Belkin Burden Wenig & Goldman, LLP
E D I T O R S
magda l. Cruz
aaron shmulewitz Kara i. rakowski
oCt oBe r 2013 | vol U m e 2 7
l it igat ion Com m e ntary
inside this issue LITIGATION COMMENTARY the path to City hall and rent regulation ..............1, 2
the path to City hall and rent regUlation
LITIGATION UPDATES Chronic non-payment of rent in Commercial proceedings ........................4 what to do about offensive odors in apartment Buildings .........................4, 5 mortgagors and Bankruptcy – part 2: what happens when a mortgagor lists a pre-petition Claim against his lender in a subsequent Bankruptcy Filing ................5 ADMINISTRATIVE LAW UPDATE appellate Court rejects dhCr’s attempt to alter one of its longstanding policies relating to the processing of mCi applications ...........2, 3
By Matthew Brett As we head into the New York City Mayoral elections, it may be worth appraising the role of the Mayor and City Council with respect to New York City real estate governance and, in particular, rent regulation. The debate can be polarizing and the subject of demagoguery. But what legal power (as opposed to political dexterity) do our local political officials wield with respect to the vast inventory of residential rental properties in New York City? We will touch upon just a few areas to help separate the politics from the power.
At the outset, rent regulation is generally a creature of State law. The laws are enacted by the State Legislature and the regulations are primarily administered by the State agency, Homes and Community Renewal (also known as the Division of Housing and Community Renewal). The City government, however, also plays a role with respect to rent regulation. Since 1974, State law has provided that Rent Stabilization can continue in New York City, where there is a declared housing emergency. That emergency is defined as a housing vacancy rate not exceeding five percent. continued on page 2
TRANSACTIONS OF NOTE............................6 BBWG NOTABLE ACHIEVEMENTS ................6 CO-OP / CONDO CORNER.............................7
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l itigation Update
The Path to City Hall and Rent Regulation continued from page 1
The City Council is charged with making that declaration of housing emergency. The City Council has declared a housing emergency every three years: 1979, 1982, 1985, 1988, 1991, 1994, 1997, 2000, 2003, 2006, 2009 and 2012. These declarations have been signed into law by Mayors Koch, Dinkins, Giuliani and Bloomberg. Thus, regardless of political party—Democrat, Republican or Independent—all of our Mayors since 1979 have assisted in the continuation of Rent Stabilization. Even if one of these Mayors had vetoed the declaration of emergency, there is little doubt that the City Council would have overridden the Mayoral veto. The declaration of housing emergency is premised upon the purported findings by the Department of Housing Preservation and Development (“HPD”)—a City agency—in their Housing Vacancy Survey (“HVS”). The HVS is conducted every three years and is supposedly based upon U.S. Census Bureau data. The HVS perennially shows a vacancy rate of well below five percent. The next mayor will appoint the Commissioner of HPD.
Through the HVS, HPD has a direct impact on rent regulation and its current existence in New York City. But HPD also impacts rent regulation in a number of indirect ways. HPD determines the eligibility of an owner or developer for J-51 benefits, a tax exemption and abatement program. The interplay between the J-51 program and Rent Stabilization has been discussed in this newsletter frequently and was the subject of the Court of Appeals’ decision in Roberts v. Tishman Speyer Properties, L.P. HPD also administers a large Section 8 voucher program and is the agency responsible for regulating Single Room Occupancy housing accommodations. In terms of how rents are set for rent stabilized apartments (including lofts, SRO’s and regulated hotel units), the Rent Guidelines Board (“RGB”) is the governing body and the host of raucous annual public meetings. Both New York State and City law mandate the RGB to investigate conditions within the residential real estate industry and to establish fair rent adjustments for rent stabilized units.
Under New York State Law, the RGB establishes annual guidelines following a review of the economic conditions of the residential real estate industry in New York City, including such things as taxes, sewer and water rates, operating costs, availability of financing and supply of housing accommodations, while also looking at relevant data from the current and projected costs of living indices in the area. The RGB is comprised of nine members. Each of these members is appointed by the Mayor. Two members are appointed to represent tenant interests. Two members are appointed to represent owner interests. Five members (including the chairperson) are appointed to represent the general public. The chairperson serves at the pleasure of the Mayor. These are just few ways that our next Mayor will have an impact on rent regulation in New York City. Matthew Brett (email@example.com) is a partner in BBWG’s Litigation Department.
