ORDER NEW YORK CITY LOFT BOARD - Archive.citylaw
ORDERNEW YORK CITY LOFT BOARDIn the Matter of the Application ofLoft Board Order No. 4350VARIOUS TENANTS OF 357 BOWERYDocket No. TR-1098RE: 357 BoweryNew York, New YorkIMD No.: NoneORDERThe New York City Loft Board accepts in part and rejects in part the Report and Recommendation ofAdministrative Law Judge Alessandra F. Zorgniotti dated October 22, 2014 ("Report").BACKGROUNDOn July 2, 2013, Oenise Langenegger, occupant of the second floor unit, and Christian Wassmanand Luisa Gui, occupants of the third floor unit ("Tenants") in the building located at 357 Bowery, New York,New York ("Building") filed an application seeking a finding that: 1) the Building is subject to Article 7-Ccoverage pursuant to Multiple Dwelling Law ("MOL") § 281 (5); 2) the second, third and fourth floor units("Units") are covered interim multiple dwelling ("IMO") units; and 3) Tenants are the protected occupants oftheir respective units. Tenants claim that, during the requisite window period ("Window Period"), theyoccupied their respective units, and that Ingo Swann, former owner of the Building, now deceased, occupiedthe fourth floor unit.On August 1, 2013, Swann Spieker Partners ("Owner"), the owner of the Building, filed an answeropposing Tenants' application .The Loft Board referred the matter to the Office of Administrative Trials and Hearings, whichassigned the case to Administrative Law Judge Alessandra F. Zorgniotti for adjudication. In her Report,Judge Zorgniotti recommended the Loft Board find that: 1) the Building is an IMO pursuant to MOL § 281 (5)with covered units on the second, third and fourth floors; and 2) Tenants are the protected occupants of theirrespective units. We agree that the Units are IMOs, but reject the finding of protected occupancy for Ms.Gui.ANALYSISA. The Building is an IMO pursuant to MOL § 281 (5).Owner's only challenge to eligibility for Loft Law coverage is its claim that there were not three ormore families living independently for twelve consecutive months during the Window Period. As discussedbelow, we accept Judge Zorgniotti's finding that the Tenants and Mr. Swann each residentially occupied theirrespective Units for at least twelve consecutive months during the Window Period and therefore, the Buildingis an IMO.1.The second floor u nit was residentially occupied during the Window Period .Ms. Langenegger testified that she has resided in the second floor unit since May of 2000, andpresented six residential leases that she Signed with Mr. Swann between 2000 and 2006. Ms. Langeneggerstated that her work as a Swiss television correspondent required frequent travel in 2008 and 2009, but thatshe maintained her residence on the second floor.Owner did not present any evidence to refute Ms. Langenegger's Window Period occupancy.Rather, Owner claimed that Ms. Langenegger's frequent travel meant that there was no residentialoccupancy in the second floor unit for twelve consecutive months during the Window Period. JudgeZorgniotti correctly held that Ms. Langenegger's frequent travel does not disqualify the unit from Loft Lawcoverage. It is well established that an occupant's itinerant occupation does not bar Article 7-C cove rag.
