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Adam Leitman Bailey, P.C. Recaptures Multimillion Dollar SoHo Loft From Longtime Tenant-Artist by Establishing That the Unit Was Illegal for Human Occupancy

Adam Leitman Bailey, P.C.’s client, a well-known landlord developer, purchased a five-story, twelve-unit prewar building in the heart of SoHo’s Cast Iron Historic District. Following its acquisition, it asked Adam Leitman Bailey, P.C. to perform a review of all of the building’s apartment dimensions for purposes of determining whether the subject apartments were in compliance with local zoning regulations and applicable ordinances.

Upon its initial review of the building’s plans and specifications, Adam Leitman Bailey, P.C. immediately discovered that one particular unit, which had been designated as a joint living quarter for artists by the city more than a quarter century ago, did not meet the minimum statutory square footage requirements for such units under New York City’s zoning regulations.

Beyond the failure to meet this initial dimensional threshold requirement, Adam Leitman Bailey, P.C. found that the unit further violated zoning rules, as well as the New York City Housing Maintenance Code, because the area of the only window in the unit was less than five percent of the floor area of the entire unit, unduly restricting light and air into the unit. Accordingly, Adam Leitman Bailey, P.C. selected two separate preeminent expert consultants on behalf of the client to confirm Adam Leitman Bailey, P.C.’s initial determination that the total square footage of the unit was in fact illegally too small, and to resolve whether it was feasible to reconfigure the unit in order to bring the unit into compliance with the laws for human occupancy.

Adam Leitman Bailey, P.C.’s first expert, a renowned architect, reviewed the dimensions of the unit in question and opined that indeed the unit’s square footage dimensions did not satisfy the rules and regulations for human occupancy. Furthermore, the architect concluded within a reasonable degree of engineering certainty that it was architecturally impossible to reshape the unit so that it satisfied prevailing light and ventilation guidelines, even with the implementation of a floor-to-ceiling window wall. Additionally, since the building is situated within one of the City’s Historic Districts, any modifications to the building, particularly with regard to the windows and façade, needed to be approved by the New York City Landmarks Preservation Commission (“LPC”). Adam Leitman Bailey, P.C. further bolstered the client’s position by obtaining the opinion of a distinguished architect specializing in New York City historic preservation, who opined that LPC would never approve any modifications to the building’s exterior windows. Armed with these two experts’ analyses, Adam Leitman Bailey, P.C. sped forward with the filing of a summons and complaint seeking, inter alia, a declaratory judgment declaring that the unit was illegal and the tenant’s ejectment from the unit. Shortly after the tenant filed her answer, Adam Leitman Bailey, P.C. moved for summary judgment based upon its experts’ conclusions, thereby saving the client time and money from engaging in needless discovery.

Initially, the tenant cross-moved for summary judgment on the grounds that the client waived any right to eject the tenant because it waited too long – over a quarter of a century – to bring the suit and that the building’s receipt of J-51 tax benefits renders the tenant rent stabilized under case law, meaning that the tenant’s tenancy allegedly remained subject to, and was protected by, rent stabilization. Notably, the tenant’s expert agreed with the client’s experts by conceding that the unit could not be legalized. Alternatively, the tenant’s expert proposed a plan to legalize the unit, whereby in addition to enlarging the window in the unit, substantial space would also be taken from the building’s common area, a corridor adjacent to the unit, to satisfy the minimum dimensional regulations.

During oral argument on the parties’ competing summary judgment motions, Adam Leitman Bailey, P.C. first pointed out that the client clearly had no legal obligation to amplify the unit by including common area property. Moreover, Adam Leitman Bailey, P.C. demonstrated to the court that according to its experts, the unit was unfit for human habitation since it failed to meet the requisite light and air rules. Critically, Adam Leitman Bailey, P.C. argued that the unit posed a severe fire hazard and danger to human life, and reminded the court of the March 25, 1911 Triangle Shirt Waist Factory Fire, the deadliest industrial disaster in the history of the city, and one of the deadliest in U.S. history. Therefore, Adam Leitman Bailey, P.C. argued that even assuming that the unit was subject to rent stabilization, its illegality trumps the rent stabilization code, mandating the tenant’s ejectment. The court agreed with Adam Leitman Bailey, P.C.’s arguments and denied the tenant’s cross-motion and partially granting Adam Leitman Bailey, P.C.’s summary judgment to the extent of setting the matter down for a proof hearing between the parties’ respective experts to determine whether the unit was illegal. Along with its experts, Adam Leitman Bailey, P.C. brought large-scale exhibits to the proof hearing of both the unit’s dimensions together with the tenant’s expert’s alternative proposals to demonstrate that the unit’s configuration in its current state was illegal, as a matter of law, and more importantly, that no architectural means existed to legalize the unit absent the borrowing of common area space from the corridor.

Shortly after the hearing commenced and fearing that she would be ejected from her longtime home at its conclusion, tenant’s counsel approached Adam Leitman Bailey, P.C. begging for a nominal buyout payment in exchange for the surrender of the unit. After the client recaptured the unit for an extremely favorable figure, it legalized the unit with the assistance of its experts, which is presently valued at several million dollars.

Adam Leitman Bailey, P.C. partner Dov Treiman litigated the matter on behalf of the client.

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