Broome JV LLC v Goldstein

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Broome JV LLC v Goldstein 2014 NY Slip Op 30439(U) February 21, 2014 Supreme Court, New York County Docket Number: 110852/2011 Judge: Anil C. Singh Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various state and local government websites. These include the New York State Unified Court System's E-Courts Service, and the Bronx County Clerk's office. This opinion is uncorrected and not selected for official publication. [* 1] SCANNED ON 2/26/2014 SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY HON. AJ-;11 C. SINGH sm~.rn PRESENT: coURT rusTI'CB 6/ PART Justice Index Number : 110852/2011 BROOME JV LLC vs. GOLDSTEIN, MICHAEL SEQUENCENUMBER:001 INDEX N O . - - - - MOTION DATE _ _ __ MOTION SEQ. NO. - - - OTHER RELIEFS The following papers, numbered 1 to _ _ , were read on this motion t o / f o r - - - - - - - - - - - - - I No(s). _ _ __ __ / Notice of Motion/Order to Show Cause - Affidavits - Exhibits Answering Affidavits - INo(s). _ _ 2- __ _ Exhibits----------------- s___ I No(s). _ _ _ Replying A f f i d a v i t s - - - - - - - - - - - - - - - - - - - - - Upon the foregoing papers, it is ordered that this motion is Wi ti... ./;hl,, t\11l'le,k:e/l de.. c i tlc..c:~ /he../nttrt\..~U/J1 I ·"' ct c:. c.a rlt\ /) ~ °17l"1tt1/L w (..) ;::: r-r:;:::~:n:-;n r.~,j ,fl-Cl"'ni,rH ~'<!"f ~enTU ,.~,. ~'" .,..,,~'J·'<..,.-"· ;>.:,,;...&.:'..:~1.fJ·,.e: u.j~~n en :::> .., ...... 0 {., t ' .' ' ...... .. ·. ,,. ,. ¢ " ¢ , ',, ·J~." ~ __ ,..·· ;.<. . ~ ~= ~ ~:,;-.,~ , ,. \J; a:~rr:S':~\ .:.,J ..... f c \ w 0::: 0::: f\\..EO w w u. 0::: >- .:..:. ..J !Q. ..J z :::> 0 u. en """u <( w w 0::: g:, C) z 0::: en 0 5: w w en ..J ..J z w :I:: 0 (..) u. <( 0 ..... ;::: 0::: 0 0 :IE u. Dated: 2..-[ Z... l { ( HON.A~~ ::=:-- '-f s-,:.JJ?llt~ COURT ~STICE 1. CHECK ONE: ..................................................................... 0 0.DENIED 3. CHECK IF APPROPRIATE:................................................ 0 SETTLE ORDER 0DONOTPOST - ,l2<l NON-FINAL DISPOSITION CASE DISPOSED 2. CHECK AS APPROPRIATE: ........................... MOTION IS: 0GRANTED ,J.S.C. 0GRANTED IN PART J2{oTHER 0SUBMIT ORDER . 0 FIDUCIARY APPOINTMENT 0 REFERENCE [* 2] SUPREME COURT OF STATE OF NEW YORK NEW YORK COUNTY - - PART 6 BROOME JV LLC a:id Tl"'.VROS MERCER OWNER, LLC, Index No. Pla - 110852/11 tiffs, against - MICHAEL GOLDSTEIN and INFOMAX RADING COR?., Defendants. tiffs Broome JV In this action, pla Mercer Owner, LLC (Tavros), owners of a located at 450 Broome Street, New York, 450 Broome), company, In ng Corp. tha (Infomax), ldi the , have no ri and his to use smiss the is entitled to continue the roof as he has been o use Plaintiffs cross move for sumrnary for the relief s The material facts or and that defendants Defendant Goldstein moves for summary j j il of their property from it. the roof and must remove complaint and decla and Tavros are ent tled that (Golds ein), a tenant T LLC·l~ome) New York (the bui seek a declaratory e . . -story to exclusive use of the building's roof, Michael Go ' ''( · · NE:W "'ORK "".· )UNT\' ()tf Ht<rg OA:-li"'r HON. ANIL C. SINGH, J.: in f this case are Goldstein has resided in the n or around 1973 o.r- 1 comp_;_air:t. l argely undi ars, for about 40 4 ( with the permission d. 0 the since [* 3] buil r own .r< ,,.1,~ a convert y ~, to a space of De t Dep., Ex. laude~ Aff., Aff. ), Soho area The bui now ce on the f Danz Aff.), ~ r Af f. 4; Golds , wi buil . , at 18, s In S da~ghter. +<., owne loor 974, Go a/k/ :-:ot express y Ex. See Lea t cial (Danzger nto moved year Aff., te few years, ~ er, il S; Goldste covered the ed plants and chairs, and se 450 Broome ft. s' Mot who left about Gol Goldste r COITLme sing t:he roof of he box al'.d at Dep., at 4 Danz soon