In the matter of the Application of Gerard Barnier (Loft ...



In the matter of the Application of Gerard Barnier (Loft Board Order #411 - dated August 15, 1986) tr-0204

Gerard Barnier, occupant of loft #1209 at 37 West 26th Street, filed an application in February 1984, requesting coverage under Article 7-C of the Multiple Dwelling Law.

The owner of the building, Kiamie Princess Marion Realty, filed an answer disputing the applicant's claim.

These premises are a 12-story building located in the Northeast Chelsea district, an area zoned M1-6, where pursuant to Section 15-021 of the Zoning Resolution residential uses are permitted by administrative certification by the Chairman of the City Planning Commission.

The records of the City Planning Commission indicate that three applications, for units 1206-7, 1204 and 1208 and 1209, for Determination of Residential Loft Occupancy have been approved for this building as of September 1985. Two applications were withdrawn. None remain pending.

THE ISSUE:

The issue to be determined in this application is whether these premises were residentially occupied by three or more individuals living independently of each other on December 1, 1981 since April 1, 1980.

Proceedings before the Loft Board:

A conference was held on this application on November 15, 1984 and a hearing was conducted on March 2, 26, 27, May 28, August 22 and September 24 and 26, 1985. The applicant was represented by Jeffrey Ween; the owner was represented by Joel Bernstein of the firm Solomon and Bernstein.

APPLICANT'S POSITION:

The applicant's position is that as four lofts have been residentially occupied during the window period, this building constitutes an interim multiple dwelling covered under Article 7-C of the Multiple Dwelling Law.

THE OWNER'S POSITION:

The owner's answer alleged lack of knowledge of conversion to residential use, noncompliance with zoning requirements as to minimum unit size, lack of bathroom facilities within the units, and lease provisions prohibiting residential use. These are not valid defenses under established case authority and the provisions of the statute and Loft Board regulations. See, Kaufman v. American Electrofax, 102 A.D. 2d 140 (1st Dept 1984) (lack of knowledge of conversion not defense to Article 7-C coverage); MDL Subsection 281(2)(i) and Coverage Regulation I.A.1 concerning attributes required for qualifying residential units; and MDL Subsection 286(1) with regard to lease restrictions requiring commercial use.

TESTIMONY AT THE HEARING:

Loft 1209

James Lipton, occupant of loft #l209, testified that he moved into his loft with his girlfriend, Betty Moss, in 1976 after signing a lease with Mr. Kiamie. He stated that after informing Kiamie that he would occupy the space for residential use, Kiamie informed him that he could live there but should not publicize it.

Lipton testified that after renting the loft, he put down a new oak floor, had electrical work done in the space, re-plastered the walls, installed a sink, a toilet, a hot water heater, and a stove, and brought a refrigerator and all his personal possessions. He stated that in 1977 he installed a bath tub. Lipton testified that he brought his dog and cat to the space. He added that Betty Moss stayed with him up to May 1980.

As proof of his residential occupancy, Lipton submitted his lease, dated February 1976; his telephone bills from April 1980 and December 1981; payment receipts from his federal insurance policy; his driver's license from August 1980, his Hew York City public library card, his voter's registration and monthly statements from his Visa credit card.

Jeanny Golden, Lipton's niece, testified that she stayed overnight many weekends at Lipton's loft in 1980 and 1981. She testified that the loft had a kitchen and a bathtub and that she used the bathroom down the hallway during her stay.

Ira Lipton, brother of James Lipton, testified that he has visited his brother on many occasions at his loft since 1977. He stated that the loft consists of a mezzanine floor, which has a loft bed; and a main open room with a kitchen area that has a stove, a refrigerator, counter space and cabinets for food and dinnerware. The main room also has a living area with a sofa, a hammock under the mezzanine, a coffee table, a bird cage and other collectibles. Under cross-examination, Lipton testified that he has stayed overnight in the loft on several occasions since 1977 and that the space has remained as he described it.

Erich Schiffman, witness for Lipton, testified that he became acquainted with the building when he met James Lipton in 1976. Schiffman testified that he has been in Lipton's loft on many occasions since 1976. He described the loft as having a full kitchen area, a suspended balcony with a bed and many antique pieces of furniture and collectibles.

Under cross-examination, Schiffman testified that he also has filed an application for coverage with the Loft Board for the building where he resides.

