1234 Broadway Llc v. West Side Sro Law Project

• Decision Date: 12 May 2011
• Citation: 1234 Broadway Llc v. West Side Sro Law Project, 86 A.D.3d 18, 924 N.Y.S.2d 35, 2011 N.Y. Slip Op. 3980 (N.Y. App. Div. 2011)
• Parties: 1234 BROADWAY LLC, Plaintiff–Appellant,v.WEST SIDE SRO LAW PROJECT, Goddard Riverside Community Center, Defendant–Respondent.
• Court: New York Supreme Court — Appellate Division

86 A.D.3d 18

924 N.Y.S.2d 35

2011 N.Y. Slip Op. 03980

1234 BROADWAY LLC, Plaintiff–Appellant,

v.WEST SIDE SRO LAW PROJECT, Goddard Riverside Community Center, Defendant–Respondent.

Supreme Court, Appellate Division, First Department, New York.

May 12, 2011.

Law Office of Santo Golino, New York (Santo Golino and Hollis B. Vandamme of counsel), for appellant.West Side SRO Law Project, New York (Martha A. Weithman of counsel), for respondent.LUIS A. GONZALEZ, P.J. JAMES M. CATTERSON, ROSLYN H. RICHTER, SHEILA ABDUS–SALAAM, NELSON S. ROMÁN, JJ.ROMÁN, J.

In this appeal, we address the limits of the right to assemble conferred by Real Property Law (RPL) § 230(2) and determine whether the right to assemble prescribed by statute is limited by relevant provisions of the New York City Building Code (Administrative Code of the City of N.Y. § 27–101 et seq.) and Fire Code (Administrative Code § 29–101 et seq.).

This action is for declaratory and injunctive relief. Plaintiff is the owner of a building containing 325 Single Occupancy Room (SRO) apartments, within which approximately 1,000 tenants reside. Defendant is a not-for-profit organization that provides legal assistance to SRO tenants. On or about November 4, 2009, defendant distributed flyers indicating its intention to hold a meeting at plaintiff's premises. According to the flyers, defendant intended to hold a tenants' meeting, on November 21, 2009, at 6 P.M., in the eighth floor hallway.

In its complaint, plaintiff alleges that the corridors on the eighth floor of plaintiff's premises are only three to four feet wide, the ceilings are only seven feet high, a large crowd would obstruct access to the community bathrooms/showers, and the meeting could draw as many as 1,000 tenants. Thus, plaintiff seeks a declaration that defendant cannot “form, plan, organize, and/or conduct meetings and/or gatherings anywhere at the subject [plaintiff's] building,” and an injunction enjoining defendant from conducting any meetings within plaintiff's premises. Alternatively, plaintiff seeks a declaration that defendant cannot “form, plan, organize, and/or conduct meetings and/or gatherings consisting of more than 20 people anywhere at the subject [plaintiff's] building,” and to permanently enjoin defendant from holding meetings within its premises to the extent that they are attended by more than 20 people. Plaintiff alleges that the meetings would violate RPL 230(2), Administrative Code (Fire Code) §§ 29–403.2, 29–403.3.3, and 29–1027.3.4, and the Rules of City of New York Fire Department (3 RCNY) § 109–02.

On November 19, 2009, plaintiff moved by order to show cause seeking a temporary restraining order and a preliminary injunction enjoining defendant from proceeding with the meeting at plaintiff's premises or, in the alternative, to allow the meeting to proceed provided attendance not exceed 20 people. In addition to a violation of RPL 230(2), the Fire Code, and the Rules of City of New York, plaintiff also argued that defendant's meeting violated Administrative Code (Building Code) § 27–361 and § 27–369. In support of its application plaintiff submitted an affidavit from Alfred Sabetfard, one of its members, who reiterating the allegations in the complaint, based on his personal knowledge of the building, added that the meeting in question would violate both the RPL and the Fire Code because plaintiff's building is home to approximately 1,000 occupants and “there is [thus] the potential that anywhere from 325 to over 1,000 persons [would] gather to meet on the 8th Floor hallway of the subject building at 6:00 pm on November 21, 2009.” Reiterating the dimensions of the eighth floor hallway, Sabetfard added that while the area in front of the showers is 11 feet wide, it could only accommodate 15 to 20 people, and a group of that size would obstruct access to the showers, with 6 P.M., the time slated for the meeting, being peak time for use of the showers.

