Dep’t of Housing Preservation & Development v



Dep’t of Housing Preservation & Development v. Haddad

OATH Index No. 1312/07 (Aug. 9, 2007)

Certificate of no harassment for single room occupancy building should be granted, because petitioner failed to establish sufficient reliable evidence that respondent interrupted or discontinued essential services with the intent to cause the tenants to vacate the premises.

______________ _____________________________________

NEW YORK CITY OFFICE OF

ADMINISTRATIVE TRIALS AND HEARINGS

In the Matter of

DEPARTMENT OF HOUSING PRESERVATION

AND DEVELOPMENT

Petitioner

- against -

EDWARD HADDAD

Respondent

______________________________________________________

REPORT AND RECOMMENDATION

FAYE LEWIS, Administrative Law Judge

This is a proceeding commenced by petitioner, the Department of Housing Preservation and Development (“the Department”), pursuant to Local Law 19 of 1983, the Single Room Occupancy (“SRO”) anti-harassment statute. Admin. Code § 27-2093 (Lexis 2007). The Department referred this matter pursuant to title 28, section 10-06 of the Rules of the City of New York (RCNY) (Lexis 2007). Respondent, Edward Haddad, is the managing member of Broadway Breslin Associates, LLC, which is the net lessee of a thirteen-story pre-war building located at 1186 Broadway, between 28th and 29th Streets in Manhattan, and known as the “Breslin Hotel.” Petitioner alleges that respondent committed acts of harassment against the building’s tenants and seeks denial of respondent’s application for a certificate of no harassment (“CONH”) pursuant to section 27-198 of the Administrative Code.

Trial was held before me on June 4, 5, and 6, 2007. Petitioner presented the testimony of an HPD investigator and eight tenants. Respondent presented the testimony of one former tenant, the managing agent for the building, the building manager, and an employee of GFI Realty, the contract vendee for the Breslin, who lives in the building as a member of the transition team for new acquisitions. The record was closed on June 29, 2007, pending submission of post-trial briefs by the parties. For the reasons below, I find that the CONH should be granted.

ANALYSIS

Introduction

Respondent filed his application for a certificate of no harassment (“CONH”) on March 20, 2006. Before issuing a CONH, the Department must certify that there has been no harassment of the lawful occupants of the premises within the 36 months preceding respondent’s application. Admin. Code § 27-2093(c) (Lexis 2007). On January 12, 2007, HPD issued an “initial determination” finding that there was “reasonable cause” to believe that harassment of the lawful occupants of the premises occurred at the premises during the inquiry period, which was defined as March 20, 2003, to the present (Pet. Ex. 1).

HPD then filed a petition on January 24, 2007, alleging various acts of harassment during this inquiry period, including but was not limited to:

repeatedly intimidating individual tenants;

failing to provide heat and hot water;

failing to make repairs to bathrooms;

failing to provide adequate security;

failing to repair holes in walls;

failing to keep clean and sanitary the lobby, bathrooms, hallways, the freight elevator, and the laundry room;

failing to provide regular superintendent services;

generally interrupting, discontinuing, and decreasing essential services.

(Pet. Ex. 1, petition, at ¶ 8).

Under the Administrative Code, “harassment” is defined as any conduct by or on behalf of an owner of a single room occupancy multiple dwelling that includes:

1) the use or threatened use of force which causes or is intended to cause any person lawfully entitled to occupancy of a dwelling unit in such multiple dwelling to vacate such unit or to surrender or waive any rights in relation to such occupancy;

(2) the interruption or discontinuance of essential services which (i) interferes with or disturbs or is intended to interfere with or disturb the comfort, repose, peace or quiet of any person lawfully entitled to occupancy of a dwelling unit in the use or occupancy of such dwelling unit and (ii) causes or is intended to cause such person lawfully entitled to occupancy of such dwelling unit to vacate such unit or to surrender or waive any rights in relation to such occupancy;

2) the failure to comply with the provisions of subdivision c of section 27-2140 of article seven of subchapter five of this code which causes or is intended to cause such person lawfully entitled to occupancy of such dwelling unit to vacate such unit or to waive any rights in relation to such occupancy; or

(4) any other conduct which prevents or is intended to prevent any person from the lawful occupancy of such dwelling unit or causes or is intended to cause such person lawfully entitled to occupancy of such dwelling unit to vacate such unit or to surrender or waive any rights in relation to such occupancy including but not limited to removing the possessions of any occupant from the dwelling unit; removing the door at the entrance to the dwelling unit; removing, plugging or otherwise rendering the lock on such entrance door inoperable; or changing the lock on such entrance door without supplying the occupant with a key.

Admin. Code § 27-2093 (a) (Lexis 2007).

Additionally, Section 27-2093(b) of the Administrative Code creates a presumption that any statutory act defined in 27-2093(a) was committed with the intent to cause a legal tenant to vacate the unit. An owner may rebut the presumption by a preponderance of the credible evidence. Dep’t of Housing Preservation and Development v. McClarty, OATH Index No. 1602/00, at 2-3 (Dec. 7, 2000).

