Matter of Nazor OATH Index No. 2570/14 (May 29, 2015), adopted, Loft Bd. Order No. 4668 (Apr. 20, 2017),
aff’d, 2020 NY Slip Op 00555 (1st Dep’t 2020) [Loft Bd. Dkt. No. TR-1184; 544 West 27th Street, New York, N.Y.]
In coverage proceeding, petitioners failed to demonstrate that 544 West 27th Street is an interim multiple dwelling that had two residentially occupied units during the applicable window period. ALJ recommended that the application be denied. ______________________________________________________
NEW YORK CITY OFFICE OF
ADMINISTRATIVE TRIALS AND HEARINGS
In the Matter of MARIA NAZOR & PETER MICKLE
Petitioners ______________________________________________________
REPORT AND RECOMMENDATION
ALESSANDRA F. ZORGNIOTTI, Administrative Law Judge
On March 3, 2014, an application was filed with the Loft Board on behalf of Maria Nazor
and Peter Mickle pursuant to Article 7-C, section 281 of the Multiple Dwelling Law (“Loft Law”
or “MDL”) and title 29 of the Rules of the City of New York (“RCNY”) (ALJ Ex. 1).
Petitioners seek a finding that: (1) the building known as 544 West 27th Street, New York, New
York (“Building” or “544 West 27th Street”) is an interim multiple dwelling (“IMD”); (2) during
the window period Ms. Nazor and Mr. Mickle residentially occupied units 4N and 4S
independently; (3) Shimon Milul occupied unit 5N residentially; and (4) Ms. Nazor and Mr.
Mickle are the protected occupants of units 4N and 4S respectively. Petitioners assert that, due
to the location of the Building, they need only show that two units were residentially occupied
under MDL section 281(5)(ii), but that there is evidence to establish three residential units.
The respondent-owner of the Building, Sydney Sol Group Ltd. formerly known as
Mushlam Inc., filed an answer (ALJ Ex. 2) and argued that: petitioners, who are married, did not
occupy units 4N and 4S as two independent families, or in the alternative, that Mr. Mickle
resided in apartment 9A at 55 West 14th Street, New York, New York (“55 West 14th Street” or
“apartment 9A”); Mr. Milul, the principal of the respondent corporation, lived in New Jersey and
occupied unit 5N as an office; and MDL section 281(5)(ii), requiring only two residentially
occupied units for Loft Law coverage, is unconstitutional.
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A trial was held on seven days between January 27 and February 25, 2015. During the
contentious trial, both parties presented voluminous documentary evidence much of which was
cumulative and collateral. Petitioners testified and called five witnesses including: Mr. Milul; a
contractor who testified about renovations in unit 5N; two friends who testified about petitioners’
marital status; and a colleague who testified about transporting Mr. Mickle to and from the
Building for work. Respondent called: petitioners; Mr. Milul; two friends who testified that Mr.
Milul lives in New Jersey; respondent’s employee who investigated petitioners’ bank records and
telephone use between 2004 and 2010; and the managing agent and concierge from 55 West 14th
Street, who testified that Mr. Mickle resided there from 2004 through 2010. The record was held
open until May 4, 2015, for the filing of post-trial submissions.
While petitioners demonstrated that Ms. Nazor residentially occupied the fourth floor
since 1983, they failed to meet their burden of proving that the Building was residentially
occupied by two independent families for 12 consecutive months in 2008 and 2009.
Accordingly, the application should be dismissed.
ANALYSIS
Proof from 1983 thorough 2009 relating to the fourth floor of 544 West 27th Street
Ms. Nazor testified that she is an artist and an Italian citizen. She first came to the United
States on an artist visa and became a permanent resident in 1996 (Tr. 26-27; Pet. Ex. 26).
Ms. Nazor testified that in 1983 she leased with a friend, the fourth floor of the Building
for 10 years from the then-owner (Pet. Ex. 2). The fourth floor was approximately 5000 square
feet, was in total disrepair, and was accessed by stairs or freight elevator (Tr. 28-29, 341; Pet. Ex.
5A-1). Ms. Nazor and her friend, with the owner’s consent, hired a contractor who created two
separate lofts each with their own kitchen and bathroom, five independent studio spaces, and a
corridor with a bathroom (toilet and sink) for the studios. The larger loft (4N) has a front
entrance by the elevator and stairs and a back door to the corridor near the studios. Access to the
smaller loft (4S) is from the far-end of the corridor (Tr. 33, 44-54; Pet. Exs. 4, 5A-2). Ms. Nazor
testified that she has occupied unit 4N since 1983 (Tr. 44).
Shortly after moving into the Building, Ms. Nazor’s friend returned to Europe and Ms.
Nazor rented unit 4S and the studios to various tenants and artists at a prorated rent (Tr. 33, 62-
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63, 217). Since 1983, Ms. Nazor has always paid the rent for the entire fourth floor to the owner
(Pet. Ex. 27) and utilities have been shared by the occupants (Tr. 220-22).
Mr. Mickle testified that he is an unlicensed architect who has worked for various firms
since the 1970’s and has had his own business in different forms since the mid 1980’s (Tr. 332,
400). Petitioners started dating in 1989 (Tr. 56, 333, 335).
In 1993, the then-owner gave petitioners a 10-year lease extension for the fourth floor
(Pet. Ex. 3; Tr. 220, 333). At the time petitioners were engaged and were subsequently married
(Pet. Ex. 12). Ms. Nazor testified that they married for love and denied respondent’s assertion
that she married Mr. Mickle to get a green card (Tr. 222-25, 309).
Petitioners testified that after they entered into the lease and got married in 1994, Mr.
Mickle continued to live on Clinton Street. Mr. Mickle testified that since Ms. Nazor was an
artist, he did not want to disrupt her work and also thought it would be good to have some
independence. When unit 4S became available in 1995, he moved into it and has lived there
since. Mr. Mickle kept most of his possessions in unit 4S some may have been in unit 4N
(Nazor: Tr. 54-58, 225; Mickle: Tr. 334, 336).
Ms. Nazor testified that she met Mr. Milul in the 1980s when his father rented the ground
floor in the Building. Mr. Milul’s company purchased the Building in 1995. Prior to the sale,
Mr. Milul inspected the fourth floor and has been there several times since to inspect leaks from
above (Nazor: Tr. 196-98; Milul: Tr. 613-15). In 1995 people were living and working on the
fifth and sixth floors. Three apartments were later built on the third floor and occupied
residentially (Nazor: Tr. 63-66, 129).
In 2002 Mr. Mickle established his current business, Rational Building Company Inc.
(“Rational Building”), and listed 544 West 27th Street as the company’s address (Tr. 333, 1101).
Ms. Nazor and Mr. Mickle testified that starting in 2002 until early 2004 they began to
separate. They remained cordial but were no longer romantically involved and did not socialize
or travel together. There was no formal separation agreement and they never divorced.
Petitioners testified that Ms. Nazor continued to occupy unit 4N and Mr. Mickle unit 4S (Nazor:
Tr. 58-60, 202-203, 214, 225-27; Mickle: Tr. 336-38). Ms. Nazor also testified that she did not
get divorced for religious reasons but that she and Mr. Mickle would have likely gotten a legal
separation had it not been for the stress of dealing with Mr. Milul (Tr. 309).
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According to Ms. Nazor, petitioners had no assets to divide. They had a joint checking
account that was not used after 2004 (Tr. 167-68). Citibank records from October 2005 to
October 2012 (Pet. Ex. 24C) show that a zero balance was maintained. In May and June 2006,
Citibank wrote petitioners that their account was inactive (Pet. Ex. 24D).
In support of petitioners’ assertion that they separated by 2004, Mr. Mickle submitted his
passport (Pet. Ex. 36) showing that, unlike Ms. Nazor, he did not travel after they were separated
(Tr. 396). Ms. Fernandez, a former tenant in the Building, also testified that sometime after 2004
she ran into petitioners separately in the neighborhood and they both told her that they had
separated (Tr. 574-75, 580-81, 584-85). Similarly, Mr. Gunther, a friend of Mr. Mickle since the
1980s, testified that sometime after 2003 petitioners separated and that he would invite them
individually to his house for parties (Tr. 587-88, 593).
Even though petitioners were separated, they kept keys to each other’s units in case of an
emergency including the on-going leaks in unit 4N from above (Tr. 229, 310-311). Mr. Mickle
also listed Ms. Nazor as an emergency contact on his passport (Tr. 397; Pet. Ex. 36).
In January 2003, Mr. Mickle installed a door with a lock near the elevator and stairs to
secure the corridor that accessed the studios, unit 4N’s back door, and unit 4S. Petitioners
testified that this was done to stop Mr. Milul from coming to the fourth floor, bothering the
people in the studios, and taking materials from them. Shortly thereafter, Mr. Milul took down
the door with an axe and Ms. Nazor called the police. The door was replaced and Mr. Milul was
given a key. Mr. Mickle denied that the door was installed because Ms. Nazor was nervous
about being the only person living on the fourth floor after their separation (Nazor: Tr. 198-201,
211-13, 295-96, 307, 328; Mickle: Tr. 343-44, 432, 434-35, 502-03). Ms. Nazor also testified
that she has always had a dog and that she keeps the dog in the corridor (Tr. 52-53).
