Historic UES rooftop garden overlooking Met faces co-op battle as longtime resident claims ‘great injustice’

This fight is blowing the roof off of one Upper East Side co-op.

A longtime resident of a ritzy building overlooking Museum Mile says the board is trying to prune her rights to have an exclusive terrace garden as part of a decades-long effort to seize control of the lush roof-top oasis, according to a new lawsuit.

Barbara Hubshman, who has lived at 1010 Fifth Avenue since she was a child, says the co-op is committing a “great injustice” by tweaking her lease so as to burden her with expenses whenever the building needs roof work.

“They are placing the garden’s continued existence in jeopardy,” she wrote in a letter to her neighbors last spring.

The resplendent 15th-story rooftop garden, a private, sprawling enclave abutting Hubshman’s unit, overlooks Central Park and the Metropolitan Museum of Art, and can support mature trees with over four feet of dirt, expertly designed by famous architect Fred F. French.

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The original lease allowing the garden at her 15th floor penthouse apartment was hashed out by her father in the ‘70s — and has been a bone of contention with the buildings other residents since then.

The most recent issue involves the fact that Hubshman’s current lease requires the building to pay for the costs of removing the thick dirt and trees if maintence crews ever need to get down to the building’s structure to do roof work.

The new lease, however, would put those costs on Hubshman — and also make her pay a far larger share of maintenance fees, according to court documents.

She says the burden of digging up and storing the unique and historic roof garden at the board’s whim would basically guarantee the demise of the historic oasis once the old lease expires at the end of September.

She filed suit against the board last month in Manhattan Supreme Court, seeing to block the lease and money damages to compensate her for the decrease in value for her apartment if the lease were go take effect.

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The board, however, says that the building’s roof has failed in the past, leading to damage to the apartment’s below — and that work crews will likely have to get under the garden to do additional work in the future.

They say Hubshman, not the co-op, should have to pay for this.

“The cooperative will have the right to undertake the needed work without interference by Ms. Hubshman and the cost of removing and restoring her installations and plantings to enable the work will fall on her, not you,” the board wrote in a letter last May to the building’s shareholders

“The new lease does not remove [Hubshman’s] right to have a private garden on her terrace,” the letter reads.

Hubshman says that she alone can be made to bear the costs.

“A homeowner policy cannot cover building repairs,” she wrote in a letter to her neighbors last spring. “A shareholder cannot obtain Building Insurance or look to a building’s reserve fund.”

Also, one of the new provisions in the lease states that the historic garden can only remain in place “only so long as the [the existing top soil earth trees, etc.] are not in hazardous condition,” according to court documents.

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Hubshman’s attorney, Bruce Wiener, claims the co-op is trying to establish “a vague and amorphous standard,” which would give the board “unlimited discretion to have the Roof Garden removed merely by (as it has done multiple times before) pretextually claiming the existence of a “hazardous condition.”

In those past claims of “hazardous conditions,” the co-op cited suspected roof leaks as a reason to dig, “with the ultimate goal of destroying and permanently eliminating Hubshman’s Roof Garden,” Wiener writes.

During the first rooftop battle in 1981, Wiener claims that the co-op made up claims of a roof leak, and, after an engineering report claimed the roof was at risk of immediate collapse, a judge ordered the entire garden to be dug up and placed in storage.

“The Co-op’s fabricated allegation that the ‘roof was falling’ was proven to be absolutely false,” Weiner wrote.

A judge then ordered the co-op to totally restore the garden — every tree and shrub — by the co-op, since, after six years in storage, most of Hubshman’s flora had perished.

In 2009, a similar line of leaky litigation resulted in the courts repeatedly finding Hubshman to be in the right.

In that case, Wiener says, the alleged roof leaks were actually found to be “the failure of the Co-op to maintain and repair the Building’s parapet wall and facade.”

Hubshman declined to comment, and a message to the board went unanswered.

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