# Opposition Brief — 640 Broadway Renaissance Co. v. John Eisner, et al. and 15 Other Cases Consolidated for Purposes of a Joint Appeal

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1996
- **Citation:** 517 U.S. 1155

## Text

: AR AS
No. 95-959 ; conaagia

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In The

Supreme Court of the United States

-_ 2

October Term, 1995
640 BROADWAY RENAISSANCE CoO..,

Petitioner,

vs.

JOHN EISNER, et al. and 15 Other Cases Consolidated for
Purposes of a Joint Appeal,

Respondents.

On Petition for a Writ of Certiorari to the Supreme Court of
the State of New York, Appellate Division,
First Judicial Department

RESPONDENTS’ BRIEF IN OPPOSITION

DAVID RATNER
Counsel of Record
HARTMAN, ULE, ROSE
& RATNER
Attorneys for Respondents
305 Broadway, Suite 1201
New York, New York 10007
(212) 437-9110

8497

(800) 3 APPEAL « (800) 5 APPEAL « (800) BRIEF 21
Services, inc.

i
QUESTIONS PRESENTED

1. Whether the Court has jurisdiction to grant a writ of
certiorari in this case where petitioner raised no federal question
of any kind in the state court proceedings.

2. Whether the Court ought to grant a writ of certiorari in
light of the fact that all of the constitutional issues raised in the
petition were decided against petitioner in a previous federal
court action entitled 640 Broadway Renaissance Co. v. Cuomo,
740 F. Supp. 1023 (S.D.N.Y. 1990), aff’d, 927 F.2d 593 (1991),
cert. denied, 500 U.S. 933, 111 S. Ct. 2054, 114 L. Ed. 2d 459
(1991).

ii

TABLE OF CONTENTS
Page
Questions Preseated. ...<ssssvcsceccseecarseneeunes i
Table of Contents ............ Gavithesaaakiede ii
Table of Citatiogt ......<sscesa babe eee ee ili
Preliminary Stategneih | <.a.0 cc cdeencixcaaeaneieedas ]
Statement Of FOCUS . ssc siacndaunesbbesabebreseaa ]
A. Statutory Background ...6ccssccccssccesens 3
B. Petitioner’s Actions Under the LoftLaw ...... 6
C. The Underlying AGGIE 6 is iss sisSecccdcs 1]
D. The Motions Under Appeal ................. 11
Reasons for Denying the Writ ......cccccccecccsecs 15
I. Petitioner Never Raised Any Federal Question
in the State Court Proceedings. .............. 15
II. All of the Constitutional Issues Raised in the
Petition Have Been Passed Upon by the Federal
Courts, Including the Supreme Court of the
United Sta008. 2 6 kek cavagegareeaeiecauen se 15

III. Petitioner is Mistaken in Claiming That the Loft
Law was Retroactively Applied to Deprive
Petitioner of 4s ROG. cocks cede ceeweasces 16

iia

ili

Contents

Page
CE CUE EW eke eidecebebedessceccccecsece 19
TABLE OF CITATIONS
Cases Cited:
Baum Residence Corp. v. Van Rosson, 206 Misc. 315,
134N.Y.S.2d 302 (App. Term Ist Dep’t 1954) ..... 17
Carmel vy. Appleton, 122 N.Y.S. 2d 195 (App. Term Ist
EE ee OO eae 17
County Dollar Corp. v. Douglas, 160 A.D. 2d 537, 161
A.D. 2d 370, 556 N.Y.S. 2d 533 (1st Dep’t 1990) ... 18
40 Clinton Street Associates v. Dolgin, 126 Misc. 2d
373, 481 N.Y.S. 2d 960 (Civ. Ct., N.Y. Co. 1984) ... 17
Grossman v. M.K.F. Realty Corp., 155 Misc.2d 841, 590
N.Y.S. 2d 1011 (Sup. Ct., N.Y. Co. 1992) ......... 14
Guarino v. Timares, 196 Misc. 414, 94 N.Y.S. 2d 262
(App. Term 2nd Dep’t 1949), appeal denied, 276A.D.
847, 93 N.Y.S. 2d 734 (2nd Dep’t 1949) .......... 17
Hornfield v. Gaare, 130 A.D. 2d 398, 515 N.Y.S. 2d 258
ET A daivbed-cncesccntenensceessess 17

640 Broadway Renaissance Co. v. Cuomo, 740 F. Supp.
1023 (S.D.N.Y. 1990), aff'd, 927 F.2d 593 (1991),
cert. denied, 500 U.S. 933, 111 S. Ct. 2054, 114 L. Ed.
i Te eeie heya cesses eese eee sacas i, 1,15

iv
Contents
Page

Spring Realty Co. v. New York City Loft Board, 127

Misc. 2d 1090, 487 N.Y.S. 2d 973 (Sup. Ct., N.Y. Co.

