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Matter of Saladino et. al. OATH Index Nos. 2412/13 & 1879/14 (May 20, 2016), adopted in part, rejected in part, Loft Bd. Order No. 4714 (Nov. 30, 2017), appended [Loft Bd. Dkt. Nos. TR-1033 & 1158, 401 Wythe Avenue/62 South 6th Street, Brooklyn, N.Y.] In application for coverage and protected occupancy, ALJ finds that five units satisfy the prerequisites for coverage under the Loft Law as amended in 2010, and that the building, therefore, is an IMD. However, one unit is located in a basement and does not qualify for coverage. Three applicants are found to be the protected occupants of their respective units. Loft Board adopts ALJ’s findings of window period coverage and protected occupancy for two applicants, as well as ALJ’s finding that units contain qualifying windows. The Board disagrees that one unit is located in a basement and deems that unit covered and the two tenants of the unit protected occupants. The Board also finds that one applicant should not be protected because he was not the residential occupant “in possession” of the unit. _____________________________________________________ NEW YORK CITY OFFICE OF ADMINISTRATIVE TRIALS AND HEARINGS In the Matter of JOEL SALADINO, PABLO CASTRO, VERONICA SCHWARTZ, FRANK HUGHES, JULIEN ASFOUR, and JEAN COSTELLO, and 401 WYTHE AVENUE TENANTS Petitioners ____________________________________________________ REPORT AND RECOMMENDATION FAYE LEWIS, Administrative Law Judge This is a tenant-initiated Loft Law coverage application involving a building or buildings located at 401 Wythe Avenue/62 South 6th Street, Brooklyn, New York (“the building”), pursuant to section 281(5) of the Multiple Dwelling Law (“MDL” or “Loft Law”), as amended on June 21, 2010, and title 29 of the Rules of the City of New York (“RCNY” or “Loft Board Rules”). MDL § 281(5) (Lexis 2016); 29 RCNY §§ 2-08, 2-09 (Lexis 2015). Petitioners seek a finding that the building is a horizontal multiple dwelling and an interim multiple dwelling (“IMD”), that their units and two additional units are covered IMD units, and that they are the protected occupants of their units. Respondent, Dasa Realty Corp., which owns the premises - 2 - (Pet. Ex. 5) and whose principal is Isaac Dahan (see Pet. Exs. 8, 9; Resp. Ex. SS), opposes the application. As set forth below, I find that the unit occupied by Ms. Schwartz and Mr. Castro (“the Schwartz/Castro unit”) is located in a basement and does not qualify for coverage under the Loft Law. The units occupied by Dr. Asfour (“Asfour unit”), Mr. Hughes (“Hughes unit”), and Mr. Saladino (“Saladino unit”), along with the units formerly occupied by Leonardo Lasagni (“Lasagni unit”) and Erwin Ziegler (“Ziegler unit”), satisfy the prerequisites for coverage under the Loft Law and therefore the building is an IMD. I further find that Dr. Asfour, Mr. Saladino, and Mr. Hughes are the protected occupants of their respective units, and that Ms. Costello is not a protected occupant. Ms. Schwartz and Mr. Castro are not protected occupants since their unit does not qualify for coverage. ANALYSIS Procedural History Petitioners filed their original application for coverage and protected occupancy with the Loft Board on September 21, 2012. That application was referred to OATH for conferencing and possible trial. 29 RCNY § 1-06(j)(2)(ii) (Lexis 2015). Petitioners amended their application twice, once on August 1, 2013, and again on September 18, 2013. The original application was filed by Mr. Saladino, Mr. Castro, Ms. Schwartz, Mr. Hughes, Dr. Asfour, and Ms. Costello, who were representing themselves. The initial amended application was submitted by counsel for petitioners on behalf of “Various Tenants at above address,” comprised of the original six tenants, minus Ms. Costello, who was listed as an affected party. The second amended application was identical to the initial amended application except for correcting a typographical error in the address of the building.1 The owner filed answers to each application, except for the 1 The original application (ALJ Ex. 5) listed 397-401 as the building address. As petitioners asserted in their brief (Pet. Br. at 2-3), and respondent did not dispute, this is the wrong address for the building. There are separate deeds for 395-397 Wythe Avenue (Pet. Ex. 4) and 401 Wythe Avenue (Pet. Ex. 5), which show that Dasa Realty owns 401 Wythe Avenue (Pet. Ex. 5), while another corporation owns 395 Wythe Avenue. There are also different certificates of occupancy for 395 Wythe Avenue (Pet. Exs. 6a, 6b) and 62/64 South 6th Street a/k/a 399-401 Wythe Avenue (Pet. Ex. 59). Mr. Saladino testified that he used the address “397-401” on the application because he thought at the time that was correct (Tr. 1475). He explained that the building was “historically known” as 397 Wythe, there was previously a mailbox labeled that way, and for that reason he