Matter of Mapama Corp

Matter of Live Centre Tenants Association

OATH Index No. 834/05,mem. dec.(Dec. 1, 2005)

[Loft Bd. Dkt. No. TR-0761; 237, 239, 241-45, 247-49 Centre Street,

187 Lafayette Street, 403-05, 407Broome Street,N.Y., N.Y.]

The residential occupants in seven buildings on Centre, Broome and Lafayette Streets sought a finding that their buildings constituted a single horizontal multiple dwelling covered by the Loft Law. Judge found that although all seven buildings did not constitute a single horizontal multiple dwelling, four of them did constitute two separate horizontal multiple dwellings, each containing two buildings.

NEW YORK CITY OFFICE OF

ADMINISTRATIVE TRIALS AND HEARINGS

In the Matter of

LIVE CENTRE TENANTS ASSOCIATION

Petitioners

MEMORANDUM DECISION

KARA J. MILLER, Administrative Law Judge

This coverageapplication was filed by Live Centre Tenants Association ("petitioner"), residential occupants of various units in the followingbuildings: 237 Centre Street, 239 Centre Street, 241-45 Centre Street (“241 Centre Street”), 247-49 Centre Street (“247 Centre Street”) (a/k/a 179-183 Lafayette Street), 403-05 Broome Street (“403 Broome Street”) (a/k/a 255 Centre Street),407 Broome Street (a/k/a 251 Centre Street), and 187 Lafayette Street (a/k/a 409 Broome Street). Petitioner's application requests a finding that these buildings constitute one horizontal multiple dwelling ("HMD") and that their units should be covered under Article 7-C of the Multiple Dwelling Law ("MDL," "Loft Law").

The application was filed at the Loft Board on May 10, 2004, and a response to the application was submitted by the owner, A. Trenkmann Estate, Inc. ("respondent"), on July2, 2004. The matter was referred to OATH on November 3, 2004 for a hearing pursuant to Title 29, section 1-06(j) of the Rules of the City of New York (RCNY). Following a series of conferences, the issues were bifurcated and a hearing was conducted on February 28, 2005, and March 7, 2005, to address the issue of whether the seven buildings, or any combination thereof, constitute one or more horizontal multiple dwellings. Based on the following, I find that the seven buildings in question do not constitute one horizontal multiple dwelling. I do find, however, that within the seven buildings there are two horizontal multiple dwellings consisting of twobuildings each.

ANALYSIS

Petitioner asserted that the seven buildings in question constitute one HMD while respondent maintained that they are seven separate and distinct buildings. The buildings are located on Centre, Broome and Lafayette Streets. Starting on Centre Street, the buildings occupy three-quarters of the west side of theblock between Grand and Broome Streets. They continue around the corner to Broome Street and occupy the entire south side of Broome Street between Center and Lafayette Streets. They then extend around the corner to Lafayette Street to occupy half of the east side of the block between Broome and Grand Streets. One of the buildings (247 Centre Street) is shaped like a “Z” and has entrances on both Centre and Lafayette Streets, while another building (403 Broome Street) is shaped like an “L,” with entrances on both Centre and Broome Streets. The buildings vary in height from three stories (237 Centre Street) to eight stories (187 Lafayette)See Appendix A.

The evidence established a number of uncontroverted facts concerning the background of the buildings. All seven buildings are currently owned and managed by respondent, although they were constructed separately over the course of several decades. The lots were purchased at different times during the late nineteenth and early twentieth centuries by August Trenkmann. The first lot (237Centre Street)was purchased in 1882, and the last lot (239 Centre Street) was purchased in 1905. August Trenkmann constructed buildings on five of the seven lots. The buildings at 237 and 239 Centre Street, however, were erected before he purchased them. The oldest building (237 Centre Street) was constructed in 1824, and the newest building (187 Lafayette Street) was constructed in 19041905. Only one of the seven buildings has a certificate of occupancy (237 Centre Street) and all of the buildings have individual tax lots (Tr. 200, 205, 210, 216, 221, 227, 230).

The legal issue to be determined is whether any of the seven buildings combined constitute an HMD. Under the Loft Board's rules:

In deciding whether a structure is a single building, as distinguished from more than one building for purposes of IMD determination, the Loft Board shall employ the definition set forth above [§2-08(a)(i)] and consider inter alia the following factors:

(A) whether the structure is under common ownership;

(B) whether contiguous portions of the structure within the same zoning lot are separated by individual load-bearing walls, without openings for the full length of their contiguity, as distinguished from non-loadbearing partitions;

(a) a common boiler;

(b) a common sprinkler system;

(d) other indicia of operation as a single entity.

