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When a co-op roof garden becomes a 'jungle habitat.' (court case result) (Brief Article)

When a co-op roof garden becomes a |jungle habitat'

When a Manhattan cooperative board set out to replace the roof on its building, it ran into only one relatively overgrown problem. A tenant with an elaborate penthouse roof garden denied the co-op access to his section of the roof, for fear that the repair workers would destroy his garden. The co-op board of the building enlisted the aid of Finkelstein, Borah, Schwartz, Altschuler & Goldstein, P.C. in its effort to prove that the concerns of the building at large, especially in light of the unsafe nature of the garden, far outweighed the concerns of the individual tenant.

In arguments before Judge Carol H. Arber of the New York County Supreme Court, the tenant in question claimed that his garden was not subject to co-op approval, regardless of its size or shape, because he had constructed the garden before the co-op board was ever formed. Notwithstanding this contention, attorneys for FBSA & G were able to show, through the use of photographs, that the size and nature of the garden had been extensively augmented. In addition to eighteen inches of topsoil, the garden consisted of a variety of trees and flora, bricks and slatework, and also featured an "underground" sprinkler system. Judge Arber wrote in her decision "what was once a garden has now been transformed into a jungle habitat." The co-op board was never notified of these substantial changes, as it should have been under a relevant section of the proprietary lease.

In addition, the co-op secured expert testimony from an architect who relied upon a section of the City's Building Code delineating the maximum allowable "live load" on a roof to be 30-pound per square inch. In the architect's estimation, the tenant's garden constituted a weight of 55 pounds per square inch, far in excess of the Code's maximum weight limitation. The co-op's architect also described the potential danger of toppling trees in the event of inclement weather conditions. Judge Arber noted that the roots of the tenant's trees might penetrate the roof membrane causing leakage to apartments below. The Court acknowledged that none of these arguments were sufficiently rebutted by the tenant or its counsel.

Judge Arber wrote in her decision "when all of these considerations are examined it is clear that the interests of one tenant cannot and should not be permitted to predominate over those of the other tenants in the building."

The case was won by FBSA & G attorney Lucas A. Ferrara, Esq.
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Copyright 1991, Gale Group. All rights reserved. Gale Group is a Thomson Corporation Company.

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Publication:Real Estate Weekly
Article Type:Brief Article
Date:Dec 4, 1991
Words:417
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