Preliminarily, it should be noted that petitioner failed to introduce any evidence that respondent failed to provide adequate security. The sole reference as to security in the record appears to be the testimony of Abimael Sequinot, the HPD investigator who visited the building on two occasions in July 2006, subsequent to the filing of respondent’s application for a CONH. Investigator Sequinot testified that on his first visit, the front door to the building was unlocked. Nonetheless, Investigator Sequinot indicated that there was a security booth, with a security officer present, to whom he identified himself (Tr. 14). This does not constitute evidence of a lack of security.

With regard to the remaining allegations, petitioner’s case rested largely on tenant testimony, in addition to the testimony of Investigator Sequinot. In essence, the tenants described the following conditions: garbage piling up inside and outside the compactor rooms, and inside and outside the building’s rear entrance, dirty carpets in the hallways, mice, problems with the bathrooms, interruptions of mail delivery, a dirty laundry room and rusted dryers, non-working elevators, and intermittent heat. Many of the tenants also described buy-out offers made to them by Robert Carolan, the managing agent of the building, and/or Adam Cassidy, an employee of GFI Realty. In rebuttal, respondent asserted that it provided regular maintenance, extermination, and cleaning services, and that any problems which arose were taken care of. Respondent noted that the building, which is very large, had no HPD violations issued prior to May 29, 2007, just six days before the start of trial, when HPD issued 40 violations pertaining to the bathrooms. Respondent presented evidence that 27 of these violations had been corrected prior to trial. Respondent also asserted that there were only a small number of Department of Buildings (“DOB”) violations have issued pertaining to the elevators, most of which had been closed. Finally, while Mr. Carolan acknowledged that management wanted to buy out tenants to create vacancies in the building in light of the anticipated sale of the lease and that there had been about 150 buy-outs of tenants in the three years prior to June 2007 (Tr. 201, 215), he denied ever telling a tenant that he or she could be forced out of their unit. Mr. Carolan instead testified that if a tenant asked him what would happen if they decided not to take a buy-out, he would say that “they had every right to stay” and that they could not be forced out (Tr. 202).

As set forth below, I credited some, but not all of the testimony of the tenants and respondent’s employees. I found that some tenants were more credible than others and that some tenant testimony was embellished. I concluded that although the conditions in the building were not ideal, they did not rise to the level of harassment, because of the steps taken by the building management to correct the problems which arose. A discussion of the evidence follows, first as to building conditions, and then as to the buy-out offers.

Building Conditions

In terms of building conditions, generally, petitioner introduced a packet of 311 complaints made to HPD during the inquiry period beginning March 20, 2003, relating to plumbing leaks, broken cabinets, a broken door frame, rubbish accumulation, mice, bathroom conditions, and heat/hot water (Pet. Ex. 3). Respondent stressed the lack of any HPD violations placed on the building prior to the violations issued six days before trial. Respondent asserted that a lack of violation history is unusual in a building the size of the Breslin, with 13 floors, and that the complaints themselves are not dispositive. Respondent also introduced a printout from the New York State Division of Housing and Community Renewal (“DHCR”) (Resp. Ex. A), which indicated that there had been two “cases” filed after the start of the inquiry period. One case is characterized as a “tenant non-renewal lease,” and its status is “denied.” The other case type is “statutory decontrol” and its status is “report.” Respondent pointed out that there are no harassment, decreased service, building-wide service, or heat cases within the inquiry period. Indeed, of the 41 cases listed, which go back to 1984, only one related to heat/hot water, and that was closed in 1988.

Investigator Sequinot testified that the conditions in the lobby “weren’t bad at all,” but that there was “debris” on the carpets, on a lot of the floors, and that the carpets were “worn” (Tr. 15). He also testified that the stairwells throughout the building were “dirty” (Tr. 15). Anna Mederios, a dancer who has lived in room 431 since 1992, described conditions in the common areas of the building as “pretty bad” and said that the carpets, which are changed about once every two years, are rarely vacuumed and look “black” after a while and that garbage piles up on both sides of the hallways (Tr. 94). Malick Alain Diop, a tenant of room 710 for the past seven years, described the common areas of the building as “rather dirty” and not “well maintained” and said that the carpets are “filthy” and that there are leaks from the ceilings into the common areas (Tr. 110). Nicole Randelman, a make-up artist who has lived in the building since 1997, testified that the hallways were very dirty, particularly for a period of three to four months beginning October 2006. It was “really, really bad” in October when raw garbage, including chicken bones and empty or filled meat packages, that “would just be laying there rotting for days and days” (Tr. 158). According to Ms. Randelman, she complained to Mr. Carolina, who said that there was nothing he could do. She told him that he should get someone to empty the garbage and clean the hallways. The problem resolved itself “gradually” starting around February of 2007 (Tr. 159). Suzanne Lenora, an artist who has lived in room 417 for almost 14 years, said that the carpeting on her floor was not replaced for six years and was “absolutely filthy” (Tr. 185). Finally, James Theobold, who has lived in room 806 for a little over 13 years, testified that the carpets are not vacuumed as much as they used to be; they used to be vacuumed a few times a week, now they are vacuumed perhaps monthly (Tr. 85). He described a “general gradual disrepair” in maintenance (Tr. 85).

