Mayer v 812-816 Broadway LLC/Lighthouse Props. LLC
Annotate this CaseDecided on December 23, 2019
Civil Court of the City of New York, New York County
Rich Mayer, Petitioner, - -
against
812-816 Broadway LLC/Lighthouse Properties LLC, Respondent.
HP 6086/2018
Jack Stoller, J.
Rich Mayer, the petitioner in this proceeding ("Petitioner"), commenced this proceeding ("HP proceeding") against 812-816 Broadway LLC/Lighthouse Properties LLC, the respondent in this proceeding ("Respondent"), and the Department of Housing Preservation and Development of the City of New York ("HPD"), seeking an order pursuant to New York City Civil Court Act §110 directing corrective action at 812-16 Broadway, New York, New York ("the subject premises") with regard to the elevator ("the Elevator") there. Respondent interposed an answer. The Court held a trial of this matter on March 19, 2019, June 19, 2019, October 16, 2019, and October 29, 2019, and adjourned the matter for post-trial submissions to December 9, 2019.
No party disputed that Petitioner has been a long-term tenant protected by Article 7-C of the Multiple Dwelling Law, colloquially known as the "Loft Law"; that Petitioner is now a rent-stabilized tenant; that Petitioner lives on the fifth floor; that the Elevator is available only during business hours of weekdays, with the assistance of the super of the subject premises ("the Super"); and that the Elevator is not available for use at times other than that.
Petitioner had previously commenced an HP proceeding against Respondent, captioned at Mayer v. 812-816 Broadway LLC, Index No. HP 6232/2015 (Civ. Ct. NY Co.)("the prior HP proceeding"), seeking an order to correct the same condition that Petitioner seeks correction of herein. By an order dated June 16, 2016 ("the 2016 order"), the Court dismissed the prior proceeding, finding that the Court lacked the subject matter jurisdiction to entertain Petitioner's cause of action on the ground that the cause of action sounded in dimunition of services, a cause of action under the purview of the Loft Board. By an order dated October 4, 2017, the Loft Board removed the subject premises from the Loft Board's jurisdiction. Petitioner then commenced this HP proceeding. Respondent moved to dismiss this proceeding in part on the basis of collateral estoppel. The Court denied that motion by an order dated January 10, 2019 ("the 2019 order") based in part on the removal of the subject premises from the Loft Board's jurisdiction.
Respondent had moved to dismiss so much of the petition as sought relief on a theory that an accommodation of Petitioner's roommate's disability entailed awarding Petitioner the ultimate relief sought in this petition. That motion was resolved by a stipulation between the parties dated February 20, 2019 according to which the parties severed without prejudice issues concerning Petitioner's roommate's disability status and claimed entitlement to a reasonable accommodation.
The trial
Petitioner testified that he has lived in the subject premises since June 1, 1971; that the Elevator has always been in the subject premises; that Respondent renovated the Elevator in 2011; that the Elevator is small, with an area of four feet by five feet, and manually operated by a cable; that he has been operating the Elevator the entire time that he lived there and has taught three supers, including the Super, how to operate it; that a prior super had given him permission to operate the Elevator on his own; that operating the Elevator entails sliding a door open, sliding a folding gate, pulling a cable in the opposite direction of the direction one would want to go in, and grabbing the cable when one wants to stop; that the Super has worked in the subject premises since 2001; that the Super is not always available to operate the Elevator; that the Elevator has not operated on a regular schedule as of 2002; that he used to use a key ("the Key") to operate the Elevator when the Super was not available, which was in a mailbox for Petitioner's use;[FN1] that he purchased the Key himself from an elevator supply store; and that the Super doesn't let him operate the Elevator.
Respondent introduced into evidence a lease for the subject premises executed between the predecessors-in-interest of both parties in 1981 ("the 1981 lease"). The 1981 lease states that Petitioner's predecessor-in-interest shall have elevator service on business days from 8:30 a.m. to 5:00 p.m.
Petitioner testified on cross-examination that he doesn't know if Respondent knew that he had use of the Key, but that the Super knows that he uses the Key; that he uses the Elevator less than one hundred times a year, although he would prefer to use it more; that he prefers not to call the Super to use the Elevator; that the first time that he talked to someone working for Respondent about issues with the Elevator beside the Super was when he commenced the prior HP proceeding; that he never raised the issue of the Elevator throughout the administrative process before the Loft Board of legalizing residential use of the subject premises; and that he did not raise the issue of the Elevator at the Loft Board after the prior HP proceeding was dismissed because he did not want to prolong the exiting of the subject premises from the jurisdiction of the Loft Board.
