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Matter of 25 Jay Street, LLC
OATH Index No. 2154/08 (June 26, 2008)
[Loft Bd. Dkt. No. LB-0168; 19-27 Jay Street, Brooklyn, N.Y.]
Owner filed an application seeking a finding of abandonment. Following a default proceeding, ALJ recommends that abandonment application be granted.
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NEW YORK CITY OFFICE OF
ADMINISTRATIVE TRIALS AND HEARINGS
In the Matter of
25 JAY STREET, LLC
Petitioner
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REPORT AND RECOMMENDATION
JULIO RODRIGUEZ, Administrative Law Judge
This is an application brought by 25 Jay Street, LLC, the owner of the interim multiple dwelling at 19-27 Jay Street, Brooklyn, New York, seeking a declaration of abandonment of unit 205 pursuant to Article 7-C of the Multiple Dwelling Law (“Loft Law”) and title 29, section 2-10(f) of the Rules of the City of New York (“RCNY”). Petitioneralleges that KelleyBush, the protected occupant of unit 205, abandoned the unit on or about December 1, 2006.[1] Petitioner intends to lease the unit to a commercial tenant.
The application was received by the Loft Board on February 5, 2007, and was served on Kelley Bush on February 12, 2007, at 25 Jay Street, where she formerly resided. No answer was received. A hearing was scheduled for May 24, 2007, at which time counsel for the petitioner discovered a forwarding address for Ms. Bush in his files. I instructed counsel to re-serve the petition on all of Ms. Bush’s known addresses and marked the case off calendar.
On May 29, 2007 counsel re-served Ms. Bush at the newly discovered address and requested that she respond within two weeks. On June 13, 2007, counsel advised me by letter that Ms. Bush had not responded within two weeks and requested a new hearing date. I replied by letter on June 20, 2007, informing counsel that Loft Board rules give a “party who has been served with a copy of an application . . . 30 days from the date on which service of the application was completed to file an answer with the Board.” 29 RCNY 1-06(c) (Lexis 2008). I asked counsel to serve the application, along with an answer form, and inform Ms. Bush that she would have thirty days to file an answer directly with OATH. The case remained off calendar. Counsel served Ms. Bush on July 27, 2007 and advised her to file an answer within thirty days. She did not answer and on September 4, 2007, counsel once again requested a new hearing date.
On October 15, 2007, in an unrelated matter, the Loft Board suggestedvia email that, in order to ensure proper service, it should be the entity entrusted with serving interested parties, particularly in cases where addresses are discovered after the Loft Board’s service at the addresses originally provided by the applicant. Accordingly, on October 17, 2007, I wrote to petitioner’s counsel and directed him to file an amended application with the Loft Board and to include the tenant’s new address for service by the Loft Board.
The amended application was received by the Loft Board on December 5, 2007, and served upon interested parties by mail on December 14, 2007. No answers were received. On April 3, 2008, the Loft Board referred the matter to this tribunal for a hearing and report. On April 23, 2008, a combined notice of hearing, scheduled for June 11, 2008, and notice of default was served on all affected parties. The notice of default informed those who failed to answer the application that they would be barred from participating in the proceeding unless they moved to vacate their default within 30 days. No party moved to vacate the default. At the hearing, no one appeared other than petitioner. Therefore, the hearing proceeded as an inquest.
As a preliminary matter, I note that this application is not subject to the amendments to 29 RCNY 2-10(f) published on September 8, 2006. The amended rule states:
To be considered timely, an owner’s application alleging abandonment must be filed with the Loft Board within one year of the date the owner knew or should have known that the IMD tenant vacated the unit.
29 RCNY § 2-10(f)(3) (Lexis 2008). The amendment went into effect on October 8, 2006, and applies to abandonment applications filed six months after the effective date, or after April 8, 2007. 29 RCNY 2-10(f)(9); see also NYC Charter § 1043(e). Although the tenant left the unit on August 31, 2006, and the amended application was filed on December 5, 2007, the original application was filed before April 8, 2007. The amended application relates back to the timely, original application. Therefore, the amended rule does not apply to this application because petitioner filed its original application on February 5, 2007, prior to the date the new rule took effect, April 8, 2007. Thus, the one-year limitation does not apply. Matter of VVV Partnership, OATH Index No. 211/08 (Oct. 23, 2007); Matter of Legend Corp., OATH Index No. 2024/08 (June 12, 2008).
ANALYSIS
At the hearing, Gillian Hillaire, an accountant for Complete Management, who prepares the leases for the tenants of 25 Jay Street, testified thatMs. Bush, the protected tenant of unit 205, called the management office in July 2006 to say that she would be moving out. Petitioner submitted a fax from Ms. Bush to Ms. Hillaire stating that, on August 31, 2006, Ms. Bush did a walk-through of the apartment with the building’s superintendent and returned all sets of working keys to him (Pet. Ex. 1). Ms. Hillaire testified that Ms. Bush advised petitioner that she removed all personal belongings from the apartment and “whatever was left was what was there.” The superintendent called the management office to report that the Ms. Bush had moved and the apartment was in “broom clean” condition.