Lofts #1206 and 1207:

Gerard Barnier, occupant of loft 1206 and 1207, testified that after leasing space 1206, he bought the adjacent space #1207 from Steve Weiner, who had the lease for that space, in 1976. Barnier testified that he later signed a lease with the owner which included both spaces.

Barnier testified that after signing the lease for the two spaces, he installed a sink and toilet and built a darkroom in 1206. He stated that he also put in a small kitchen area with a hot plate, a small refrigerator, cabinets, a butcher block; he also built a closet and had a sofa. Barnier testified that in early 1979 he met Plato Baptista, who subsequently began to work for him as an apprentice and to live in the loft in late 1979. He testified that Baptista lived in the loft until January 1981. Barnier testified that up to the fall of 1981 he lived in his apartment at 18 East 31st Street, except from November 1980 to March 1981 when he stayed at the loft with Baptista because he was getting no heat at East 31st Street. Barnier stated that in April 1981 he allowed Miles Aronowitz to live in the loft until early June 1981. He stated that around October 1981 he decided to move entirely into the loft and use it as his studio and residence. Barnier stated that at that time he began a renovation of the space which lasted into early 1982.

As proof of the residential use of the loft, Barnier submitted his lease for rooms 1206 and 1207; a floor plan for both spaces; photographs of his loft; bills and receipts for a telephone installed by Miles Aronowitz dated April 1981; a letter from the New York Telephone Company verifying residential service since April1980; his driver's license from December 1980; his income tax return for 1981 and receipts for fixtures bought in 1979-1980 and 1981.

Plato V. Baptista, witness for Barnier, testified that he met Barnier in 1979 and that shortly thereafter he arranged to become Barnier's apprentice and began to live in Barnier's loft at 37 West 26th Street in 1979. Baptista testified that his living space was in room 1206 of the photo shooting area in the loft and it consisted of a couch, a hot plate, a small refrigerator, and a dressing area with a steel cabinet for his clothing. Baptista testified that he lived in the loft until January 1981.

Under cross-examination, Baptista testified that in the fall of 1980 Barnier began to stay in the loft with him regularly because there was no heat provided to Barnier's apartment on East 31st Street. He stated that the sharing of the loft became difficult and that he moved out in January 1981.

Olivia Harris, witness for Barnier, testified that she became acquainted with Barnier's loft at 36 West 27th Street around September 1980 when she had pictures taken in his studio. She testified that at the time, the loft consisted of a small waiting area, a washroom with a toilet, a dark room, an area with an L-shaped sofa and a glass table, and an area separated from the studio with a vertical blind, which had a butcher block table, a corduroy sofabed, cabinets, a hot plate and small refrigerator.

Harris testified that shortly after meeting Barnier, she and Barnier became friends and that they would dine together once a week at his loft or at her apartment. She stated that in the winter of 1980-1981 Barnier began to have no heat at his apartment on East 31st Street and began to stay at the loft on a regular basis. She stated that in the fall of 19871 he then moved altogether into the loft. Harris testified that at the time she met Barnier he had an assistant named Plato who lived in the loft; she stated that subsequent to Plato, Barnier had another assistant named Miles who also lived in the loft for a while.

Under cross-examination, Harris testified that she visited Barnier mostly at the loft and only on a few occasions at his East 31st Street apartment. She testified that Barnier began to stay over at the loft around November 1980 because of the heating problems at this apartment. She stated that Barnier moved into the loft for good around the fall of 1981.

James Lipton testified that he is familiar with Gerard Barnier, occupant of loft 1206 and 1207, and that the loft has been rented by Barnier since 1976. He stated that in 1980 and 1981 Plato Baptista, an assistant to Barnier, lived in the space. He stated that during 1980 Baptista visited him and Betty Moss in the loft on several occasions, and that at that time the space consisted of a photo-studio area; an area with a counter, a hot plate, and a butcher block counter; and contained some music records, a couch, dinnerware and cooking utensils.

Lipton testified that around the winter of 1980, Barnier began to stay in the loft and around the fall of 1981 he noticed that Barnier began to renovate the loft by installing cabinets, erecting a wall and building a platform bed.