There was also testimony that garbage piled up in the compactor rooms, outside the compactor rooms, and in and around the commercial entrance to the building. Investigator Sequinot testified that there was “debris” in the compactor rooms, coming out of the compactors and spilling on the floor, including food debris. Some of the floors, usually the lower floors, also had garbage coming out of the compactor rooms (Tr. 14, 22). Ms. Medeiros described the compactor room on her floor as having two garbage baskets and a compactor chute and said that the room usually fills with garbage, particularly on weekends. The compactor chute gets clogged, so the garbage begins to accumulate. She described one instance, on May 14, 2007, when there was so much garbage in the compactor room that the door could no longer close and garbage was spilling out to the front elevator door. She complained to Mr. Carolina about the situation; he said he doubted that that was true, but that he would send someone to check the room. She left for work, and when she returned, the garbage was gone (Tr. 94, 95). Margie Foster, who has lived in unit 408 for thirteen years, testified that the garbage cans in the compactor room were overflowing, which led some tenants to place “open food” in the compactor room. According to Ms. Foster, sometimes the food and the garbage stayed there over a weekend, or a day or two, because people would just keep piling garbage on top of the cans (Tr. 137). Ms. Lenora testified that she saw garbage backed up in the trash compactor on the fourth floor for four months (Tr. 188). Mr. Theobold testified only that the areas where the garbage is kept are not as well maintained as they used to be (Tr. 85).

Both Mr. Carolina, and to a lesser degree, Mr. Carolan, testified that the building is staffed by maintenance and other employees, and that the building tries to remedy problems raised by tenants through a system of work orders which are filed by tenants. Mr. Carolan explained that he has been employed by Hadson Realty for 33 years, starting around 1982, and has been the registered managing agent of the building for about ten years. According to Mr. Carolan, a tenant who has a complaint can tell the security person at the front desk. If the complaint involves a problem that can be taken care of immediately, it is. If not, the tenant has to fill out a work order and give it to Mr. Carolina, who generally reviews and distributes the work orders every morning (Tr. 217). Mr. Carolan represented that Mr. Carolina comes in every other Saturday, and this past year, almost every Saturday, and that he also stops in on Sunday (Tr. 219). Thus, if there is a problem over the weekend, Mr. Carolan thought the likelihood was that Mr. Carolina would learn about it and take care of it (Tr. 219).

Mr. Carolina testified that, in addition to himself, the building is staffed from 8:00 a.m. to 4:00 p.m. five days a week, with a painter, handyman, and porters. From 4:00 p.m. to midnight, there is a worker who follows up with the cleaning and garbage disposal. On weekends, the porters are available in the morning. There is also someone who lives in the building and is on call; he reports to Mr. Carolina (Tr. 251). Thus, according to Mr. Carolina, there is a cleaning crew in the building seven days a week (Tr. 265). For the past several months, there have been security people in the front lobby who are employees of a private company that was hired by the Breslin after the tenants complained about security (Tr. 256).

Regarding the compactor rooms, Mr. Carolina testified that the garbage is removed from the compactor room in both morning and evening, five days a week. He said that he was not trying to complain, but that a lot of tenants do not put their garbage inside the compactor rooms, but instead leave it in front of their doors, or in front of the compactor room door. On occasion people throw the wrong thing down the chutes, on one occasion a coach. It took his workers a long time to get the couch out, because it got stuck. During that period, he had the workers go to every chute on the floor, bag up the garbage, and bring it downstairs to be collected (Tr. 252).

It was not disputed that that the commercial tenants of the Breslin, and members of the public, have placed garbage both outside and inside the building’s rear entrance. The rear entrance door is left open so that the commercial tenants of the building can access the rear vestibule, which has a freight elevator. The Breslin staff and some tenants use the rear entrance as well. There is also a second, interior door, which is locked, so outsiders can not enter the building. A number of tenants testified that there has been a problem, mostly at night, with commercial tenants, passerbys, and others putting garbage inside this rear vestibule. In addition, at times there has been a dumpster with wood outside the door (Tr. 106). Ms. Medeiros claimed that she complained to Mr. Carolan, who said that he had tried the best he could, by talking to the commercial tenants, but that the commercial tenants continued to put their garbage into the rear vestibule (Tr. 106). Ms. Foster testified that sometimes, “mounds of garbage” would accumulate in the building, and on the sidewalk, blocking the door, which was a fire exit (Tr. 151). The garbage would not be picked up until 3:00 a.m. or 4:00 a.m. Ms. Foster testified that when someone once called the Fire Department, the area got cleaned, and stayed clean for about a week, and that the same thing happened all over again, “for months” (Tr. 137). Investigator Sequinot did not mention any observations of garbage in the rear vestibule, and Mr. Theobold, when asked what other conditions had existed in the past year at the Breslin, apart from bad elevators, testified only as to a decline in overall maintenance (Tr. 85).

