Tenant Waived Right to File Challenge Against Loft Board

329 Greenwich Street in Manhattan. Image Credit: CityLaw.

Loft tenant filed a petition to annul a New York City Loft Board’s amended final determination that the fourth floor consisted of two separate and distinct apartment units, claiming he was the occupant of the entire floor. SMC Associates, the owner of a loft at 329 Greenwich Street, filed plans to legalize two units on the fourth floor of the building. Longtime tenant Stephen Grant challenged the legalization plan, claiming that the space on the fourth floor was actually only one unit, not two.

Grant claimed that in 1976 Grant and his former girlfriend leased the fourth floor as an inhabitable raw space. By 1979, Grant and his girlfriend had created two defined residential spaces, with Grant occupying one unit and his girlfriend occupying the other. In 1983, the then-owner filed plans with the Buildings that showed two residential units on the fourth floor. In 1986, similar plans which also showed the two units, as well as a vestibule, were filed with the Loft Board. In 1993 the owner filed plans to legalize the space as an interim multiple dwelling and served a narrative statement on both tenants. Grant attended the narrative conference on January 27, 1994, where he reviewed the plans that showed two distinct units and did not object.

In September 2002 Grant took over both units. He occupied the entire fourth floor with his family. In 2009 when SMC Associates hired an architect to inspect and prepare new plans for legalizing the loft, the architect drew plans showing the space as it existed at the time of inspection. Consequently, on April 30, 2009, the Loft Board held a narrative statement conference where the question of whether the fourth floor was one or two units was raised. Despite decades’ worth of evidence showing otherwise, Grant testified that this was the first time the issue of whether the fourth floor was two units was raised and that the fourth floor had always been one unit. The Loft Board subsequently scheduled an amended narrative statement conference for June 25, 2009 where an amended plan showing two units was filed by SMC Associates. On November 17, 2010, the administrative judge concluded that Grant was a protected occupant of only one of the units, and thus not a protected occupant of the entire fourth floor.

On June 20, 2013, the Loft Board agreed that Grant was the tenant on record of just one of the two units, and that his objections were untimely because he failed to object to the owner’s plan designating the fourth floor as two units in 1994. Grant filed an article 78 petition challenging the Loft Board’s decision and on February 9, 2015, Supreme Court Justice Margaret A. Chan denied Mr. Grant’s petition to annul the Loft Board’s decision.

On December 29, 2016, Appellate Division, First Department, affirmed, ruling that under applicable Loft Board Rules, absent good cause, the failure to file alternate plans to an owner’s legalization plan within 45 days constitutes waiver of an occupant’s right to challenge on the grounds that the owner’s plans would unreasonably interfere with its use. Because Grant participated in the 1994 narrative statement conference and did not object then, he waived his right to challenge the owner’s plan to legalize the fourth floor as two units.

Stephen Grant v. New York City Loft Board, 2016 N.Y. Slip Op. 08952 (1st Dep’t Dec. 29, 2016) (Attorneys: Robert E. Sokolski, for Grant; Zachary W. Carter, Diana Lawless, for City).

By: Victoria Lee (Victoria is a student at New York Law School, Class of 2018).

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