Ad m inistrative Law Up dat e
APPELLATE COURT REJECTS DHCR’S ATTEMPT TO ALTER ONE OF ITS LONGSTANDING POLICIES RELATING TO THE PROCESSING OF MCI APPLICATIONS By Phillip Billet In articles which appeared in our May 2012 and January 2013 newsletters, we discussed BBWG’s success in preventing the New York State Division of Housing
and Community Renewal (DHCR) from altering one of its longstanding policies relating to the processing of major capital improvement rent increase applications, a change which would have made it more difficult for many building owners to obtain MCI rent increases. We explained that on two occasions, the New York State Supreme
Court explicitly rejected DHCR’s attempt to alter its policy concerning buildings with defects in some apartments. BBWG has now successfully defeated DHCR’s appeal of the Supreme Court’s order to the Appellate Division, First Department. continued on page 3
Ad m inistrative Law Up dat e
continued from page 2
Background Pursuant to longstanding DHCR policy, DHCR would generally grant a buildingwide MCI rent increase even if defects relating to the improvement at issue were found in only a small number of the building’s apartments. DHCR would grant the MCI increase, but exempt from the increase - either permanently or temporarily - those apartments in which the defects were found. This policy, commonly known as the “Exemption Policy” had been upheld by the courts. In 2011, however, DHCR attempted to implement a new policy which provided that if defects relating to the improvement were found in even a small number of a building’s apartments, DHCR would permanently deny the MCI Application for all apartments at the building. In the case BBWG defended, a building owner filed an MCI application in June 2001 based upon its performance of exterior restoration work. During the initial processing of the application, a DHCR inspector inspected the building and reported evidence of peeling paint and plaster and water infiltration in 10 of the building’s 108 apartments. In March 2006, following its longstanding Exemption Policy, DHCR granted the MCI application and authorized the owner to increase the rents of those apartments which were unaffected by the water damage. DHCR ruled that the owner would be permitted to increase the rents of the 10 affected apartments after it certified completion of necessary repairs to those apartments. Six years later, however, DHCR decided to reconsider its MCI order after the building’s tenants association commenced an Article 78 proceeding seeking judicial review of the MCI order. Upon remand, a DHCR
inspector conducted new inspections of the exempted apartments and reported that six apartments still contained some evidence of water damage. Based on this report, and notwithstanding that the conditions within the exempted apartments had improved, DHCR, in a complete turn-around and abrogation of its Exemption Policy, issued an order permanently revoking the entire MCI rent increase for all apartments at the building. In reviewing the revocation order, the Supreme Court rejected DHCR’s change in policy. The Supreme Court noted that DHCR’s Exemption Policy had been affirmed by the courts, and DHCR’s attempt to alter its policy without setting forth adequate reasons for doing so was contrary to law. Recent Proceedings DHCR and the building’s tenants association appealed the Supreme Court’s order to the Appellate Division, First Department. In a unanimous decision and order dated July 23, 2013, the Appellate Division affirmed the Supreme Court’s order. The Appellate Division found that DHCR’s revocation of the MCI rent increase in this case was inconsistent with its prior determinations. The Appellate Division stated that there was no evidence that DHCR “ever had a specific policy to deny a rent increase outright in the first instance in the type of situation, as here, where defects (water damage) relating to the improvement are found in a relatively small number of the building’s apartments” and that DHCR “did not present any evidence of such policy.” The Appellate Division further concluded that DHCR’s attempt to abrogate its preexisting Exemption Policy in this case was irrational. The Court noted:
It is undisputed that the original DHCR inspection found defects relating to water seepage in only ten apartments in a building containing 108 apartments. As indicated, DHCR initially found this insufficient to deny the entire MCI, as the condition was limited to a relatively few apartments and thus did not negate the fact that the work was comprehensive. The second DHCR inspection, which took place six years later, found even less damage relating to water seepage in only six apartments. It defies logic and common sense to: 1) initially find that “a limited number of tenants (in this case, 10 out of a total of 108)” that may be experiencing problems with the work is not sufficient to warrant a denial of the MCI rent increase; and 2) then render an opposite conclusion when conditions actually improve. Agency action must always be rational and decision making that is typified by erratic and unexplained changes in analysis is the antithesis of that standard and undermines the agency’s rationale. The Appellate Division pointed out that, in this case, DHCR’s “determination to revoke the prior grant of a MCI increase with regard to the unaffected apartments (thereby denying the exterior MCI rent increase in its entirety), was arbitrary and capricious because the DHCR neither indicated a reason for its drastic penalty nor adhered to prior rulings in similar cases where … only a few units were affected.” While DHCR may have broad discretion in processing MCI applications, it may not alter a prior established policy unless it provides prior notice of such change and sets forth the reasoning behind the change. Moreover, the change must be rational. Phillip Billet (firstname.lastname@example.org) is an associate in BBWG’s Administrative Law Department.