Over objection, the Court granted Petitioner's application to qualify as an expert an architect that Petitioner called as a witness ("Petitioner's architect"). Petitioner introduced plans for the building in which the subject premises is located ("the Building") into evidence which show that the Building is 77 feet tall. Petitioner introduced into evidence a record from the New York City Department of Buildings ("DOB") that stated that a passenger elevator, i.e., the Elevator, was active as of September 19, 1995. Petitioner's architect testified that the Building was legalized for residential use under the building code in effect as of 1938 ("the 1938 code") with exceptions on specific matters where a building code in effect of as 1968 ("the 1968 code") [*2]applied; that some work has been done to the Elevator since 1998, although it is the same type of elevator with a cable control and manual gates on two sides of it; that the Elevator operates via a cable that one pulls; and that it is not very difficult, but one has to be familiar as to how to operate it.
An interim multiple dwelling ("IMD") pursuant to the Loft Law must undertake a process to legalize its use for residential purposes according to a procedure set forth in 29 R.C.NY §2-01(d). According to this process, IMD tenants may raise "any questions, comments[,] or suggestions" to a narrative statement an owner formulates to legalize an IMD, 29 R.C.NY §2-01(d)(2)(vii), and an IMD tenant may also oppose such a statement or propose an alternative plan for legalization. 29 R.C.NY §2-01(d)(2)(viii). Petitioner's architect represented Petitioner during this process and he testified that he did not file alternative plans for the Building; that the existing operational elevator service in the Building did not necessitate his filing of alternate plans for legalization regarding the Elevator; and that Respondent's narrative statement for legalization regarding the Elevator only spoke of fireproofing and other aspects of elevators that Petitioner did not contest and that Respondent in fact performed.
Petitioner's architect testified on cross-examination that the Elevator as it exists is too small to be defined as accessible, i.e., too small to accommodate a wheelchair; that a blind person would not be able to operate the Elevator; that accessing the subject premises from exiting the Elevator requires use of stairs which are not accessible to a wheelchair; and that DOB could still deem the Elevator to be a part of an "accessible route" anyway because DOB grants waivers.
Petitioner's architect testified on cross-examination that a Technical Policy Public Notice ("TPPN") is a document DOB issues to clarify a policy or to make policies more precise. Respondent introduced into evidence a TPPN from 1992, rescinded on December 30, 2015, providing that any owner seeking to legalize a dwelling pursuant to the Loft Law need not comply with accessibility requirements for work completed prior to September 1, 1987. Petitioner introduced evidence that the effective date of the certificate of occupancy ("C of O") for the subject premises was November 19, 2015. Petitioner's architect testified that this TPPN was still in effect as of the date of the issuance of the C of O and that Respondent could rely on this TPPN in 1997 and 1998; that remaining accessibility requirements can apply even if not all disabled people can access the route from the sidewalk to the subject premises; that the Elevator was lawful as of 1938; that requirements for firefighter service applies only to automatic elevators, not the Elevator; and that an elevator built today would have to accommodate a gurney, which the Elevator does not do.
Respondent introduced into evidence a document that Petitioner's architect filed with DOB stating that the Building was under 75 feet tall and that the Building should be treated as a two-family house for some purposes. Petitioner's architect testified on cross-examination that he thought he told the truth about that; that he wrote that document as a courtesy to Respondent to assist with legalization; and that he based the height figure on information Respondent supplied him with.
Petitioner's architect testified on redirect examination that Respondent was Petitioner's architect's only source of information about the height of the Building; that he didn't measure the Building and no standard of professionalism gave rise to an expectation that he would measure the Building; and that accessibility requirements still apply to the Elevator even if not all disabled [*3]people could use the Elevator.
Respondent introduced into evidence the C of O for the Building, which is effective November 19, 2015. The C of O states that the height of the Building is 78 feet and that no legal limitations apply to the C of O.
The Court granted Respondent's application to qualify an elevator consultant ("the Consultant") as an expert. The Consultant testified that the Elevator is a legal passenger elevator because DOB designated it that way, meaning that the Elevator may legally transport passengers as opposed to, say, a freight elevator; that the Elevator has wooden guide rails, which were last allowed according to a code that pre-dated a code written in 1915; that the Elevator uses a winding drum machine, which operates like a spool; that a drum machine is not a safe design because there's a possibility of a slack cable; and that the Building is classified as "J-2."[FN2]
The Super testified that he is responsible for five buildings; that he has worked at the Building since 2000; that Petitioner has to call him to get access to the Elevator by pressing a button, although now they use cell phones; and that Respondent told him that Petitioner has the Key. The Super testified on cross-examination that he is available 70% of the time he is asked to help with the Elevator.
An unexecuted lease in evidence between the parties that would commence May 1, 2017 provides that Petitioner understands and agrees that elevator service is provided as a courtesy on an on-call basis with reasonable advance notice to the Super Mondays to Fridays from 8:30 a.m. to 4:00 p.m., excluding holidays and that only authorized personnel may operate the Elevator.
