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Matter of Freeman

OATH Index No. 1937/06 (Aug.3, 2006), rev’d, Loft Bd. Order No. 3124 (Nov. 16, 2006)

[Loft Bd. Dkt. No. LB-0148; 43 Crosby Street, N.Y., N.Y.]

Owner filed an application seeking a finding of abandonment oftwo units. ALJ recommendsthe abandonment application begranted. The Loft Board denies the application, finding that the owner failed to serve the application on all affected parties; the Loft Board records indicate that the two units were subsequently occupied by three other persons, who were not served with notice of the application.

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NEW YORK CITY OFFICE OF

ADMINISTRATIVE TRIALS AND HEARINGS

In the Matter of

GEOFFREY FREEMAN

Petitioner

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REPORT AND RECOMMENDATION

JOHN B. SPOONER, Administrative Law Judge

This is an abandonment application brought by Geoffrey Freeman, an architect, and Masatake Kuramoto on behalf of 43 Crosby Street, LLC, the owner of the interim multiple dwelling at 43 Crosby Street, New York, New York, pursuant to Loft Law, section 282 of the Multiple Dwelling Law (“MDL”), and sections 1-06 and 2-10(f) of the Loft Board Rules. The owner seeks a declaration that units 2 and 4 of the building have been abandoned.

The application was filed with the Loft Board on December 15, 2005, and served by the Board staff upon affected parties by mail on January 23, 2006. No answers were filed. On May 22, 2006, the Loft Board referred the matter to this tribunal. On June 9, 2006, a combined notice of trial and notice of default (ALJ Ex. 1) was served on all affected parties, scheduling a hearing for June 26, 2006. No one appeared at the hearing other than the petitioner. Accordingly, an inquest was held during which petitioner introduced various documents in support of its application.

For the reasons set forth below, I recommend that the application begranted.

ANALYSIS

The buildingis a five-story building with four residential units located on the second, third, fourth and fifth floors (Pet. Ex.1). Loft Board records indicate that the previous owner purchased the rights to units 3 and 5 in 1982 and 1983. As shown by the deed (Pet. Ex. 2), the current owner, 43 Crosby Street LLC, purchased the building on September 14, 2004, from 43 Crosby Street Associates, LLC. Through its architect, the current owner has filed legalization plans with the Department of Buildings, after obtaining Loft Board approval to do so, and is awaiting the issuance of a building permit (Tr. 7; Pet. Ex. 8).

Geoffrey Freeman, the architect for the building, testified that he has been the architect of the building since the spring of 2005. He stated that the building was vacant at the time of the change in ownership in 2004 (Tr. 8). At that time, each of the units had a functioning kitchen and bathroom, but contained no furniture (Tr. 8). Since 2005, he has visited the building once every two weeks and has never seen any signs of occupancy in the entire building (Tr. 8). Recently, a Loft Board inspector, Mr. Smoot, walked through the building with Mr. Freeman and confirmed that it appeared to be vacant (Tr. 11).

Petitioner’s counsel stated that, pursuant to a Freedom of Information Law request, he searched the Loft Board’s records and did not find any notices of violation or harassment applications (Tr. 9). On March 27, 2006, counsel sent out copies of an extension request by registered mail to the occupants of the building, whose names the petitioner retrieved from the Loft Board records, including Charles Curl Jr., the prior occupant of unit 2, and Karen Renz and Otis Tama, the previous occupants of unit 4. All of these registered letters were returned unopened (Pet. Ex. 7). Mr. Freeman did a personal search for each of these individuals on the site in an attempt to find a new address and/or new telephone number. These internet searches came back with no results (Pet. Ex. 9).

Abandonmentis 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).Indetermining 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 occupantand 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)(3).

In this case, petitioner presented evidence as to most of the nine abandonment factors. The two units for which an abandonment finding is sought were shown to be currently vacant, as confirmed by a Loft Board inspection, and to have been vacant since at least September 2004. No harassment findings have ever been made as to this building and the Board files show no housing maintenance violations were issued. The owner’s attorney attempted to locate the former occupants via an internet search and these efforts were unsuccessful.

It is true that petitioner supplied limited historical information about the building prior to 2004, when the current owner purchased this building. However, in the instant case, the evidence offered supports a finding that the former occupants were not coerced into leaving the building. Most significantly, there is no indication in the Loft Board files of any harassment applications or housing maintenance complaints made by the former occupants. The evidence that the units are currently vacant, supplemented by the absence of any indication in the Loft Board records that the former occupants were deprived of services or otherwise coerced into vacating by the former landlord, is sufficient to meet the owner’s burden of establishing by a preponderance of the evidence that the departure of the occupants was probably voluntary. See Matter of Sabbagh, OATH Index No. 1641/98 (Sept. 18, 1998), adopted, Loft Bd. Order No. 2333 (Nov. 24, 1998). Thus, the evidence presented by the owner warrantsgranting the abandonment application.

FINDINGS AND CONCLUSIONS

Petitioner’s abandonment application should be granted in that petitioner has proved by a preponderance of the evidence that units 2 and 4 were abandoned.

John B. Spooner

Administrative Law Judge

August 3, 2006

SUBMITTED TO:

MARC RAUCH

Chairperson

APPEARANCES:

HANLEY & GOBLE LLP

Attorneys for Petitioner

BY: HARRY J. GAFFNEY, ESQ.

No appearance for Respondents