After petitioners’ lease expired on May 31, 2003, they became month to month tenants
(Tr. 60-61). Ms. Nazor testified that she felt insecure about her status in the Building and had
the occupants of the studios move out. Petitioners combined four studios into two spaces and
identified them as “Workspace/storage-4S” and “Studio-4N” (Nazor: Tr. 189-90, 203-05, 214-
19, 305-06; Mickle: 341-42, 431-33); Pet. Ex. 5A-2).1
Ms. Nazor testified that in 2003 and 2004, Mr. Milul began eviction proceedings against
other tenants in the Building who eventually left (Tr. 67, 205; Pet. Ex. 40). In 2004 all elevator
1 The fifth studio was combined with unit 4N in 1987 and used as Ms. Nazor’s bedroom (Pet. Brief, at 8 fn. 5).
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service was cut-off. Ms. Nazor testified that she was unable to take her paintings out of the
Building because they were too large to take down the stairs. Similarly, petitioners were not
given access to the front door of the Building and had to use the side entrance (Tr. 191-95).
Eviction proceedings against petitioners began in June 2006 (Tr. 61, 203). In 2008 an
order was issued setting petitioners’ rent for use and occupancy of the fourth floor at $15,000
and granting them access to the elevator and front door. Mushlam Inc. v. Nazor, Index No.
100207/08 (Sup. Ct. N.Y. Co. Apr. 3, 2008). Petitioners were ordered to pay respondent $15,000
a month starting June 1, 2008 (Pet. Ex. 27).
Ms. Nazor described her relationship with Mr. Mickle as “complicated” and “difficult”
(Tr. 203-04, 226, 257, 321). Petitioners testified that, even though they were separated, they
faced the legal proceedings about the fourth floor together. As a result of the 2008 judgment
setting their monthly rent at $15,000 and their legal expenses, petitioners had to pool their
resources to pay these shared expenses. Mr. Mickle transferred over $300,000 to her to cover
these expenses. They came up with the money in any way possible including from Mr. Mickle’s
earnings and loans from his brother because they would be evicted if they did not pay the rent
(Nazor: Tr. 175-76, 268-70, 289-91, 308; Mickle: Tr. 338-39; Pet. Ex. 27; Resp. Exs. E, G, SS).
Ms. Nazor testified that in 2008 and 2009 she never went to unit 4S. She acknowledged
that even though he was living next door, she called Mr. Mickle often on the telephone as shown
by their telephone bills (Resp. Exs. A, B, J, MM, NN, OO, PP, QQ). Ms. Nazor testified that
during these calls they spoke about the pending lawsuit and how to pay their bills. At the time,
Mr. Mickle was drinking heavily and it was hard to reach him so Ms. Nazor would call him
repeatedly at all hours and at different phone numbers. Since they were both up late, it was not
unusual for them to speak at night (Tr. 315-20, 822-24, 827-28).
Mr. Mickle testified that during the window period he lived in unit 4S and never went to
Ms. Nazor’s unit (Tr. 494). He testified that many of the one minute calls recorded on their
phone bills represent missed calls (Tr. 1061-64; Pet. Exs. 50, 51). Mr. Mickle acknowledged
that even though he was living next door, Ms. Nazor would call his landline at 55 West 14th
Street at night (Tr. 1082-83). Mr. Mickle explained that he had calls to the landline forwarded to
his cell phone (Tr. 1055-57, 1094; Pet. Ex. 50).
To support their claims that they occupied the fourth floor residentially during the
window period, petitioners submitted documents from 2008, 2009, 2010, and 2011 listing 544
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West 27th Street as their address. None of the documents identify units 4N or 4S but some of
them list the fourth floor. Ms. Nazor’s documents included: cell and landline phone records; the
first page of her Citibank records; the first page of statements from American Express,
MasterCard, and Macy’s; insurance records; and correspondence for charitable contributions
(Pet. Exs. 15- 24B, 25). Mr. Mickle’s documents included: correspondence from the Internal
Revenue Service and the Social Security Administration; a life insurance policy; phone records;
the first page of his Citibank records; a jury summons; and election records (Pet. Exs. 29, 30, 32-
35). Mr. Mickle testified that he did not file for state or federal income taxes from 2007 through
2010 (Tr. 910). Ms. Nazor testified that she files her taxes in Italy (Tr. 310).
Petitioners also submitted: rent bills for the fourth floor from respondent to Mr. Mickle
from August 2004 through June 2006 ranging in amounts from $4,525.25 to $4,773.25 (Pet. Exs.
28) and Con Edison bills in Mr. Mickle’s name for gas and electricity for May 2009 through
March 2011 (Pet. Exs. 14, 31; Tr. 139-44, 297-98).
Petitioners called Mr. Quinn, a contractor, who testified that he met Mr. Mickle in 2009
on a construction project. He picked up and dropped-off Mr. Mickle sometimes several times a
week, at the Building where Mr. Mickle said he lived (Tr. 604-05, 607-10). Mr. Mickle denied
conducting any business at the Building during the window period (Tr. 1087). However,
business correspondence from 2008 and 2009 and a certificate of insurance for 2006-2008 for
Rational Business, listed the Building as its address (Tr. 1048, 1086; Pet. Ex. 47).
At the end of 2009, a judgment of ejectment was granted in respondent’s favor against
petitioners. Mushlam Inc. v. Nazor, Index No. 100207/08 (Sup. Ct. N.Y. Co. Dec. 31, 2009)
(Resp. Ex. H). Ms. Nazor testified that after she received the notice of ejectment, she started
packing her paintings into crates and stored them in the “Workspace/storage-4S” (Tr. 190-91).
Proof from 2004 to 2010 relating to 55 West 14th Street and other alleged office spaces
Mr. Mickle testified that in late 2003 or early 2004, he was no longer able to work in the
Building because there was no elevator or intercom. It was difficult to receive packages and
clients in the Building, and the environment was hostile. He looked for an office on Craigslist
and found a one-bedroom apartment where Ms. Starzecpyzel was renting the bedroom at 55
West 14th Street for $1300 a month. He entered into a verbal agreement with Ms. Starzecpyzel
to rent the 9’ by 15’ bedroom as an office while she occupied the rest of the apartment.
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According to Mr. Mickle, the apartment was conveniently located, affordable, had 24-hour
access, and he could receive deliveries there (Tr. 401-05, 428-30, 445-46, 500-02, 926-27).
In a 2014 deposition, Mr. Mickle testified that one of the reasons he moved to 55 West
14th Street was because it was “difficult” to receive clients at the Building (Tr. 910-13, 917). At
the trial he acknowledged that it was “impossible” to receive clients at 55 West 14th Street
because it was a residential building (Tr. 914-15, 925). Mr. Mickle admitted that he had no
documentation showing that 55 West 14th Street was a business address (Tr. 1093-94).
Mr. Mickle also acknowledged that in 2004 he disconnected his residential landline at
544 West 27th Street (Tr. 491, 504, 975-77; Pet Ex. F) and installed two landlines at 55 West 14th
Street, one for internet access and the other for a fax machine. According to the Coles directory,
both lines were residential accounts (Tr. 443, 976-78, 1094; Resp. Ex. LL).
Mr. Mickle testified that Ms. Starzecpyzel “moved away” from 55 West 14th Street and
her son, Mr. Grasso, moved in 2006 or 2007. Mr. Grasso slept in a “little place” that “they”
carved out while Mr. Mickle used the bedroom as his office (Tr. 408-09, 468-69, 504).
Mr. Mickle asserted that he never used the kitchen but used the bathroom at 55 West 14th
Street. The bedroom was filled with equipment including four computers, two monitors, a large
commercial printer, two work benches, office machines, storage units, a chair, and a fold-up
canvas cot. He rarely slept there but it happened when he worked late and he would “fall asleep”
or “pass out” because he was drinking heavily at that time (Tr. 405-07).
Mr. Mickle denied keeping any clothing at 55 West 14th Street except for maybe a change
of shirt (Tr. 910). Bank records indicate that, in 2007, Mr. Mickle used a cleaner at 36 West 15th
Street (Resp. Ex. G at 1391). Mr. Mickle had no recollection of a cleaner located around the
corner from 55 West 14th Street (Tr. 461-62). Mr. Mickle also had numerous cash withdrawals
from the Citibank ATM near 55 West 14th Street that he asserted was the closest bank to 544
West 27th Street (Resp. Ex. G; Tr. 463-67, 508-10).
Ms. Nazor denied that Mr. Mickle moved to 55 West 14th Street to live after they
separated and claimed that he used the rented bedroom as an office even though it was in a
residential building (Tr. 234-35, 245, 271). When she went to 55 West 14th Street, the bedroom
was so densely packed with printers and monitors that she could not go inside. She never saw a
bed there. Ms. Nazor said that she was unsure when Mr. Mickle was there and testified that he
had various “field offices” where he would work (Tr. 230, 263, 315, 325-26). Mr. Mickle would
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sometimes leave documents for Ms. Nazor with the concierge at 55 West 14th Street (Mickle: Tr.