1985), aff’d, 117 A.D. 2d 1029, 498 N.Y.S. 2d 241

(1st Dep’t 1986), aff’d as modified on other grounds,

69 N.Y. 2d 657, 511 N.Y.S. 2d 830, 503 N.E. 2d 1367

(1986), appealed dismissed for want of a substantial

federal question, 482 U.S.911, 107 S. Ct. 3179, 96L.

et 8 terre rr reer Cre Te ore 1,16
Vlachos v. New York City Loft Board, 118 A.D. 2d 378,

504 N.Y.S. 2d 649 (1st Dep’t 1986) .............. 3
Waters v. Panzella, 100 N.Y.S. 2d 214 (Mun. Ct. Queens

CA BPE Rie Gcditne he bacaeke pesarsieeds cae erues 18
Ying Lung Corp. v. Medrano, 123 Misc. 2d 1074, 475

N.Y.S. 2d 772 (Civ. Ct. N.Y. Co. 1984) ........... 17,18
Statutes Cited:
Multiple Dwelling Law:

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Vv

Contents

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vi
Contents

Page
CHEM SBI wcccccsdcqgcentvussededensesssheeenes 10
CHEM GS ASUS) oko cevcaccesuctucceaaresseenean 12
Other Authorities Cited:
Loft Board Hardship Regulations § 2-03(a)(2)(i) ..... +
Zoning Resolution § 12-10 .......cccccccccccccces 3
Zoning Resolution § 42-14(D)(1)(b) ............... 2

Zoning Resolution § 74-78 ef seg. .... 6.6... cece eee 2,3

~~ ee ee eee

|

PRELIMINARY STATEMENT

Respondents submit this brief in opposition to the petition
of 640 Broadway Renaissance Co. fora writ of certiorari. As will
be shown, the petition, which is replete with misstatements of
fact and law, must be denied, because at no stage of the state court
proceedings did petitioner raise any federal questions.
Moreover, the constitutional issues identified in the instant
petition were addressed and rejected by this Court in Spring
Realty Co. v. New York City Loft Board, 127 Misc. 2d 1090, 487
N.Y.S.2d973 (Sup. Ct., N.Y. Co. 1985), aff'd, 117A.D.2d 1029,
498 N.Y.S. 2d 241 (1st Dep’t 1986), aff'd as modified on other
grounds, 69 N.Y. 2d 657,511 N.Y.S. 2d 830, 503 N.E. 2d 1367
(1986), appealed dismissed for want of a substantial federal
question, 482 U.S.911, 107S.Ct. 3179, 96 L. Ed. 2d 668 (1987).
Indeed, petitioner raised the identical issues in a federal court
action which was dismissed on the ground that the Spring Realty
case constituted a binding precedent. See 640 Broadway
Renaissance Co. v. Cuomo, 740F. Supp. 1023 (S.D.N.Y. 1990),
aff'd, 927 F.2d 593 (1991), cert. denied, 500 U.S. 933,111S.Ct.
2054, 114L. Ed. 2d 459 (1991).

STATEMENT OF FACTS

By the instant petition, 640 Broadway Renaissance Co.
seeks review of an order of the Appellate Division, First
Department, of the Supreme Court of the State of New York
which, inter alia, affirmed 16 orders of the Supreme Court, New
York County, granting summary judgment to respondents.
Except for minor factual differences, all of the motions were the
same and involved identical questions of law.

Petitioner, 640 Broadway Renaissance Co., is the fee owner
and landlord of premises known as 640 Broadway, New York,
New York (hereafter, the “Building”). The Building is a nine-

2

story structure containing various commercial units on the
ground floor and twenty residential units on the second through
ninth floors. Temple Smith, Maureen Albert-Eisner, John Eisner,
Robert Rossitor, Leslie Holtan, Loren Calaway, Richard Yoder,
Charles Searles, Kathleen Spicer, Rafael Barrios, Juliet Holland,
Joel Hinman, Hanna Eschel, Brandon Krall, Kenneth Delap,
Nancy Hoffman, Ruth Holloman, Kim Steele, Rina Peleg,
Donna Goodman and Marie-Paule Fauque (the “Respondents”)
were, at the commencement of the lawsuit, all residential tenants
who were determined by the New York City Loft Board to be
entitled to the protections of Article 7-C of the Multiple
Dwelling Law' (hereafter referred to as the “Loft Law”). The
remaining defendants in the underlying action are either former
tenants or occupants of various units in the Building, trade names
under which various tenants have operated businesses or persons
unknown to Respondents.