CHRONIC NON-PAYMENT OF RENT IN COMMERCIAL PROCEEDINGS By Joseph Burden For many years, the courts have allowed chronic non-payment of rent cases in residential housing court proceedings. The courts have held that where a landlord has brought five or six non-payment proceedings over the course of two to three years and the tenant has not received abatements for defective conditions, then the tenancy can be terminated without the opportunity of the tenant to pay the back rent and stay in possession. In commercial proceedings, the lease generally governs the relationship between landlord and tenant. Some landlords insert a clause in the lease that three or more monetary defaults over a one-year period of time constitutes a material default
under the lease with the right to terminate. However, typically, landlords do not include such clauses and the standard form lease provides that a notice of default can be served upon the occurrence of any default other than a monetary default. What then is a landlord to do when the lease does not provide for termination of tenancy based on multiple monetary defaults, but the tenant is repeatedly brought to court for non-payment of rent? The Appellate Division recently ruled that notwithstanding the commercial lease not having a specific provision prohibiting the chronic non-payment of rent, it is a breach of a substantial obligation under the lease if the tenant is repeatedly taken to court for non-payment of rent. Further, it is the type of default that the tenant cannot cure. In other words, the landlord can bring a holdover proceeding rather than another non-payment proceeding (the landlord in
the Appellate Division case had brought 10 non-payment proceedings over the course of seven years). Upon proving its case, the landlord was entitled to evict the tenant. The Court even held that no special notices were required, since a notice of default is not necessary for an action based upon chronic non-payment. Where a commercial tenant has defaulted in the payment of rent and the landlord has been required to commence numerous proceedings over the course of several years, and the landlord wants to be rid of the tenant, the landlord should consult its attorney to determine whether a chronic non-payment of rent holdover proceeding can be commenced. Joseph Burden (email@example.com), a partner of BBWG and co-heads the Litigation Department.
WHAT TO DO ABOUT OFFENSIVE ODORS IN APARTMENT BUILDINGS By Martin Meltzer Offensive odors created by a residential tenant can pose significant problems for owners. The problems can include damage to the ownerâ€™s property, an abatement of rent awarded to a neighboring tenant who is not causing the odors but affected by the odors, loss of tenants affected by the odors who vacate their apartments, and the inability to rent apartments to prospective tenants who detect the odors when viewing an apartment.
