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Tenants' Right to Assemble Has Limits, Panel Says

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Tenants' Right to Assemble Has Limits, Panel Says

Postby TenantNet » Fri May 13, 2011 12:18 pm

Tenants' Right to Assemble Has Limits, Panel Says
New York Law Journal
Andrew Keshner
May 13, 2011

Though tenants have a "broad" legal right to meet in their building without landlord interference, a Manhattan appellate court has ruled that the right is not "unbridled."

The owners of 1234 Broadway LLC, a single room occupancy building on 31st Street, sought to stop tenants from assembling in the eighth-floor hallway for a proposed meeting run by Goddard Riverside Community Center's West Side SRO Law Project, a legal assistance group. The owner argued that the meeting could attract a crowd large enough to obstruct access to community bathrooms and showers and create an unsafe condition in the 325-room, 1,000-tenant building in violation of city fire and building codes and state law.

In ruling for the owners, a panel of the Appellate Division, First Department, reversed a lower ruling by Supreme Court Justice Joan A. Madden (See Profile), who denied a preliminary injunction motion in May 2010.

Writing for the unanimous panel in 1234 Broadway LLC v. West Side SRO Law Project, 4624N, Justice Nelson S. Roman (See Profile) ruled yesterday that tenants' meeting rights under Real Property Law 230(2) were bound by building and fire code ordinances on unobstructed corridors and exits. The panel remanded the case for further proceedings.

"While it is clear that the right to meet conferred upon tenants by [Real Property Law] 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,'" Justice Roman wrote.

Presiding Justice Luis A. Gonzalez (See Profile) and Justices James M. Catterson (See Profile), Roslyn H. Richter (See Profile) and Sheila Abdus-Salaam (See Profile) were also on the panel that decided the case on briefs submitted on March 3, 2011.

In early November 2009, the SRO law project, a unit of the Goddard Riverside Community Center, distributed flyers to occupants announcing a Nov. 21 meeting on the eighth-floor hallway.

Two days before the meeting, 1234 Broadway filed an order to show cause seeking a temporary restraining order and preliminary injunction. The complaint noted the eighth-floor premises were just three- to four-feet wide and had seven-foot ceilings. The meeting could attract up to 1,000 tenants, the owners said.

Justice Madden granted a temporary restraining order that restricted meetings to under 60 people during the pendency of the action. She denied the preliminary injunction application and vacated the temporary restraining order on May 14, 2010, holding that 1234 Broadway could not show the likelihood of prevailing on the merits because, among other things, it could not show the meetings would block exits or create unsafe conditions.

The appellate decision noted that attorneys for the organization said there had been three meetings and each one was attended by no more than 40 people and did not block exits.

Justice Roman wrote that the provision on tenants' meeting rights needed to be analyzed in light of building and fire code sections prohibiting a premises' obstruction. Therefore, any violation of the building code sections would be outside the protection of the provision on the rights of tenants to assemble.

"Any holding to the contrary, as posited by defendant, would allow meetings pursuant to [Real Property Law] 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," he wrote, citing the two sections addressing obstructed exits and hallways.

The panel also held that 1234 Broadway had shown prima facie entitlement to the injunction. Noting pictures and diagrams of the hallway it submitted, Justice Roman wrote, "contrary to the motion court's holding, plaintiff establishes that its premises, and in particular the location where this meeting is to occur, is of limited size such that a meeting attended by a large number of people could obstruct access to the premises of the facilities."

The Goddard Riverside Community Center and the West Side SRO Law Project was represented by the law project's director, Martha A. Weithman. She did not return a call seeking comment.

1234 Broadway LLC was represented by Santo Golino of Manhattan, who did not return a call seeking comment.
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Postby TenantNet » Fri May 13, 2011 12:27 pm

1234 BROADWAY LLC v. WEST SIDE SRO LAW PROJECT

2011 NY Slip Op 03980

1234 BROADWAY LLC, Plaintiff-Appellant,
v.
WEST SIDE SRO LAW PROJECT, GODDARD RIVERSIDE COMMUNITY CENTER, Defendant-Respondent.

116414/09, 4624N.

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

Decided 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.

Before: Gonzalez, P.J., Catterson, Richter, Abdus-Salaam, Román, JJ.


Opinion by ROMÁn, J.

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 NY § 27-101 et seq.) and Fire Code (Administrative Code § 29-101et 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 6:00pm 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 6P.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 [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 [2002], lv dismissed 100 N.Y.2d 535 [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 [1987], mod on other grounds 72 N.Y.2d 174 [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 access to any means of egress," it also bars obstruction within a premises and thus any violation of this section of the Fire Code would therefore also violate RPL 230(2) and would in turn bar any meeting pursuant thereto.