The Building is located on the corner of Broadway and
Bleecker Streets, an area designated under the New York City
Zoning Resolution (the “ZR”) as M1-5B. The Building has a
certificate of occupancy, issued on May 17, 1966, which permits
solely commercial and manufacturing uses. The structure
occupies approximately 5,000 square feet (R-702-5).’
According to ZR § 42-14(D)(1)(b), a building on Broadway —
like the instant premises — with alot coverage exceeding 3,600
square feet in an M1-5B zoning district may be converted to
residential use for joint living-work quarters for artists upon
approval by the City Planning Commission of a special permit

1. Excerpts from that determination are annexed to the petition for a writ
of certiorari (the “Petition”) as Appendix P (pages 83a-106a).

2. References to the record below are indicated by “R” followed by the
appropriate page number.

3

filed pursuant to § 74-782 of the Zoning Resolution.’ On or about
June 3, 1982, Martin R. Fine, on behalf of petitioner, filed such
a special permit application with the New York City Planning
Commission for permission to convert floors two through nine
at 640 Broadway to joint living-working quarters for artists (R-
724-40).

A. Statutery Background

On June 21, 1982, the New York State Legislature enacted
Multiple Dwelling Law (“MDL”) §§ 280-287 (Chapter 349 of
the Laws of 1982) in response to a pressing public emergency
created by the unregulated conversion of loft space in New York
City from commercial to residential use without compliance
with applicable building codes and laws regarding minimum
health and safety standards. See MDL § 280. A succinct
statement of the remedial purposes of the Loft Law is provided
by the Appellate Division of the New York State Supreme Court,
First Department, in Viachos v. New York City Loft Board, 118
A.D. 2d 378, 504 N.Y.S. 2d 649 at 651 (1st Dep’t 1986):

Multiple Dwelling Law article 7-C (Secs.
280-287, the “Loft Conversion Law”) was
enacted (L. 1982, c. 349, sec. 1) to alleviate
the serious housing shortage in New York
City and the dangerous living conditions

3. Under the Zoning Resolution, “joint living-work quarters for artists”
and “special permit” are terms of art. “Joint living-work quarters for artists”,
defined at ZR § 12-10, is a category of dwelling allowed in an otherwise
nonresidential building. A “special permit” is a procedure by which the New
York City Planning Commission may, upon a specified application, permit
conversion to residential use — including, specifically, joint living-work
quarters for artists — in M1-5B zones. The procedures for special permits are
set out at ZR § 74-78 et seq.

4

created in part by the illegal conversion of
commercial and manufacturing loft
buildings to residential use without
compliance with applicable building codes
and laws including local housiug
maintenance standards. The law sought to
prevent the “great hardship” that would
occur if tenants were forced to relocate
because of their uncertain status in these
illegally converted buildings.

To abate this public emergency, the Loft Law requires
subject owners to bring their buildings up to code as class A
multiple dwellings within a specified timetable set out at MDL
§ 284. In an effort to balance the equities between landlords and
tenants, the cost of legalization, initially borne by the owners, is
passed along to protected tenants in the form of rent increases
pursuant to a formula established at MDL § 285(5). Once the
building achieves code compliance, protected units are then
made subject to the Rent Stabilization Law (MDL § 286[3]).

MDL § 285(1) permits an owner to collect rent during the
legalization process, but only on condition that the owner
register the building with the Loft Board and comply with the
legalization timetables of MDL § 284. Owners who might suffer
unjustifiable hardship because of the cost of legalization were
given the opportunity to gain exemption from the Loft Law by
filing a hardship application with the New York City Loft Board
within nine months of establishment of the Loft Board.‘ The Loft
Law defines “unjustifiable hardship” as either an inability to
make a “reasonable return on the owner’s investment” or the
necessity, upon conversion of the building to residential use, for

4. Pursuant to MDL §282, the Mayor of the City of New York was given
90 days from the effective date of the Loft Law to establish the Loft Board.
Consequently, the deadline for the filing of a hardship exemption was set at
June 30, 1983. Loft Board Hardship Regulations § 2-03(a)(2)(i).