Some examples of odor complaints are marijuana smoke, cigarette smoke, urine (both animal and human), cooking and a combination of decaying food, animal feces and garbage. The fact that an owner is made aware of an offensive odor emanating from one tenantâ€™s apartment into anotherâ€™s or into a public area or even commercial space does not automatically mean an eviction proceeding should or can be brought against the tenant suspected of causing the offensive odors. Often, an owner thinks that the odors are coming from one apartment, but in actuality,
the odors stem from another apartment. Odors can travel through the ventilation systems of a building, especially cigarette or marijuana smoke. It is sometimes hard to pinpoint where the odors come from. A report of offensive odors should trigger an immediate response by the owner. Prior to contacting counsel to start the eviction process, the owner should conduct a thorough investigation. Even for owners who have experience with this type of situation, it would be prudent to consult with counsel for ideas to try to correct the odors without resort to litigation. Some suggestions include having the owner continued on page 5
continued from page 4
or its staff gain entry into the apartment that is suspected of being the cause of the offensive odors. If this is done, it should be easily ascertainable whether this particular apartment is the source of the offensive odors. If access is not possible, the owner should try to gain access to all other apartments on the floor (at least those the owner has received complaints from) in order to rule them out as being the cause of the odors and/or to evaluate the seriousness of the odors within the complaining tenant’s apartment. An interview of as many tenants as possible who reside on the offending tenant’s floor should be conducted to vet out the type of odor, the strength of the odor, the affect that the odor is having on the complaining tenant and the duration of the odors. Owners
should have the other residents’ complaints the investigation or remediation is pending. documented in writing contemporaneously with the date and time of the complaint. Only after ample evidence is gathered (photographs of the condition of the While this process is happening, I often offending apartment, interviews with recommend that the owner try to take tenants, inspection of apartments and remedial measures. Taking this course documented complaints) should an owner of action can defuse other tenants from bring a breach of lease or nuisance case. It vacating their apartments or seeking is also extremely important for the owner abatements of rent. These measures to get commitments from one or more often hold the odors at bay pending the tenants who are affected by the offensive investigation and an eventual lawsuit if the odors to come to court and testify as to odors are not voluntarily abated. Some of the their impact on their lives. Judges prefer to remedial steps can include the installation hear testimony from a non-owner witness of door sweeps on the odor-causing tenant’s and the effect that the odors have had on door and the affected tenant’s door, the affected tenant and his/her family. caulking the baseboards and electrical switches and outlet receptacles, installing Martin Meltzer (firstname.lastname@example.org) is the air purifiers in the apartments and using head of BBWG’s nonpayment department and scented sanitizers to mask the odors while a partner in the Firm’s Litigation Department.
MORTGAGORS AND BANKRUPTCY – PART 2: WHAT HAPPENS WHEN A MORTGAGOR LISTS A PRE-PETITION CLAIM AGAINST HIS LENDER IN A SUBSEQUENT BANKRUPTCY FILING By William M. Rifkin In the June/July 2011 issue, we discussed the Court’s holding in Crawford v. Franklin Credit Mgmt. Corp., 2011 WL 1118584 (S.D.N.Y. March 23, 2011), that the failure of a debtor to list causes of action and claims in a prior bankruptcy petition bars the debtor from asserting those causes of action and claims in subsequent litigation. We now come to a related issue: Does a debtor in a subsequent filing have the right to pursue a scheduled pre-petition claim after the bankruptcy case is concluded? For that answer, we again turn to Crawford v. Franklin Credit Mgmt. Corp. 2013 WL 2951957 (S.D.N.Y. June 14, 2013).
After the District Court dismissed Ms. Crawford’s action, she filed a Chapter 7 bankruptcy petition, this time asserting the claims that she had neglected to assert in her prior bankruptcy case. The Bankruptcy Court held that those claims belonged to Ms. Crawford’s estate, so she could not pursue them. When the Chapter 7 trustee abandoned those claims, Ms. Crawford commenced an adversary proceeding in the Bankruptcy Court against Franklin Credit based on those claims. The Bankruptcy Court dismissed the adversary proceeding and held that the trustee’s abandonment did not have the effect of conferring standing upon Ms. Crawford to pursue those claims, nor did her claims “re-vest.”
scheduled estate property that has not been administered by the trustee normally returns to the debtor when the bankruptcy court closes the case, undisclosed assets automatically remain property of the estate after the case is closed,” for the simple reason that a debtor cannot conceal assets and then, upon termination of the bankruptcy case, utilize those assets for his own benefit.
Ms. Crawford then moved to reinstate her federal action, arguing that her claims had re-vested. The District Court denied that motion and held that “while properly
William M. Rifkin (email@example.com) is a partner in BBWG’s Litigation Department, specializing in bankruptcy and foreclosure matters.
The import of this decision is that a debtor cannot attempt to turn back the clock by filing another bankruptcy petition scheduling claims that he omitted in the prior filing, and then attempt to assert those claims in other litigation.
