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6 COOPERATORNEWS —  MAY 2021  COOPERATORNEWS.COM From  COOPERATORNEWS.COM  continued on page PB   Proposed Legislation Seeks to Increase   Transparency in Co-op Denials  It’s Not’s You  BY AJ SIDRANSKY  Popular Co-op-Sponsored Street Fair   Resumes on Hester Street This Spring  Seward Park Partners With New Event Operator  BY DARCEY GERSTEIN  For just over a decade, a small paved lot on the Lower East Side of Manhattan sand-  wiched between high school tennis courts and Seward Park (the oldest municipal park   in the nation) has been the site of a popular weekend street fair in the spring and sum-  mer. The lot is at the eastern terminus of Hester Street, which was truncated 65 years ago   to make way for the Seward Park Cooperative, and is part of the co-op’s 13-acre proper-  ty.                                                                                                                                          In an effort to revive an underused space, provide an amenity that could be enjoyed by the   whole community, and give a nod to Hester Street’s past as a hub for hawkers and push-cart   vendors, the co-op’s board contracted with The Big Social, LLC in 2010 to bring in vendors   from all over the city and beyond to sell their food and beverages, arts and crafts, vintage wares,   services, and other goods. The event was an instant hit, and soon became a weekend staple   of the neighborhood—drawing crowds, incubating businesses, providing entertainment, and   inspiring creative pursuits.   At the end of the 10-year agreement with The Big Social last year, the co-op sought other   competing bids for operation of the Hester lot fair, and after a full review process, decided to   contract with a different operator to give the Hester Street event a reinvigoration and new spin.   Starting Saturdays later this month, the lot at Hester and Essex will host Hester Flea—where   a mix of both established and new vendors will sell all kinds of items, from vintage furniture   to indie designer clothing to handmade tableware, along with a selection of food vendors. The   space will once again be a magnet for discovery and entertainment, bringing together a vibrant   and diverse crowd to a corner of the Lower East Side once known as the Bargain District.   Hester Flea is the latest launch for the operators of other popular markets throughout New   York and beyond, including the historic Chelsea Flea, Brooklyn Flea, and LA’s and Williams-  burg’s Smorgasburg food fairs (currently on hiatus due to COVID). Founder Eric Demby says   of the newest Flea at Seward Park, “We’re excited to tap into the creative and culinary energy of   the neighborhood and to follow on the legacy of the previous operators to build a market that   excites locals and attracts visitors from Downtown and beyond.”      n  Once again, a push to pass legislation requiring co-op boards to disclose their reasons for   rejecting would-be shareholders is afoot in the New York State Senate. The bill is sponsored   by housing committee chairman Brian Kavanagh, a Democrat representing the 26th senato-  rial district, which covers lower Manhattan and some neighborhoods in northwest Brooklyn.    The new rules would require that co-op boards provide a written explanation for turning   down an applicant wishing to purchase shares in their building.   Basis for Denial  It may surprise some to know that currently, boards aren’t required to provide any such   explanation. They can reject a prospective buyer for no reason - or any reason, so long as it’s   not discriminatory or otherwise of bad faith.   “A board can reject a buyer for many reasons,” says Dennis Greenstein, a partner at Man-  hattan-based law firm Seyfarth Shaw. “The most common reason is financial. Many buildings   may also reject purchasers who are buying a unit as a pied-a-terre, or who may wish to have   their college-aged children occupy it.”    With an eye toward promoting long-term ownership and primary residency, co-op boards   seek stability. As members of a cooperative corporation, shareholders may be required to   shoulder occasional capital expenses.  Boards want to feel certain that when those expenses   come up and shareholders are called up to contribute - usually in the form of an assessment -   they have the wherewithal to cover their share.  Along those same lines, many co-op commu-  nities want to promote just that: community.  They want owners who occupy their apartments   full time, rather than seasonally, or as a crash pad whenever they happen to be town, or worse   yet, as a rental property with a revolving door of tenants and their guests. Being majority   owner-occupied promotes a feeling of pride of ownership, and encourages accountability to   the community that more tenuous relationships simply don’t.  