a ter Wi hin the firs with Astroturf, in ed to De lfr~end, his then gi 0. it ·.,.:as 5I 4. tein, s 1 eight floors of re idential uni in Aff., area Gal audet rs has had, a sit I o Defendants' Moti s lly ily art sts. in their as a pl gra r According to Gol dsLe n 5; ' 5I Lhe bui and for s, in like nuIBerous othe n the 1 7 Os, ti al tenants, pr :::-es s , in dust frorr. f. n ., Ex. X 17; Oanzc;er at Golds in Oppos tion Golds ein for t io. the buil stein }\ff-. ) (Go audet Aff. 11-1 z s esi nts' Motion to Ga floor unit tf1e t or Idf., s DSL 5; Cff \DSL) o Danzger rmit access t:o or -2- ., ldste a two-yea lease r the 1974 se of up he ~eas th [* 4] Id~ t:he childre:i Gol .ldstein' 977, I ei r: and Goldstein Aff., ly re it as a tr s, 1 owers ect er, outdoor 1 l contai at 4 49. fri el rate garden; ran ce r 1 wi pe red the roo Id., <JI 7. the ear Go it w a "panic he tein Aff., <JI 7. of his t ssessions on t: roof asking his tates that, wh~le access lway stai broken r, and an alarm s rm. to the a ildi.ng T ' _La. , ':!! 8 . rintendent held s Dep., a door at the top of a d.istributed to re te of the landlord. roof w repai ::::-ed 1990s which of his he beginni tein also Go "' ., Gal t nants used one ex ssion. nd roof, On to be from t no ot to che roof was throu ne shed sion. with the knowl He asserts sta 1 o the roof tel rator and attests t roo and usi Go dste n pla ted phone se i1e cons he used t ' Id. eventually p aced ¢ Goldste roof, sr1ci lizi d and repaired it at his expense. ma ' 0. on more furniture and cooking e ( a yea s, the ensu t ls' two he s, ere ting d c, a -'- and he children. ting; rger a eating we ayground for f Ove 6. ~ arly r, s ially in e d in, , Nan a key from h +. L on the and maintai Only co the door, if t -3- wanted reola d ard and the and ether go onto enant in [* 5] . 00 , in Gol enants in the bu:L di s a e si ~he that he used 4 -4 t three St c e, Ma a Scanlon, re tenants lding owners, ss on, un il use of th exclu ~aw, la :1t re on of ing conver s in Soho, ir enacted, status, red that re rf orm <JI (IMDs), ect Lo the Rent Stabilization Law once lega ized for resi IMO (Gallaude 1 use. ~h ist cert fi process of obt in resi owner ~ j_ ¢ Law, see ial certificat n 1998. the New York C ., ~[ were f 8) , y ft Board as an and the e of oc l\ of occupancy eventually was See Certifi ate In November 1998, o~ suant "'.::o DSL offered Gold tein a two-ye r 1 as rtment Lease, Ex. E o Dan ger Af . -4- 11 Law was enacteci, After the Lo Af f. , :II 7; Danz ain s covered 9. e Dwellings known as Interim Mult e See tial use. tein Aff., Go strial the Loft Law wa ngs for resi i. 7 n l; ~ Gallaudet Af ., ome was n S~, enant. in exchange for rent increa es, work to legalize 450 L annexed to Goldstein Aff. e to t ial by the Loft ""' ts of Charles Carson, Lewis Stein, In 19 2, ch grant J_ roof, without Goldstein's See Af fi Gol +.. L ""' them attest t d a lease fo t ed s L.S roof; the f ou th use of 1 93, when Goldstein roof. In af f Ex. i to Go ds ireme;-its c.c Danzge the ss A f., 1·Jhi e the lease Le ~ O; [* 6] included a provision prohibiting use of the roof, Goldstein continued to use the roof, under the terms of a 1993 written agreement with DSL. In an affidavit submitted on behalf of plaintiffs, Joshua Danzger (Danzger), managing member of former building owner DSL, acknowledges that he knew that Goldstein was using the roof, but claims that he objected to the use. Goldstein acknowledges that, Danzger Aff., ~~ 6-7. sometime in 1992 or 1993, Danzger contacted him to demand that he discontinue use of the roof, but subsequently he and Danzger negotiated a written agreement permitting Goldstein to use the roof for a monthly fee. Goldstein Aff., ~ 10; Danzger Aff., ~ 9; see License Agreement (1993 agreement), Ex. D to Goldstein Aff. The 1993 agreement