409-10; Nazor: Tr. 312-313, 329).
Mr. Mickle testified that he rented at 55 West 14th Street from 2004 until sometime in
2009 but that he used it “progressively” less starting in 2006 (Tr. 408). Mr. Mickle claimed that
he started occupying other spaces because he was working with assistants and had projects on
the Upper East Side. In 2006 he used, rent-free space inside an apartment he was renovating at
1150 Fifth Avenue. However, there were limitations since that location only allowed work
between 9:00 a.m. and 5:00 p.m. during the week, so he worked at 55 West 14th Street after
hours (Tr. 439). When that job came to an end in 2007, he took a desk in an architect’s office on
92nd Street and Madison Avenue. Later in 2008 he took a conventional office at 66 West
Broadway because he had more people working for him. When he could no longer sustain that
economically, he took another desk in an architect’s office in the same building (Tr. 411-15).
Mr. Mickle also stated that at some point he began to owe rent for 55 West 14th Street and
was reluctant to go there. He knew it was unwise to be paying for a space that he never used but
that he would sometimes go there at night to work. Mr. Mickle testified that his equipment was
obsolete but that he did not know what to do with it and used the bedroom primarily as storage.
Eventually, he abandoned the space. He “bumped” into Mr. Grasso in late 2009 or early 2010
and was told that all of his things had been thrown away (Tr. 412-13, 415-16, 506, 529-31). Mr.
Mickle claimed that the last time he used 55 West 14th Street was in 2008 or 2009 (Tr. 416).
In March 2009 Mr. Mickle’s father, Peter Mickle, passed away (Tr. 274). Mr. Mickle’s
brother, Stuart Mickle, was appointed the executor of the estate. In the petition to the
Surrogate’s Court for letters of administration sworn to on April 8, 2009, Stuart Mickle listed
Mr. Mickle’s “domicile” as 55 West 14th Street, apartment 9A and attested to the truth of the
matter (Resp. Ex. D at 1564, 1566). In the consent to the appointment of his brother as executor
sworn to on April 6, 2009, Mr. Mickle’s address was listed as 55 West 14th Street, apartment 9A
(Resp. Ex. D at 1554). Mr. Mickle testified that he did not know who prepared the consent form
for his signature and could not recall the circumstances when he signed it. He also stated that he
never saw the petition submitted by his brother. Mr. Mickle explained that he gave his family
the address at 55 West 14th Street so that they could communicate with him but that he never told
them it was his residence (Tr. 418-21, 486-90, 521-23, 918-24, 928, 1093-94).
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In support of their claim that Mr. Mickle used 55 West 14th Street as an office, petitioners
submitted six rent checks from Rational Business to Mr. Grasso for $1300 a month from 2008
and 2009 (Pet. Ex. 37; Tr. 397). However, Mr. Mickle acknowledged that he also paid the rent
out of his personal checking account and by cash (Resp. Ex. G; Tr. 449-50, 453-60). Petitioners
also called Mr. Gunther, Mr. Mickle’s friend, who testified that Mr. Mickle once mentioned an
office on 14th Street but that he never visited and was unsure when this conversation occurred
(Tr. 589, 592, 596, 599).
Ms. Gould testified that she has managed the building at 55 West 14th Street since 2004.
Her office is located in the building and she is familiar with apartment 9A (Tr. 769-71). Ms.
Gould testified that in 2005 Ms. Starzecpyzel was incarcerated and that the landlord, Courtney
House, started receiving rent checks from her attorney. Ms. Gould testified that, based on
conversations with building staff, she knew that Mr. Grasso would visit occasionally and that
Mr. Mickle resided there. In 2006, Ms. Gould hired the law firm Belkin, Burden, Wenig and
Goldman, LLP (respondent’s counsel) to investigate the occupancy of apartment 9A and
determine whether eviction proceedings were feasible. A log of when Ms. Starzecpyzel came to
the building was maintained, which showed she was there four times between 2007 and 2009
(Tr. 772, 775-77, 783-85, 798; Resp. Ex. GG).
Ms. French testified that she was the concierge at 55 West 14th Street from 1991 until
2013 and is currently an office assistant to the resident manager. When she was the concierge,
she was responsible for announcing guests and accepting deliveries for tenants in the building.
She usually worked a split shift on Sundays and Mondays from 7:30 a.m. to 4:00 p.m. and
Tuesday, Wednesday, and Thursday from 3:30 p.m. to midnight (Tr. 938-40).
Ms. French testified that Mr. Mickle moved into 55 West 14th Street around 2004 and left
in 2010. Ms. Starzecpyzel introduced Mr. Mickle as her roommate and Ms. French saw him
move boxes and bags into the apartment. Ms. French testified that while she was a concierge,
she saw Mr. Mickle during the day, in the evening, and at night including in the lobby, washing
his clothing in the laundry room on Sundays, in the hallways, and getting mail out of the
mailboxes. She testified that Mr. Mickle had a few visitors that she would announce and that he
would submit work orders to have things fixed in apartment 9A (Tr. 940-45, 950, 956, 965-68).
Ms. French testified that Ms. Starzecpyzel stopped living in apartment 9A about a year
after Mr. Mickle moved in. Ms. Starzecpyzel’s son, Mr. Grasso, would sometimes stay there
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when he visited and would speak to Ms. French. She knew that Mr. Grasso was not the tenant of
record and never lived there on a full-time basis (Tr. 949-52, 966-69).
Ms. French testified that she had no indication that Mr. Mickle was using apartment 9A
as an office. She also denied Mr. Mickle’s claim that he was not using it for several years prior
to 2010 (Tr. 953-54, 962). She testified that when she did double shifts overnight, which
occurred at least twice a month in 2008 and 2009, she saw Mr. Mickle come in late at night and
leave early the next morning (Tr. 955).
Ms. Gould testified that Courtney House commenced an action in December 2009 to
evict Ms. Starzecpyzel from the rent-stabilized apartment for non-primary residency and named
Mr. Grasso and Mr. Mickle as her undertenants (Tr. 775; Resp. Ex. I). Mr. Mickle was never
served in the eviction proceedings and asserted that he had no idea about them until his
deposition was taken in 2014 in the related court proceeding with respondent (Tr. 470, 512-14,
519). Ms. Gould testified that the only time she spoke to Mr. Mickle regarding the eviction was
when she received a call from him advising that he was not going to appear for a scheduled
deposition in the eviction proceeding (Tr. 795, 800-01).
In a deposition taken on November 29, 2010, Mr. Grasso stated under oath that he moved
into apartment 9A at 55 West 14th Street in 2005. In 2006 his mother was spending time with
her fiancé and moved out in 2007. From 2005 to 2007, Mr. Grasso split his time between New
York and Florida and would sometimes stay in New Jersey. Mr. Grasso also testified that: Mr.
Mickle moved in when his mother was living there; Mr. Mickle was staying there on a regular
basis between September 2005 and December 2007; Mr. Mickle was still his roommate but that
since May of 2010 he had not been there regularly; Mr. Mickle’s bedroom was still “chock a
block” with his belongings including a bed, a desk, shelving, and a lot of other stuff and that it
was like a small studio for him; Mr. Mickle usually arrived late and left early; Mr. Mickle paid
approximately $1000 a month plus $100 for utilities, a portion of the cable and cleaning costs but
that he was sometimes delinquent and made it up the next month; he did not know where Mr.
Mickle worked but knew it involved architecture; Mr. Mickle disconnected his telephone line
that he used for his business; and Mr. Mickle rarely asked about the eviction proceedings (Resp.
Ex. I at 23000-21301, 23004-23005, 23007).
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Proof relating from 2010 to the hearing
Following the amendments to the Loft Law in June 2010 providing for the possibility of
Loft Law coverage for the Building, petitioners moved to vacate the judgment of eviction in
Mushlam Inc. v. Nazor, Index No. 100207/08 and to amend their answer to interpose a defense
based on the newly enacted Loft Law.
In an affidavit sworn to on August 16, 2010, filed in support of petitioners’ motion to
interpose a Loft Law defense (Resp. Ex. C-1), Mr. Mickle stated that since Mr. Milul’s periodic
denials of his access to the Building and on-going deprivations of elevator service since 2007,
Mr. Mickle’s architecture practice was frustrated to the point where he moved it to a temporary
jobsite at 1150 Fifth Avenue, followed by 30 East 92nd Street and 66 West Broadway in 2008.
He maintained that he has had no other residence since moving into unit 4S in 1995 and made no
mention that he rented a bedroom at 55 West 14th Street (Resp. Ex. C-1 at ¶¶ 14-15).
In a decision concerning various consolidated motions, the court, inter alia, vacated the
judgment of eviction and granted petitioners’ application to interpose a Loft Law coverage
defense. Mushlam Inc. v. Nazor, Index No. 100207/08 (Sup. Ct. N.Y. Co. Dec. 13, 2010) (Pet.