Loft 1204 and 1208:

John Vidol, occupant of rooms 1204 and 1208, testified that he became acquainted with this building in 1966 after seeing a "for rent" ad in the New York Times. He stated that he signed a lease for room 1204 and began to use it as his photo studio. He testified that prior to his residential use of this space, he resided at 470 West 24th Street. Vidol testified that he began to reside in room 1204 in 1977, and that the space had a darkroom where he installed a shower; a large sink with shelves above it for storing dishes and glasses; a hot plate, a toaster, a refrigerator, a hot water heater, several tables, two couches, a bed, lamps, dining chairs and a television set. He stated that he also painted the space and refinished the floor.

Vidol testified that in 1978 he rented room 1208, across the hallway from 1204, and began to fix it by painting, installing a new tile floor, bringing a water line into the space and having the superintendent install a new sink; upgrading the electrical system and fixing the windows. Vidol testified that he then moved a sofa, his bed, his desk and chairs and most of his personal items into 1208, but his kitchen facilities and his shower remained in room 1204. He testified that he has continued to use both spaces for living and working since then.

As proof of his residential use of these spaces, Vidol submitted his moving bill from his previous address to 37 West 26th Street; receipts for work done and fixtures installed in the spaces; photos of rooms 1204 and 1208; his automobile registration; correspondence from his insurance company during the window period; a letter from Con Edison dated June 7, 1984 indicating a correction in his billing from commercial to residential service; his telephone bills for the window period and bank statements.

Vidol also testified that as a neighbor of Gerard Barnier he recalled seeing Plato Baptista coming and going from Barnier's space and could frequently hear noises and music from that space.

He also testified that the penthouse in the building was occupied residentially from 1980 to 1983 by Sean Smith. He stated that he was a good friend of Smith and for a period of time he allowed Smith to use his shower facilities every day.

Under cross-examination, Vidol testified that room 1204 and 1208 are separated by a public corridor and that room 1204 is used for shooting pictures more than room 1208, although he also uses 1208 for shooting sometimes.

Jay E. Raphael, witness for Vidol, testified that he has known Vidol since he was five years old and that in June 8, 1980 he came to New York City on a job assignment and stayed at his loft for six weeks. He also stated that between 1979 and 1980 he and his wife had stayed overnight at Vidol's on several occasions.

Raphael testified that in June 1981 he relocated himself to New York City and moved in with Vidol, where he stayed until September 1984. However, he stated that he was not in the loft between October and December 1981 when he was on an assignment in Kansas City. Raphael stated that during his stay at Vidol's he used room 1204 to bathe, cook and work and used room 1208 to sleep, dress and socialize.

Raphael testified that he met Barnier, Lipton and Sean Smith during his stay at Vidol's and that Smith would come from the penthouse to use Vidol's shower in room 1204 almost every morning. Raphael stated that he was never in Barnier’s space but that he saw him coming and going from his space and the building at different hours and on Sunday mornings.

Under cross-examination Raphael testified that Vidol let two other photographers use room 1204 in the fall of 1981. He stated that he was never inside Lipton's space. He also recalled seeing a lot of construction going on in Barnier's space in October 1981. He stated that Vidol did not have a stove but that they used a two-burner hot plate to cook.

Kevin Starrett, a witness for Vidol, testified that he became acquainted with Vidol in 1978 through another photographer named Bruce Weber, who had used Vidol's space to shoot photographs. Starrett testified that he has been in Vidol's space on many occasions and that in room 1208 Vidol has had file cabinets, a bed, a closet with his clothing, a piano, lamps, tables, a desk, books and a phone. He stated that in room 1204 Vidol has a dressing room, a studio, a coffee table, a counter with a wall mirror, a refrigerator, a couch, and a dark room with a portable shower, a sink and a hot water heater, cooking utensils, dishes and glasses. Starrett stated that around 1981 a friend of Vidol by the name of Jay Raphael stayed with Vidol for a couple of years.

Under cross-examination, Starrett testified that he is a photographer and that recently he has used Vidol's room 1204 to shoot some photographs. He stated that he has never been there for dinner. Starrett testified that there are no toilet facilities within either of Vidol's two spaces and that he always uses the building's toilet in the public hallway.

Steve Weiner, a witness for Vidol, testified that he is a photographer and used to rent rooms 1207 and 1201 in the building. He stated that in 1976 he assigned, for a fee, room 1207 to Gerard Barnier. He testified that he has known John Vidol for over 14 years, has been in his loft on many occasions and knows that Vidol has resided in rooms 1204 and 1208 since 1977-1978.