(D) whether the owner or a predecessor has at any time represented in applications or other official papers that the structure was a single building;

(E) whether a single certificate of occupancy has been requested or issued for the structure; the pattern of usage of the building during the period from April 1, 1980 to December 1, 1981.

29 RCNY § 2-08(a)(ii) (Lexis 2005).

Petitioner tried to establish that the seven buildings constitute an HMD by compiling a list of their shared attributes. It is undisputed that in addition to having a single owner, there is one boiler located in the basement of 241Centre Streetthat services all seven buildings (Resp. Ex. 8d). The seven buildings also share two sprinkler systems, one servicing 187 Lafayette Street and the other servicing the remaining six buildings, with a roof tank water source located at 247 Centre Street (Pet. Ex. 2, photo 18).

The third floor units at 237 and 239 Centre Street share an internal passageway that has been blocked off(Pet. Ex. 2, photos 25-27). Joshua Zeman, current occupant of the third floor at 237 Centre Street and former occupant of the third floor at 239 Centre Street, testified that he was aware that a passageway of approximately two feet in width,with two fire doors connected third floor units in the two buildings. Mr. Zeman further testified that respondent had removed one of the fire doors and replaced it with a plywood "plug" in 2001 or 2002 (Tr. 176-77). The passageway or doorwayis no longer used for crossing from one building to the other since it is completely blocked off by the plywood plug. Moreover, the tenants have been using it as a storage closet.

The other internal passageway or doorway involves an interconnecting fire door on one of the upper level floors between 241 and 247 Centre Street (Pet. Ex. 2, photos 31-33). There was a dispute as to whether the passageway was on the fourth or sixth floor. The final significant commonality is a shared elevator that services 403 and 407 Broome Streeton the second through seventh floors of each building (Tr. 41,91, 124-25, 374).

In addition, petitioners argued that there are severalother shared attributes amongst the seven buildingsmaking the entire assemblage an HMD. Petitioners asserted that the buildings' roofs are interconnected. While it is true that 241 and 247 Centre Street are of similar heights, theother buildings are of different heights; in some instances as much as a two-story difference exists between adjacent buildings, thereby requiring the use of installed steel ladders to move from one roof to another(Tr. 22-23, 30). WalterMaffei, respondent’s architect,credibly testified that the ladders connecting the roofs were installed for both fire safety and maintenance purposes (Tr. 137-38). The disparity between the heights of the different buildings undermines petitioner’s contention that the buildings have interconnected roofs. Even if one were to credit that the roofs were interconnected, petitioners provided no legal support for the assertion that the ability to go from the roof of one building to another is a factor in determining HMD status.

Petitioners also asserted that there are several "easements" between the buildings, including a small chimney, air conditioners, shutters and wiring extending from 239 Centre Street over 237 Centre Street, a scaffold and air conditioners extending from 241 Centre Street over 239 Centre Street, an advertising light box electrical sign at 187 Lafayette Street extending in front of 407 Broom Street, and the penthouse at 187 Lafayette Street overlapping a portion of 407 Broome Street (Pet. Exs. 2, photos 18, 28, 30; 6a-6d; Tr. 25, 90, 362-65). Petitioners’ architect, John Furth Peachy, testified that a projection from one building overlapping a building owned by another owner would ordinarily require permission from that owner (Tr. 90). In the present case, however, since respondent owns all of the buildings in question, it was unnecessary to obtain easements (Tr. 372-73). The de facto easements provide further proof of common ownership, which is not in dispute, but is insufficient to establish that the buildings were operated as a single entity. Petitioners’ assertion that a de facto easement is a controlling factor in determining HMD status was unpersuasive.[1]

Petitioners further argued that respondent's use of a single checking account to pay bills for all of the buildings and the use of the same contractors to perform maintenance on all of the buildings constituted indicia of operating the buildings as a single entity (Pet. post-hearing memorandum at 3-4). Although one checking account is used to pay expenses, respondent is invoiced and pays the buildings' various bills separately (Resp. Exs. 2, 3c, 3d, 3e, 3g, 4e, 4f, 4h, 5c, 5d, 5h, 6b, 6c, 6e, 8c, 8e, 8g, 9c, 9d, 10c, 10d; Tr. 202-03, 213, 220, 222, 228, 232, 249, 261, 269, 278, 28688, 290, 300-03, 319-24, 326-27, 329-30). Petitioners claim that the use of a single checking account to pay each building’s bills separately or the use of the same contractors to perform work on multiple buildings owned by a common owner constitutes operation of the building as a single entity isunconvincing. These factors are indicative of common ownership, but unpersuasive in establishing single operation of the seven buildings as a single entity.