Ex. 1A). Petitioners’ rent for the use and occupancy of the fourth floor was modified from
$15,000 to $3,600 retroactive to May 1, 2008. Mushlam Inc. v. Nazor, Index No. 100207/08
(Sup. Ct. N.Y. Co. July 9, 2012) (Pet. Ex. 1B). The monthly rent was again modified to
approximately $4,700 a month. Mushlam Inc. v. Nazor, 104 A.D.3d 483 (1st Dep’t 2013).
Photographs of the fourth floor were taken in 2010, 2011, and 2015 (Pet. Exs. 6A, 6B,
7A, 7B, 8A, 8B, 9A, 9B, 10A, 10B), which petitioners testified accurately represent how units
4N and 4S looked at the time the photos were taken and in 2008 and 2009 (Nazor: Tr. 81, 107,
122, 124, 137; Mickle: Tr. 377-78, 383). The photographs, which were not date-stamped, show
indicia of residential living in each unit including: a sleeping area; a living area with couches,
tables, and chairs; a bathroom with a sink and shower; and a kitchen with a refrigerator, stove,
sink and various kitchen appliances including a washer and a dryer in unit 4N. Both units had
residential furniture and effects. The closet in unit 4N contained Ms. Nazor’s clothing and
personal items. The closet in unit 4S contained Mr. Mickle’s clothing and personal items.
In a stipulation of settlement between Courtney House and Mr. Grasso dated April 27,
2011, Mr. Grasso surrendered the keys to apartment 9A at 55 West 14th Street and represented
that Mr. Mickle permanently vacated it in February 2011 (Tr. 771-774, 808-09; Resp. Ex. I).
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Petitioners filed their Loft Board application in March 2014, even though they had
successfully raised the Loft Law defense in the court proceeding, to preserve their rights before
the application deadline for filing coverage applications was closed (Tr. 9-10).
Preliminary Matters
In 2010, the state legislature passed amendments to the Loft Law, which added section
281(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). Amended section 281(5) defines an IMD, inter alia, as any
building located in Manhattan north of West 24th Street and south of West 27th Street and west of
Tenth Avenue and east of Eleventh Avenue that: (1) at any time was occupied for commercial
purposes; (2) lacks a certificate of compliance or occupancy pursuant to section 301 of this
chapter; (3) is not owned by a municipality; and (4) was occupied for residential purposes as the
residence or home of two or more families living independently from one another for a period of
12 consecutive months during the period commencing January 1, 2008, and ending December
31, 2009 (“window period”), “provided that the unit” (i) is not located in a basement or cellar
and has at least one entrance that does not require passage through another residential unit to
obtain access to the unit, (ii) has at least one window opening onto a street or a lawful yard or
court as defined in the zoning resolution for such municipality, and (iii) is at least 400 square feet
in area. MDL § 281(1), (2), (5) (Lexis 2014).
Whether MDL section 281(5), providing for Loft Law coverage based on two units, is
constitutional is beyond the jurisdiction of this tribunal. Matter of Tenants of 51-55 West 28th
Street, OATH Index No. 2877/09, mem. dec. at 4-5 (June 26, 2009), adopted, Loft Bd. Order No.
3580 (June 17, 2010).2
The following facts are not in dispute. The Building is located on the south side of 27th
Street between Tenth and Eleventh Avenues and falls within the two-unit exception of amended
section 281(5) of the MDL. The six-story Building is owned by a private corporation, is located
in New York City with a population of more than one million people, and qualifies as having
prior commercial use under MDL section 281(1). There is a certificate of occupancy indicating
that there is no Multiple Dwelling Law classification for the Building and listing commercial
2 In the related court proceedings, respondent challenged the constitutionality of MDL section 281(5). The court declined to make a declaratory judgment without a finding that only two families resided independently in the Building. Mushlam Inc. v. Nazor, Index No. 156217/12 (Sup. Ct. N.Y. Co. Oct. 21, 2013) (Pet. Ex. 1C).
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uses for the first floor (Pet. Ex. 46). During 2008 and 2009 the first, second, third, and sixth
floors were occupied by commercial tenants (Tr. 205-08, 866). The disputed units are above the
ground floor, do not require passage through another unit, have least one window opening onto a
street, and are at least 400 square feet in area.
The disputed issues concern whether petitioners residentially occupied the fourth floor as
two independent families and whether Mr. Milul occupied unit 5N residentially.
Petitioners’ argument that the only issue is whether they occupied the fourth floor as a
single unit or as two units, not whether Mr. Mickle resided at 55 West 14th Street, is without
merit. In the related court proceedings, the judge in the Supreme Court action observed in dicta
that respondent argued petitioners occupied the fourth floor as a residence. The court stated that
the ultimate issue for trial on Loft Law coverage was whether the fourth floor was occupied as
one or two residences. Mushlam Inc., Index No. 100207/08 at 3.
The doctrine of res judicata (claim preclusion), and the related concept of collateral
estoppel (issue preclusion), bar relitigation of an identical claim or issue by the same parties
where there has been a final judgment on the merits. See Ryan v. New York Telephone Co., 62
N.Y.2d 494, 500 (1984); Matter of Newmann, OATH Index No. 2680/08 at 16 (Oct. 30, 2008),
adopted, Loft Bd. Order No. 3502 (Apr. 23, 2009).
The only issues decided by the courts thus far relate to petitioners’ eviction, their rent for
the use and occupancy of the fourth floor, and whether petitioners could interpose a Loft Law
defense (Pet. Exs. 1A-D; Resp. Ex. H). The parties have yet to litigate whether, under the Loft
Law, the Building is an IMD and petitioners the protected occupants of their respective units.
Indeed, petitioners acknowledged that the Supreme Court will likely defer to the Loft Board on
these questions (Tr. 10). Since there has been no final judgment on the merits of Loft Law
coverage, respondent should not be precluded here from interposing a colorable defense that was
only discovered after petitioners’ motion to interpose a Loft Law defense was granted in the
related court proceeding (Tr. 636-37). For the same reasons, petitioners’ arguments that the
judge in the Supreme Court action also observed that, at some point, Mr. Milul used unit 5N as a
“pied-a-terre” (Tr. 8, 11, 627, 660, 662) is not binding on the instant coverage determination.
Similarly, petitioners’ claims that respondent engaged in bad faith and should be
estopped from presenting proof that Mr. Mickle resided at 55 West 14th Street are without merit.
“Under the doctrine of . . . estoppel against inconsistent positions, a party is precluded from
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inequitably adopting a position directly contrary to or inconsistent with an earlier assumed
position in the same proceeding.” Maas v Cornell Univ., 253 A.D.2d 1, 5 (3rd Dep’t 1999).
First, petitioners’ coverage application is not the “same proceeding” as respondent’s
eviction proceeding in state court. Second, there is no evidence of bad faith. When the related
ejectment proceedings began in 2006, respondent had no proof that Mr. Mickle resided
elsewhere. The 55 West 14th Street address was only discovered in 2014. Moreover, petitioners
have failed to demonstrate any prejudice since the question whether Mr. Mickle residentially
occupied unit 4S for purposes of Loft Law coverage has yet to be litigated and petitioners were
on notice that this would be raised at this hearing. Finally, there is no obligation under the Loft
Law rules to plead and prove that Mr. Mickle lived someplace else. Rather, the burden is on
petitioners to show that Mr. Mickle resided independently from Ms. Nazor in the Building.
Petitioners’ argument that a negative inference should be drawn for respondent’s failure
to maintain window period video from the Building is also without merit. Mr. Milul credibly
testified that the Building’s surveillance system preserves only 30 days of video before it is
overwritten (676-81). Since the window period was not established until June 2010, respondent
had no reason or a legal obligation to preserve video from an earlier period. Petitioners’
remaining arguments, including respondent’s failure to call his wife as a witness and witness
tampering, have been considered and found to be without merit.
In order to prevail on their coverage application, petitioners must prove their case by a
preponderance of the evidence. 29 RCNY § 1-06(i)(4) (Lexis 2014). Preponderance has been
defined as “the burden of persuading the triers of fact that the existence of a fact is more
probable than its non-existence.” Richardson on Evidence § 3-206 (Lexis 2008). Petitioners
failed to meet their burden.
In order for a unit to be covered by the Loft Law, “it must possess sufficient indicia of
independent living to demonstrate its use as a family residence.” Anthony v. NYC Loft Bd., 122
A.D.2d 725, 727 (1st Dep’t 1986). The determination of coverage requires a case by case
analysis of the indicia of residential use. See Matter of Pels, OATH Index No. 2481/11 at 5-6
(June 20, 2012), adopted, Loft Bd. Order No. 4161 (June 20, 2013). As noted in Matter of South
11th Street Tenants’ Assoc., OATH Index Nos. 1242/96, 1243/96, 1244/96 at 41 (Mar. 30, 1999),
adopted, Loft Bd. Order No. 2397 (Apr. 29, 1999), “no one factor is dispositive . . . the
regulations defining a residential unit were deliberately left open-ended to allow for a more
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flexible approach to coverage determination.” However, the regulations specify two factors to
consider: whether a unit has a separate entrance accessible from a public hallway or street, and
has “one or more rooms such as a kitchen area, a bathroom, a sleeping area and a living room
area arranged to be occupied exclusively by the members of a family and their guests . . . .” See
29 RCNY § 2-08(a)(3)(i), (ii) (Lexis 2014).
This tribunal and the Loft Board have also considered circumstantial evidence of a
tenant’s intent to make a unit a residence, such as the receipt of mail at the unit, whether the
unit’s address is used for voter registration, driver’s license, and other official documents, and
whether the tenant has maintained another residence. See, e.g., Matter of Gareza, OATH Index
Nos. 2061/12 & 760/13 at 8 (Dec. 12, 2012) adopted in part, rejected in part, Loft Bd. Order No.