transaCtions oF note DANIEL ALTMAN handled the following transactions: • With SETH LIEBENSTEIN represented The Riese Organization in a $4.6 million refinancing of 800 Lexington Avenue, a mixed-use building, through Investors Bank. • Together with ROBERT JACOBS and ALLAN GOSDIN represented KMG Partners in the $20 million recapitalization and refinancing of Clarendon Gardens, a 224-unit garden apartment complex in Brooklyn. As part of the transaction, BBWG negotiated an amended and restated operating agreement with the entity that provided additional capital for the transaction, negotiated the take-out of an existing preferred equity partner, and simultaneously refinanced the existing debt on the property with Pembrook Capital. • With SETH BELL represented a secured lender (51st Street Lender LLC (Dalan Management and Standard Property Company)) in the acquisition of a commercial condominium unit at 400 East 51st Street from its mortgagor/debtor in conjunction with a Chapter 11 bankruptcy reorganization plan. The $6.8 million acquisition loan was financed by Bank United. The commercial condominium’s tenants include JPMorgan Chase Bank, H&R Block and various retail tenants. • Together with ALLAN GOSDIN represented owner Fine Arts NY LLC in the negotiation of a new commercial lease with designer Michael Dawkins at 232 East 59th Street. • Represented a hedge fund in the negotiation of a midtown oﬃce lease. • With HOWARD WENIG represented an owner of a garage and development site in the reinstatement and modification of two loans totaling approximately $15 million with a new lender that had purchased the existing notes from a prior lender. SETH BELL represented a Delaware not-for-profit corporation in the bulk sale of 19 residential and three commercial condominium units in midtown for a sale price in excess of $15 million.
BBwg notaBle aChievements SHERWIN BELKIN, a partner in BBWG’s Administrative Law and Appeals Departments, responded to an inquiry in the Sunday New York Times Real Estate section on August 18 regarding tenants needing to retain old leases. Mr. Belkin also penned a blog posting entitled “Pets in NYC Apartments: Find Out the Rules Before Fido Moves In” on StreetEasy.com on September 3, accessible at http://ownyourhome.streeteasy.com/pets-in-nyc-apartmentsfind-out-the-rules-before-fido-moves-in/. Law 360 also quoted Mr. Belkin regarding a recent administrative decision favoring AirBNB operations. Mr. Belkin stated, “This doesn’t represent most of the rentals that AirBNB or any of the other occupancy facilitators engage in....[E]ven with the ‘roommate defense,’ using an apartment as a short-term vacation rental often violates a slew of other laws and regulations.” JOSEPH BURDEN, co-head of BBWG’s Litigation Department, was quoted in a lengthy article in the New York Times on July 30 regarding a postSandy-related litigation in which BBWG is representing the owner of a Tribeca loft building. Mr. Burden was also quoted in an article in The Real Deal on-line edition on July 25 regarding a litigation being handled by BBWG involving misrepresentations by a Nolita tenant over illegal subletting. AARON SHMULEWITZ, head of BBWG’s co-op/condo practice, was quoted in articles in the Sunday New York Times Real Estate section on shareholders’ use of second apartments in co-ops (August 11), and Boards’ eﬀorts to monetize hallway space and other common areas (September 1). DAVID SKALLER, a partner in BBWG’s Litigation Department, was quoted in an article in the Wall Street Journal on August 21, commenting on a recent Court decision that held a law firm liable for its erroneous rent demand that had been based on its client’s mistaken information. LEWIS LINDENBERG, a partner in BBWG’s Litigation Department, authored a blog posting entitled “No Butts Allowed: Building-Wide Smoking Bans in NYC Co-ops and Condos” on StreetEasy.com on August 12, accessible at http://ownyourhome.streeteasy.com/no-butts-allowed-building-wide-smoking-bans-in-nyc-co-ops-and-condos/. Mr. Lindenberg was also quoted in an article in The Real Deal on July 15 regarding a dispute between retail tenant, Jennifer Convertibles, Inc., and BBWG client, 902 Associates, who Mr. Lindenberg represents in the Supreme Court litigation involving retail space at 902 Broadway. STEVEN KIRKPATRICK, a partner in the Firm’s Litigation Department, was quoted in a feature in The Real Deal on-line edition on August 1 regarding gifts to real estate brokers. Mr. Kirkpatrick was also cited in an article in the August 27 New York Law Journal about the settlement of a postSandy class-action lawsuit involving 1,400 tenants, in which BBWG had represented the owner. MAGDA CRUZ, a partner in BBWG’s Appeals Department, spoke at the New York County Lawyers’ Association 2013 Jack Newton Lerner Landlord Tenant Practice Institute on September 20th. Ms. Cruz discussed key aspects of appellate practice in landlord-tenant cases before the New York State appellate courts involving Manhattan and Bronx properties.