The Court granted Respondent's application to qualify its architect ("Respondent's architect") as an expert in loft legalization. Respondent's architect testified that Respondent retained him in 1998 to continue with the legalization process of the subject premises pursuant to 29 R.C.NY §2-01(d); that he had conferences with Petitioner's architect; and that Petitioner's architect made a number of comments about elevator issues, for example, requesting an interlock system, which is a device that goes into an elevator opening.
An elevator mechanic ("the Mechanic") testified that his experience with rope elevators, meaning elevators operated by someone pulling a rope, is that they are dangerous; that he doesn't let his young assistants work on them; that an elevator that operates with a drum machine can be a trip hazard if someone incorrectly levels it; that a rider in such an elevator could cut oneself; that such an elevator could stop at the wrong point; that if the rider does not stop such an elevator, it could hit the roof; that manual gates create a risk that a rider could stick a hand outside the elevator; and that operators are therefore used with these elevators, for purposes of protecting against liability.
The Mechanic testified on cross-examination that the Elevator is legal; that it passed inspections; that it is safe to operate by the right person; and that operating the Elevator is not complex to operate, but that the operator should generally know more about how it operates.
Petitioner testified in rebuttal that the Elevator was renovated and brought up to code in 2011; that the Elevator has been inspected twice yearly for last four to five years; and that he routinely uses the Elevator without tripping, falling, or cutting hands.
[*4]Discussion
Petitioner argues that N.Y.C. Admin. Code §27-989(a) requires Respondent to make the Elevator available for his use at all times. That statute is in Subchapter 18 of Chapter 1 of Title 27 of the New York City Administrative Code ("the Subchapter"). While N.Y.C. Admin. Code §27-989(a) does require that every building seventy-five feet or more in height shall be served by an elevator which shall be available for immediate use by the fire department at all times, the provisions of the Subchapter are not retroactive, with exceptions that do not apply to Petitioner's cause of action. N.Y.C. Admin. Code §27-994. While existing buildings in occupancy group J-1 shall comply with the requirement of N.Y.C. Admin. Code §27-989(a) on or before April 1, 1987, a requirement to which the retroactivity provisions of N.Y.C. Admin. Code §27-994 do not apply, N.Y.C. Admin. Code §27-989(c), this requirement makes no mention of existing buildings in occupancy group J-2, as the Building is, an omission that canons of statutory construction require the Court to find to be intentional. Myers v. Schneiderman, 30 NY3d 1, 12 (2017), Matter of Shannon, 25 NY3d 345, 352 (2015), Matter of Raynor v. Landmark Chrysler, 18 NY3d 48, 56 (2011), Town of Riverhead v. NY State Bd. of Real Prop. Servs., 5 NY3d 36, 42-43 (2005). Accordingly, N.Y.C. Admin. Code §27-989(a) does not apply to the Building, which the evidence shows was constructed before 1915.
Even assuming arguendo that the requirement of N.Y.C. Admin. Code §27-989(a) applied to the Building, the statute qualifies the requirement that an elevator shall be available at all times such that an elevator be available "for immediate use by the fire department" at all times. If the drafters of the Administrative Code intended for the availability of the elevator at all times to apply to everyone, the language "for immediate use by the fire department" would be superfluous. The Court may not construe statutory language to be superfluous or without effect. Rodriguez v. Perales, 86 NY2d 361, 366 (1995), In re Guar. Tr. Co., 309 NY 487, 495 (1956), People v. Dethloff, 283 NY 309, 315 (1940), Matter of NY Cty. Lawyers' Ass'n v. Bloomberg, 95 AD3d 92, 101 (1st Dept. 2012). The language of the statute therefore contemplates that an elevator may be available to the fire department while not necessarily being available to other people or entities. As Petitioner's cause of action is not about the fire department's access to the Elevator, N.Y.C. Admin. Code §27-989(a) does not provide Petitioner with a basis for relief in this matter.
Petitioner also argues that N.Y.C. Admin. Code §§27-292.5(c) and 27-292.8(b)(1) require that Respondent make the Elevator available for his use at all times. N.Y.C. Admin. Code §27-292.5(c) requires that routes interior to buildings shall be "interior accessible routes," in between, inter alia, the entrance of a building and "adaptable dwelling units." An "accessible route" is a continuous unobstructed path connecting all accessible spaces in a building that all categories of disabled people can negotiate. N.Y.C. Admin. Code §27-232. An "adaptable dwelling unit" is a dwelling unit constructed on an accessible route and equipped so that it may be converted to be used by all categories of people having physical disabilities. Id.