See, Matter of Jackson, Loft Board Order No 1043 (May 31, 1990)(holding that the tenant still occupied hisunit during the Window Period despite his frequent career-related travel). Thus, we find that Ms.Langenegger residentially occupied the second floor unit for at least twelve consecutive months during theWindow Period.2.The third floor unit was residentially occupied during the Window Period.Mr. Wassman a 1 Ms. Gui testified that although the lease term began in September 2008, Mr.Wassman has resided in the third floor unit since August 2008 and Ms. Gui, has resided in the third floor unitsince September of 2008. See, Transcript (UTr.") at 57. Mr. Wassman presented a lease effectiveSeptember 1, 2008, listing him as tenant and listing Ms. Gui is listed as his emergency contact and next ofkin. See, Lease, dated September 1, 2008. Mr. Wassman and Ms. Gui also submitted extensivedocumentary evidence in support of their Window Period occupancy, including Mr. Wassman's driver'slicense, insurance policies, social security statement, joint tax returns, cell phone, and bank records.Here, Owner also presented no evidence to counter the claim that they occupied their unit during theWindow Period. In light of the record, we accept Judge Zorgniotti's finding that Mr. Wassman and Ms. Guiresidentially occupied the third floor unit for twelve consecutive months during the Window Period.3.The fourth floor unit was residentially occupied during the Window Period.Owner disputes that Mr. Swann, the former owner, residentially occupied the fourth floor unit duringthe Window Period. Murleen Ryder, Mr. Swann's sister, who is the executrix of his will and beneficiary of hisestate, testified that he occupied the unit before and after, but not during, the Window Period. See, Tr. at653, 664. According Ms. Ryder's testimony and that of her daughter, Elsbeth Flippen, Mr. Swann lived andworked in the basement, and maintained the fourth floor as a guest apartment and museum for his artworkduring the Window Period. See, Tr. at 494-95.The record shows, and Owner does not dispute, that the basement is unfinished, has hanging wires,pipes, open walls, open electrical fixtures and does not contain a kitchen. See, Tr. at 26,641-643. On theother hand, the fourth floor unit is a finished residential unit and contains a kitchen with a sink, refrigerator,hot plate and cooking utensils as well as a bathroom with a tub. In her Report, Judge Zorgniotti foundOwner's claim that Mr. Swann chose to live in an unfinished basement without a kitchen, as opposed to thefourth floor apartment, to be contrary to the weight of the evidence. See, Report at 14. We agree.Ms. Ryder's and Ms. Flippen's testimony is also contradicted by the other testimony in the record,most notably the testimony of Jacques Nunez, Mr. Swann's friend. Mr. Nunez testified that he visited Mr.Swann daily during the Window Period and that Mr. Swann slept in the fourth floor unit. Mr. Nunez alsodescribed Mr. Swann's daily routine of taking the elevator down to the basement to work during the day, andreturning to fourth floor in the evening to drink, eat and watch television before going to bed. See, Tr. at 13,14. Tenants' testimony corroborated the basic details of Mr. Swann's daily routine as described by Mr.Nunez. See, Tr. at 82, 249-50, 298.Judge Zorgniotti found that testimony provided by Tenants regarding the Buildings' occupancy duringthe Window Period was more credible than that of Ms. Flippen and Ms. Ryder. See, Report at 4 and 14. Weaccept Judge Zorgniotti's assessment of credibility and fact finding that Mr. Swann lived in the fourth floorunit for twelve consecutive months during the Window Period.B. Protected Occupancy Status.The record includes leases for applicants Denise Langenegger and Christian Wassman that predatethe effective date of MDL § 281 (5), June 21,2010. Ms. Langenegger and Mr. Wassman submitted extensivedocumentary evidence that showed that they are in possession of their respective unit and it is their primaryresidence. Mr. Wassman submitted his driver's license, car insurance records, homeowner's insurancepolicy and social security statement, all listing the Building's address. Ms. Langenegger presented bankrecords, various newspaper and magazine subscriptions, and bills for her telephone and internet serviceaddressed to the Building.2