Mr. Carolina testified that the garbage is removed from the rear entrance about three times a day: morning, afternoon, and in the evening (Tr. 253). Mr. Carolan testified as well that every morning the garbage is picked up to be compacted (Tr. 212). Mr. Carolina acknowledged that the Fire Department had instructed him to put up a sign saying not to block the fire entrance, and that he had done so (Tr. 252). Neither Ms. Foster, nor Mr. Carolina, nor anyone else, testified that the Fire Department inspected the area again. There was no evidence of any violation issued pertaining to garbage blocking the rear entrance.

Ms. Medeiros and Ms. Foster testified that the garbage left by the rear entrance caused an infestation of mice. Ms. Foster gave particularly vivid testimony about how mice had gotten into her unit, coming onto the table next to her bed and getting into her food cabinet (Tr. 140). The building exterminator came on her request every week for about five weeks to take care of the problem, laying traps, then double traps. The building also replaced her carpeting, which they had not done in seven years. A carpenter was called to seal up holes in the walls, and to put in mortar (Tr. 148), and a sweeper was attached to the bottom of her door to fill the space between the floor and the door (Tr. 148). Ms. Randelman also testified that there was a mouse infestation in her apartment. She asserted, however, that the building exterminator came either once or twice to put down traps (Tr. 158, 178), after which she “had to call” her own exterminator and pay to plug up the holes. The exterminator said there was nothing that could be done because of the garbage in the hallways (Tr. 158).

Mr. Carolina testified that he helped with the mice problem in both Ms. Foster’s and Ms. Randelman’s units. He also said that Ms. Randelman said she did not want certain materials put down on her floor, because she had a dog, and that he told her: “Anything that she needs to be done, anything needed to be done, I would do it for her.” They closed the mouse hole in her unit, and she never complained after that (Tr. 254).

Five tenants testified that the elevators often broke down. Steven Colvin, who has lived in room 703 for approximately 19 years, testified that the elevators are “constantly breaking down” and “often put back into service before they’re repaired” (Tr. 36). He described one elevator in particular, which he takes to his room, whose front doors do not close properly but instead open and close repeatedly, making a loud “banging” noise (Tr. 36). Nariti Nagpal, who has lived in apartment 733 of the Breslin for about three years, testified as well that the doors to the elevator that she uses do not open and shut properly. She testified that a lot of times the elevators are out of service and that she sometimes has to wait ten minutes for the elevator door to stop opening and closing (Tr. 57). According to Ms. Nagpal, she has complained about the elevator to the security guards and other workers in the building, but it has not been fixed. One of the building employees told her instead to kick the door shut (Tr. 58). Ms. Nagpal did not call 311 to make a complaint about the elevator until recently (Tr. 58). Mr. Theobold testified that there are four elevators in the building, which have broken down with greater regularity over the past year, so that at times only one elevator was running. He described an incident about three weeks prior to trial, where the elevator made a “horrible” noise and shook several times from side to side. The young woman who had been in the elevator with him called security, which closed it down for three days, after which it was re-opened (Tr. 84). Ms. Medeiros testified that the elevators are not well maintained, because “every single week we seem to have a malfunctioning elevator” (Tr. 97). Someone is called to repair the elevators when they break down, but they malfunction again (Tr. 97). Mr. Dios indicated that there are “maybe” six elevators in the building, in addition to the freight elevator, although he generally uses just four of the elevators. One of the elevators does not open and close properly and makes a lot of noise (Tr. 111). He described being trapped in an elevator on March 3, 2007, when it started shaking and then just stopped; when he pressed the alarm, Vinny Carolina and then Gil, the handyman, came to work on it. He did not wait for them but called 911, who sent a firefighter; he was in the elevator, in total, about half an hour. The Breslin then took the elevator out of service, for at least a week (Tr. 113).

Regarding the elevator, respondent presented evidence that there had been eight violations, all closed, placed on the building by DOB for elevator issues (Resp. Ex. B). Of the eight closed violations, one issued on January 4, 2005, one issued 17 months later, on June 9, 2006, and six issued on April 3, 2007 (Resp. Ex. B). Four of the April 3, 2007 violations were dismissed on April 16, 2007; the remaining two April 3 violations were dismissed on May 1, 2007. The January 2005 violation was dismissed on June 7, 2006; the June 9, 2006 violation was dismissed on December 21, 2006. The violations were issued for six different “devices” or elevators. According to Mr. Carolan, there are seven elevators in total in the building, including the freight elevator and the elevator to the penthouse (Tr. 210). There were also seven elevator violations recently issued in May 2007, four of which had been reported to DOB as being cured as of June 5, 2007. Mr. Carolan also testified that he expected two violations to be cured within days, and the remaining violations, which necessitated some re-wiring for an intercom, to be cured by the week’s end (Tr. 211).