Co-op | Condo Corner By Aaron Shmulewitz Aaron Shmulewitz heads the Firm’s co-op/condo practice, consisting of more than 300 co-op and condo Boards throughout the City, as well as sponsors of condominium conversions, and numerous purchasers and sellers of co-op and condo apartments, buildings, residences and other properties. If you would like to discuss any of the cases in this article or other related matter, you can reach Aaron at 212-867-4466 or (firstname.lastname@example.org).
BOARD PRESIDENT OF COMMERCIAL CO-OP DIDN’T BREACH FIDUCIARY DUTY BY SUBLEASING HIS SPACE; SUBLETS WERE APPROVED BY DISINTERESTED DIRECTORS Irene David Realty, Inc. v. Moyal Appellate Division, 1st Department COMMENT | The Court also held that the co-op was not entitled to any share of the subrent or profit. HOA CANNOT SUE SPONSOR’S CONSTRUCTION DEFECTS
Harbour Pointe v. Benjamin Beechwood LLC Supreme Court, Queens County COMMENT | In dismissing the complaint, the Court held that the HOA was not a third-party beneficiary, and no privity-like relationship existed. This case continued a pronounced trend of rulings against condos and HOA’s in defect cases. SHAREHOLDER CANNOT SUE CO-OP OR BOARD MEMBERS FOR BREACH OF PROPRIETARY LEASE, BREACH OF FIDUCIARY DUTY OR BAD FAITH CONDUCT Hixon v. 12-14 East 64th Owners Corp. Appellate Division, 1st Department SPONSOR’S PRINCIPAL NOT LIABLE TO CONDO FOR COST OF ROOF REPAIRS
CONDO CAN BE SUED BY ELEVATOR CONTRACTOR Nouveau Elevator Industries, Inc. v. Glendale Condominium Appellate Division, 2nd Department CO-OP’S CLAIMS FOR CONSTRUCTION DEFECTS DISMISSED AS AGAINST SPONSOR’S PRINCIPALS AND ARCHITECT; MOST CLAIMS ALSO DISMISSED AGAINST SPONSOR Sutton Apartments Corporation v. Bradhurst 100 Development LLC Appellate Division, 1st Department COMMENT | See “trend”, above. CO-OP THAT SOUGHT T.R.O. TO ENTER APARTMENT TO REMOVE DEAD CAT AFTER ALREADY EXERCISING SELF-HELP AND DOING SO MUST PAY SHAREHOLDER’S LEGAL FEES 433 Sutton Corp. v. Broder Supreme Court, New York County COMMENT | The Court emphasized that the co-op had not been forthright in its representations to the Court in seeking the TRO. CO-OP SPONSOR CAN BE SUED FOR RESCISSION BY CONTRACT VENDEE; NOT BARRED BY PRIOR ATTORNEY GENERAL DETERMINATION ON UNRELATED GROUNDS Sapphire Investment Ventures v. Mark Hotel Sponsor Supreme Court, New York County
Board of Managers of Madison Tower Condominium v. Hopetel, LLC Supreme Court, Queens County
COMMERCIAL CONDO UNIT OWNER, AND CONDO, NOT LIABLE FOR SIDEWALK TRIP INJURY
COMMENT | Continuing the trend (see above), the Court held that there was insufficient evidence of fraudulent intent by the sponsor’s principal.
Fayolle v. East West Manhattan Portfolio, L.P. Appellate Division, 1st Department
42-YEAR RENEWAL TERM OF SPONSOR’S MASTER COMMERCIAL LEASE WITH CO-OP INVALIDATED Ninth Street Associates v. 20 East Ninth Street Corporation Supreme Court, New York County COMMENT | The Court ruled that the lease had terminated when the co-op acquired the leasehold interest. Significantly, the Court deemed irrelevant the co-op’s subsequent estoppel certificate that stated that the lease was still valid. 7
COMMENT | The Court held that the commercial unit owner had no control over the sidewalk as per the condo’s governing documents, and that the condo should not be held liable for a trivial defect. UNIT OWNER’S COUNTERCLAIMS AGAINST CONDO DISMISSED; MOTION FOR SUMMARY JUDGMENT FOR DAMAGE TO TERRACE DENIED Board of Managers of The Residence on Madison Condominium v. Aryeh Supreme Court, New York County 7
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