In addition, petitioners contended that respondent has been "homogenizing" the buildings over the past several decades, in that the roofs are all painted silverand surfaced with rubber material, the fire escapes are painted the same color, the exterior paint on some of the structures is the same, the buildings' bulkheads are similar in appearance, the shutters on some of the structures are the same color, and some of the interiors of the buildings contain aluminum diamond plate. Similarity in appearance is a factor to consider in determining HMD status. SeeKrakower v. New YorkState Division of Housing and Community Renewal, 137 A.D.2d 688, 524 N.Y.S.2d 778 (2ndDep't 1988).In the present case, however, the similarities in appearance between the seven buildings are greatly outweighed by their differences, as the buildings vary by height, cornice design, and window configuration, and while, for instance, one or two buildings are similar in color, others are not. Out of the entire assemblage, only 241 and 247 Centre Street bear any significant similarity, as they show a continuous and uniform façade (Resp. Exs.1a(i), 1a(iii)).

Petitioners additionally asserted that electrical lines connectthe buildings. Petitioners submitted photographs of wires and Mr. Peachy testified that electrical wires penetrated the basement walls of several of the buildings. In particular, he testified that electrical cables ran between 239 and 241 Centre Street and 241 and 247 Centre Street (Pet. Ex. 2, photos 3, 34; Tr. 16, 27). However, on cross-examination Mr. Peachyadmitted that he did not know where the electricity came into these buildings (Tr. 58-59). Mr. Trenkmann's credible testimony that each building's electricity comes from the street and that individual electric meters were in the basement of eachbuilding was supported by photographs of the buildings’ electric meters (Resp. Exs. 1b-i(1), 1bi(2), 1b-iii(1), 1b-iii(2), 1b-iv(1), 1b-vi(1), 1b-vii(1), 1b-viii(1), 1b-ix(1); Tr. 202, 206-07, 212, 219, 222, 225-26). The only exceptionwas the basement of 239 Centre Street,which houses the electricmeters for both 237 and 239 Centre Street (Tr. 22829). The electric company, however, bills the two meters separately, listing them as "237 CENTRE ST ENT" and "237 CENTRE ST BSMT" (Resp. Exs. 9e, 10d; Tr. 327). Therefore, petitioners' claim that the buildings' electricity is interconnected is only recognized insofar as 239 Centre Street contains meters for both 237 and 239 Centre Street.

Petitioners also claimed that one telephone box located at 247 Centre Street services "all of Centre Street" (Pet. post-hearing memo at 7). However, Mr. Trenkmann testified and presented photographic evidence that each of the buildings contains its own telephone sub-panel (Resp. Exs. 1b-i(5), 1b-i(6), 1b-ii(3), 1b-iv(6), 1b-v(3), 1b-vi(3), 1b-vii(6), 1b-ix(5), and 1b-x(1); Tr. 202, 207, 212, 219, 222, 225-29, 231, 234-36, 240-42, 245-47). Mike Hamilton, a tenant in 241 Centre Street, testified that he was informed by a telephone technician that the box on 247 Centre Street connects to all of the buildings on Centre Street, and that a similar box on Lafayette Streetconnects all of the Lafayette Street buildings (Tr. 432). On cross examination, Mr. Hamilton acknowledged that the 247 Centre Streettelephone box services all of the buildings on that side of Centre Street between Grand and Broome Streets, including buildings not owned by respondent (Tr. 432). Mr. Hamilton's testimony accords with Mr. Maffei's testimony that the telephone company often puts all of the phone lines for a block in a single location for ease of access (Tr. 120-21). As such, a centrally located telephone box, in this instance, would seem largely irrelevant in analyzing whether the buildings were operating as a single entity.

Petitioners also claimed that theCentre Street buildings share the same “backyard” (Pet. posthearing memo at 6). However, on cross examination Mr. Peachy admitted that he did not know who owned the courtyard or air shaft behind the buildings, and acknowledged that it may be part of 185 Lafayette Street, which is not owned by respondent (Tr. 52-53).

