The fight is so fierce it's blowing the roof off an Upper East Side co-op.
A longtime resident of a luxury building overlooking Museum Mile claims the board is trying to take away her rights to her private terrace garden as part of a decades-old effort to seize control of the lush rooftop oasis, according to a new lawsuit.
Barbara Hubschman, who has lived at 1010 Fifth Avenue since she was a child, said the co-op is committing a “great injustice” by tampering with her lease to make it so that she has to cover the costs whenever the building's roof needs work.
“They are endangering the survival of the garden,” she wrote in a letter to neighbors last spring.
Adjacent to Hubschman's unit, a private and spacious 15th-floor rooftop garden overlooks Central Park and the Metropolitan Museum of Art and can accommodate mature trees planted above more than four feet of soil, masterfully designed by renowned architect Fred F. French.
The original lease allowing her to use the garden of her 15th-floor penthouse apartment was negotiated by her father in the 1970s and has been a source of contention with other residents of the building ever since.
The most recent issue has to do with the fact that Hubschman's current lease requires the building owner to pay for the costs of removing thick dirt and wood if maintenance crews need to descend into the building structure to work on the roof.
But the new lease would shift those costs to Hubschman and also require her to pay a much larger share of the maintenance fees, according to court documents.
She says the burden of excavating and preserving the council's whimsical, unique and historic rooftop garden will almost ensure the disappearance of the historic oasis when the old lease expires at the end of September.
She filed suit against the trustees in Manhattan Supreme Court last month, seeking an injunction against the lease and damages for the decline in value of her apartment if the lease goes into effect.
But the council said the building's roof has been breached in the past, causing damage to the apartments below, and that in future crews will likely have to go under the garden to carry out additional work.
They argue that Hubschman, not the cooperative, should pay the costs.
“The Co-op has the right to carry out the necessary works without interference from Mr. Hubschman and the costs of removing and restoring any fixtures and plantings installed by Mr. Hubschman to enable the works will be borne by Mr. Hubschman, not you,” the board wrote in a letter to the building's shareholders last May.
“In the new lease [Hubshman’s] The letter states that they have the “right to a private garden on their terrace.”
Hubschman claims he is the only one who should be forced to cover the costs.
“Homeowners' insurance does not cover repairs to the building,” she wrote to neighbors last spring. “Shareholders cannot purchase buildings insurance or rely on building reserve funds.”
One of the new clauses in the lease also states that the historic gardens ” [the existing top soil earth trees, etc.] According to court documents, he is “not in a dangerous condition.”
Hubschman's attorney, Bruce Wiener, argues the co-op is trying to establish “vague and vague standards” that would give the board “unlimited discretion to remove rooftop gardens simply because a 'hazardous condition' exists (as it has done many times before).”
In previous allegations of “unsafe conditions,” the co-op cited suspected roof leaks as the reason for excavation, with its “ultimate goal being to destroy and permanently remove Hubschmann's Roof Garden,” Wiener wrote.
During the first roof battle in 1981, Wiener claimed the co-op had fabricated allegations of a leaking roof, and a judge ordered the entire garden exhumed and preserved after an engineering report said the roof was in danger of soon collapsing.
“The Co-op's fabricated claims that 'the roof is falling' have been proven to be completely false,” Weiner wrote.
The judge then ordered the co-op to fully restore every tree and shrub in the yard, because six years of storage had caused most of Hubschman's plants to die.
In 2009, a series of similar data leak lawsuits resulted in courts repeatedly finding Hubschman correct.
Wiener said that in that case, it was discovered that the alleged roof leak was actually caused by the “co-op's failure to maintain and repair the building's parapet wall and facade.”
Hubschman declined to comment, and messages left to the board were not responded to.