Plaintiff also submitted several photographs of the eighth floor hallway showing that it was narrow in places and wider in others. Lastly, plaintiff submitted a diagram of the eighth-floor hallway which indicated that it was “I” shaped, that the areas of the hallway which housed the showers were over 45 feet in length and approximately 11–feet wide, and that the areas of the hallway which housed the elevator and exits, were four feet wide and at least 46 feet in length.

During the pendency of the motion, the motion court granted a TRO, enjoining defendant from conducting any meetings at the building attended by more than 60 people. Defendant ultimately opposed plaintiff's motion, submitting no evidence in opposition, but averring, through counsel, that during the pendency of the motion defendant held three meetings at the location, none of which were attended by more than 40 people, and at which no exits were blocked. On May 14, 2010, the motion court issued a decision denying plaintiff's application for a preliminary injunction and vacating the TRO. The motion court concluded that plaintiff failed to establish that the Fire and Building Code sections were applicable to the eighth floor hallway and that plaintiff failed to establish that the meetings would actually obstruct any of the exits or would constitute an unsafe condition. Thus, the motion court, concluded, inter alia, that plaintiff failed to establish a likelihood of success on the merits.

RPL 230(2) confers upon tenants' groups, tenant committees, or other tenant organizations, the right to meet and assemble within a landlord's premises. Specifically, RPL 230(2) states:

“Tenants' groups, committees or other tenants' organizations shall have the right to meet without being required to pay a fee in any location on the premises including a community or social room where use is normally subject to a fee which is devoted to the common use of all tenants in a peaceful manner, at reasonable hours and without obstructing access to the premises or facilities. No landlord shall deny such right.”

While it is clear that the right to meet conferred upon tenants by RPL 230(2) is broad, allowing a meeting “in any location on the premises,” the statute itself does not confer an unbridled right to meet, instead requiring that meetings be held in “a peaceful manner,” held at “reasonable hours,” and held “without obstructing access to the premises or facilities.” Meetings pursuant to RPL 230(2) can thus be proscribed, but only if it is established that the meeting is “likely to be unpeaceful, obstructive of access to the building or its facilities, or otherwise unsafe” ( Jemrock Realty Co. v. 210 W. 101st St. Tenants Assn., 257 A.D.2d 477, 478, 684 N.Y.S.2d 202 [1999] ). Moreover, to the extent that RPL 230(2) proscribes the right to meet if such meeting would obstruct access to the building or its facilities by virtue of overcrowding, it must necessarily be read in pari materia with any Building or Fire Code sections prohibiting the obstruction of areas within and around a premises ( BLF Realty Holding Corp. v. Kasher, 299 A.D.2d 87, 93, 747 N.Y.S.2d 457 [2002], lv. dismissed 100 N.Y.2d 535, 762 N.Y.S.2d 876, 793 N.E.2d 413 [2003] [”[s]tatutes in pari materia are to be construed together and as intended to fit into existing laws on the same subject unless a different purpose is clearly shown] [internal quotation marks and citation omitted]; Board of Educ. of Monroe–Woodbury Cent. School Dist. v. Wieder, 132 A.D.2d 409, 414, 522 N.Y.S.2d 878 [1987], mod. on other grounds 72 N.Y.2d 174, 531 N.Y.S.2d 889, 527 N.E.2d 767 [1988] [“statutes are to be construed in such a manner as to render them effective, and in pari materia with other enactments concerning the same subject matter”] ).

Accordingly, section 27–361 of the Building Code, requiring that “[a]ll exits and access facilities shall ... be kept readily accessible and unobstructed at all times,” and section 27–369 requiring that “[c]orridors shall be kept readily accessible and unobstructed at all times,” proscribe obstruction within a premises. Thus, any violation of these two sections of the Building Code would also violate RPL 230(2) and would in turn negate the right to hold a meeting pursuant thereto. Any holding to the contrary, as posited by defendant, would allow meetings pursuant to RPL 230(2) irrespective of any obstruction of the facilities or premises, in violation of the statute's express language and in contravention of Building Code § 27–361 and § 27–369. Similarly, insofar as section 29–1027.3.4 of the Fire Code states that “[p]remises shall not be caused, allowed or maintained in such a manner as to become overcrowded, such that the number of persons present on the premises and/or their location thereon obstructs or impedes...