Respondent argued that it is clear that the seven buildings are distinct from one another because they differ in a number of ways. The lots were acquired by August Trenkmann at different times and the buildings were constructed at different times. The buildings' heights vary, from the three-story237 Centre Street to the eightstory 187 Lafayette Street (Tr. 200, 205, 210, 216, 221, 227, 230). The buildings are all on separate tax lots (Tr. 101). Although it is unclear on the record whether 237 and 247Centre Street have gas service, the other buildings each havetheir own gas service (Tr. 158, 203, 207, 212, 226, 229, 232). Each of the buildings has its own water meter and water supply line from the street (Resp. Exs. 1b-i(7), 1b-ii(4), 1b-iii(5), 1b-viii(7), 1b-ix(5); Tr. 11920, 202, 235, 237, 239, 246, 247). Each of the buildings has its own waste line and roof drain (Resp. Exs. 1b-i(3), 1b-ii(1), 1b-iii(3), 1biv(5), 1b-v(2), 1b-vi(2), 1b-vii(2), 1b-viii(3), 1bviii(4), 1b-viii(5), 1b-ix(3); Tr. 120, 201, 206, 213, 219, 222, 227, 231, 234, 236-37, 240, 241, 242-45, 247).

In addition, each of the buildings has its own electric meter. Each of the buildings has its own entrance, with the exception of 403and 407 Broome Street, which share an entrance at 407 Broome Street (Tr. 85, 103, 201, 208, 221-22, 225, 227-28). Each of the buildings has its own intercom system, with the exception of 403and 407 Broome Street (Tr. 85, 122, 201, 208, 212, 219, 222, 22728, 232, 399-400). Each of the buildings receives mail at its own entrance, although tenants in both 403 and 407 Broome Street receive their mail at the 407 Broome Street entrance (Tr. 201, 206, 211, 218-19, 222, 227-28, 231-32). The buildings also vary in method of construction, foundation thickness and floor weight loads. Six of the buildings have their own elevators, with one elevator being shared by 403 and 407 Broome Street (Tr. 91, 124, 206). Five of the buildings contain their own vaults under the sidewalk (Tr.86, 201, 206, 212, 218, 229). Lastly, respondent receives and pays the buildings' various bills separately.

Upon examination of the evidence on the record, there are insufficient indicia of commonality to render all seven buildings a single HMD, as all seven only share two factors, common ownership and a common boiler. Excluding 187 Lafayette Street, the remaining six buildings share only a sprinkler system in addition to common ownership and a common boiler. Common ownership, boiler, and sprinkler system are insufficient to establish HMD status. Matter of Cassaniti, Loft Bd. Order No. 943, 9 Loft Bd. Rptr. 133 (Aug. 17, 1989) (common ownership, boiler, sprinkler system, and a single internal passage insufficient to establish 42 Greene Street and 50 Greene Street as an HMD).

A number of configurations were considered in determining whether any combination of the seven buildings constituted an HMD. Of the seven buildings, three separate pairs of buildings,241 and 247 Centre Street, 403 and 407 Broome Street,and 237 and 239 Centre Street,can be distinguished because they contain more indicia of commonality. Of these three pairings, only the first two, 241and 247Centre Street, and 403 and 407 Centre Street, share enough commonalities to constitute two separate HMDs.

The first pair of buildings, 241 and 247 Centre Street share common ownership, are both serviced by the boiler located at 241 Centre Street, and are both serviced by the sprinkler system connected to the roof tank at 247 Centre Street. Although respondent submitted separate Department of Buildings façade inspection reports for each building, these buildings show a continuous and uniform façade, front window configuration, and front cornice (Resp. Exs. 1a-i, 1a-iii, 6h,8k, 11a). SeeMatter of Diaz, Loft Bd. Order No. 670, 6 Loft Bd. Rptr. 47 (Oct. 1, 1987) (HMD exists where buildings, inter alia, "show a continuous and uniform façade, windows and cornices"). These buildings also contain an internal passage with fire doors on an upper level floor. This passage appears to serve as a second means of egress for 241 Centre Street, which does not appear to have a fire escape (Pet. Ex. 3; Resp. Exs. 1a-i, 11a).[2] Accordingly, 241 and 247 Centre Street constitute a single HMD due to the common ownership, boiler, sprinkler system, façade and internal passage connecting the buildings and providing a second means of egress for 241 Centre Street.

The second pair of buildings, 403 and 407 Broome Street share common ownership, are both serviced by the boiler located at 241 Centre Street, and are both serviced by the sprinkler system connected to the roof tank at 247 Centre Street. The entrance at 407 Broome Street serves as an entrance for both buildings, and contains intercom systems for both buildings. Tenants of both buildings receive their mail at this entrance. The buildings also share an elevator that connects both buildings on the second through seventh floors. The common ownership, boiler, sprinkler, entrance and elevator are sufficient to render 403 and 407 Broome Street a single HMD. Although this tribunal recognizes that the boiler and sprinkler system both originate outside both buildings and serve other buildings, the diminished significance of these commonalities is more than supplemented by the common entrance and shared elevator in the buildings.