As to the bathrooms, Investigator Sequinot testified that he went into the men’s bathrooms only (because he did not have a female escort) and observed faucets that did not work properly, mold and mildew on the walls and around the shower stalls, broken or defective shower divider doors, and missing tiles (Tr. 15). Mr. Colvin testified that the conditions in the seventh floor bathroom were “very sad” (Tr. 30). He acknowledged that the room had just been freshly painted, but said that the fresh paint was giving him headaches because the ceiling fan was not working and had been removed and the bathroom had no windows (Tr. 30). Additionally, the shower floor was cracked. An attempt was made to repair it, but the crack remained. He acknowledged that the repair effort was made “shortly after” he complained (Tr. 30). As to the eighth floor bathroom, which he uses when the seventh floor bathroom and shower room is being used, he described it as being “run down” and “moldy” and having “bad circulation,” because the bathroom fan does not work. He also said that there was no grouting around the shower area and there was a loose partition between the bathroom stall and the first toilet. He has asked via work orders submitted in July and November 2006, that the bathroom be renovated because he felt it was “just beyond repair,” but no action was taken (Tr. 33, 34). Together with Ms. Lenora, he conducted a walk-through inspection of other bathrooms in the building. According to Mr. Colvin, the bathrooms on five floors (12, 11, 10, 6 and 4) have been renovated. The bathrooms on floors 5, 7, 8 and 9 have not been renovated in the fifteen years he has lived in the Breslin (Tr. 35). As to the fourth floor bathroom, which is on her floor, Ms. Lenora stated that “I guess it’s kept as clean as they can,” but that it “constantly leaks,” she believes from the toilets above through the new ceiling tiles that were installed (Tr. 186, 187). Ms. Lenora termed some of the unrenovated bathrooms “absolutely disgusting” (Tr. 186). More specifically, she described conditions in the bathrooms as including “holes in the walls,” fans not working, “complete filth,” loose drains, faucets taped with duct tape, cracked ceilings, missing tiles and a partition tied together with what looked like a shoelace (Tr. 186, 187).

Petitioner also presented the 40 HPD violations that were placed on the building on the eve of trial, all of which related to bathroom conditions. The HPD violation summary report (Pet. Ex. 4) indicates that of the 40 violations, 29 were class A violations, with a certification date for repairs of September 20, 2007, and 11 were class B violations, with a certification date of July 22, 2007. The class A violations pertained to: broken or defective shower divider doors, a loose stall divider, a broken faucet, a loose toilet seat, a “sloping floor,” painting of radiators and walls, replacement or repair of radiator covers, broken door locks, missing covers for ceiling lights, repairs to fans, broken ceramic wall and floor tiles, and entrance doors in need of refitting or repair. The class B violations pertained to: openings in a drain pipe that need to be closed, painting and plastering of the ceiling, entrance doors that need to be made self-closing, an entrance door with a defective lock, broken or defective ceramic wall and floor tile, and a window repair.

Robert Carolan, the managing agent of the building, and Vincent Carolina, the building manager, testified that 27 of the 40 violations relating to the bathrooms had already been corrected as of the time of trial (Tr. 209, 259-63). Respondent also introduced photographs taken by Mr. Carolina showing the repair work that had been done to correct the violations (Resp. Ex. H) and seven invoices (Resp. Ex. I) for repair work, including repairs to fans, lighting fixtures, and repairs to locks. Respondent noted that the repairs were made well in advance of the certification dates.

Complaints regarding the laundry room were limited to Ms. Lenora, who testified that the laundry room was dirty, with garbage and flies on the floor, many inoperable dryers, and others that are rusted. When she complained about this to Mr. Cassidy, he said something along the lines of “That’s what you get when you live in a building like this” (Tr. 189). Mr. Carolan testified that the Breslin has a service contract for the washers and dryers and that from time to time defective equipment has been replaced (Tr. 217).

