Loft board determination upheld

544 W 27th Street. Image Credit: Google Maps

Tenants claimed a permanent residence in loft building. Loft tenants Maria Nazor and Peter Mickle have occupied units 4N and 4S of 544 West 27th Street in Chelsea since 1983 and 1995, respectively. In 2009, after two unsuccessful holdover proceedings, landlord Sydney Sol Group Ltd. (f/k/a Mushlam, Inc.) won a judgement of ejectment against Nazor and Mickle in New York County Supreme Court. In December 2010, the Supreme Court vacated the judgement of ejectment and granted the tenants leave to pursue their rights under the 2010 amendment to the Loft Law before the New York City Loft Board. The 2010 amendment protects tenants of buildings that were residentially occupied by two or more families between 2008 and 2009.

Nazor and Mickle applied to the Loft Board for coverage in 2014. In 2018, after lengthy administrative proceedings, the Loft Board denied them protection of the Loft Law. The Board determined that the tenants failed to meet the two-family requirement because Mickle primarily resided at an apartment on West 14th Street during the relevant period.

The landlord renewed its motion against Nazor and Mickle in the underlying ejectment action, and on October 22, 2018, the Supreme Court granted an order of ejectment.

Nazor and Mickle filed an article 78 petition challenging the Loft Board’s coverage determination and also appealed the Supreme Court’s ejectment order. Nazor and Mickle argued that they were protected tenants, and that the Board incorrectly applied a “primary residence” standard instead of the required “indica of residence” under the Loft Law.

The Appellate Division, First Department, affirmed the Loft Board and dismissed the tenants’ article 78 petition. The Appellate Division agreed that the Loft Board applied the correct residence standard, and found that the Loft Board’s denial of coverage was supported by substantial evidence. The Appellate Division also affirmed the Supreme Court’s ejectment order, and ruled that Nazor and Mickle’s pending coverage application under the 2019 amendment to the Loft Law, which protects tenants of buildings that were residentially occupied by two or more families between 2015 and 2016, did not render the ejectment order premature.

Nazor v. New York City Loft Bd., 179 A.D.3d 609 (1st Dep’t 2020).

By: Maya Addady (Maya is a New York Law School graduate, Class of 2020.)

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