HELL’S KITCHEN — A renowned painter and her neighbors have dealt with months of intrusive construction and could lose access to their rooftop as the owners of their building move forward with plans the city approved contrary to its own rules, a new lawsuit charges.
For decades, artist Mary Beth McKenzie, her husband Tony Mysak, and their neighbors Charlotte Pfahl and Daniel Schneider have lived in one of five adjoining buildings at 517-525 W. 45th St., between 10th and 11th avenues, that were registered with the New York City Loft Board in 1987.
The Loft Board oversees the process of legalizing and bringing up to code buildings like theirs, which were illegally converted to residential use years ago and don’t have residential certificates of occupancy, according to a suit they filed against the board and the building's current owners in Manhattan Supreme Court Friday.
In 2006, the property's previous owner started taking steps to legalize the buildings for residential use, prompting “extensive negotiations” with tenants that led to an agreement between the owner and residents, the suit says.
Several years later, however, the previous owner still hadn’t brought the buildings up to code or legalized them, and in 2014 sold them to new owners, identified in the suit as 517-525 West 45 LLC.
The new owners knew about the 2006 agreement at the time of purchase but have failed to honor it, instead seeking to carry out their own legalization plan “in gross deviation with the [2006 plan]," the suit says. The new owners plan to "illegally expand the building and… create numerous new free market, residential units in commercial space,” according to the suit.
Since the Loft Board’s executive director determined the new owners could move forward with the plans, construction and work inside the building have proceeded without protections for tenants — wreaking havoc on McKenzie and Mysak’s apartment and sending dust swirling into residential units, among a slew of other quality-of-life concerns, McKenzie and Pfahl told DNAinfo New York.
In the spring, McKenzie and Mysak's third-floor apartment flooded around 10 times as a result of demolition work taking place on the fourth floor, she and her daughter Zsuzsa Mysak said. Just last month, workers installing plumbing pipes that had to traverse their apartment did so incorrectly, leaving gaping holes between rooms and in the ceiling, they added.
One of the leaks that came through the ceiling “just missed” one of the paintings in McKenzie’s home studio, her daughter noted.
Since then, the artist has spent nearly $4,000 hiring professionals to wrap up her pieces to protect them from the construction work, McKenzie said.
“I just want it over — the whole process,” said McKenzie, a resident of 44 years who has paintings in collections at museums including the Metropolitan Museum of Art, the Smithsonian American Art Museum and the Brooklyn Museum.
The building’s elevator, meanwhile has been out of service since June, making it difficult for older tenants to come and go, said Pfahl, who has lived in the building for the past 43 years. The landlord also plans to prohibit access to the roof, which residents have used for decades for family and social gatherings, she said.
“We’ve always used the roof, because we’re on the fifth floor — we’ve had patio furniture on the roof for probably 25 years,” said Pfahl, whose husband Daniel Schneider is one of the other plaintiffs in the lawsuit.
“Our son played there as a baby — he celebrated his wedding on the roof.”
In the past, McKenzie has also painted on the roof, which is “sort of like our courtyard,” her daughter said.
The issue of roof access only came up as a “threat or negotiating tactic” when the new owners realized residents were opposed to their plans, Pfahl added.
The tenants' building currently has four open Environmental Control Board violations — including violations for work that doesn’t conform to approved construction documents, an out-of-service-elevator and unlicensed electrical work being performed — and five active city Department of Buildings violations dated this year, records show.
The suit claims the Loft Board can only certify an owner’s legalization plan if it has determined it wouldn’t “constitute an unreasonable interference” with the existing tenants and if the owner has cleared any objections DOB has with the plans.
The current owners’ plan, however, “far exceeds the minimal work required to legalize the building pursuant to the Loft Law” and impacts tenants unnecessarily, constituting an “unreasonable interference,” the lawsuit says, adding that the final plan was never filed with the DOB for review, as required by the Loft Board.
Prohibiting roof access, meanwhile, would constitute “unlawfully diminish[ing] a required service,” which violates the Loft Board’s own rules, the suit adds.
This past January, Loft Board executive director Helaine Balsam issued a determination saying the tenants had failed to establish either of these claims and deemed the 2006 agreement "irrelevant" — allowing the owners to move forward with their plans, according to the suit.
The tenants appealed Balsam’s determination in February, but the Loft Board in June denied the appeal, the lawsuit says.
“The Loft Board doesn’t have the authority to reject a legalization plan that’s been agreed to by and between an owner and a tenant simply because it doesn’t like the plan, or prefers a different plan,” attorney Michael Kozek, who is representing the tenants, said on Tuesday.
A spokesman for the DOB, which handles press inquiries for the Loft Board, declined to comment Tuesday due to the ongoing nature of the litigation.
Douglas Elliman real estate broker Shai Bernstein, who said he represents the building owners, also declined to comment on the suit, adding that the owners wouldn’t be available for comment.
Pfahl on Tuesday said she and her neighbors have spent thousands of dollars in fees over the past few years for architects and lawyers, “just to prevent [the building owners] from completely destroying our homes.”
McKenzie, meanwhile, said the situation has affected her livelihood.
“The worst of all of this for me is that I have barely painted in the last six months,” she said. “The stress, the anger, the workers in our space and the unbelievable noise has all but made it impossible to focus.”