Philip Simpson, an attorney with Robinson Brog, a firm also based in New York, points   out that, “Co-op boards can reject prospective purchasers for any reason that is not prohibited   by the discrimination statutes. Financial ability is probably the most common.” Simpson says   he’s seen a new trend in board denials recently.  “I have seen denials, or issues raised, when the   board views the purchase price as too low. A low purchase price will affect values throughout   the building, because it will become a comparable sale the next time an apartment comes on   the market, or someone wants to refinance their unit’s mortgage. The ‘price-is-too-low’ is   generally viewed as a legal reason to reject a sale.”  License to Discriminate?  The stated reason for the new legislation is to prevent discrimination - and while certainly   no ethical person would object to that goal, some industry groups and individuals have ques-  tioned whether the bill will accomplish that, or whether it’s the best way of doing so.    Simpson says in fact, “New York City presently has the broadest scope of protection for   groups of people against whom co-op boards might discriminate.” While a buyer who’s been   turned down for a co-op purchase might have a tough time proving that the rejection was   discriminatory if the board isn’t required to state its reason for it, Simpson points out that “If a   prospective purchaser in a protected class is turned down and sues, the co-op board may well   have to articulate a reason in response to the lawsuit.”  In general, Simpson describes a three-step process for analyzing such cases alleging in-  tentional discrimination: “The three-step process requires that, first, the plaintiff establish a   prima facie case of discrimination. If the plaintiff sustains this burden, the defendant must   offer rebuttal evidence articulating a legitimate, independent, nondiscriminatory reason for   its actions. Once defendant does so, in order to prevail plaintiff must prove, by a preponder-  ance of the evidence, that the defendant’s stated reasons are only a pretext for discrimination.”  In short, explains Simpson, if a member of a protected class is turned down by a co-op   board and then sues the co-op under existing case law, showing that she/he was objectively   qualified (had the financials, intended use as a primary residence, no reason to believe there   would be objectionable behavior) and was turned down, if there’s an inference that there was   unlawful discrimination (if someone not in the same protected class successfully purchased,   for example), then the co-op board will have to come forward with legitimate reasons for the   denial. The upshot is that, if sued, a co-op board cannot stay silent about their reasons for   rejecting an applicant.   Is New Legislation Needed?  With current New York City anti-discrimination regulations for housing among the tough-  est in the nation, Greenstein considers whether additional legislation is necessary.  “I do not   believe so,” he says.     “Another reason for the legislation is the belief that by not being required to give the reason,   a board can invent a reason later on if they are challenged. Supporting actions to prevent and   punish boards that discriminate should not be based upon such assumptions - and particularly   that people serving on boards as volunteers will potentially fail to tell the truth, whether it be at   commission hearing or before a judge gathering the facts and hearing the testimony.  There are   plenty of remedies for the parties who feel they have been discriminated against, and there are   a number of decisions by the commissions and courts which support such action.  I feel that   this legislation is not necessary, will encourage litigation, and discourage people from serving   on the boards of cooperatives.”  Will it Stand?  The more esoteric question perhaps is whether, if passed, such a law would stand the scrutiny   of the judicial review.  “On its face,” says Simpson, “requiring that people with lesser financials   be accepted would not seem to impair the integrity of contracts, because no existing contract is   being interfered with. But I would expect co-op owners to push back hard on such a proposal,   because it would be asking that existing co-op owners take on additional financial risk,” relative   to possible financial emergencies the co-op might experience in the future.  Greenstein concurs.  “Not without legislation, and if enacted, I do not see it standing if the   cooperative is a private cooperative. There are cooperatives - such as Mitchell Lama co-op   buildings - which have legal requirements limiting incomes of eligible purchasers and the sales   prices of apartments. The shareholders of a number of these buildings have voted to have them   go private,” in recent years.      n

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