Owner argued that Mr. Wassman and Ms. Gui's immigration status, tax status, and the fact that Mr.Wassman practices architecture without a license affects their claim for Article 7 -C coverage of the third floorunit. However, the Loft Board has held that a tenant's citizenship status is irrelevant to the issue of coverageand protected occupancy status. See, Matter of Cohen, Loft Board Order No. 4261 (Mar. 20, 2014). Alsoirrelevant are the alleged tax irregularities and Mr. Wassman's professional status.Based on the evidence in the record, we find that Ms. Langenegger and Mr. Wassman are the primelessees of their respective unit, their tenancies began prior to June 21, 2010, they are in possession of theirunits and occupy their units as their primary residences . Therefore, they are the protected occupants of theirrespective units pursuant to 29 RCNY § 2-09(b)(1).Judge Zorgniotti also found that Ms. Gui was the residential occupant entitled to protection of thethird floor unit under 29 RCNY § 2-09(b)(2) because Ms. Gui was in possession of the unit prior to theeffective date of the Loft Law. We disagree.As an initial matter, 29 RCNY § 2-09(b)(2), is the only subsection of 2-09(b) that does not determineprotected occupant status. This subsection only provides that where a residential occupant in possession ofa covered unit is not the prime lessee and was in possession of the unit on the effective date of the law, thelack of consent of the landlord to a sublet, assignment or subdivision that established the occupancy cannotbe used as a defense against a finding of Article 7-C protection. Accordingly, relying on subsection (2) aloneis insufficient.Although the record shows that Ms. Gui occupied the third floor unit prior to June 21, 2010, where,as here, there is a prime lessee, she does not become a protected occupant. Mr. Wassman is the primelessee who is in possession. As such, he is deemed the residential occupant entitled to protection. Themere fact that Ms. Gui shared the unit with Mr. Wassman, the prime lessee, on the effective date of the lawdoes not automatically entitle her to protected occupant status. Moreover, we note that Ms. Gui's tenancy isnot the result of sublet, assignment or subdivision. Therefore, § 2-09(b)(2) does not apply. However, in Mr.Wassman's absence, Ms Gui may be entitled to protected occupant status under 29 RCNY § 2-09(b)(1) and(2) or, depending upon her relationship with Mr. Wassman, she may have succession rights pursuant to 29RCNY § 2-08.1(c).For the reasons set forth above, the Loft Board finds that: 1) the Building is an IMD pursuant toMDL § 281 (5), with covered units on the second, third and fourth floors; 2) Denise Langenegger is theprotected occupant of the second floor unit; and 3) Christian Wassmann is the protected occupant of thethird floor unit.The Loft Board hereby directs the Owner to register the second, third and fourth floor units with theLoft Board within 30 days of the mailing date of this Order pursuant to 29 RCNY § 2-05. Failure to do somay result in enforcement proceedings and the imposition of fines./?C-DATED: January 15, 2015Alexandra FisherChairpersonBoard Members Concurring : Barowitz, Spadafora, Fisher, Bolden-Rivera, SheltonBoard Members Dissenting : DelaneyBoard Members Absent: Foggin, SchachterDATE LOFT BOARD ORDER MAILED:JAN 2320153
Matter of Various Tenants of 357 BoweryOATH Index No. 1067114 (Oct. 22, 2014)[Loft Bd. Dkt. No. TR-I098; 357 Bowery, New York, N.Y.]In coverage proceeding, petitioners demonstrated that 357 Boweryis an interim multiple dwelling that had three residentiallyoccupied units during the applicable window period and that theyqualifY for protection under the Loft Law. ALl recommended thatthe application be granted.NEW YORK CITY OFFICE OFADMINISTRATIVE TRIALS AND HEARINGSIn the Matter ofVARIOUS TENANTS OF 357 BOWERYPetitionersREPORT AND RECOMMENDATIONALESSANDRA F. ZORGNIOTTI Administrative Law JudgeOn July 2, 2013, an application was filed with the Loft Board on behalf of DeniseLangenegger, Christian Wassmann, and Louisa Gui pursuant to Article 7-C, section 281 of theMultiple Dwelling Law ("Loft Law" or "MDL") and title 29 of the Rules of the City of NewYork ("RCNY" or "Loft Board Rules"). Petitioners seek a finding that: (1) the building knownas 357 Bowery, New York, New York, is an interim multiple dwelling ("IMD"); (2) during theapplicable window period, Ms. Langenegger occupied the second floor, Mr. Wassmann and Ms.Gui occupied the third floor, and the then-owner, Ingo Swann, occupied the fourth floor asresidences; and (3) they are the protected occupants of the second and third floor unitsrespectively (ALl Ex. 1).Respondent-owner, Swann Spieker Partners, filed an answer denying that there werethree residentially occupied units during the window period (ALl Ex. 2). Respondent arguedthat Mr. Swann, now deceased, lived in the basement, not on the fourth floor which was a guestsuite for his numerous visitors. Respondent also challenged whether petitioners, who are notAmerican citizens, legally resided in this country and whether Ms. Langenegger, who travelledextensively, occupied the second floor unit continuously for the required 12-month period.A hearing was held on seven days between June 30 and September 29, 2014.Bothparties presented extensive documentary evidence. Petitioners testified on their own behalf and