granted Goldstein exclusive use of the entire roof for three years, at $750 per month, and provided that Goldstein would maintain the roof and pay for repairs at his own expense, and would maintain liability insurance for the benefit of the landlord and hold the landlord harmless against any legal actions brought against the building or its owners as a result of Goldstein's use. Goldstein Aff., Danzger Dep., at 39-40. ~ 10; Danzger Aff., ~ 9; The agreement further provided that, if Goldstein's use was deemed by any government agency to be illegal, or required modification to make it legal and Goldstein refused to make the modification, the agreement would -5- [* 7] Goldstein Aff., te. aut.oIT_a ic greement expired, Gold repair and ma ain the roo . rents we Go set for resi State o e lea e. ia2- ;inits 200C, his apartment, 2000, and in 9W, the bu:Llding, t identifies Goldstein s strat ial DHCR apartment rm states it was filed on October 19, tt:e owner. 4W, rtment For purposes of filed on the same date, which services for which a s e tial tted a copy of the initial also has s form for See I A::'f., Box 13. , Ex. H to Goldste n November 20 agreement, and to ch "Roofn is identified as a service for which a rison, Goldste st rat (OHCR) r tenants, a rent stabilized separate charge is collected Regist:rat initial ister t:he building with the New York , and cert:a y of the i for, ction of the Loft Board, and See Order, Ex. G to Goldstein Aff. submitted a at ril 27, ren~ 12. of Housing and Community Renewal offer fo recteci e ~ stein Aff., building was removed from the juris t:he owner was 10. in continued to use, pa order of the Loft Board dat lega ~ si n the name of his company, rate charge is d anot r o lected. three-year Infomax,: to use the roof, increased monthly rent; the terms otherwise were the same 'Goldste n asserts that: he doe not know the contract wa in Inforeax's name; Danzger testified ~hat he ssJmed twas for Goldste 's tax purposes. Goldstein Aff., ~ 15; Danger ., at 1920. -6- [* 8] eemen.t, cense In December 2002, Aff. Danzger foll letter, agreed to and s s rate, i , whi roof area was not covered r Rent Stabi iza ion Law, and that the roof agreement was separa e; and the owner also r be pa rent for the roof aLd the Letter, Ex. set forth DSL's and the ninth floor aparcment were areas, that the Left Law with a '.lp the agre Goldste understanding that the roo to Go 1 dste Sx . K to Go Aff. November 2005 for quested that the ely. s See The roof agreement was renewed r three years, th further rent increases, and Danzger again followed up with a letter, which was not s ned Goldstein, spaces were properties and i separate, stand alone and Letter, Ex. M in 2007 to Me (Nova) ding wa Danzger Aff., ~ y, transferred 1. In Ju rtment of Bui"dings (DOB) issued a violati "foliage reserr.bl rding the s ructural elations, tabil~ty of the roof. Ex. N to Goldste st 28, 2009, Nova to a forest" on t tan engineer's and directed the owner to s Cor::::-eci::. Ex. terranean Sun June 2009, ownership of the Nova based on structures roof, ement, o Goldstein Aff. to Nova ?ine i can Soto, LLC. 2009, the agreement was a r See License reement. DSL sold the buil LLC., and roof and apartment re terat ~ ldst.e -7- Aff. See Order o etter dat that i t was te i [* 9] is license to use th property on se, r roof, oaf. ~he See Lett r, Goldste res lve the DOB Goldstein f. occurred wi e, d h to le further Goldstein Aff., olat y refused to ac to he had a that he ineer's report to the DOB and not Nova subs \\ ha See Letter, Ex. P tc ola i attests, w te ass rted formed Nova that he had hired and eng neer t Go he remove Ex. 0 to Go dstein Aff. his a torney, to use the roof, ted the and demanded th t Go g[ 22. s, in's rer1t na s" (see Letter dated October 2 proce 2009, Ex. W to Gallaudet