360 West 43rd Street in Manhattan. Image credit: Google Maps.
The Appellate Division affirmed fines for illegal conversion of residential units as hotel rooms. 360 West 43rd Street is a 28-story, 264 rent-stabilized unit building in Midtown, Manhattan. On June 5, 2015, the owner sent three tenants a letter advising them that their leases would be terminated and they would be evicted if they continued illegally renting out the apartments for hotel use.
On July 6, 2015, the Department of Buildings conducted an inspection after receiving a complaint. The owner received four Notice of Violations for the apartments being used for short-term transient use, and failure to provide a fire alarm system and automatic sprinklers for the transient use.
Soon after, the tenants were served notices of termination, which indicated their leases were terminated as of August 8, 2015. The tenants vacated their respective apartments on July 31, 2015, August 8, 2015, and August 14, 2015.
At the administrative hearing the owners argued they had no prior knowledge that tenants were renting their units as hotel rooms. The owners also argued that since only three tenants out of the 264 rent-stabilized units were in violation, the building would not qualify as a hotel, and thus would not trigger the hotel fire-alarm and sprinkler requirements.
The City responded to the owners’ argument by stating that any transient use in the building requires full compliance with applicable fire-alarm and sprinkler requirements, and the owners are legally responsible for its tenants’ illegal use of the premises.
At the hearing, counsel for Buildings provided evidence from cell phone photos that showed website advertisements for hotel rooms in the building, as well as text messages between an apartment lessee and a third party arranging to meet at a nearby restaurant so that the third party could “check in.” Copies of previous violations from the building were also provided. Additionally, Buildings noted that the owners were aware of the offenses prior to the current violations.
The Environmental Control Board found that lack of knowledge was not a defense, and the owners had a responsibility to maintain the premises and to be up to code. The owners received $53,100 in fines for the illegal conversion of permanent residential units to transient use as hotel rooms by three tenants in the 264 rent-stabilized unit building violating Administrative, Construction, and Building Codes.
The Appellate Division sustained the violations and found that the offenses were not shockingly disproportionate to the offenses due to the history of violations. The court also found that the fines were not excessive in violation of the Eighth Amendment, as they were remedial rather than punitive.
The Appellate Division found that the charges were “supported by substantial evidence” and the owner’s arguments to be “unavailing.”
42/9 Residential LLC v New York City Envtl. Control Bd., 2018 NY Slip Op 07052 (App. Div. 2018).
By: Samantha Albanese. (Samantha Albanese is a CityLaw intern, and a New York Law School student, Class of 2019).
I think that the City should charge the individual tenants that are committing the crimes. It is not the Landlord benefiting from renting out the apartment on AIRBNB. The tenants are getting rich doing this while the Landlords are stuck with the bill. It is a crime to say the least. Extortion of Landlords when tenants are the criminals. SO UNFAIR!