4243 (Feb. 20, 2014) (receiving mail at address, using the address on a bank account, and being
registered to vote at the address was evidence of residential use); Application of Mussman, Loft
Bd. Order No. 905, 9 Loft Bd. Rptr. 50, 59 (May 25, 1989) (tenant did not residentially occupy
unit based in part on automobile and voter registration reflecting another address plus the
tenant’s inability to explain why his wife resided at that address without him).
“[T]here is no requirement for Loft Law coverage that residentially occupied units be the
primary residences of their tenants.” Vlachos v. NYC Loft Bd., 70 N.Y.2d 769, 770 (1987); see
also Kaufman v. American Electrofax Corp., 102 A.D.2d 140, 142 (1st Dep’t 1984) (unit covered
by Loft Law even though occupant maintained a separate primary residence). However, the
residential use of the unit for which coverage is sought may not be incidental to a predominant
commercial use. See 29 RCNY § 2-08(l)(1) (Lexis 2014); see also Franmar Infants Wear, Inc.
v. Rios, 143 Misc. 2d 562 (App. Term, 1st Dep’t 1989) (where only a 5’ by 8’ space of 625
square foot artist’s studio was used residentially, space remained commercial); Loft Realty Co. v.
Aky Hat Corp., 123 Misc. 2d 440, 445 (Civ. Ct. N.Y. Co. 1984), aff’d, 131 Misc. 2d 541 (App.
Term, 1st Dep’t 1984) (where tenant used approximately 2% of a unit residentially and the rest a
hat factory, unit not covered because residential use was incidental to commercial use); Matter of
Addis, OATH Index Nos. 1574/02, 1575/02 at 8 (Nov. 25, 2002), adopted, Loft Bd. Order No.
2772 (Jan. 9, 2003) (insufficient residential use where commercial tenant slept in loft only a few
nights per month).
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The tenants’ purpose for occupying the unit is also considered in determining whether a
unit is principally residential or commercial. See Anthony, 122 A.D.2d at 727-28 (unit leased as
a dance studio not covered where the tenant slept there occasionally due to the need to prepare
for dance performances); Matter of Tenants of 323-325 W. 37th Street, OATH Index No. 692/06
at 18-19 (May 18, 2007), adopted in part, modified in part, Loft Board Order No. 3457 (Sept. 18,
2008), reconsideration granted in part and denied in part, Loft Bd. Order No. 3496 (Apr. 23,
2009), aff’d, 79 A.D.3d 488 (1st Dep’t 2010) (unit leased by a museum display company was
primarily commercial, despite tenants creation of a space with a bed, couch, refrigerator, and
stove and where tenants used it temporarily when one was evicted from his apartment and the
other had marital discord).
To the extent resolution of the disputed issues relies on a determination of witness
credibility, this tribunal has looked to witness demeanor, the consistency of a witness’s
testimony, supporting or corroborating evidence, witness motivation, bias or prejudice, and the
degree to which a witness’s testimony comports with common sense and human experience in
determining credibility. Dep’t of Sanitation v. Menzies, OATH Index No. 678/98 at 2-3 (Feb. 5,
1998), aff’d, NYC Civ. Serv. Comm’n Item No. CD 98-101-A (Sept. 9, 1998).
Both parties had compelling financial motives to lie: petitioners to obtain Loft Law
protection for two large rent regulated units in a prime location in Manhattan; and respondent to
avoid a finding of Loft Law coverage and thereby eject petitioners from the Building. Since
2006, the parties have been involved in contentious litigation regarding petitioners’ status in the
Building and there is an even longer history of hostility and distrust between them. None of
these parties were particularly forthcoming witnesses and all, at one point or another, gave non-
responsive, vague, or untruthful testimony. Mr. Milul and Mr. Mickle also made inconsistent
statements throughout the hearing (Milul: Tr. 614-19, 630-33, 643-46, 655-56, 684-86; Mickle
Tr. 425-31, 460-62, 494-96, 907-09, 914-16).
Most importantly, petitioners failed to disclose that Mr. Mickle rented a bedroom at 55
West 14th Street from 2004 through 2009 when they made a motion to interpose a Loft Law
defense in the related court proceedings (Resp. Ex. C-1). Petitioners’ testimony about Mr.
Mickle’s use of unit 4S as his residence and 55 West 14th Street as his office was strained,
evasive, and incredible. When respondent delved into these areas, Mr. Mickle appeared visibly
uncomfortable and claimed that he did not understand the questions (Tr. 436-38, 481-82, 1085-
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92). When confronted with sworn statements that were inconsistent with his claim that he used
55 West 14th Street as an office only (Resp. Exs. C-1, D), Mr. Mickle gave incredible
explanations and asserted that he did not draft the documents (Tr. 418, 500, 521, 918, 928).
Thus, unless a party’s self-serving testimony comported with common sense or was
corroborated by reliable, independent evidence, it was found insufficient to establish any of the
disputed facts. See Dep’t of Education v. Brust, OATH Index No. 2280/07 at 10 (Sept. 29,
2008), adopted, Chancellor’s Dec. (Oct. 22, 2008) (if a witness is found to have been false in one
instance, trier-of-fact may reject all of the witness’s testimony); see also People v. Barrett, 14
A.D.3d 369, 369 (1st Dep’t 2005) (the maxim falsus in uno falsus in omnibus, false in one thing,
false in everything, may be applied to witness testimony).
Petitioners failed to demonstrate that the fourth floor was residentially occupied by two independent families during the window period.
The record supports a finding that Ms. Nazor has residentially occupied and worked on
the fourth floor since 1983. The unrebutted testimony of petitioners also supports a finding that
during the time they were married between 1995 through 2003, Mr. Mickle lived and worked on
the fourth floor. Whether petitioners occupied the fourth floor as one family before they
separated or whether they lived independently in units 4S and 4N, as they claimed, is unclear
from the record. The record also supports petitioners’ assertion that, as corroborated by their
inactive joint checking account and the testimony of Mr. Gunther and Ms. Fernandez, they were
separated by 2004.
Turning to whether petitioners occupied the fourth floor as two independent families after
they separated in 2004, petitioners failed to demonstrate by a preponderance of the credible
evidence that Mr. Mickle lived in unit 4S while Ms. Nazor lived in unit 4N. Rather, the record
supports a finding that Mr. Mickle moved to 55 West 14th Street and lived there until 2010.
Petitioners admit that, while they remained cordial after they separated, their relationship
was strained and difficult. It makes sense that Ms. Nazor would stay in the space that she built to
work as a painter and had lived in for 20 years and that Mr. Mickle would move his residence
someplace else. Indeed, Mr. Mickle rented the bedroom at 55 West 14th Street immediately
following petitioners’ separation. Petitioners’ assertion that Mr. Mickle practiced architecture in
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a small bedroom in a residential building at 55 West 14th Street was incredible and contrary to
the weight of the evidence for a number of reasons.
First, architecture involves drafting and working with large plans and petitioners, as
corroborated by Mr. Grasso, testified that the bedroom at 55 West 14th Street was so crammed
with a cot, a desk, and equipment that a person could barely step inside it. Second, it would have
been difficult for Mr. Mickle to receive clients in apartment 9A because it was a residential
building. Third, Ms. French and Mr. Grasso stated that Mr. Mickle resided at 55 West 14th Street
and neither had any indication that he lived elsewhere and worked only there. Mr. Mickle’s
explanation that Mr. Grasso was referring to other offices when he testified that he did not know
where Mr. Mickle worked was unconvincing (Tr. 479-81). Fourth, petitioners had no documents
showing 55 West 14th Street being used as a business address. Fifth, Mr. Mickle admitted that he
paid rent for the bedroom out of his personal account and by cash. It seems unlikely that
someone would pay a business expense with personal funds when a business account existed for
that purpose. Sixth, Mr. Mickle’s testimony that he eventually paid $1300 a month to keep the
bedroom as a storage space for obsolete computer equipment and items that were “junk” (Tr.
445) was incredible.
Moreover, the testimony of Ms. French, as corroborated by Ms. Gould and Mr. Grasso’s
deposition, that Mr. Mickle lived at 55 West 14th Street from 2004 until 2010 was credible. Ms.