5

displacement of conforming-use commercial tenants. See MDL
§ 285(2).°

In order to identify buildings subject to the Loft Law, the
Legislature established a category of buildings called “interim
multiple dwellings”. The Legislature defined interim multiple
dwellings in § 281 of the MDL as any building or portion of a
building lowated in a city of more than one million persons
which:

(a) at any time was occupied for manufacturing,
commercial or warehouse purposes;

(b) lacks acertificate of occupancy pursuant to § 301 of the
MDL’;

(c) was occupied for residential purposes by three or more
families living independently of one another during the
period April 1, 1980 through December 1, 19817; and

5. At footnote 8 on page 9 of the Petition, petitioner disingenuously
alleges that it was prevented from filing a hardship exemption, because the
New York City Loft Board did not determine the question of coverage of the
building until 1988. In fact, the Loft Law and the New York City Loft Board
Rules and Regulations allow an owner to file a hardship application and
contest coverage at the same time. Moreover, the record is clear that petitioner
was aware of its obligations under the Loft Law well before the Juae 30, 1983
hardship deadline, since it attempted to register the building with the Loft
Board in January, 1983 (R-560-9).

6. Acertificate of occupancy pursuant to MDL § 301 is a certificate
which authorizes residential use of three or more dwellings in a building. -
Because 640 Broadway’s certificate of occupancy allows only commercial
use, the Building “lacks a certificais of...occupancy pursuant to § 301” (MDL
§281[1][ii)), and therefore, qualifies for Loft Law coverage.

7. The purpose of this requirement is to ensure that the Loft Law only
(Cont'd)

6

(d) is located ina zoning area which permits residential use
either as of right, by special permit, administrative
certification or any other means other than a zoning
variance.

The Loft Law is administered by an agency known as the
New York City Loft Board. MDL § 282. Every owner of an
interim multiple dwelling was required to file, within sixty days
of the effective date of the statute, aregistration statement with
the New York City Loft Board setting forth information required
under MDL § 325 (the statute which sets out registration
requirements for multiple dwellings) as well as additional
information as required by regulations promulgated by the Loft
Board. See MDL § 284(2).

B. Petitioner’s Actions Under the Loft Law

Petitioner’s involvement with the Loft Law is achronicle of
deliberate intransigence calculated to frustrate the letter and
purpose of the statute. Petitioner’s actions — and inaction —
reveal not only acallous indifference to Respondents’ rights, but
petitioner’s thorough understanding of the legal obligations
imposed by the Loft Law, coupled with a studied determination
to ignore those obligations.

On or about January 31, 1983, within the applicable time
limit for registration, petitioner filed an application to register
the Building as an interim multiple dwelling with the New York
City Loft Board (R-563-4). According to an attachment to the

Cont’d
sconhis . buildings which had been illegally converted from residential to
commercial use. This is accomplished by restricting coverage to buildings
which were, in fact, occupied by three or more families, but had a certificate
of occupancy which allowed either no residential use (as is the case at 640
Broadway) or residential use by less than three families.

4

application, the application was filed “UNDER PROTESTAND
UNDER DURESS” (R-564).

By letter dated March 7, 1983, the Loft Board notified
petitioner that it was rejecting the registration application as
incomplete, since it did not contain information required by Loft
Board regulations, including the names of each of the general
partners of 640 Broadway Renaissance Co., a 24-hour phone
number for emergency repairs and copies of leases for individual
units in the Building (R-565-6).

In response, Martin R. Fine, on letterhead identifying
himself as petitioner’s attorney*, wrote to the Loft Board, stating,
inter alia, that he did “not believe that you have any right to any
further inform: ‘on other than the name of the owner and the
registered mah.ging agent as previously set forth in the
application” (R-567-8). In addition, Mr. Fine claimed that the
request for copies of all leases in the Building was “an unlawful
and unconstitutional invasion of privacy”. Mr. Fine further
threatened:

IN THE EVENT AN INTERIM MULTIPLE
DWELLING REGISTRATION NUMBER
IS NOT IMMEDIATELY ISSUED, the
undersigned has been instructed to
immediately commence legal proceedings to
require the issuance of said Interim Multiple
Dwelling Registration number as provided
by law.

Counsel to the New York City Loft Board answered Mr. Fine
ina letter dated April 11, 1983, informing him that noregistration

8. This is the same attorney representing 640 Broadway Renaissance
Co. in the instant petition for a wit 6f certiorari.

8

number would be issued for the Building until the requested
information was supplied (R-569). Subsequently, petitioner
took no further action to register the Building (or comply in any
other way with the Loft Law) until August 1991 (R-696).

