AND CONCLUSIONS
L · ·Petitioners-Ahn, Pak'and Hur resided .at the firSt ·floor·rear unit of J~~_ .sllbject premiseLsince ear1y._.Z,007, when Ms. Pak executed a rentaTagreemcrit with fue landlord.
2. All three petitioners resided at the premises for at least 12 consecutive months during the window period .
. __ . J~ _ ~il!c_e J 1).ere is no dispute as to the other criteria under section 281(5) of the· Loft Law for -qualification as an IMD unit;· the ·· first floor rear uniLof the subject prerriises is an IMD unit·
• a " • ," - " ...
4 Pursuant to the Loft Board rules, "Prime lessee means the party with whom the landlord entered into a lease or rental agreement for use and occupancy of a portion of an IMD, wl.rich is being used residentially, regardless of whether the lessee is currently in occupancy or whether the lease remains in effect." "Privity means a direct contractual relationship between two ·parties, which may be established explicitly, implicitly or by operation of law." 29 RCNY § 2-09(a) (Lexis 2014).
- 13-
4. Petitioner Ahn, who continues to reside there is the protected occupant of the first floor rear unit of the premises.
5. Petitioners Pak: an.<;UI1ll' moved to Maine ill 2009, but retain the right to possess the premises by' continuing to pay"rent and- ' occasionally staying -atthe'premises' when they visit New York. They are therefore entitled to be recognized as protected occupants.
RECOMMENDATION
The coverage application of aU··three petitioners should ·be-granted.
October 9,2014
SUBMITTED TO:
RICK b~ CHANDLER, P.E. Chair
APPEARANCES:
DAVID FRAZER, ESQ. Attorney for Petitioners
SMITH & SHAPIRO Attorneys for Owner-' BY: HARRY SHAPIRO, ESQ.
Ingrid M. Addison Administrative Law Judge
NOTICE
A party aggrieved by a determination of the Loft Board may file an application for reconsideration of the determination. Under 29 RCNY § 1-07(b), an aggrieved party must serve the reconsideration application on the affected parties to the prior proceeding. Service of the application shall 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 section 1-07(b), U(t)o be considered timely, a reconsideration application must be received by the Loft Board within 30 days ofthe date of mailing by the Loft Board of the determination sought to be reconsidered./I
Pursuant to 29 RCNY §1-07(d):
A Loft Board determination pursuant to section 1-06 if these rules shall be the final agency determination for the purpose of judicial review, unless a timely application for reconsideration of the determination has been filed. In such case, (i) ifthe Loft Board modifies or revokes the underlying order, such revocation or modification shall be deemed the final agency determination from which judicial review may be sought; (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 application by remanding the matter to the hearing officer for further proceeding, neither the underlying order nor the remand order shall constitute a final agency determination, and no judicial review may be sought until such time as the Loft Board issues a final agency determination following the remand.