had put the entrance number “397” on the gate on the Wythe Avenue side of the building (Tr. 1455-556). Counsel for respondent acknowledged that the “397” address “seems to have been . used colloquially . for [the] premises” (Tr. 2023). - 3 - second amended application. The applications are denoted as ALJ Exhibits 1, 5, and 7, and the answers as ALJ Exhibits 2 and 6. Before trial, petitioners moved for summary judgment on the Schwartz/Castro unit, contending that there were no material issues of fact as to whether Ms. Schwartz and Mr. Castro residentially occupied their unit during the window period and on the effective date of the 2010 amendments to the Loft Law, and whether any of the coverage exclusions listed in section 281(5) of the Loft Law applied to their unit. Although respondent did not challenge residential occupancy, respondent asserted that the Schwartz/Castro unit is located in a basement and cross- moved for summary judgment. On January 10, 2014, I partially granted the petitioners’ motion for summary judgment relating to the Schwartz/Castro unit, finding that the unit was residentially occupied during the window period and on the base date of the 2010 amendments to the Loft Law, is over 400 square feet, has at least one window opening onto a street or lawful yard or court, and has at least one entrance that does not require passage through another residential unit. I denied the motion insofar as it sought a finding that the unit is not located in a basement. I also denied respondent’s cross-motion seeking summary judgment that the Schwartz/Castro unit is located in a basement and excluded from coverage under the Loft Law. Matter of Saladino et. al., OATH Index No. 2412/13, mem. dec. (Jan. 10, 2014). The motion papers and my memorandum decision are made part of the record as ALJ Exhibits 9 and 10, respectively. Trial began on January 21, 2014, then on January 30, 2014, petitioners filed a new coverage application,2 seeking coverage of two additional units: the Ziegler unit and the Lasagni unit (ALJ Ex. 3). In a number of subsequent e-mails (ALJ Ex. 11), counsel for petitioners requested that the applications be consolidated. Counsel represented that she had only recently learned that the two units were residentially occupied and otherwise met the requirements for coverage, and asserted that the next trial date was several months away, giving respondent sufficient time to prepare for trial on the new application. By e-mail on February 24, 2014 (ALJ Ex. 12), counsel for respondent characterized petitioners’ request as an application to amend their previously filed application to include the Lasagni and Ziegler units and argued that it should be denied. Counsel asserted that the units should have been included in the previously filed application, that Mr. Lasagni had already testified, that the owner’s trial preparation had 2 The applicants on this application are the five tenants on the initial amended application and second amended application, plus Amanda Saladino, who is Mr. Saladino’s wife (ALJ Ex. 3). - 4 - been geared toward the applicants’ four units, and that additional discovery would be needed regarding the additional units. Ultimately, I decided to consolidate the two applications and noted so on the record (Tr. 407). Our rules of practice expressly provide for consolidation. See 48 RCNY § 1-41 (Lexis 2015) (“All or portions of separate cases may be consolidated for trial . in the discretion of the administrative law judge. Consolidation or severance may be ordered on motion or sua sponte, in furtherance of justice, efficiency or convenience.”). Under this rule, where appropriate, individual Loft Board cases have been consolidated for trial. See Matter of Alkara, OATH Index No. 1101/03 (Oct. 6, 2004), adopted in part, modified in part, Loft Bd. Order No. 2920 (Apr. 21, 2005) & Matter of Plot Realty, LLC, OATH Index No. 1285/03 (Oct. 6, 2004), adopted, Loft Bd. Order No. 2920 (Apr. 21, 2005) (harassment and access applications consolidated for trial); Matter of 315 Berry Street Corp., OATH Index No. 764/96, mem. dec. (Nov. 9, 1995) (where joint adjudication and trial of two pending cases pursuant to the Loft Law would conserve resources for the parties and this tribunal, consolidation of the two cases was ordered). Here, although trial had begun, respondent had sufficient time before the next trial date to prepare. Additional discovery on the new application was ultimately ordered. Trial on the consolidated applications began on April 2, 2014, and continued until January 5, 2015, giving respondent ample time to present its defense, including its claim that several units, including the Lasagni unit, were located in a basement. Indeed, Mr. Ziegler was not presented as a witness until April 29, 2014, and again on June 24, 2014. In all, consolidation did not prejudice respondent.

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