Wiener testified that he was never in Barnier's space between 1978 and 1981 but that he knew that Barnier had installed cabinets, and had a hot plate, a toaster oven, a couch, a butcher block and other personal items shortly after taking over room 1207.

Weiner testified that he knew Sean Smith and that Smith had moved into one of the rooms in the penthouse around the winter of 1979-1980. He stated that Smith did not install a bathroom in the penthouse until 1981.

Under cross-examination Weiner testified that James Lipton moved into room 1209 in 1976 and that after having been in that space he knew that Lipton lived there. He testified that Barnier paid him $4,000 for a fixture fee, which included a dark room and wiring, for room 1207 in 1976. He stated that during the winter of 1980-1981 Barnier told him that he was living in the loft because he had no heat in his apartment.

He stated that he was in the penthouse around 1978 and noticed a bed in the darkroom. He stated that the penthouse had a full kitchen from the first he saw it, and that there were no bathroom facilities until around 1981. He stated that he knew and saw that Smith used Vidol's shower prior to having a bathroom in the penthouse.

Penthouse:

Concerning the penthouse, although testimony was obtained regarding the occupancy of the penthouse by Sean Smith, the records of the Department of City Planning indicate that the grandfathering application for this space was withdrawn and such application is no longer pending for approval by the Chairman of the Commission.

Since this building is located in Northeast Chelsea, where residential uses are allowed by approval of a grandfathering application by the Chairman of the City Planning Commission (Section 15-021/42-133 of the Zoning Resolution), the penthouse, according to Article 7-C Section 281(2)(i), is not eligible for protection under the statute because no grandfathering application was approved.

Regarding John Vidol's space, Smith testified that he was in both of Vidol's spaces and saw that Vidol resided in the building. He stated that he also saw James Lipton and Gerard Barnier coming and going from the building but he was never in their lofts.

No testimony or evidence was offered by the owner of the building during the hearing.

OPINION:

Based on the testimony and evidence offered by James Lipton, Ira Lipton, Eric Schiffman and Jenny Golden, it is found that loft 1209 has been used for residential purposes by James Lipton since 1976.

Regarding spaces 1206 and 1207, it is found that, based on the testimony and evidence produced by Gerard Barnier, Plato Baptista, Olivia Harris and Steve Weiner, Gerard Barnier has been the prime lease holder for those interconnected spaces since 1976. The record shows that Plato Baptista resided in the space from 1979 to January 1981. Gerard Barnier shared the space with Baptista from November 1980 to March 1981 and Miles Aronowitz resided in the loft from April 1981 to May 1981. The record also shows that around October 1981 Barnier vacated his apartment at 18 East 31st Street and moved into his loft at 37 West 26th Street where he began a renovation of the space which lasted into early 1982.

The record for this case also indicates that based on the testimony and evidence submitted by John Vidol, Jay Raphael, Steven Wiener, Kevin Starrett and Sean Smith, John Vidol first occupied space 1204 in late 1966 as his photo studio; and that in 1977 he then moved into the space, installed a shower and began using it as his residence. The record also shows that in 1978, Vidol rented space 1208 across the hallway from 1204 and, after fixing it, he then began occupying it for residential uses. The record indicates that Vidol lives and works in both spaces.

Based on the record for this case, it is found that the premises at 37 West 26th Street constitute an interim multiple dwelling consisting of three residential units.

The covered units are 1209; 1206-1207; and 1204 and 1208.

The penthouse space is not covered because grandfathering was not approved.

ORDER:

It is hereby ordered that the premises at 37 West 26th Street are an interim multiple dwelling consisting of three residential units: 1209; 1206-7; and 1204 and 1208.

And it is further ordered that the owner register this building with the Loft Board accordingly.

Notice

A party aggrieved by a determination of the Loft Board may file an application for reconsideration of a determination within thirty (30) days of service of the determination on the parties (i.e., said application must be received at the Board's offices within 30 days of the date the Order was mailed, as indicated above). The Board, may in its discretion, reconsider such determination.

Filing of an application for reconsideration shall not toll the statute of limitations for purposes of initiating an Article 78 proceeding.

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