Elimination of Building Lobby Creates Hardship for Tenants

(Decision submitted by David Hershey-Webb of the Manhattan law firm of Himmelstein, McConnell, Gribben, Donoghue & Joseph, attorneys for the tenants.)

Facts: In 2004, landlord bought a building containing 10 rent-stabilized, six rent-controlled, and 18 unregulated apartments. Landlord also bought the adjoining building. In 2005, landlord began alterations that combined parts of the building’s lobby area with the lobby of the adjoining building. Tenants now had to enter through the other building’s lobby where a 24/7 attendant screened visitors. A new, second elevator also was added to the old lobby area. Landlord didn't file a DHCR application for modification of services until June 2007. At the same time, landlord continued the alteration work, which eliminated the building entrance and lobby. Tenants opposed landlord’s service modification application and filed a complaint that landlord had reduced required building-wide services. The DHCR ruled for tenants and froze their rents. Landlord appealed, claiming that the DHCR’s decision was arbitrary and unreasonable. Landlord argued that the work improved the building and didn’t reduce services.

Court: Landlord loses. Landlord eliminated the building entrance and lobby, and combined them with existing commercial space on the ground floor. Because the ground floors of the two buildings were at different levels, landlord added ramps between the buildings. Tenants showed that the new connecting passageway between the buildings violated the Building Code and created an inconvenient and hazardous condition, particularly for the 15 disabled tenants living in the building. Landlord should have sought permission from the DHCR before doing the alteration work. If landlord did additional work that removed the hardship to tenants, the DHCR said that it would consider another application to modify required services.

230 West 97th Street LLC v. DHCR: Index No. 115797/09 (6/18/10) (Sup. Ct. NY; Hunter, J) [7-pg. doc.]