French had no apparent motive to lie and petitioners’ attempt to impeach her failed (Tr. 958-60,
963-65; Pet. Ex. 52). Ms. French, the concierge responsible for monitoring the lobby, gave
believable testimony that Ms. Starzecpyzel introduced Mr. Mickle as her roommate, that she saw
him move in, and that she observed him from 2004 through 2010 coming and going at all hours,
collecting mail, receiving guests, doing his laundry, and filing work orders for repairs in
apartment 9A. Mr. Mickle did not challenge Ms. French’s testimony that Ms. Starzecpyzel left
shortly after he moved in and that Mr. Grasso never resided there full-time. Thus, Mr. Mickle,
who admitted to sometimes sleeping at 55 West 14th Street, enjoyed exclusive use of the entire
one-bedroom apartment much of the time he was renting it.
Further support that Mr. Mickle lived at 55 West 14th Street was his admission that he
gave his family this address so that they could keep in touch with him. Mr. Mickle and his
brother also signed documents under oath in the 2009 Surrogate’s Court proceeding listing 55
West 14th Street as Mr. Mickle’s residence. Mr. Mickle’s explanation that these documents
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incorrectly listed his residence was unbelievable. The Loft Board has held that where one holds
oneself out as residing is probative of where one resides in fact. Matter of Muschel, Loft Bd.
Order No. 33, 1 Loft Bd. Rptr. 27, 30 (Nov. 23, 1983).
Other relevant evidence that Mr. Mickle lived at 55 West 14th Street was his August 16,
2010 affidavit filed in support of petitioners’ motion to interpose a Loft Law defense in the court
proceedings. The affidavit recited Mr. Mickle’s offices that he rented between 2007 and 2009
but made no mention that he rented one at 55 West 14th Street from 2004 to 2009. Mr. Mickle’s
explanation that he did not draft the affidavit and forgot to include this long-term rental, which
he had paid rent on as recently as November 2009 (Pet. Ex. 37; Resp. Ex. I), was incredible (Tr.
427-28, 500). It seems likely that petitioners intentionally omitted this address because they
wanted to conceal that Mr. Mickle lived there. But for the coincidence that respondent’s counsel
was the same law firm that initiated the eviction proceedings against the tenants of apartment 9A
at 55 West 14th Street, it is likely that Mr. Mickle’s use of the residential apartment would never
have been discovered.
Even though Mr. Mickle was never served in the eviction action, his assertion that he had
no knowledge of the proceeding was also unbelievable. Ms. Gould credibly testified that Mr.
Mickle called to say he would not be attending a related deposition and Mr. Grasso testified that
he spoke to Mr. Mickle about these proceedings. It seems likely that Mr. Mickle stopped going
with any regularity to 55 West 14th Street after the eviction proceedings were commenced in
December 2009. While petitioners were not present to question Mr. Grasso at his November 29,
2010 deposition, there was no apparent reason to doubt Mr. Grasso’s sworn testimony that was
corroborated in part by other evidence in the record. Mr. Grasso stated that Mr. Mickle created a
small studio apartment in the bedroom for himself, that since May 2010 he had not been using it
as often as before, and that he was still paying rent and had his belongings there. It also seems
likely that when Loft Law protection for the Building was on the horizon in 2010, Mr. Mickle
stopped paying rent at 55 West 14th Street and attempted to reestablish his residence in unit 4S.
Mr. Grasso likely threw away Mr. Mickle’s things around February 2011, the month he
represented that Mr. Mickle vacated apartment 9A (Resp. Ex. I).
There is also support for respondent’s theory that, while Mr. Mickle was living at 55
West 14th Street between 2004 and 2010, Ms. Nazor used unit 4S as her residence while unit 4N
became her painting studio. The post-window period photographs of the fourth floor, which
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petitioners testified show how it looked during the window period, demonstrate that unit 4S was
a more pleasant living space than unit 4N, which looks more like an artist studio and has
significant water damage on the ceiling that Ms. Nazor was very upset about (Nazor: Tr. 70-71,
300-03; Mickle: Tr. 494-96, 527; Pet. Ex. 11A). Unit 4S has south facing windows in good
condition whereas unit 4N has heavily damaged north-facing windows some of which are
covered with paper (Tr. 87). Unit 4S has a finished floor whereas unit 4N’s floors are unfinished
and parts are covered with paper. Unit 4S has a newer kitchen, a dining table, and a television
whereas unit 4N has an outdated kitchen, no dining table, no television, and walls and items
covered in plastic or drop cloths. Ms. Nazor admitted that the plants and many of the books in
unit 4S were hers (Tr. 278, 280-83, 498).
Notably, in 2003 Mr. Mickle installed a security door in the corridor by the elevator that
could be locked so that the fourth floor could be used as one space. Such a door and a large dog
(Pet. Ex. 7A-33) in the corridor would have provided extra security to Ms. Nazor, who admitted
to feeling insecure in the Building, when she was alone there. Mr. Mickle’s limited presence in
the Building would also explain why he left documents for Ms. Nazor with the concierge at 55
West 14th Street and why she called repeatedly on different numbers at all hours of the day and
night looking for him (Resp. Exs. MM-QQ). Petitioners’ various charts (Pet. Exs. 50, 51) and
testimony explaining the numerous calls between them lacked credulity. It seems likely, given
the strained relationship between the couple, that Mr. Mickle avoided Ms. Nazor and that she
occupied the majority of the fourth floor.
It also seems likely that, between 2004 and 2010, Mr. Mickle stored his furniture and
personal items that could not be kept in the furnished apartment at 55 West 14th Street on the
fourth floor and used the “Workspace/storage-4S” as an occasional office. Shortly before Mr.
Mickle moved to 55 West 14th Street, petitioners had the tenants who were occupying the four
studios leave and combined the studios into two spaces. During the window period, Mr. Mickle
listed the Building’s address on his business documents. Mr. Mickle’s claim that he rented other
office spaces was uncorroborated and suspect. It seems unlikely that Mr. Mickle, would pay rent
on three different properties, especially when the Building had ample work space, 55 West 14th
Street had a concierge, and some of his projects had space for him to work on site.
In the face of the proof that Mr. Mickle was residing at 55 West 14th Street, petitioners’
circumstantial evidence, including Mr. Mickle’s window period documents from the Internal
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Revenue Service and the Social Security Administration, a life insurance policy, phone and bank
records, a jury summons, and election records, cannot support a finding that he was living in the
Building during the window period. See 23 Jones Street Assoc. v. Keebler-Beretta, 284 A.D.2d
109, 109 (1st Dep’t 2001) (while documentary evidence can be significant in determining
residence, it is not necessarily preponderate over inconsistent testimony); 300 East 34th Street
Co. v. Habeeb, 248 A.D.2d 50 (1st Dep’t 1997) (traditional indicia of residence, such as driver’s
license, voter’s registration, tax returns, telephone and bank records not dispositive in the light of
credible testimony to the contrary); West 157th Street Associates v. Sassoonian, 156 A.D.2d 137
(1st Dep’t1989) (although tenant’s traditional indicia of residence showed one address, credible
testimony that tenant lived at a different address precluded summary judgment).
Petitioners admitted that Mr. Mickle was drinking heavily and having difficulty
managing his day-to-day life. It seems likely that after moving out of the Building in 2004, Mr.
Mickle never bothered to change his address for these records and collected his mail at what was
now a conveniently located office. Mr. Quinn’s half-hearted assertion that in 2009 Mr. Mickle
told him that he lived in the Building was unpersuasive. Mr. Quinn, who never went inside, had
a motive to assist Mr. Mickle who hires him to work on construction jobs (Tr. 607-08). Except
for petitioners’ self-serving testimony, they failed to produce a single window period photograph
or credible witness who could verify that they were living as two independent families on the
fourth floor.
Mr. Mickle’s claim that he continued to reside next door to his estranged wife during
contentious eviction proceedings with Mr. Milul because it was his “home” (Tr. 402, 499-500,
536-37, 1079-80) was incredible and made no sense. Petitioners argue that Mr. Mickle’s
payments over the past nine years “of hundreds of thousands of dollars” to the owner for the
court-ordered $15,000 a month rent and the “substantial attorneys’ fees” (that began in 2006) is
further evidence that he resided in unit 4S (Pet. Brief at 31 emphasis in original). Except for two
checks written on April 22 and July 8, 2011(Pet. Ex. 27), which was after petitioners’ motion to
interpose a Loft Law defense was granted on December 13, 2010, there are no documents to
establish that Mr. Mickle paid rent for the fourth floor or related legal fees between 2004 and
2010.
While Mr. Mickle’s personal Citibank records from 2006 through 2010 (Resp. Ex. G)
show frequent $1300 a month checks and cash withdrawals for the 55 West 14th Street rent, they
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show no payments that can be linked to the fourth floor. The “hundreds of thousands of dollars”
referred to consist of money transferred from Mr. Mickle to Ms. Nazor’s Citibank account (Resp.
Ex. E). These transfers appear to have begun in 2007 when Mr. Mickle wrote Ms. Nazor two
personal checks for $9,500 on December 27 and 28, 2007. There were also roughly 53 wire
transfers in various amounts, including $7,000 and $9,500, from Rational Business between
March 28, 2008 and June 28, 2010 totaling, approximately $323,215. In between the checks and
wire transfers, from January 4 to March 17, 2008, there were seven deposits in the amounts of
$7,000, $9,500, and $9,600 into Ms. Nazor’s account that cannot be directly traced to Mr.