Ms. Randelman, and to a far lesser extent, Mr. Theobold, testified as to problems with the mail. Ms. Randelman testified that starting May 1, 2007, she did not receive any mail at all for two or three weeks. A birthday card or package from her parents that was sent the week before her birthday, May 12, got returned, as did various bills. Her parents re-mailed the envelope through UPS or Federal Express, and she received it. Indeed, she received any mail that was sent through UPS, or Federal Express, rather than the United States Postal Service. The UPS and Federal Express deliveries were delivered to and held by the Breslin doormen. Ms. Randelman complained to Mr. Carolina and to the doormen, Casper and Vernon, about a missing piece of mail from the Internal Revenue Service (“IRS”), and told Casper on May 12, 2007, that if she did not get the IRS letter, she would file a “report” with the IRS and “name names” (Tr. 171). The IRS letter arrived May 14, 2007, but there was no mail on May 15, 16, and 17. She indicated that she had started to get some mail about a week before trial (the last week of May, 2007), although she still had not gotten her Verizon bill. She acknowledged that it is the postal carrier who deposits her mail in a locked box in the mailroom (Tr. 170). Mr. Theobold testified that in March 2007, two pieces of mail, one a check from ADP and one a bill from the Bank of America, sent to him at the Breslin, had been returned to the sender as undeliverable. Bank of America sent him a new bill, which he received. He was given a number to call the United States Post Office to follow up. Later, at a tenants association meeting in May 2007, he heard that there were five or six other people in the building who had also not gotten their mail.

Mr. Carolan acknowledged learning of tenant complaints about mail delivery. He investigated and learned that the regular mail carrier, Willy, had been on vacation and that there had been some problems in his absence (Tr. 207). Both Mr. Carolan and Mr. Carolina testified that the postal carrier, who is employed by the United States Postal Service, places the mail into individual locked boxes in the building’s mailroom, to which he has a key. Mr. Carolan testified that management does not have a key to these mailboxes, while Mr. Carolina testified that there are some extra keys to the mailboxes that are kept in a lockbox in the office, which he has access to in case of emergency (Tr. 207, 256-57). Both testified that, unlike packages sent by regular mail, packages sent by UPS or Federal Express go through the doorman and are kept for tenants in a locked closet in the lobby (Tr. 207, 257).

A number of tenants complained about the heat, most particularly the heat this past winter (2006-07). Ms. Medeiros testified that it has been cold in her unit for years and that she has complained to management. Finally, this past year, “after many years of begging,” they changed the window in her bathroom, but did not seal it properly, so a cold draft came through (Tr. 96). Ms. Medeiros asserted that management never changed the window in her unit, although both Mr. Carolina and Gil (one of the building workers) went to the unit this past winter. Gil said it was “just a matter of fitting the window frame properly” (Tr. 96). However, he also said that the wood on the window frame was rotten and that she needed a new window. But, “of course,” management would not buy her a new window but just cleaned the old windows and put them back in. This past winter was “freezing” and she had icicles inside her windows. Mr. Carolina told her this was New York and that he has icicles inside his house as well. She has purchased winterization plastic and placed it over the windows to stop the draft (Tr. 97).

Ms. Foster testified similarly as to “chronic heat problems” and “lack of heat” going “back quite a few years.” She testified that a year ago, when it “was about ten degrees outside” the boiler was broken for about “four or five days,” and there was no heat (Tr. 140). It was so bad that some people moved out or went to stay with friends (Tr. 140). She then described a situation this past winter, when the temperature dropped to about ten degrees, and there was no heat. She called 311 twice during this time. She also testified that “[t]here was a period where every couple of weeks, the boiler was turned off for maintenance.” There were notices placed in the elevator, most of the time in the early morning, warning that there would be no heat or hot water until further notice (Tr. 141). Additionally, because the building faces Broadway, it is very windy. The wind comes through the windows, which are old. She has caulked the windows herself to try to prevent drafts (Tr. 142). When it was cold, she had to run space heaters, one in her room, and one in the bathroom, which was expensive (Tr. 141).

Ms. Randelman also testified that the biggest problem this past year was “the lack of heat and hot water” (Tr. 156). This was particularly bad for about six or seven days in January and/or February 2007. She did not have a thermometer, but it was “really, really cold outside,” and she was “freezing” inside her apartment (Tr. 156). She called 311 six times and also called the building manager, Mr. Carolina, and the doorman, several times a day. Mr. Carolina said he was fixing the boiler. According to Ms. Randelman, the building was “always fixing the boiler,” even before the winter (Tr. 157). At one point they claimed to be replacing the boiler, but the next week they were fixing it (Tr. 157). When asked if the building had a heat problem prior to 2007, Ms. Randelman said, “Yes, sometimes, not as often” (Tr. 177). Finally, regarding the heat, Mr. Diop testified that the heat goes “on and off” in the building and that “the level of heat we get is not always appropriate” (Tr. 118, 119). He filed a heat complaint once over the past three years (Tr. 118).

Petitioner also introduced a packet of 311 complaints made to HPD during the inquiry period beginning March 20, 2003, which included 69 calls regarding heat and hot water during this period (Pet. Ex. 3). However, 33 of the 69 calls, or 48%, were made during a four-day period from January 18, through January 22, 2005. Notes in the complaint history reflect that callers complained that the building had taken the boiler out of service on January 18, 2005, to be put back in service the following day, but that the boiler had remained out of service longer. As indicated above, petitioner did not call a witness to explain the complaint history, but there is a note referring to an emergency complaint, with the complaint status closed as of January 28, 2005, and the problem “close date” being January 21, 2005. There was also a smaller cluster of calls, six in all, made on March 6 and 7, 2007, regarding lack of heat. Beyond this, there were four calls made in December 2006, one in October 2006, four in May 2006, seven between January 2006 and March 2006, three in December 2005, one in August 2005, three in October 2004 and four in August and September 2004. The calls made in the summer months and in September were limited to hot water, not heat.