We now turn to whether plaintiff proffered the requisite quantum of proof with regard to these violations to support the grant of a preliminary injunction. A preliminary injunction substantially limits a defendant's rights and is thus an extraordinary provisional remedy requiring a special showing (Margolies v Encounter, Inc., 42 N.Y.2d 475, 479 [1977]). Accordingly, a preliminary injunction will only be granted when the party seeking such relief demonstrates a likelihood of ultimate success on the merits, irreparable injury if the preliminary injunction is withheld, and a balance of equities tipping in favor of the moving party (Doe v Axelrod, 73 N.Y.2d 748, 750 [1988]; 61 West 62 Owners Corp. v CGM EMP LLC, 77 A.D.3d 330, 334 [2010], mod 16 N.Y.3d 822 [2011]; Stockley v Gorelik, 24 A.D.3d 535, 536 [2005]).

With respect to likelihood of success on the merits, the threshold inquiry is whether the proponent has tendered sufficient evidence demonstrating ultimate success in the underlying action (Doe at 750-751). While the proponent of a preliminary injunction need not tender conclusive proof beyond any factual dispute establishing ultimate success in the underlying action (Sau Thi Ma v Xuan T. Lien, 198 A.D.2d 186, 187 [1993], lv dismissed 83 N.Y.2d 847 [1994]; Ying Fung Moy v Hohi Umeki, 10 A.D.3d 604, 605 [2004]), "[a] party seeking the drastic remedy of a preliminary injunction must [nevertheless] establish a clear right to that relief under the law and the undisputed facts upon the moving papers" (Gagnon Bus Co., Inc. v Vallo Transp., Ltd. 13 A.D.3d 334, 335 [2004]). Conclusory statements lacking factual evidentiary detail warrant denial of a motion seeking a preliminary injunction (Village of Honeoye Falls v Elmer, 69 A.D.2d 1010, 1010 [1979]). Furthermore, CPLR 6312(c) requires that the court hold a hearing when "the elements required for the issuance of a preliminary injunction are demonstrated in the plaintiff's papers," and the defendant raises issues of fact with respect to such elements (Jamie B. v Hernandez, 274 A.D.2d 335, 336 [2000]).

Here, plaintiff averred that defendant's meeting, irrespective of its size, would violate1 RPL 230(2), Building Code § 27-361 and § 27-369, and Fire Code § 29-1027.3.4 by creating an obstruction. Plaintiff's photographs and diagram depict an area which is wide in some places and narrow in others, and Sabetfard, in his affidavit, alleges that the widest portion of the eighth floor, can only accommodate 15 to 20 people and that this number would obstruct access to the community bathrooms/showers. Accordingly, contrary to the motion court's holding, plaintiff establishes that its premises, and in particular the location where this meeting is to occur, is of limited size such that a meeting attended by a large number of people could obstruct access to the premises or the facilities (RPL 230[2]) and could obstruct the exits and corridors at plaintiff's building (Building Code § 27-361, § 27-369 and Fire Code § 29-1027.3.4). Plaintiff establishes a likelihood of success on the merits, irreparable harm if such a meeting is not enjoined, and, to the extent that it offers to pay for the meeting to be held elsewhere, that the equities tip in its favor. Thus, plaintiff demonstrates prima facie entitlement to a preliminary injunction.

However, insofar as defendant established that during the pendency of plaintiff's motion, it had 3 meetings, none of which were attended by more than 40 people and which, according to defendant, resulted in no obstruction, questions of fact exist precluding the grant of a preliminary injunction absent a hearing. Accordingly, the motion court erred insofar as it failed to conduct a hearing before deciding whether to grant or, as it did here, deny plaintiff's application for a preliminary injunction.

Accordingly, the order of the Supreme Court, New York County (Joan A. Madden, J.), entered September 30, 2010, denying plaintiff's motion for a preliminary injunction enjoining defendant from, among other things, holding meetings in plaintiff's building's eighth floor hallway, should be reversed, on the law and the facts, without costs, and the matter remanded for further proceedings in accordance herewith.

All concur.

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

Footnotes


1. Plaintiff alleges that the proposed meeting would violate a host of other codes such as Building Code § 27-362 and Fire Code § 29-403.3.3. However, we find these statutes inapplicable in that they do not address the same subject matter discussed in RPL 230(2). For example, we agree with the motion court, albeit for different reasons, that Fire Code § 29-403.3.3 is inapplicable here. This section sets forth rules for standing in passageways at performing arts or other events at which seating is provided for the audience, and it is patently inapplicable here. Accordingly, any argument made in support of the applicability of any other statute beyond those discussed in this opinion has been considered and rejected.
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