Mickle’s personal account or his Rational Business account (Resp. Exs. E, G, SS). It seems
more likely than not, however, because these deposits are in similar amounts and intervals as the
other transfers that these were cash deposits from Mr. Mickle who was trying various methods of
conveyance before settling on wire transfers. The total amount transferred to Ms. Nazor between
December 27, 2007 and June 28, 2010, was approximately $406,415.
Notably, the payments of “hundreds of thousands of dollars” by Mr. Mickle for the
alleged increased rent and legal fees, was not part of petitioners’ direct case. Petitioners’
Citibank records showing this activity were provided by respondent (Resp. Exs. E, G, SS) and
were admitted over petitioners’ objections that they were duplicative of their exhibits, which
were the cover pages of their bank records (Tr. 284-88, 450-51; Pet. Exs. 24, 33). When
respondent questioned Ms. Nazor about these transfers on cross-examination, she asserted for the
first time that Mr. Mickle gave her money to cover the increased fourth floor expenses. When
asked where the money came from she opined, again for the first time, that Mr. Mickle obtained
it from his earnings and loans from his brother. Oddly, Mr. Mickle, who had the most complete
information about the transfers, never mentioned them even though he testified three times
including on rebuttal.
The records of the money transfers cannot be related to the fourth floor rent increase. By
the time petitioners were ordered to pay $15,000 a month rent beginning June 1, 2008, Mr.
Mickle had already transferred approximately $92,700 to Ms. Nazor over the course of five
months. There also was no evidence that these transfers were used for legal expenses that began
more than a year earlier and no bills or proof of payment were provided.
A review of petitioners’ financial records and related testimony (Nazor: Tr. 175-76, 268-
70, 289-91, 308; Mickle: Tr. 338-39; Pet. Exs. 27, 37; Resp. Exs. E, G), raise more questions
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than they answer including: If Mr. Mickle was paying for his use and occupancy of the fourth
floor, why are none of the rent checks to the owner from him? Why did Mr. Mickle make wire
transfers from Rational Business to Ms. Nazor instead of writing her a check with a memo to
identify the purpose of the expenditure? Why did Mr. Mickle pay alleged personal expenses out
of his business account and alleged business expenses out of his personal account? If Mr.
Mickle was getting these transferred funds from his earnings as an unlicensed architect in 2007
through 2010, why did he not file tax returns for these same years? Under the circumstances,
Ms. Nazor’s vague and self-serving testimony is insufficient to prove that the money she
received from Mr. Mickle was used to pay any portion of the fourth floor expenses between 2006
and 2010.
The preponderance of the credible evidence demonstrates that Mr. Mickle resided at 55
West 14th Street from 2004 until 2010, and that Ms. Nazor was the only person who residentially
occupied the fourth floor during this period. Thus, petitioners failed to demonstrate that the
fourth floor was residentially occupied by two independent families for 12 consecutive months in
2008 and 2009.
Petitioners also failed to demonstrate that unit 5N was residentially occupied for 12 consecutive months in 2008 and 2009.
In the event petitioners established that there was only one residentially occupied unit on
the fourth floor, they argued that unit 5N was also residentially occupied during the window
period and that the Building is, therefore, an IMD that should be covered by the Loft Law. This
claim must fail.
Mr. Milul testified that he has lived in the same five-bedroom house in Tenafly, New
Jersey, since 1999. During the window period Mr. Milul lived there with his wife and children
(Tr. 612-13, 843-44). Mr. Milul testified that in 2012 his wife moved out and asked for a
divorce. According to Mr. Milul, they have an amicable separation despite his wife’s Facebook
profile saying she is divorced (Pet. Ex. 39). He bought his wife a new house nearby and they
have joint custody of their children (Tr. 683-93, 873-83, 688-94).
Mr. Kaniel testified that he lives near Tenafly and has known Mr. Milul since 1999.
They are good friends and their families have socialized regularly at each other’s homes. Since
1999, Mr. Kaniel and Mr. Milul have played soccer on a weekly basis in New Jersey and coach
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children’s soccer. Mr. Kaniel testified that Mr. Milul separated from his wife a few years ago.
In 2009, Mr. Milul would come to morning prayers at the Lubavitch temple in Tenafly two or
three times a week but now he comes every day. Daily prayers start at 7:00 a.m. followed by a
religious study class which ends around 8:00 or 8:30 a.m. Mr. Milul would sometimes leave
before the class ended. Mr. Kaniel testified that he drove with Mr. Milul by his office in
Manhattan and that Mr. Milul never said he lived there (Tr. 744-52, 759-60).
Rabbi Gershovitz testified that, since 2007, he has been a rabbi at the Lubavitch temple.
He has known Mr. Milul to be a resident of Tenafly since 2007 because Mr. Milul comes
regularly to temple, he often sees Mr. Milul at the kosher grocery, and they play soccer together.
Rabbi Gershovitz testified that he also knows Mr. Milul’s family from the temple and that they
live in Tenafly. Since 2012, Mr. Milul and his wife have been separated. Rabbi Gershovitz was
involved in speaking to them about getting back together and that the couple never obtained a
“get” which is a divorce under Jewish law (Tr. 725-30, 741).
Rabbi Gershovitz testified that, in 2008 and 2009, Mr. Milul came to temple in the
morning at least once a week, on holidays, and on Saturdays with his son who was preparing for
his bar mitzvah. Mr. Milul now comes to the temple every morning (Tr. 731-32, 738).
To support the claim that Mr. Milul lived in Tenafly, respondent submitted documents
from 2007, 2008, and 2009 listing Mr. Milul’s New Jersey address on: tax returns; income
statements; W-2 statements; public school documents for his children; e-mails and photographs
relating to him coaching soccer; bank records; medical documents; E-Z pass records; credit card
statements; water bills; social security statements; health insurance statements; landscaping bills;
receipts; temple invoices; and community center statements (Resp. Exs. K, L, M, N, O, P, Q, R,
S, T, U, V, W, X, Y, Z, AA, BB, CC).
Mr. Milul testified that respondent purchased the Building in 1995 (Tr. 613) and that he
has always used unit 5N as an office. To support respondent’s contention that 544 West 27th
Street is used as a business, respondent submitted corporate tax returns for Mushlam Inc. for
2007 through 2011 (Resp. Ex. EE). The 2007 through 2009 returns identify a commercial
building in New York, New York. The 2010 and 2011 returns identify the Building as a
commercial building located at 544 West 27th Street. Mr. Milul testified that respondent used a
post office as a mailing address for safety reasons (Tr. 897-98). Respondent also submitted Mr.
Milul’s real estate license for 2012-2014 listing the Building’s address (Resp. Ex. FF).
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Ms. Nazor testified that Mr. Milul began construction on the fifth floor in late 2005 (Tr.
67). In December water with acid came down her walls damaging some of her paintings. She
went upstairs and spoke to the contractor who was power washing the walls in unit 5N. He did
not realize that anyone was below and stopped the work. The contractor told Ms. Nazor that he
was renovating the unit and was installing an oversized tub in a bathroom. Ms. Nazor testified
that Mr. Milul eventually moved into unit 5N and that she has been experiencing leaks since that
time (Tr. 68-73, 197-98, 209-10, 300-05; Pet. Exs. 6A, 7A, 8A, 11A). Ms. Nazor also testified
that since Mr. Milul moved into unit 5N, including in 2008 and 2009, she has heard voices and
people walking above her sometimes at night and on weekends (Tr. 73-75).
Mr. Lucic testified that he is a contractor and did some work in the Building between
2004 and 2006 (Tr. 544-47). In early 2006 Mr. Lucic’s workers were in unit 5N because Mr.
Milul wanted to build an office. The work included framing the windows, building movable
bookshelves for a library (Pet. Exs. 11-B(8) and (30)), cleaning the brick, and installing a new
kitchen. He did not do any work on the bathrooms (Tr. 547-53, 561-62, 567). Mr. Lucic
testified that after the work was completed he visited unit 5N a few times and never saw a bed
there. Mr. Lucic also renovated one of Mr. Milul’s bathrooms in a house in New Jersey and met
his wife and one of his children (Tr. 555-56, 564, 568).
Mr. Milul acknowledged that he had the kitchen and bathrooms in unit 5N renovated in
2006. He denied that he ever cooked there and stated that he used the microwave to heat up food
and the stove to heat water for coffee and tea. Mr. Milul testified that he probably showered
there two or three times (Tr. 653-55). He testified that during the window period he never slept
in unit 5N and there was no bed or clothing kept there. The library area was used for storage (Tr.
829-31, 867, 870).
Mr. Milul acknowledged that he had residential phone lines in the Building (Pet. Ex. 43).
In 2006 he installed one in the elevator and one for a fax in unit 5N. He stated that he installed
residential lines because they are less expensive than commercial ones (Tr. 647-49, 842, 871-73).