Aff.), ' and Goldstein apparently s , but continued to use and ma ain the roof, without her obj ction frorr Nova. The buildi was sold to plaintiffs in or arouna June 20 1. Zecher Aff. Aff., ~ 23; ition to Defendants' Motion, see De ~ l; Goldste n Goldstein was told , Ex. V to Goldstein Aff. the new owners to remove all his possessions from the roof because they were ir work, and inte Goldste n Aff., 2011, anning to use it as a stag aintiffs ~ d to then rep ace the whole roof. 23. nformed his license to use the censee Notice of T area for facade notice of te nation dated t ldstein that they were termi , effect natio;i, Ex. t: 29, See Ten -c.o Goldstein Af Plaintiffs then corrmenced the in "Cant actio'.l in -8- 2011. ember 2011. [* 10] 2Dll, Go e Goldst of Ncvemb r n Aff., the ro f. f d removed all of h s property ~ 3. It is well settled that to prevail on j , the movant must s by submitt fense, a motion for or b ish the cause of act nti ry proof in admiss ummary le form, "sufficient y to warrant the court as a matter of law recting j ., 68 NY2d 320, NY2d 557, s CPLR 3212 Ff 562 324 (1980). j (b); (1986); A .Iva re z , Once such showing has been made, rty must, s the ssues of fact whi 6 8 NY 2 d at 3 2 4 ; form, eum v Loer,,1s le to Trven tie th Cen tu Film noted, "'issue-f NY2d at 404 , In arn e nonmoving party 932 [2007]), and the doubt as to the existence or where the issue is "a 46 NY2d 223, See Rotuba Ex g the evidence must be nemas, In ., 8 NY3d 93l, iable issue of fact, long 4 9 NY 2 d at 5 6 2 . , motion must be denied if there is of a t tt defeat "establish the existe:c1ce of see Zuckerman , most s also ~o require a trial of the action." reviewing a mot on for suITu."'lary j ewed in a 1 ct ty of l'Iew York, 4 9 v Zu evidentiary proof in ad::nissibl material see Alvarez v 231 . , 3 NY2d 395, the key to surmnary j (1978) i 404 r (1957). solution i rather than is ue-determination.'" (internal citation omitted). -9- Sil n \l As has [* 11] -::hat Goldste lS ab l zed f t S~abi Rent Code of the Ci y o s New York ;,d the RS us filed at t status, demonstrate , use r Gol ng owner and, not a York." Rubin s;: rm ~ any event, was a red se ey a so (1). y r hous Eim eke, s de J s 98 eguards in general, istrat "L available -10- mi irre ce. re in 150 AD2d 697, may not be e at any the owner's maintenance of s rvices in quality and tted iffs contend t tenants and the public interest." (c) t a the DHCH registrat on rent incre ses and, against unreasonably 26 511 r ' to and pe The purpose of the RSL and RSC is to § RSL ·"- tei ect to a license, 1 use a protect[] "- t th 0 the roof was a s rvice tha ~ in's Jse was recreat 01 2520.l (9 NYCRR ~ without DHCR approva . the buil 26 , or cont ve the building converted to rent stabilized t discont he ancillary s rvice under r many years, owner Golds (RSC) sive use of the roof, his open and exc pr on Code to use the roof. ri to nis rat ve ired, as Goldstei ' s the ex a re, s~rat ssue is whether Goldstein's At ng's roof i1 Lhere izati and the Rent Stabi iza .) . is a tenant in a rent , and is entit ed, ect ons seq.) ~ tie rent incre ses rder to maint the cir zens of l 8 9) . the [* 12] "Under Administrative Code § s abilized buil mus 6-514, al ma when the bui ding first an owner of a rent service subject to rent st Matter of Bluestar ties, Inc. & Community Ren wal, 2011 WL 2138966, 24 6, *13, 2011 201 ), a 91 Re qui 313 7(U), Slip d 490 se (1 t re p ilization." New York State Div. of Hous. NY t **10 2011 NY Misc LEXIS (Sup Ct, NY CoGnty Dept 2012); see 9 NYCRR § 2523. ces are defined c::he RSC as "[tjhat space and those services whi the owner was ma a or was required to maintain on the icable base dates . . and any additional space or services p ded or required to be provided reafter by appli e law. ~hese may lude, but are not l t to, the following: repairs, decorating and naintenance, the shing of light, heat, hot and cold water, elevator s ces, j torial services and removal of refuse." 