Because of petitioner’s refusal to register the Building with
the Loft Board and otherwise comply with the health and safety
requirements of the Loft Law, various residential tenants of the
Building filed an application on August 6, 1983 with the New
York City Loft Board for a determination that 640 Broadway was
an interim multiple dwelling.® Pursuant to that application, the
agency conducted a 25-day hearing in which the tenants called
27 witnesses and submitted over 250 exhibits (R-524). In its
decision after the hearing (R-522-60), the Loft Board confirmed
that the Building was an interim multiple dwelling subject to all
the requirements of the Loft Law. The Loft Board also
specifically found that petitioner not only knew that the premises
were all along being used for residential purposes, but that
petitioner and its employees actively encouraged Respondents
to live in their lofts:

9. Petitioner makes much of the fact that the Loft Board did not
designate the building as an interim multiple dwelling until 1988. Petitioner
thereby suggests that the onus was on the Loft Board or the tenants to place the
building within the jurisdiction of the Loft Board. The exact opposite is the
case. MDL § 282 clearly defines what buildings are subject to the law, and
MDL § 282 unequivocally requires owners to register their buildings within
60 days of the effective date of the Loft Law. It was petitioner’s obdurate
refusal to perform this obligation which prompted the tenants to apply to the
Loft Board for a determination of Loft Law coverage. The point is not a minor
one, in light of petitioner’s attempt to portray itself as having been foreclosed
from taking advantage of various Loft Law deadlines. The Loft Board's
determination of coverage (R-522-62) makes clear that petitioner was dragged
kicking and screaming down the path of Loft Law compliance. Indeed, to this
day, without explanation or excuse, petitioner has not iegalized the Building
as aclass A multiple dwelling. :

9

Behind the bluster of the owner’s
voluminous constitutional and procedural
challenges to coverage lies the indisputable
fact that the owner’s conduct and statements,
from 1978 when it purchased the building
until at least 1982, expressly recognized the
residential use of the upper eight floors.
During this time, according to the credible
and unrebutted testimony of nearly all the
tenants, the owner was leasing for “lofts” and
even had some tenants (especially Ms.
Eschel) fill out application forms asking
about roommates and pets, hardly items of
concern for a commercial tenancy. At the
same time the owner’s employees were
personally assuring tenants that it was not
only acceptable but preferable for them to
live in the building, going so far as to approve
floor plans for kitchens and bathrooms,
recommend electricians and plumbers, and
help procure homeowner's insurance.'°

(Petition, Appendix P at 99a).

The determination of the New York City Loft Board
establishing that Respondents are statutory tenants was made on
April 28, 1988. Petitioner never appealed the determination, and

10. This is an area in which the petitioner has misled this Court. All of
petitioner's statements in its Petition are carefully constructed to suggest,
without actually stating, that petitioner rented all the units in the Building to
commercial tenants (see, e.g., Petition at 5-6). Nevertheless, what petitioner
omits to inform the Courtis that all 16 Respondents, to petitioner's knowledge,
were residential tenants who made clear that they intended to live in their units.
As the Loft Board found, notwithstanding the form of the leases, petitioner not
only condoned, but encouraged respondents to live in their lofts.

10

the statute of limitations for such an appeal has long since
expired. New York State Civil Practice Law and Rules (“CPLR”)
§ 217.

Notwithstanding the indisputable fact that the Building has
been subject to the Loft Law since June 21, 1982,"' Petitioner
steadfastly refused to register the Building, comply with the
legalization requirements of the Loft Law or even recognize
Respondents as tenants. Although MDL § 284 requires Loft Law
buildings to have been brought up to code as class A multiple
dwellings by June 21, 1985, at the time of the last rents sought in
the underlying action (August, 1992), petitioner had not lifted a
finger to legalize 640 Broadway. In fact, petitioner’s only
legalization action to that time was to take a giant step backward
by withdrawing its 1982 City Planning Commission application
for a special permit to convert the Building to joint living-work
quarters for artists. Petitioner took this stepin July 1985, during
the course of its losing efforts at the Loft Board coverage
hearings. Apparently, as it become clear to petitioner that it
would have to legalize the Building as a class A multiple
dwelling, petitioner withdrew the special permit application in
order to create further impediments to legalization. (See
footnote at R-525 and R-747-9).

Other than the withdrawal of its special permit application,
petitioner did not even claim to have performed a single act in
connection with the legalization of the Building from the date the
Loft Law was enacted (June 21, 1982) through the date of the iast
rents sought in the underlying action (August 31, 1992)."

