Owner fined for eliminating unit

303 East 46th Street. Image Credit: Google Maps.

Owner added staircase to create a duplex but failed to get permit to do work. The corporation AS 303 LLC owns an apartment building located on 303 East 46th Street, between 1st and 2nd Avenue, in Manhattan. The building was authorized to have eleven class “A” units over the five floors. The owner converted apartments 2E and 3E into a duplex by building a staircase connecting 2E to 3E and added another bedroom. The owner then leased the duplex through Airbnb. The owner had not gotten a permit to make this conversion.

On March 11, 2019, an Investigation Officer for the Department of Buildings issued a summons for creating a duplex between the two apartments in violation of the certificate of occupancy. The Investigation Officer labeled the apartment as hazardous, noted that three guests were staying in 3E for a short-term stay, and that the apartment was only approved as a permanent dwelling.

At a hearing before OATH, Buildings argued that the changes to the apartment were inconsistent with the existing certificate of occupancy and that the owner did not qualify for certificate of occupancy exemption. The owner had failed to get a permit for the renovation or send a letter of completion for the work done.

The owner responded that it did not need a new certificate of occupancy because decreasing the number of units did not affect the legal occupant number.

The hearing officer upheld the summons and imposed a fine of $2,500. The owner appealed.

The Appeals Board upheld Buildings’ position that the owner needed a permit to do the renovation and could not qualify for the certificate of occupancy exemption. Occupancy is defined as the purpose or activity for which a building space is used or is designed, arranged, or intended to be used. By decreasing the number of units in the building, the owner changed a space designated, arranged and intended to be used as 11 units to a space arranged for use of 10 units, and thus changed the occupancy.

DOB v. AS 303 LLC, OATH Appeals Unit (NO. 2100096) (May 20, 2021).

By: Taylor Barje (Taylor is a CityLaw intern and a New York Law School student, Class of 2022.)


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