The Waiting Game


When painter Philippe Nuell rented a loft in a former noodle factory just north of the Williamsburg Bridge in 1998, he faced a daunting task: how to transform a dirty and empty box into a place where he could not only work, but live.

In the five years since, he has built a bathroom and bedroom and installed a kitchen stove, making his 338 Berry Street loft an airy environment, where he paints his large-scale portraits. “It’s a big change,” says Nuell. “It was a shithole. It was disgusting.”

But all his hard work will be for naught if the building’s owner, Harbor View Realty Corporation, wins its court battle to evict Nuell and a dozen other artists. It’s an old story that first played out 25 years ago in Soho and Tribeca, as artists fought to hang on to their suddenly desirable spaces.

A 1982 state law protected those early loft dwellers, but it doesn’t cover today’s space-seeking artists, many of whom have settled in struggling manufacturing neighborhoods along the East River in Brooklyn, from Red Hook to Greenpoint. Their lofts are illegal—the tenants typically sign commercial leases, which expressly forbid living—but if they can show that their landlords encouraged their residency, the courts often let them stay.

The 338 Berry artists may not be so fortunate. A recent state court decision could doom them, and a city plan to rezone their neighborhood may come too late.

For the painters, photographers, and musicians who came to 338 Berry in the 1990s, rents rose slowly until early last year, when Harbor View Realty, owned by the Long Island-based Lentini family, began demanding 30 percent rent hikes. From visual- and sound-installation artist Sylvain Flanagan, they sought an increase from $1,515 to $2,150.

Worried, the tenants got a lawyer, who said they had a strong chance to win residential status and limit their rent increases. A dozen tenants began a rent strike.

After failed negotiations, the landlord filed 12 suits in Kings County in March seeking to evict each tenant for not paying rent and for illegally converting their commercial lofts into residential spaces. “My client needs money for her life and to run the building,” says Harbor View’s attorney, David Brody.

The tenants argue they shouldn’t be evicted, because state law qualifies them for rent stabilization, but they have to prove that their landlord knew they were living there. The tenants say that’ll be no problem—several have detailed logs listing the dozens of times they say the landlord visited and saw clear evidence of their residency, such as a bed or a bathtub.

Unfortunately for the artists, a recent state appellate court decision says that loft tenants living in areas not zoned for housing, regardless of what their landlords know, should get the boot. In Wolinsky v. Kee Yip Realty Corp., the judges ruled these tenants were “illegal and incapable of becoming legal.”

The Wolinsky case is moving to the Court of Appeals this spring. The result will be critical for the 338 Berry tenants. “If that appeal loses,” says their attorney, Arthur Rhine, who has represented hundreds of loft tenants over several decades, “these tenants will be evicted.”

The tenants do have one final hope: that they can stick around long enough for city policy to catch up with them. As part of Mayor Michael Bloomberg’s housing plan, the city is proposing rezoning a corridor along the Brooklyn waterfront, which, Rhine estimates, includes at least 200 loft buildings like 338 Berry, from manufacturing to residential.

If the city acts in time, the tenants are likely to win. So the tenants wait—their case is currently adjourned until February—worried but hopeful.

Like the other tenants, tai chi instructor Christopher Lee is bitter that Harbor View wants to boost its profits, since it was his hard work that made his loft valuable. “They either want to get rich by making our rents astronomical,” Lee says, “or kick us out and bring in new people to pay more.”