9 NYCRR 2520.6 (r) Under the RSC, se (1) . 2 requi se ces also incl "ancilla ces," that is, and those required the dual hous owne was provid any l cable base dates ded additional space nd se ces fendants assert, and pl intiffs do noc c ear contest, the icable base date in this case is ril 27, 2000, che date of the Loft Board Order set the initia lega ated for rent-stabilized units in the buil See Loft Board Order No. 2525, Ex. G to Goldscein Aff. -11- ............ ~~-------------- [* 13] ded therea te b These may lude, but ted to, facilit es, 1 facilities, recreational facil ties, and security." 9 NYCRR 2 20.6 i \ . v Gabel, 963) (dis \ I reased Tenant ' Assn., te Vi eir1 LLC Community RenewBl, affd 97 }\C3d 105 (2012); Charles H. Greenthal & Co. v l AD2d 93 , New Sta 9 NYCRR s r from the DHCR . serv 486, (l 1983); Hous. e D.iv. Ct, NY County 201 ) , 2522.4 2202.21, Code § 26 5 4; at *14, "Gse of ancillary eek an NYCRR § 523.4 31377 (U), 011 NY Sl s ace to a rcumstances of a 11 St., In . , 2 a 71 l\,D3d (pt Assoc., NY S:'..ip 67 .P., 3 00 SC 3d 92 0, (IJ), 9 5 * 16 ( 200 ( Ct, a NY lized ng on the NY Count 2008), nee 15 v NY Mic LEX w. 8 Garza v 6100, *2 Ct, NY County 2009). -12- (a)." **10. a rent-s icular case." 2010); see 009 WL 29 238 , the 2011 WL 2138966, 201 remises may or may not be a required service facts and "If the (d). tenant s' Bluestar Properties, Inc., LEXIS 9 5 requir ng the owner to maintai nistra MBtter trol). sconti ued "without r SC 3d 1224(A) 30 owner fails to mainta service. v Leasing 60 ervices under rent l cation" to DHCR. see Matter cat S a fd 13 62), :may not St. Matter (1 "essential" SS riate 21 see general 17 AD3d 3 2 ired se 301 E. (3); f 2009 Genera ly, [* 14] \\ +- ¢ [w] ha es CODSe-l of th factual t tia SS s .r\li or whet he l they ha estior1s to be det DHCR. , v New York Sta e Ith St. D_iv. Renewal, 260 AD2d 316, 3 7 (: see Matter Or Matter of Mel 2 3 4 AD 2 d 2 3 , Co. d 470 ls Bd., 9 Di (1 . spaces, & ces include garage tie , courtya i Mat er of v Pf!JV 012), a and [vJa 01 1"'Ja t ter of ); (s pool); Matt & ies acilities and bac an e v. Ho us. oun-ty Co. v ni-bus s rvi See 012) t Co. Ner,..; v (1st 2005) -13- Div. of 2005) c vi ki.r:g State ( 1s l Renewal, 2 8 AD2d ter of (pa 2009) of Lloren e v New York Stat l ; a ate of- N. Y. Div. Renewal, 22 AC3d 29 & Co.rant rk rd -lse, ervice. NY Real . 8 rd); Matter of Cla bac 200 Rea Commun ty Rene,val, 16 AD3d 105 acil s na ions Renewal, 62 AD3d 886 (2d v. of Hou . & Communi Hous. Community Renewal, ni-bus C'::., ter of Northern Sta of !Ious. (gara & tion LLC, 101 AD3d 446 (1'3: 35 Misc 3d 1 07 spaces) ; Concili t e se poo1, a community room, SW ) ; 1 96) . room faci 1 vv. 60 01Y2d 63 ; Courts have corn:non y confirmed DHCR ireci ancill 4C of at ons Nev.; York of Hous. re Comm ni & Dept 1983), a (l v Nev-1 24 tt f{ (c tal Blvd. hir: the l been re of llous. 1999) ~.·J e LLC (la New York 01 1\Jew Yo [* 15] State Div. of Haus. & Community Renewal, 287 AD2d 413 (1 t 2 00 l ) ( garage ) ; Ma t t er of 2 0 2 St . , Inc . v New York St a t e Div. of Hous. & Community Renewal, 2013 WL 3994725, 3367; 2013 NY Slip Op 31742 (U) 2C13 NY Misc LEXIS (Sup Ct, Queens County 2013) (open green space used for recreation); Matter of Bluestar Props., Inc., 2011 WL 2138966, 2011 NY Misc LEXIS 2486, 2011 NY Slip Op 31377 (U) (community room); Matter of Med, LLC v Division of Hous. & Community Renewal, 2008 WL 5427237, 2008 NY Slip Op 33449 (U) There are, however, 2008 NY Misc LEXIS 10172, (Sup Ct, NY County 2008) (courtyard). certain reductions in service, first enumerated in a 1995 DHCR policy memorandum and later