-2presented the testimony of Mr. Nunez, a friend of Mr. Swann, and Mr. Elsener, Ms.Langenegger's former boyfriend from 1992 to 2010. Respondent presented the testimony ofElsbeth Flippen, Mr. Swann's niece, and Murleen Swann Ryder, Mr. Swann's sister and theexecutor of his estate (Tr. 579, 581).For the reasons below, 357 Bowery is an IMD that had three residentially occupied unitsduring the window period and petitioners are the protected occupants oftheir respective units.ANALYSISIn 2010, the state legislature passed amendments to the Loft Law, which added section281(5) to the MDL. L. 2010, Ch. 135 § 1 (eff. June 21, 2010) (adding MDL § 281(5)); L. 2010,Ch. 147 § 1 (eff. June 21,2010) (amending MDL § 281(5)). Amended section 281(5) defines anIMD as any building that: (1) at any time was occupied for manufacturing, commercial, orwarehouse purposes; (2) lacks a certificate of compliance or occupancy pursuant to section 301of this chapter; (3) is not owned by a municipality; and (4) was occupied for residential purposesas the residence or home of three or more families living independently from one another for aperiod of 12 consecutive months during the period commencing January 1, 2008, and endingDecember 31, 2009, "provided that the unit" (i) is not located in a basement or cellar and has atleast one entrance that does not require passage through another residential unit to obtain accessto the unit, (ii) has at least one window opening onto a street or a lawful yard or court as definedin the zoning resolution for such municipality, and (iii) is at least 550 square feet in area. MDL §281(5) (Lexis 2014).The following facts are not in dispute. 357 Bowery is a four-story building that waspurchased by Mr. Swann and Mr. Spieker in 1979 (Pet. Ex. 4). During the window period thefirst floor was occupied by a commercial tenant named Mr. Lord and is currently vacant (Tr. 70,292, 481). There is a basement unit that has a bathroom but no kitchen and there is a subbasement that holds the mechanical equipment for the building. There are single residential unitson the second, third, and fourth floors with essentially the same floor plan and layout (Pet. Exs.6, 7, 17). Each residential unit is larger than 550 square feet in area, has windows facing thestreet, and is accessed through a public stairway or freight elevator that opens on every floorincluding into the kitchens of the three residential units (Pet. Exs. 6, 7, 17). The building islocated in New York City with a population of more than one million people and qualifies as
-3-having prior commercial use under MDL section 281(1). There is a certificate of occupancylisting the first through fourth floors as factory and storage as well as an office on the second andthird floors (Pet. Ex. 5). During the window period there were doorbells on the street level thatlisted: Swann; Langenegger/Elsener; Lord; Wassmann/Gui; and Swann. The buzzers for Swannwere for the basement and the fourth floor (Pet. Ex. 37; Flippen: Tr. 551-52).The disputed issues concern the residential occupancy of the second, third, and fourthfloor units. Petitioners must present a prima facie case that they are entitled to relief. 29 RCNY§ 1-06(i)(4) (Lexis 2014); Matter of 180 Varick Street Corp., OATH Index No. 2049/04 at 6 n.1(Oct. 29, 2004), adopted, Loft Bd. Order No. 2885 (Nov. 18, 2004) ("applicants in Loft Boardproceedings must establish their entitlement to the relief requested by a preponderance of thecredible evidence"). Petitioners have met their burden.1. The building had three residentially occupied units in 2008 and 2009In order for a unit to be covered by the Loft Law, "it must possess sufficient indicia ofindependent living to demonstrate its use as a family residence." Anthony v. NYC Loft Bd., 122A.D.2d 725, 727 (1st Dep't 1986).The determination of coverage requires a case by caseanalysis of the indicia of residential use. Matter of 333 PAS CoO Tenant Group, OATH IndexNo. 968/08 at 7 (June 30, 2009), adopted, Loft Bd. Order No. 3552 (Nov. 19,2009). As noted inMatter of South11thStreet Tenants' Association, OATH Index Nos. 1242/96, 1243/96, 1244/96at 39-42 (Mar. 30, 1999), adopted, Loft Bd. Order No. 2397 (Apr. 29, 1999), "no one factor isdispositive . the regulations defining a residential unit were deliberately left open-ended toallow for a more flexible approach to coverage determination." Although this evaluation is openended, the regulations specify two factors to consider: whether a unit has a separate entranceaccessible from a public hallway or street, and has "one or more rooms such as a kitchen area, abathroom, a sleeping area and a living room area arranged to be occupied exclusively by themembers of a family and their guests . " See 29 RCNY § 2-08(a)(3)(i), (ii) (Lexis 2014).To the extent resolution of the disputed issues relies on a determination of witnesscredibility, this tribunal has looked to witness demeanor, the consistency of a witness'stestimony, supporting or corroborating evidence, witness motivation, bias or prejudice, and thedegree to which a witness's testimony comports with common sense and human experience in