On September 6, 2006, Ms. Bush provided a new address to petitioner so that the security deposit she provided for unit 205 could be returned to her (Pet. Ex. 1). Petitioner subsequently returned Ms. Bush’s security deposit to her in full (Pet. Exs. 2, 3, 4). Ms. Hillaire testified that Ms. Bush called and informed her that she had received the check. The cancelled check, signed by Ms. Bush, was returned to petitioner (Pet. Ex. 4). Petitioner has had no further contact with Ms. Bush, according to Ms. Hillaire.
Abandonment is defined in the Loft Board rules as “the [voluntary] relinquishment of possession of a unit and all rights relating to a unit . . . with the intention of never resuming possession or of reclaiming the rights surrendered.” 29 RCNY § 2-10(f)(2)(i) (Lexis 2008). In determining whether a unit has been abandoned, the Loft Board considers a variety of factors enumerated in its rules, including the following:
(1) the length of time the occupant allegedly abandoned the unit, (2) whether the occupant owed rent at the time the occupant allegedly abandoned the unit, (3) whether the occupant’s lease for the unit has expired, (4) whether the occupant provided notice of an intent to vacate or requested permission to sublet the unit, (5) whether the unit contained any improvements which were made or purchased by the occupant and whether the occupant was reimbursed for those improve-ments, (6) whether any prior harassment findings have been made by the Loft Board concerning the occupant(s) of the unit or whether any harassment application remain pending, (7) whether any violations or notices to appear pursuant to the Loft Board’s Minimum Housing Maintenance Standards have been issued, (8) whether the owner made affirmative efforts to locate the occupant to attempt to purchase rights, and (9) whether the inspection of the unit by the Loft Board staff indicates that the unit is presently vacant.
See 29 RCNY § 2-10(f)(4) (Lexis 2008).
Under the rules, the definition of abandonment requires proof that a departure was a voluntary relinquishment of rights, and the checklist of factors serves to inform the Board as to whether a given departure constitutes abandonment. Matter of MAS, LLC, OATH Index No. 445/07, at 4 (Oct. 24, 2006). It is the owner’s burden to prove abandonment by a preponderance of the evidence. Matter of 1314 Development, LLC, OATH Index No. 1804/07, at 4 (June 21, 2007). In this case, the petitioner has met its burden. Petitioner presented persuasive evidence that Ms. Bush voluntarily surrendered her rights to unit 205. Her lease had expired and she provided notice of her intent to vacate. Her fax to Ms. Hillaire, providing her new address for return of the security deposit, is couched in entirely friendly terms, suggesting that the move was entirely voluntary (Pet. Ex. 1). The return of her full security deposit proves that she owed no rent. She participated in a walk-through with the building’s superintendent and told petitioner that she had removed all her belongings. SeeMatterofOVID, LLC, OATH Index No. 586/97 (Jan. 16, 1997), adopted, Loft Bd. Order No. 2079 (Feb. 27, 1997) (abandonment application granted where the tenant had departed three years earlier, left nothing of value behind and current whereabouts were unknown). Ms. Bush’s acknowledgment that she returned all sets of working keys to the superintendent at the end of the walk-through indicates that she had no intention of returning. SeeMatter of 315 Church Street Corp., OATH Index No. 934/00 (Mar. 13, 2000), aff’d, Loft Bd. Order No. 2522 (Apr. 27, 2000) (finding of abandonment recommended where tenant had been gone from the premises for a considerable time and indicated that he would not return). There was no response from Ms. Bush to communications from petitioner, the Loft Board or OATH.
Therefore, based upon the evidence presented, I find that Ms. Bush voluntarily abandoned unit 205 at the end of August 2006.
FINDING AND CONCLUSION
Petitioner’s abandonment application should be granted in that petitioner has proved by a preponderance of the evidence that Kelley Bush, the protected occupant of unit 205at 19-27Jay Street, Brooklyn, New York, voluntarily abandoned the unit in August2006.
RECOMMENDATION
Based on the foregoing, I recommend that the Loft Board declare unit 205at 19-27 Jay Street, Brooklyn, New York, to be abandoned.
Julio Rodriguez
Administrative Law Judge
June26, 2008
SUBMITTED TO:
MARK RAUCH, ESQ.
Chairperson
APPEARANCES:
KUCKER & BRUH, LLP
Attorney for Petitioner
BY: JAMES R. MARINO, ESQ.
[1] As noted below, petitioner’s evidence indicates that Ms. Bush actually left the unit on or about August 31, 2006.