codified in the RSC, which are considered 'de minimis' in nature and do not rise to the level of a failure to maintain required services. See 9 NYCRR of Hous. & § 2523.4 (e); Matter of Goldman v New York State Div. Community Renewal, 31 AD3d 275, 276 (1 5 ' Dept 2006); see generally Warren Estis & Jeffrey Turkel, Required Services: When Is a Discontinued Service de Minimis?, NYLJ, Sept. 6, 2006, at 26, col 3. Section 2523.4 (e) of the RSC, as amended in 2000, sets out a list of 25 building-wide conditions, as well as 6 individual apartment conditions, that generally, but not determinatively, will be considered de minimis conditions, such as failure to provide air conditioning in the lobby, hallways and stairwells; stains on carpeting; removal of clotheslines; failure to wax floors; minor graffiti in building; missing light bulbs; -14- [* 16] of recreational e On o the s c f ; ciecrea e in number of s a f. cally enumera ed building-wide is "ci cont thi un (e.g., s of recreationa ss a ervice, or formal facilit es owner." ( .. , 9 NYCRR § 252 (e) i s recreat Matter of Goldman, l use s lar ded are a ro f, absent a leas ired se ce. See 31 AD3d at 276; Matter of 98 Riverside Dr. ~JY 2012 v. of Haus. Mis LEX S 4295, In contrast, 32299(U), **5. s for sL:ch not a f Tenants Assn. v Nevi York State 2012 WL 402 788, [of a roof] (19). rmal fac lities, or s ld DHCR determina ions that Courts accordingly 1 us a use se mi courts and t & Communi *6, Renewal, 2012 NY Slip DHCR have reached varying conclusions as to whether use of a roof or other by an i ancillary See e.g. Garza, 22 ter:ar:t is a sc 3d 920 (roof terrace was anci lary to tenancy); Meirowitz v New York State Renewal, 28 AD3d 350 ( red se::::vice. 2006) v. of Ho us. (bac rd, & Commun accessed only , did not constitute a service); Jvlatter of Llorente, 16 AD3d 105 required se 19 7) impe ice); rd use continuous y provi (bac Jesse licori, v 2 5 AD2d 20 (no right to use rocf where tenarlt ac SS le); As 6 00, 2009 NY Sl azy, 200 3200 (U) .owl was (1 use was WL 2912384, 2009 NY Mi c LEX (bac -1 us not sive, not [* 17] lease, not re pare v ste , was Ct, NY County, 401853/02 (tenant had ri { ~ \ J_ 993) required s rvic2) ; Dec. 11, 2002, Madden, vi an Real v (tenant: .' Co., 199 AD2d 1 1 ' to use roof no ndex No. use of roof above to con ti see also rtrnent) ; no~ ' +- ¢ ~im1.vea use al lowed in lease) . In Garza, the trial court set out some factors to consider ¢vhether an indi when det ace, is a other ancillary l tenant's use cf a roof, or ce: red s ~r considera ions include: the point of access; t exclusivity of use, and the customary use of the over a long period of t . Access a door an apartment is consistent with a red s rvice, while access th a window is not. Exclusive use is consistent with a required service, while an idental bui access is not. Pro customary use is consistent with a red service under a lease." 22 (citations omitted); see Ask sc 3d aL 925 2009 NY Misc LEXIS 6100, a 2912384, 32009(U), at * 16. *24, decision in Garza, involving an individual tenant's ri based, in large part, on a f part o terrace in rtment, ~he leased premises, 2009 NY Slip as in other to use roof space, was cons ring the reference to a access th as well as the tenants' open and exc Thus, as es ng that the space was intended tc the leas , the tenants' Misc 3d at 927. zy, 2009 WL the court found, 16- doors i i 'Ve the u e. use of the roof as a 2 [* 18] rrace " ra Conforti v found y to the ~a s a (2 hat the tenan AD2d 237 AD3d 601 e) ; 2002, at 19 f col 3 roof wi enant. has right \._, pre 2' use of (20 year Index No. 40 ~·1 c, .L 53/02 use of roof above ue exclus part of tenancy) . roo t~ Goldstein's apartment was above, not was not accessed The le se to t the leased p ses. eases, se nonetheless was acent to, ' rl ram