-4-determining credibility. Dep't of Sanitation v. Menzies, OATH Index No. 678/98 at 2-3 (Feb. 5,1998), aff'd, NYC Civ. Servo Comm'n Item No. CD 98-101-A (Sept. 9, 1998).In describing the occupancy of the building in 2008 and 2009, Ms. Langenegger, Mr.Wassmann, and Ms. Gui were more credible than Ms. Flippen and Ms. Ryder. While petitionershad a motive to lie to obtain Loft Law protection, their testimony was generally consistent andcorroborated by Mr. Nunez and Mr. Elsener, neither of whom had an apparent interest in theoutcome of this proceeding. Moreover, petitioners' testimony about the residential occupancy ofthe three upper floors comported with common sense and was corroborated by documentaryevidence.Respondent's repeated attempts to portray petitioners as liars, tax cheats, illegalforeigners, and opportunistic predators were wholly unconvincing.Indeed, many of thedocuments used to impeach petitioners supported petitioners' testimony and rendered their casemore credible. Any inconsistencies in petitioners' proof were at most minor, irrelevant to theissues at bar, or of the type to be expected in a hearing.Ms. Ryder and her daughter, Ms. Flippen, also had a motive to lie to avoid a finding ofLoft Law coverage and thereby increasing the value of the building which Ms. Ryder is going toinherit (Tr. 537). Mr. Wassmann's offer to purchase the building from Mr. Swann's estate for 6.5 million was rejected (Tr. 225), and respondent's counsel acknowledged that the buildingwould be more valuable without Loft Law coverage (Tr. 744).However, Ms. Flippen wasevasive and uncomfortable when testifying that she had no idea whether the building would bemore valuable without Loft Law tenants (Tr. 537-40). Similarly, Ms. Ryder's assertions that shewas speaking for her dead brother who loved the building and not out of her own interest (Tr.616-17) were unpersuasive.Ms. Ryder's and Ms. Flippen's claim that Mr. Swann preferred living in the basementduring the window period, not on the residentially equipped fourth floor, did not comport withcommon sense and was contrary to the weight of the evidence. Much of the testimony offered inopposition to petitioners' testimony was self-serving, irrelevant, and incredible.Similarly, Ms. Ryder's and Ms. Flippen's allegations that petitioners broke Mr. Swann'sheart by filing a Loft Law application which caused him to abandon the basement and move tothe fourth floor where he died shortly thereafter was incredible (Tr. 203-10, 482-83, 490, 553,600-01, 614). Mr. Lord, the first floor commercial tenant, filed an application in August 2012,listing petitioners and Mr. Swann as the residential tenants of the second, third, and fourth floors
-5(Pet. Ex. 39). That application was subsequently withdrawn. Petitioners filed their applicationon July 2,2013 (ALJ Ex. 1), after Mr. Swann's death on January 31, 2013 (Tr. 419). Ms. Rydercontradicted her earlier assertion by testifying that Mr. Swann moved to the fourth floor in 2011which was before the first application was filed (Tr. 666-68). While it is possible that Mr.Swann was upset by the application, it seems highly unlikely that it caused his death. Eventhough no medical evidence was presented, it is notable that Mr. Swann was a "non-stop cigarsmoker" who died at age 79 (Tr. 445, 494, 659).Moreover, the record was replete with evidence of the warm and friendly relationship thatexisted between Mr. Swann and petitioners. There can be little doubt that Mr. Swann was aunique and extraordinary man who meant different things to many people. His professionalaccomplishments included being an exhibited painter, a published writer, and a renownedpsychic who worked with the United States military and intelligence communities (Pet. Exs. 36,38; Resp. Ex. JJ; Tr. 12, 25).1 Mr. Swann also had many friends, colleagues, admirers, andfamily members who visited him regularly.The record also has multiple examples of Mr.Swann socializing and entertaining in the basement, on the fourth floor, and on the stoop of hisbuilding (Tr. 71,100,170-71,180,202,212,249,390,474,484,597,608, 613, 650-51; Pet. Ex.35; Resp. Exs. A, Z, AA, BB, CC, GG, HH, N). While Mr. Swann was not present to testify, therecord supports a finding that before, during, and after the window period, he occupied thebasement and the fourth floor residentially and that the second and third floor units wereresidentially occupied continuously by petitioners and other people.Petitioners demonstrated that the second and thirdfloor units were residentially occupiedPetitioners provided testimony and documentary evidence to support their claim thatduring the window period, Ms. Langenegger occupied the second floor and that Mr. Zingg andthen Mr. Wassmann and Ms. Gui occupied the third floor. Respondent was unable to offer anyevidence to the contrary. Instead, respondent focused on petitioners' legal status in this countryand Ms. Langenegger's extensive travels and numerous roommates who paid her rent. However,none ofthese factors are relevant to the question of residential occupancy under the Loft Law.IPetitioner's exhibits 34 and 38 were admitted into evidence after the hearing following review of the record.
