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Adam Leitman Bailey, P.C.’s Use of Arcane and Recently Amended Loft Law Rules Results in Landlord Paying Hundreds of Thousands of Dollars and Awarding a Two Year Rent Waiver for Apartment Lease

By Adam Leitman Bailey


For decades the tenant lived in a tiny Alphabet City apartment located in a commercial building. Three years ago the tenant learned that the building owner was selling the building to new investors who were planning to convert it to luxury condominium apartments. The owner began to shut off essential building and apartment services. The owner threatened to evict her and offered nothing more than moving expenses. When the building was sold the new owner quickly brought an eviction case against the tenant claiming that her tenancy was not protected because she lived in a commercial building with no residential certificate of occupancy. Before giving up, she met with Adam Leitman Bailey, P.C.

Seeking Loft Law Protection/IMD Status

The team at Adam Leitman Bailey, P.C., quickly countered by unleashing a detailed investigation and research campaign and soon determined that the tenant may be protected by recent changes in New York City’s Loft Law, which affords protections to residential tenants in some commercial buildings. These buildings, referred to as interim multiple dwellings or IMDs, are governed by Article 7-C of the Multiple Dwelling Law. To qualify for coverage numerous criteria must be met, including that, the building possesses no residential certificate of occupancy, the building was used in the past for manufacturing, commercial or warehousing purposes, and that there were three or more residential tenants living in separate apartments in the building in the 20-month period between April 1, 1980, and December 1, 1981 (the “statutory window period”). Recent amendments, however, created a new window period, allowing coverage where there existed residential occupancy by three independent families for twelve consecutive months during the period beginning January 1, 2008 and ending December 31, 2009.

Adam Leitman Bailey, P.C., realized that, not only could the tenant come out victorious, but that she can gain enough money to achieve financial independence. The tenant put all her faith in our firm and the team immediately went to work.

The team filed an application for Loft Law coverage on the tenant’s behalf and obtained a stay of the landlord’s eviction case pending the outcome of the Loft Board’s determination of the application. The team also commenced an HP proceeding against the owner, which is an action brought in a specifically designated part of the Housing Court to force the landlord to perform maintenance and repairs, correct violations or restore essential services.

Meanwhile, fighting on multiple fronts, the team battled in Civil Court against the landlord’s efforts to force the tenant to deposit use and occupancy payments with the court.

The stakes were high because the tenant faced certain eviction and potential liability for years of market level rent if her Loft Law coverage application was denied. Leaving no stone unturned, the team spent days, nights and even weekends meticulously preparing for the pending hearings at the Office of Administrative Trials and Hearings, which would determine the outcome of tenant’s application.

Demonstrating that the Apartment Meets Size Requirements

While some factors required for Loft Law coverage were present, two would be highly contested. First, the team would need to prove that the tenant’s apartment met certain size requirements. At the time the team filed the application for Loft Law coverage, only apartments that were at least 550 square feet were eligible—and it was close. The owner maintained that the apartment was less than 550 square feet and had measured the apartment and had architects ready to testify at the hearing. The team hired its own licensed architects to measure the apartment. The results of the measurements showed that, according to our experts, the apartment just barely exceeded the required size. Not leaving anything to chance the team instructed preparation of detailed blueprints to be used as exhibits at the hearing. The team diligently prepared the experts for the hearing. It should be noted that recent amendments subsequently reduced the apartment size requirements to 400 square feet.

Proving that Three Families Lived Independently in the Building

The team then faced its most difficult challenge—the requirement to demonstrate that three families living independently from each other residentially occupied the building for twelve consecutive months during the years 2008 and 2009. It was a very close call and the evidence was scarce. The landlord had already evicted or forced out several other tenants, who were nowhere to be found. Many of the remaining tenants were just commercial tenants. The team did not want to rely solely on the client’s oral testimony and needed bulletproof evidence and facts.

First, the team subpoenaed the building owner and its transactional attorney for documents related to prior tenants in the building. When the owner failed to comply the team set up several conferences with the administrative law judge, forcing the owner to turn over documents and information.

Next, the team subpoenaed ConEdison, Time Warner, the Board of Elections, the Department of Motor Vehicles and other companies and agencies and obtained utility bills, voter records and other documentary evidence of residential occupancy in the building by independent families during the relevant window period.

In addition, the team meticulously searched through public records at various courthouses and located several eviction cases between the owner and other tenants.

The fight was not over. The team still had to get the individuals to come testify on the tenant’s behalf. It would take dozens of phone calls, letters and emails to receive commitments to testify. To be sure, the team served these individuals with subpoenas as well.

By the time of the hearing, Adam Leitman Bailey, P.C., knew that it was ready for victory. The owner realized that Adam Leitman Bailey, P.C., would stop at nothing to prevail.

After a three year battle, on the eve of the hearing, the owner agreed to the tenant’s settlement demands as the parties reached a blockbuster settlement, which gave the tenant a new beginning in the neighborhood that she calls home.

Christopher Halligan, Adam Leitman Bailey and Vladimir Mironenko of Adam Leitman Bailey, P.C., represented the tenant in court and in the settlement negotiations.

Adam Leitman Bailey, P.C.

NEW YORK REAL ESTATE ATTORNEYS