l·--c8 his not include the roof rtment a so was no reference t use in Goldstein's e rlie the late Rev. red service, as tion that roof was , Sup Ct, NY County, o cont n. v Glasner, NYLJ, creat egr In this case, . , of 1409 Second Matter NY County 2002) "r ~' (C in leasehold); Ekl Roof of the 6 was ) , object one a (18 year use, with 18, 2003) integral part of roof a cess o area, f Rene-"1al, rmission, cf roof outs f par , a . of Hous. & . , NY St. as o use a (roof use not exclusive, not 2009) (1st rtment a he court See aiso Prospect Owners Dckt. No. RP:.410043-RO (S a:-i Sirni lar y, and as ciefin r to his t lease anci subject to revocable l Ave. 9 6. 1996])' rtment, e stence pr ses. eased [l had a continued right enant to his wooden deck in e Id. a enancy." roof us SS y -17- was t lease, s ly or to at leas ib d. il 2000 - [* 19] a previous owne , pursuant rs ing +- wr t en lea es, with agree:nents th es or the apartme::it, and the roof pr s s. rs, Exs See Le ref ore, "no t lea ed is in the l K, M to ldsr.:ein There F~f 1c -L ~ f t /! n on y reasonable conclus ~the s s. s l_ sed the 0 ies did not intend the . sed p frorr t the space is ir.c u ses the 't s not part as t D a rat re s t~ o be roof .' Owners uded 62 t 60 ' 03. writ:ten a Plaintiffs a 1 so argue tha ements ntor's premises whi of a 0 possession o speci c 1994); termi cted) ease fl Am Jewi it grants over the grantor's land l , . ts el _J. l ~ere ssess -18- 03 license or lease, r t te st t 1 2-a 156 ( itati to ce a age of th '1 icense' y a revocable th out 24, 62 AD3c at 602. .' 203 AD2d "Thea s tre Co., rnard ation i d at SC ut trument, but rather "A document 22 ct Owners s character ca ct to Garza, s whether an agreement is r, "is not u eci in the i see and a lease connotes can JeV1ish Theatre v fl ,_ part e se connotes us space, a des by a lessor.n cally res ing P.m 155 "A l use the roo . evocable license ly a had ldstein and the prior owner clear y show that stil rcis interest tl: in [* 20] but the ex cl usi ·.;e right tc use and occupy that land." City of New York, Amsterdam Ave. 15 NY2d 34, 38 lvJiller v (1964); see G.G.A., Inc. Investor, LLC, 19 Misc 3d 1124 (A) v (Sup Ct, NY County 2008). Whether there was a license or a lease here, however, does not end the inquiry into whether roof access must be maintained as a required service, and the court, therefore, need not reach the issue of whether the written agreements were licenses or leases. See Prospect Owners Corp., 62 AD3d at 603 (after finding use of roof adjacent to tenant's apartment was not part of leasehold and use was by license, court deferred issue of whether roof access was a required service under RSC to DHCR) ; see also Peyton, 35 Misc 3d 1207(A). There is no dispute that, until 2011, Goldstein made continuous, and extensive, use of the roof, with the knowledge of, and, at least until 2009, little or no objection by the owner. The written agreements between Goldstein and the prior owner reflect that his use of the roof was to the exclusion of all other tenants, and that he maintained and repaired the roof at his own expense. Four tenants submit statements attesting that, at least from 1993 forward, Goldstein had exclusive use of the roof, and that they did not go onto the roof without his permission. the roof, While the owner also had keys to Danzger testified that, over the approximately 30 years that he owned the building, he was on the roof about 20 times. -19- - [* 21] Danzger Aff., 12. ~ Con1pare Matter of Burton, OATH Index No. 1934/10 (June 30, 2010 [Loft Bd. Dkt. No. TM-0068]) (in similar case under Loft Law, no right to continued use of roof where no credible evidence of an agreement, tenant did not maintain roof, and use was shared with other tenants). Goldstein submits a copy of the initial DHCR apartment