11. Section 3 of Ch. 349 of L. 1982 provides that the Loft Law shall “take
effect immediately” on June 21, 1982.

12. Petitioner contends at page 4 of the Petition that “it was uncontroverted

that (a) 640 Broadway is not structurally suited to serve as a residential
(Cont'd)

11

C. The Underlying Actions

In 1988, five years after the Loft Law was enacted anathree
years after the building was required to have been fully legalized
as a class A multiple dwelling (see MDL § 284(1)[i)[D)),
Respondents began to withhold their rent in an effort torforce
petitioner to undertake its statutory duty to bring the building up
to code (R-519-20). Nevertheless, it was not until four’years
later, with the commencement of the instant actions in October,
1992, that petitioner took any steps to collect its rent.

In the complaints (R-137-243), petitioner asserted three
causes of action. The first cause of action was for rent “through
and including August 31, 1992” (see, e.g., R-139-40); the second
cause of action was for attorneys’ fees (see, e.g., R-140-1); and
the third cause of action was for “indemnification” based on
Respondents’ activities which, according to petitioner, had the
effect of “subjecting the premises to the provisions of the Loft
Law” (see, e.g., R-141-2).

At about the same time, petitioner also commenced
summary non-payment proceedings against Respondents in the
Housing Part of Civil Court for current rent, beginning with
September, 1992 (R-516, n. 6, R-637).

D. The Motions Under Appeal
By notices dated January 6, 1993 (see, e.g., R-509-10),

Respondents moved pursuant to CPLR Rule 3212 for summary
judgment dismissing the complaints on the ground that MDL

(Cont'd)

‘multiple dwelling’. . .and (b) up to Two Million Dollars ($2,000,000) would
have to be expended to reconstruct this building to convert it into a multiple
dwelling . . .” If these claims are uncontroverted, it was because petitioner
never made any such allegations in the courts below.

12

§ 302(1)(b) barred petitioner from collecting rent during the
periods sought in the instant actions when petitioner was in
violation of its legalization obligations under MDL §§ 284(1)
and 301(1).

In opposition, petitioner argued that amendments to the Loft
Law enacted pursuant to Chapter 227 of the Laws of 1992 were
intended to be retroactively applied such that petitioner could
collect rents for periods when it had defiantly refused to comply
with the Loft Law’s legalization timetable. Petitioner also made
the audacious argument that its own deliberate withdrawal of the
special permit application tolled (and, presumably, to this day
continues to toll) the Loft Law’s original legalization timetable,
so that petitioner has never been out of compliance with its code
compliance obligations." Significantly, Petitioner raised no
federal question of any kind in the motion.

Petitioner also cross-moved for orders (a) striking
Respondents’ answers or, alternatively, vacating the automatic
stay of discovery pursuant to CPLR 3214(b); (b) sanctioning
Respondents for their allegedly willful failure to submit to
disclosure; (c) granting petitioner leave to amend its complaints
to add a cause of action for constructive trust; (d) granting
petitioner leave to amend its replies; and (e) directing
Respondents to pay use and occupancy prospectively during the
course of the action (see, e.g., R-617-8).

The motions and cross-motions were disposed of by
decision dated July 12, 1993, pursuant to which Justice Joan B.
Lobis granted Respondents’ motion for summary judgment and

13. This argument is in marked contrast to petitioner's position here,
where petitioner claims that it did “not want or need” a special permit but was
forced to apply for one under penalties provided by the Loft Law (Petition at
3). In fact, petitioner applied for a special permit before the Loft Law was
enacted and withdrew the application in response to the Loft Law.

ee, ee ee

13

denied petitioner’s cross-motions in all respects (the decision is
annexed as Appendix C to the Petition at 5a-11a). Justice Lobis
determined that there were no triable issues of fact, since it was
clear that petitioner had taken no action to meet its legalization
obligations under the Loft Law until September, 1992, which
was after the last rents claimed in the complaints. Justice Lobis
further recognized the fallacy of petitioner’s argument that the
withdrawal of its own special permit application had relieved
petitioner of the obligation to legalize the building:

Plaintiff’s argument that it was in
compliance with the provisions of the Loft
Law prior to the amendments is rejected.
According to plaintiff, the statutory
timetables originally set forth in the Loft Law
did not take effect until plaintiff obtained a
special permit. Since plaintiff never obtained
a special permit, it claims it has always been
in compliance with the Loft Law. What
plaintiff fails to acknowledge in its argument
is that the only reason plaintiff never
obtained a special permit for the building was
that plaintiff withdrew it application for a
special permit. . .The Loft Law specifically
provides that a landlord “shall take all
reasonable and necessary action to obtain a
certificate of occupancy as aClassA multiple
dwelling” within three years of the effective
date of the Loft Law. Here, plaintiff violated
the foregoing provision of the Loft Law by

_ failing to pursue and actually withdrawing its
application for a special permit.