Respondent stressed the lack of heat violations placed on the building, despite the complaints. Mr. Carolina testified that he had changed the bedroom window in Ms. Medeiros’s unit, and that he did not recall Ms. Medeiros complaining about the window in the bathroom (Tr. 258).

Respondent has asserted that this case is analogous to Dep’t of Housing Preservation and Development v. Porres, OATH Index No. 627/06 (June 16, 2006), in which Judge Spooner found that petitioner had failed to establish harassment where there was “no persuasive documentary evidence to corroborate the tenants’ allegations that essential services were not supplied during the inquiry period.” Porres, OATH 627/06, at 13. He also concluded that allegations as to lack of heat were “concocted … after the tenants learned of the owner’s application for a certificate of no harassment as a part of a collective tenant effort to oppose the issuance of the certificate. Porres, OATH 672/06, at 18. Porres is analogous, but only to a point. Here, as in Porres, there was limited documentation to corroborate the tenants’ testimony. There were no HPD violations placed on the building until the eve of trial, well after the inquiry period. See Dep’t of Housing Preservation and Development v. Pascal, OATH Index No. 626/06, at 3 (Apr. 5, 2006) (one class B violation, lodged nearly a year after the filing of the CONH application, “hardly showed” harassment during the inquiry period); cf. Dep’t of Housing Preservation and Development v. Bonaparte, OATH Index No. 930/05, at 13 (July 13, 2005) (post-filing conduct probative of intent to oust tenant from lawful tenancy); Dep’t of Housing Preservation and Development v. Nyameke, OATH Index No. 1796/04, at 7 (May 2, 2005) (same); Dep’t of Housing Preservation and Development. v. Mamudoski, OATH Index No. 771/01 (Feb. 21, 2002) (same). There was also a limited number of elevator violations placed on the building. Moreover, as more fully discussed below, the evidence established that the filing of the application for a CONH led many tenants to be uncertain and anxious about their future, as was also the case in Porres. It was undisputed that about 150 tenants had been bought out since 2004, and that Mr. Cassidy and Mr. Carolan were meeting with the remaining tenants to try to negotiate buy-out deals. Every tenant who testified for petitioner found the situation stressful. A number of tenants who wanted to remain in their units rather than accept buy-out offers formed a tenant association (Tr. 48). Under these circumstances, it is entirely plausible that tenant complaints after the March, 2006 filing of the application for the CONH were made with an eye toward influencing HPD not to grant the CONH.

However, here, unlike Porres, there was a significant number of complaints made prior to the filing of the application for the CONH, which makes it implausible that each of the tenants who testified simply concocted their testimony. Rather, the tenants’ testimony must be carefully scrutinized, along with that of Mr. Carolan and Mr. Cassidy, and viewed against the backdrop, not only of the recent filing of the application for the CONH, but also the limited violation history of the building.

On balance, I credited some, but not all of the tenants’ testimony, and I also credited much of Mr. Carolan’s and Mr. Carolina’s testimony. There was a substantial amount of testimony given about generally dirty conditions in the building, corroborated by Investigator Sequinot, who testified that some of the hallways were dirty and that there was debris on many carpets, although the lobby looked acceptable. As to the tenants, I found Mr. Theobold to be a particularly measured witness and I found his comment that there was a gradual decline in services and maintenance over the past years to be telling. Thus, I credited his comment that the carpets were not vacuumed particularly frequently, and I also found, based on the various tenants who testified about the carpets, that the carpets were not cleaned appropriately. However, I did not credit the testimony of Ms. Randelman that raw garbage, including chicken bones and half-empty meat packages, were permitted to rot in the hallways for “days and days,” while Mr. Carolina said there was nothing he could do. There are several reasons why. First, Ms. Randelman was the only tenant to testify about something so extreme. Second, her comment that Mr. Carolina said that he could do nothing was at odds with the testimony of a number of other tenants, who described instances where they complained of problems that were fixed once they complained to Mr. Carolina. This includes Ms. Foster, who said that when she complained to Mr. Carolina about the garbage overflowing from the compactor chute in May 2007, it was cleaned up by the time she got home from work, and Ms. Lenora, who testified that when she complains about conditions on her floor, they “usually get corrected” (Tr. 192). Third, it was noteworthy that the building had no violations, at all, pertaining to general cleanliness. Fourth, I credited Mr. Carolina’s testimony that the building had a regular staff, including porters, who were also available weekend mornings. However, as Mr. Carolina did not testify to how many porters the Breslin employed, nor what their schedule was for cleaning the building, I questioned the vigor and the adequacy of their cleaning efforts.