-6Petitioners gave credible, unrebutted testimony that before, during, and after the windowperiod the second and third floor apartments had all the indicia of a residential unit including: asleeping area; a living room/dining area; a bathroom with a tub, sink, and shower; and a kitchenwith a refrigerator, stove, sink and various kitchen appliances.Both units had residentialfurniture, televisions, clothing, and other personal items (Wassmann: Tr. 60-62, 65-67, 69, 16364; Gui: Tr. 236, 242, 256; Langenegger: Tr. 290, 293; Pet. Exs. 6, 7).Ms. Langenegger testified that she moved to the second floor of357 Bowery in 2000 (Tr.288) and had residential leases with Mr. Swann between 2000 and 2006 (Pet. Ex. 25A-E).Petitioners testified that in 2008, Mr. Zingg was living on the third floor.He tookoccupancy in the fall of 2007 and stayed until two days before Mr. Wassmann moved in onAugust 15, 2008. Ms. Gui arrived in September 2008 (Langenegger: Tr. 291-92; Wassmann: Tr.57-59, 71, 137-38; Gui: Tr. 234). Mr. Wassmann signed a residential lease with Mr. Swann andlisted Ms. Gui as an emergency contact (Pet. Ex. 8; Wassmann: Tr. 72; Gui: Tr. 259).Respondent points to the fact that Ms. Gui was not listed on the lease as a resident and suggeststhat she was there without Mr. Swann's knowledge or consent (Tr. 161,259). Whether Ms. Guiwas on the lease and present with Mr. Swann's consent is of no moment. Korn v. Batista, 131Misc.2d 196,200 (Sup. Ct. N.Y. Co. 1986), aff'd, 123 A.D.2d 526 (1st Dep't 1986) ("The LoftLaw was designed to protect all residential occupants whether or not they are in privity ofcontract with the landlord."). In any event, Mr. Wassmann's assertion that he told Mr. Swannthat Ms. Gui would be living with him (Tr. 58, 71) was credible and corroborated by her nameappearing on the outside buzzer (Pet. Ex. 37).Prior to August 2008, Mr. Wassmann was living in Chelsea and Ms. Gui was living in anapartment that she owned with her parents (Wassmann: Tr. 62; Gui: Tr. 235; Pet. Ex. 19). Mr.Wassmann sublet his Chelsea apartment to a friend until another friend obtained a lease in herown name (Tr. 62, 155, 183-84). Ms. Gui rented her apartment under short-term leases (Tr. 23641; Pet. Ex. 20).Contrary to respondent's assertions (Tr. 155-56, 160), whether petitionersprofited from these other properties has no relevance to the issues at bar.To support their claims that they occupied the second and third floors residentially duringthe window period, petitioners submitted documents from 2008, 2009, and 2010 listing 357Bowery as their address. These documents included: Mr. Wassmann's New York State driver'slicense, car insurance, a homeowner's insurance policy, and a social security statement (Pet. Exs.