(Petition, Appendix at 9a).

14

Similarly, Justice Lobis rejected petitioner’s contention that
the 1992 amendments to the Loft Law were intended to be
retroactively applied to allow owners to collect rents during
periods when they were not in compliance with the Loft Law’s
original legalization timetable. On this point, Justice Lobis cited
her own holding in Grossman v. M.K.F. Realty Corp., 155 Misc.
2d 841, 590 N.Y.S. 2d 1011 (Sup. Ct., N.Y. Co. 1992), a case
which, subsequent to the decision in the instant actions, was
affirmed by the Appellate Division, First Department, at 203
A.D. 2d 129, 610 N.Y.S. 2d 247 (1994). In her decision, Justice
Lobis neither discussed, nor resolved, any federal questions.

Orders were entered pursuant to Judge Lobis’ decision on
November 15, 1993 (R-9-56).

Petitioner appealed Judge Lobis’ decision to the Appellate
Division of the Supreme Court of the State of New York. Once
again, petitioner raised no federal questions. That appeal was
decided by an order entered with the Clerk of the Court on
February 7, 1995 (annexed as Appendix B to the Petition at 3a-
4a) affirming the orders of the Court below. In its decision, the
Court neither discussed nor resolved any federal questions.

Petitioner then moved for leave to appeal to the Court of
Appeals. In its motion papers, petitioner, for the first time, raised
a constitutional question, but the question was whether the Loft
Law offended the Constitution of the State of New York, not the
United States Constitution. That motion was denied by order of
the Court of Appeals dated September 7, 1995 (annexed as
Appendix A to the Petition).

15
REASONS FOR DENYING THE WRIT
I.

PETITIONER NEVER RAISED ANY FEDERAL
QUESTION IN THE STATE COURT PROCEEDINGS.

Atnotime did petitioner ever assert any federal question of
any kind during the state court proceedings. Neither at the trial
level, at the Appellate Division, nor at the Court of Appeals, did
petitioner assert any right under the United States Constitution
or under any law of the United States. In addition, none of the
Courts involved passed on any federal question. Consequently,
under 28 U.S.C. § 1257, the Supreme Court of the United States
is without jurisdiction to review the state court judgment in this
case.

Il.

ALL OF THE CONSTITUTIONAL ISSUES RAISED
IN THE PETITION HAVE BEEN PASSED UPON BY THE
FEDERAL COURTS, INCLUDING THE SUPREME
COURT OF THE UNITED STATES.

This is not the first time that petitioner has raised the same
constitutional questions regarding the Loft Law and its
application to the very building at issue in the instant case. In 640
Broadway Renaissance Co. v. Cuomo, 740 F. Supp. 1023 (S.D.
N.Y. 1990), aff’d, 927 F.2d 593 (1991), cert. denied, 500 U.S.
993, 111 S.Ct. 2054, 114L. Ed. 2d 459 (1991), petitioner brought
a federal court action regarding the building located at 640
Broadway, and, inter alia, requested a declaration that the Loft
Law was unconstitutional. In his decision dismissing the
complaint, the District Court Judge painstakingly analyzed all of
the constitutional issues — the exact same constitutional issues

16

presented here — and found that they were insubstantial or had
been rejected by the Supreme Court of the United States in
Spring Realty Co. v. New York City Loft Board, 127 Misc. 2d
1090, 487 N.Y.S. 2d 933 (Sup. Ct., N.Y. Co. 1985), aff’d, 117
A.D. 2d 1029, 498 N.Y.S. 2d 241 (ist Dep’t 1986), aff’d as
modified on other grounds, 69 N.Y.2d 657,511 N.Y.S.2d 830,
503 N.E. 2d 1367 (1986), appealed dismissed for want of a
substantial federal question, 482 U.S.911,107S.Ct.3179, 96L.
Ed. 2d 668 (1987).

Ill.

PETITIONER IS MISTAKEN IN CLAIMING THAT
THE LOFT LAW WAS RETROACTIVELY APPLIED TO
DEPRIVE PETITIONER OF ITS RENTS.