As noted above, Petitioner's architect testified on cross-examination that the Elevator as it exists is too small to be defined as accessible, i.e., too small to accommodate a wheelchair. Petitioner does not appear to be seeking to have the Court order Respondent to replace the Elevator with a bigger elevator that would be accessible, which would require a substantial reconfiguration of the Building. Even assuming arguendo that Petitioner was seeking that relief, [*5]the record adduced at trial provides useful context to Petitioner's cause of action.
Respondent obtained a C of O for the Building on November 19, 2015. Petitioner was not a passive observer of the work Respondent did to legalize the subject premises for residential use as such. Rather, Respondent obtained the C of O according to a process pursuant to the Loft Law that affords tenants a say in the planning. 29 R.C.NY §§2-01(d)(2)(vii), 2-01(d)(2)(viii). Petitioner availed himself of that opportunity, retaining Petitioner's architect, who reviewed Respondent's narrative statement. Petitioner's architect did not seek to have Respondent enlarge the Elevator so that it could accommodate a wheelchair and thus constitute an "accessible route," i.e., a continuous unobstructed path connecting, at the very least, the entrance of the Building and the subject premises that all categories of disabled people could negotiate.
The 2016 order dismissed the prior HP proceeding on the ground that the Court lacked subject matter jurisdiction because the Loft Board had the jurisdiction to entertain Petitioner's cause of action, a basis for Respondent's collateral estoppel defense herein. While the 2019 order denied Respondent's motion to dismiss on the basis of collateral estoppel, the 2019 order analyzed the motion according to the standard set by Leon v. Martinez, 84 NY2d 83 (1994), assuming that the facts as alleged in the petition were true and determining whether the alleged facts fit any cognizable legal theory. At this posture of the proceeding however, after a full trial, a record has been developed that includes the fact that Petitioner's architect participated in the review of Respondent's narrative statement and that Petitioner did not avail himself of the opportunity he had at the time to insist upon a replacement of the Elevator with an elevator large enough to be accessible as required by any code.
To be fair to Petitioner, the petition does not seek an order directing the replacement of the Elevator. Rather, the amended petition states that Petitioner commences this HP proceeding to restore required elevator service 24 hours a day, 7 days a week, by providing the tenants with continuous access to the Elevator, whether or not the Super is present. The Court construes the petition to be seeking an order directing Respondent to let Petitioner operate the Elevator himself. To the extent that Petitioner bases his entitlement to relief on N.Y.C. Admin. Code §§27-292.1 et seq., that statute falls under Chapter One of Title 27 of the New York City Administrative Code, which is the Building Code. The purpose of the Building Code is to provide standards for the regulation of building construction, N.Y.C. Admin. Code §27-102, not to prescribe building rules about operation of equipment like elevators.
Even though the petition, as referenced above, seeks an order "restoring" Elevator services whether or not the Super is present, the Court can also construe the petition to seek an order directing Respondent to staff the Elevator at all times. The TPPN in evidence shows that the provisions that Petitioner relies on would not apply to the subject premises. Moreover, as the Elevator is not accessible to the disabled, it is not part of an accessible route as defined by the Code and therefore does not warrant application of that provision. Notably, Petitioner's architect, when asked whether the Elevator was an accessible route, testified that DOB provides waivers to that effect, compelling the conclusion that the Elevator is not an accessible route without such a waiver.
To the extent that Petitioner bases his relief on an impermissible dimunition of service to a Loft Law tenant pursuant to MDL §282-a and 29 R.C.NY §2-04(b)(9), the 2016 order has already held that the Housing Court lacks the subject matter jurisdiction to make a finding as to [*6]such relief. The 2019 order, made without the development of the record at trial that Petitioner purposely forewent a remedy at the Loft Board in the sixteen months in between the 2016 order and the Loft Board's divestment of jurisdiction, denied a motion to dismiss and assumed that the facts of the petition were true, and thus is not preclusive on this Court as per law of the case doctrine. Rufo v. Orlando, 309 NY 345, 351 (1955), Pentacon, LLC v. 422 Knickerbocker, LLC, 165 AD3d 829, 830 (2nd Dept. 2018), Feinberg v. Boros, 99 AD3d 219, 224 (1st Dept. 2012).
Accordingly, the Court dismisses this proceeding after trial.
The parties are directed to pick up their exhibits within thirty days or they will either be sent to the parties or destroyed at the Court's discretion in compliance with DRP-185.
This constitutes the decision and order of this Court.
Dated: New York, New York
December 23, 2019
________________________________
HON. JACK STOLLER
J.H.C.
FootnotesFootnote 1:An elevator key is a large metal rod.
Footnote 2:Occupancy group J-2 include buildings with three or more dwelling units that are occupied for permanent residence purposes. N.Y.C. Admin. Code §27-265.
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