-79, 10, i'l, 12, 16); Mr. Wassmann's and Ms. Gui's tax returns (Pet. Exs. 13,21); cell phone andbank records for petitioners (Pet. Exs. 14, 15,22, '23,26,28,29); Ms. Gui's dry cleaning receipts(Pet. Ex. 24); arid Ms. Langenegger's bills for various subscriptions (Pet. Ex. 27).Ms. Langenegger testified that in 2008 and 2009 she travelled extensively for her work asa Swiss television correspondent and to visit family and friends during her vacations. She statedthat during the window period she maintained her apartment at 357 Bowery (Tr. 306-12; Resp.Exs. Q, R, U). During this period she had ten different roommates who paid her rent. They slepton the extra bed or in her bedroom if she was away (Tr. 312-25; Pet. Ex. 30; Resp. Ex. P). Ms.Langenegger's boyfriend, Mr. Elsener would stay in the apartment but never lived there. Mr.Elsener, whose name appeared on the buzzer, got his mail at 357 Bowery (Langenegger: Tr. 32223; Elsener: Tr. 384-85, 391, 399, 406; Flippen: Tr. 553).Ms. Flippen and Ms. Ryder acknowledged seeing petitioners in the building during thewindow period and that they were tenants on the second and third floors (Flippen: Tr. 484-87,552; Ryder: Tr. 607-08, 612-14, 649-50; Langenegger: Tr. 687).The unrebutted, credible testimony from petitioners as corroborated by voluminousdocumentation supports a finding that the second and third floors were residentially occupied for12 consecutive months between January 1,2008 and December 31, 2009. With regard to thethird floor, except for two days in August 2008, it was occupied first by Mr. Zingg and then Mr.Wassmann and Ms. Gui.Ms. Langenegger occupied the second floor continuously during the window period.Contrary to respondent's assertion, Ms. Langenegger's extensive travelling does not requiredismissal of the application. Ms. Langenegger, who has lived on the second floor since 2000,kept her personal belongings in the unit, maintained the residential nature of the space, andalways returned to the unit. Matter of Pels, OATH Index No. 2481111 at 9-11 (June 20,2012),adopted, Loft Bd. Order No. 4161 (June 20, 2013), reconsideration denied, Loft Bd. Order No.4208 (Dec. 12,2013) (tenant who created a residential occupancy in her unit prior to the windowperiod but lived there only intermittently during the window period, found to be a protectedoccupant under MOL section 281(5)); see also Coronet Properties Co. v. Brychova, 122 Misc.2d 212, 213-14 (Civ. Ct. N.Y. Co. 1983), a.!f'd, 126 Misc. 2d 946 (App. Term, 1st Dep't 1984)(Individuals "engaged in itinerant occupations do not lose their domicile by virtue of theirconstant travel. ").
-8'.h "pondent failed to provide any support that Ms. Langenegger's financial arrangementswith various roommates somehow disqualified the unit from coverage.Indeed, during herabsences the unit continued to be residentially occupied by her roommates.Finally, whether petitioners are American citizens or permanent residents has no bearingon this proceeding. Matter of Cohen, OATH Index No. 2015112 at 3-5 (Aug. 23, 2013), adopted,Loft Bd. Order No. 4261 (Mar. 20, 2014) (AU denied motion to dismiss coverage applicationbecause petitioner was neither a permanent resident nor a citizen of the United States).Moreover, there was no evidence that petitioners maintained any other residences during thewindow period. Even if they did, a unit need not be the sole residence of the occupant during thewindow period in order for it to count as a residentially occupied unit. Vlachos v. NYC Loft Ed.,70 N.Y.2d 769, 770 (1987) ("[T]here is no requirement for Loft Law coverage that residentiallyoccupied units be the primary residences of their tenants."); see also Kaufman v. AmericanElectrofax Corp., 102 A.D.2d 140, 142 (1st Dep't 1984) (unit covered by Loft Law even thoughoccupant maintained a separate primary residence); Little West 12th St. Realty L.P. v.Inconiglios, 19 Misc.
occupied their respective units, and that Ingo Swann, former owner of the Building, now deceased, occupied the fourth floor unit. On August 1, 2013, Swann Spieker Partners ("Owner"), the owner of the
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