Petitioner argues that the Loft Law was somehow
retroactively applied to deprive petitioner of its rents at 640
Broadway. Petitioner’s analysis of the law is entirely incorrect.
In fact, the Loft Law was intended to have the opposite effect: to
allow petitioner to collect rent which it otherwise would have
been barred from collecting.

Long before the Loft Law was enacted, and long before
petitioner acquired title to the Building, the New York State
Multiple Dwelling Law prohibited an owner from collecting rent
in a building which contained residential tenants in violation of
the building’s certificate of occupancy. Thus, MDL § 301(1)
provides in relevant part:

No multiple dwelling” shall be occupied in

14. A“multiple dwelling” is defined at MDL § 4 as “adwelling whichis
either rented, leased, let or hired out, to be occupied, or is occupied as the
residence or home of three or more families living independently of each
other”.

Dt ase ce tes retical aati a ace nn

17

whole or in part until the issuance of a
certificate by the department that said
dwelling conforms in all respects to the
requirements of this chapter, to the building
code and rules and to all other applicable law

The penalties for violation of MDL § 301(1) were in
existence for decades before the Loft Law was enacted. Those
penalties are at § 302(1)(b), and to the extent relevant here,
provide:

If any dwelling or structure be occupied in
whole or in part for human habitation in
violation of section three hundred one,
during such unlawful occupation ... [nJo
rent shall be recovered by the owner of such
premises for said period, and no action or
special proceeding shall be maintained
therefor, or for possession of said premises
for non-payment of such rent.

Before and after enactment of the Loft Law, the Courts of
New York State repeatedly applied MDL §§ 301 and 302 to bar
owners who failed to obtain Proper certificates of occupancy
from maintaining any action or proceeding to recover rents from
their tenants. Hornfeld v. Gaare, 130A.D.2d398,515N.Y.S.2d
258 (1st Dep’t 1987); Baum Residence Corp. v. Van Rosson, 206
Misc. 315, 134 N.Y.S. 2d 302 (App. Term Ist Dep’t 1954):
Carmel v. Appleton, 122 N.Y.S. 2d 195 (App. Term Ist Dep’t
1953); Guarino v. Timares, 196 Misc. 414, 94 N.Y.S. 2d 262
(App. Term 2nd Dep’t 1949), appeal denied,,276.A.D. 847, 93
N.Y.S. 2d 734 (2nd Dep’t 1949); 40 Clinton Street Associates v.
Dolgin, 126 Misc. 2d 373, 481 N.Y.S. 24 960 (Civ. Ct. N.Y. Co.
1984); Ying Lung Corp. y. Medrano, 123 Misc. 2d 1074, 475

18

N.Y.S. 2d 772 (Civ. Ct. N.Y. Co. 1984); Waters v. Panzella, 100
N.Y.S. 2d 214 (Mun. Ct. Queens Co. 1950).

The Loft Law, far from preventing petitioner from
collecting rents at 640 Broadway, actually provided petitioner an
opportunity to avoid the penalties of § 302(1)(b). Thus, the Loft
Law at MDL § 285(1) provides:

Notwithstanding the provisions of section
three hundred two or three hundred twenty-
five of this chapter, the owner of an interim
multiple dwelling may recover rent payable
from residential occupants qualified for the
protection of this article on or after April first,
nineteen hundred eighty, and maintain an
action or proceeding for possession of such
premises for non-payment of rent, provided
that he is in compliance with this article.

(Emphasis added).

Thus, as can be seen, the Loft Law enables an owner, who
would otherwise be foreclosed by MDL § 302(1)(b) from
collecting rent, the opportunity tocollect and sue for such rent on
condition thai it abide by the legalization and registration
requirements of the Loft Law. See, e.g., County Dollar Corp. v.
Douglas, 160 A.D. 2d 537, 161 A.D. 2d 370, 556 N.Y.S. 2d 533
(1st Dep’t 1990).

The fact that petitioner could not collect rent in the
underlying action has nothing to do with penalties provided by
the Loft Law, and every thing to do with petitioner’s deliberate
intransigence in taking advantage of the opportunities afforded
by the Loft Law.

19

CONCLUSION

For the foregoing reasons, the writ of certiorari should be
denied.

Respectfully submitted,

DAVID RATNER
Counsel of Record
HARTMAN, ULE, ROSE
& RATNER

Attorneys for Respondents
305 Broadway, Suite 1201
New York, N.Y. 10007
(212) 437-9110

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386007_1402%3A2. Public record. Not legal advice.