registration form he received, which indicates that the roof was a service for which the owner collected a separate charge. See Initial Apartment Registration, Ex. H to Goldstein Aff., Box. 13. The RSC requires that such form be submitted to DHCR, and the former owner testified that, to the best of his knowledge, it was. Danzger Dep., at 44-45; see DSL Letter, Ex. H to Goldstein Aff. When shown the document, likely filled out the form, had used. Danzger testified that his son or it was done by a service that he Danzger Dep., at 43-44. Although plaintiffs argue that DHCR records obtained during this litigation show that, as of March 12, 2012, there were no services on file for Goldstein's apartment (see Registration Apartment Information, Ex. V to Gallaudet Aff.), DHCR records similarly indicate there were no building-wide services being provided (see id., at 4), which plaintiffs do not claim to be the case. Additionally, and not incidentally, Goldstein's use of roof over the years clearly was, as his attorney described it, "de maximus.n See Garza, 22 Misc 3d at 928; -20- Eklund, Sup Ct, NY [* 22] . 40 853 02, at 5 x plants, Wl rees, f s r10 e ba ses wnere the fact r recreational us of the roof is a de 22 Misc 3d a . 92 ~ are inconsist s s rvi n II Garz_a, rt he nds tha service issue of whether Goldstei 's roof use is a requi ope is a matter rr.ore DHCR, the agency authoriz " ce. ermine what RSC to t See Owners udicate the ty to scretion to as a rna::ter of n o so the area of i an issc:e whi court may s expertise, and Matter oE 79 '4ay One Co. ing ( 2d 01 AD2d 318 (1 386 \ I"', .l_ s Gouvern 2003); Da 000); 1996). Nasaw I t r ck Real de Hous. (2d Co., 56 NY2d le, 37 AC3d v ¢ Co., Co., 22 instant context, 1- 42 Gardens Hous. s v Wa Jem . he the issue." Tel. 11 . L. is within ve hus 5 AD3d 36, 150 Greenway Terrace, 2 00 ) ; (1 ns, Ni . v Patterson tal (1982); v clines e, is benefit of the agency's w sdom before it addresse 11, 22 62 that the agency may r have the initial opportunity to addre f f e court, of primary jurisdicti doc r t while not without aut 2006) ¢ , 35 Misc 3d 1207(A) 3; AD3d at he first instanc e RSL se constitutes a re in y address 1 w th a conclus on c rcurastances, he r i~lO a e may be and ~ "The RSC expressly recogn zes that us ea s recrea ti or! f r f 08 274 AD2d 385, s courts ave d [* 23] edly found, s an atel "[t]he ss al [or requ red] t reserved o s a se strative agenc es, he the necessary expertise and are best issue." f a 91 ) ; l.!Ja tter of Lite Vie~1 LLC, d at 6 8; 1 0 99J, at 22, 1 tz v co 2 Green & 30246 (U) 1 ' exclusive use of garden ~l t Term 2d & 1 ' lease for space in proceeding sta was a for DHCR NYI.JJ, red ~o 8 '') St. 2008 NY Sl lement to ification or ruling; June 13, 1989, at 23, unction col 3 (v1here ter.ant had separate on same floor ~O _, in DHCR determination but Jud Dist 1 88) 11 on, (court (tenant's ent ies should go to DHCR for ed); tvJcMahon v VachoJ.r-i, the may be anci lary and serv (Sup Ct, NY Count:y 2008) f er, NYLJ, July 17, sc LEXIS 8427, 2008 NY which ha 935; issue should go to DHCR); see also Davidson v 506 E. 2008 WL 293052, r 30 Misc 3d 1224 (P.,); (Sup Ct, NY County 1991) storage room was not essentia t d to dispose Co., Charles H. Misc 3d 1 07 of what itial deterrninati s apartmen , hol determine whether separately rented llary s ce). It: is accordingly ORDERED that the motion and cross rnotio:1 for summary j are denied and the action is ermination by DHCR; and t t ng is further ORDERED that the parties are -22- rectea to the issue of [* 24] whether the roof is a required service to DHCR within 60 days of entry of this order. Dated: 2.....) I 2 J )1'-1 ENTER: HON. ANIL S'fi:JGH, f ILE 0 NE:.WYORK {~ONTY Ct.ERK'$ OFflCf " -23- J.S.C.

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