Mr. Mickle testified that in 2011 he was in unit 5N during an inspection and observed an
alcove that could be closed with glass doors and a kitchen with a double-door refrigerator, a gas
range with a microwave, a dishwasher, a toaster oven, kitchen cabinets, and a granite island.
When he went back in 2014 for another inspection the glass doors and most of the kitchen had
been removed (Tr. 346-47). Mr. Mickle also testified that the bathrooms were above the areas in
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Ms. Nazor’s unit that sustained water damage (Tr. 347). A leak occurred just before the 2014
inspection. When Mr. Mickle went to unit 5N he observed that the showerhead had been
removed, there was an open pipe, and the shower was filled with boxes (Tr. 352-53).
During an inspection in 2011, Mr. Mickle took photographs of unit 5N (Tr. 354; Pet. Ex.
11A). The photos show the kitchen as described above with bar stools around an island and a
rug under the stools. There are no pots, dishes, or food items seen in any of the photographs.
Near the kitchen is a round table with black leather conference chairs and folders and documents
on the table. Photos of the two bathrooms show one bathroom with a vanity and a roll of paper
towels and hand soap. The other bathroom has a glass enclosed shower with a seat. The shower
has a large vacuum and cleaning supplies including a large mop inside. There are no personal
hygiene supplies seen in either bathroom. There is also a billiard table near the library-alcove.
Outside the library are bookshelves holding office supplies, metal filing cabinets, and a desk.
There are numerous plants and some items on the walls.
Mr. Milul acknowledged that there was a pool table in unit 5N and said that he thought he
could put a top on it but that he got a conference table and removed the pool table. Mr. Milul
denied that the alcove area was ever used as a bedroom and maintained it was always a library
(Tr. 655-60). Mr. Milul submitted his own photographs of unit 5N taken during the 2011
inspection (Resp. Ex. DD). He testified that they show office equipment and reflect what the
unit looked like during the window period with some minor modifications (Tr. 831-41). Mr.
Milul also acknowledged that after 2011 he removed most of the kitchen and stated it was
because he wanted to market the unit to a commercial tenant (Tr. 661-67).
Mr. Mickle took photographs of unit 5N during the 2014 inspection (Tr. 360; Pet. Ex.
11B). The photos show the front door with a plaque for Home Quest Properties. Inside the unit
is the same round table with chairs, metal cabinets, and book cases. There is a large desk with
computer monitors. The only remaining fixtures from the kitchen are the lower cabinets with the
sink and an under the counter refrigerator. The bathroom shower is filled with cleaning supplies
and boxes. Inside the alcove area are more bookcases and a low chest on wheels.
While unit 5N could have functioned during the window period as a residence because it
had a kitchen, a full bathroom, and an alcove that could be closed and used as a sleeping area,
petitioners failed to provide any credible evidence or inferences drawn therefrom that it was
actually used as a residence. Cf. Matter of Various Tenants of 357 Bowery, OATH Index No.
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1067/14 (Oct. 22, 2014) adopted in part, rejected in part, Loft Bd. Order No. 4350 (Jan. 15,
2015) (tenants proved that owner lived above them by demonstrating that unit was residentially
furnished with personal items, they regularly heard him at night watching television and using
the bathroom, they brought him food in the unit, and assisted him in household activities there).
Petitioners’ proof on whether unit 5N was residentially occupied for 12 consecutive
months during the window period consisted primarily of circumstantial evidence. Circumstantial
evidence is defined as: “evidence of a collateral fact, that is, of a fact other than a fact in issue,
from which, either alone or with other collateral facts, the fact in issue may be inferred.” Dep’t
of Sanitation v. Ivy, OATH Index No. 2376/00 at 17 (May 3, 2001), aff’d, NYC Civ. Serv.
Comm’n Item No. CD 02-07-SA (Mar. 22, 2002). In order to establish a fact in issue by
circumstantial evidence, the inference sought to be drawn must be based on proven facts. See
Sosa v. Joyce Beverages, Inc., 159 A.D.2d 335 (1st Dep’t 1990). It is only permissible to draw
an inference from the proven collateral facts where it is more likely than not that the inference is
a consequence of the proven facts. If the probabilities are evenly balanced, no inference as to the
fact in dispute may be drawn. Police Dep’t v. Leonick, OATH Index No. 1342/90 (Oct. 2, 1990).
Except for Ms. Nazor’s vague testimony that she occasionally heard voices in unit 5N at
night or on weekends, there was no proof that, since 2005, anyone slept, cooked meals, or
showered there. Indeed, Mr. Mickle acknowledged that he never saw any clothing or a bed in
unit 5N and was unaware of anyone ever sleeping there (Tr. 494-97). Similarly, Mr. Lucic
testified that he never saw a bed in unit 5N and that it was renovated in 2006 to be Mr. Milul’s
office. Photographs of the unit taken in 2011 do not show any personal items, cooking supplies,
or other indicia of residential use that are normally found in a residential unit.
The fact that Ms. Nazor has leaks from above does not prove that unit 5N was used for
residential purposes. Notably, petitioners’ claim that in 2006 Mr. Milul installed a large bathtub
that was the source of her continuous leaks was mistaken. Mr. Milul installed a shower with a
seat. Photographs of the shower taken in 2011 and 2014, show it being used to store cleaning
supplies and Mr. Milul stated in an earlier deposition that this was its primary purpose (Tr. 656).
While Mr. Milul admitted that he used the shower a few times since it was installed, it is possible
that the leaks could have come from the toilet or a sink in the same bathroom. Similarly,
petitioners’ claim that Mr. Milul dismantled the kitchen and removed the showerhead prior to the
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2014 inspection to cover-up prior residential use made no sense. The fixtures were evident
during the 2011 inspection and respondent conceded that they existed during the window period.
All evidence indicated that respondent used unit 5N for commercial purposes as alleged
by Mr. Milul and corroborated by Mr. Lucic and documentary evidence including corporate
records and photographs. Indeed, Ms. Nazor acknowledged that the intercom listing “Sydney
Group” for unit 5N was in existence during the window period (Tr. 129-35; Pet. Ex. 9C-2).
Also credible was Mr. Milul’s testimony, as corroborated by extensive documentary
evidence, and the testimony of Rabbi Gershovitz and Mr. Kaniel, neither of whom had an
apparent motive to lie, that during the window period Mr. Milul lived in New Jersey with his
family and that he only became separated from his wife in 2012.
There was no reliable evidence to support petitioners’ claim that by 2008 and 2009, Mr.
Milul had moved into unit 5N to enjoy a life of “clubbing” as a single man in Manhattan (Tr.
688-94, 741,761-62, 875, 881-86, 1034-47; Pet. Exs. 39, 49). While E-Z pass records show him
crossing the George Washington Bridge into New York on weekends and evenings, these records
and Mr. Milul’s bank records showing ATM withdrawals in New Jersey (Resp. Ex. E) also
support Mr. Milul’s testimony that: he usually came to New York during the week for work in
the late mornings; he often did not work on Fridays; he sometimes visited other properties in
New Jersey during the week; and he would sometimes check on the nightclub on the first floor of
the Building that was involved in a lawsuit and would return to Tenafly the same night (Tr. 696-
720, 883-84).3
Petitioners’ inconclusive evidence and speculation cannot support a finding that unit 5N
was residentially occupied for 12 consecutive months during the window period and is contrary
to the weight of the evidence showing Mr. Milul was living in New Jersey at that time.
FINDING AND CONCLUSION
Petitioners failed to demonstrate that 544 West 27th Street is an interim multiple dwelling under the Loft Law that had two independently occupied residential units during the window period.
3 Because the bridge toll is only in-bound to New York, there are no tolls showing when Mr. Milul returned to New Jersey (Tr. 696-98). Contrary to petitioner’s assertion, the calendar attached to respondent’s closing brief was submitted after the court suggested that the parties create a chart showing the dates and times the E-Z pass was used. Petitioner does not allege that the dates and times listed on the calendar are wrong.
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RECOMMENDATION
While the Loft Law is to be liberally construed in favor of coverage, Ass’n of
Commercial Property Owners v. NYC Loft Board, 118 A.D.2d 312, 318 (1st Dep’t 1986), it
cannot create rights where none exist. Since petitioners failed to demonstrate that the Building
was occupied as the residence of two families living independently from one another for a period
of 12 consecutive months in 2008 and 2009, the application should be denied. Laermer v. NYC
Loft Bd., 184 A.D.2d 339 (1st Dep’t 1992) (where petitioner failed to prove requisite number of
units were residentially occupied, application denied).
Alessandra F. Zorgniotti Administrative Law Judge
May 29, 2015 SUBMITTED TO: RICK D. CHANDLER, P.E. Commissioner APPEARANCES: WARSHAW BURSTEIN, LLP Attorneys for Petitioners BY: BRUCE H. WIENER, ESQ. BY: MAXWELL BREED, ESQ. BELKIN, BURDEN, WENIG, & GOLDMAN, LLP Attorneys for Respondent BY: JOSEPH BURDEN, ESQ. BY: LISA GALLAUDET, ESQ.