I credited the tenants’ testimony that often garbage piled up in the compactor rooms. This was plausible given Ms. Medeiros’s testimony that the compactor room on her floor only had two garbage baskets, which were apparently insufficient for the number of tenants on the floor. I noted as well Ms. Foster’s testimony that sometimes tenants put “open food” into the compactor room, rather than wrapping it in a tied plastic bag to dispose of it. This supported Mr. Carolina’s testimony that the garbage problem was partially attributable to the improper disposal of garbage. I credited Mr. Carolina’s testimony that at times people put garbage outside the compactor room or on the floor, outside of the baskets, and that at times, the compactor itself was jammed. I also credited Ms. Lenora’s testimony that the trash compactor had been backed up for a period of time, although her testimony that the compactor was backed up for four months seemed embellished. I also credited Mr. Carolina’s testimony that garbage is picked up two times a day and that there is a porter on weekends. However, I did not find that the porter on weekends always picked up the garbage, in light of the testimony of both Ms. Medeiros and Ms. Foster that garbage accumulated over the weekend.

In terms of the rear entrance to the building, I credited Mr. Carolina’s testimony, which was not disputed, that the garbage was picked up in the early morning and that the problem was due to commercial tenants and others putting the garbage into the vestibule of the building. Neither Mr. Carolina nor Mr. Carolan addressed, however, why the building vestibule was left open or whether it was possible to limit access to the commercial tenants and bar access to members of the public.

I credited Ms. Medeiros’s and Ms. Foster’s testimony that each had a mouse problem, as well as Mr. Carolina’s testimony that he helped resolve the mouse problem. I did not credit Ms. Randelman’s testimony that she “had to call” her own exterminator, at her own expense, to plug up the holes. There seemed to be no reason why Ms. Randelman would have to do this, given that Ms. Foster was able to have the building exterminator come once a week to deal with her mouse problem, along with the building carpenter and Mr. Carolina. Moreover, I did not credit the hearsay statement, attributed by Ms. Randelman to her exterminator, that that there was nothing that could be done about the mouse problem because of hallway garbage. As noted above, the description Ms. Medeiros gave of the hallway garbage was not corroborated by other tenants and seemed exaggerated. Moreover, it appears that the mouse problem was resolved in both units, after extermination.

I credited the tenant testimony that there were problems with the elevators and that the elevators were then taken out for repairs. Even Melissa Leifer, the former tenant whose testimony petitioner presented, seemed to acknowledge that there were some problems with the elevators when she testified that there were five elevators in the building, so she could always use one (Tr. 271).[1] However, that testimony must be viewed in the context of the limited violation history for the elevators. Although it took a substantial period of time for the January 4, 2005 violation and the June 9, 2006 violation to be dismissed, it is noteworthy that four of the six violations issued on April 3, 2007 were closed within 13 days and the other two were closed within 28 days. I also credited Mr. Carolan’s testimony that four out of the seven recently issued elevator violations were put into the Department of Buildings as cured.

I partially credited Ms. Lenora’s testimony about the laundry room. I credited that the laundry room was dirty with garbage and flies on the floor. However, Ms. Lenora did not indicate if the room was always dirty, frequently dirty, or just sometimes dirty, nor did she indicate how much garbage was on the floor, or if she complained to anyone beside Mr. Cassidy about the laundry room. This is important as I credited Mr. Carolina’s testimony that the building had regular maintenance services and credited Ms. Foster’s and Ms. Lenora’s testimony that Mr. Carolina was responsive to their complaints.

In terms of the mail, I concluded from the testimony of all the witnesses, including Mr. Carolan, that there had been problems with tenants getting their mail in May 2007, when the regular mail carrier was on vacation. I did not credit Ms. Randelman’s testimony that she did not get any mail at all since May 1, 2007, as she seemed to have a tendency to exaggerate and she appeared to be the only tenant making this claim. By contrast, for example, Mr. Theobold testified only that he knew of two pieces of mail which he did not receive. In any event, I did not conclude from the tenant testimony that the decline in mail services was due to malicious intent on the part of the building staff, as it was the United States Postal Service carrier who handled the mail, and there seemed to be no problem with the UPS and Federal Express packages handled by the building staff.

I credited most of the tenant testimony that there were some problems with the bathrooms, but I also credited the testimony of Mr. Colvin that the bathrooms on five of the thirteen floors had been renovated and the testimony of Ms. Lenora that the fourth floor bathroom, although it leaks from new ceiling tiles recently installed, is “kept as clean as they can.” I viewed the testimony of Ms. Lenora that the older bathrooms were “absolutely disgusting” and had “complete filth” with some skepticism, because I viewed it as more likely than not that they were cleaned, albeit not that often and not that well. The proof of recent bathroom violations was of a dual nature: on the one hand, it revealed some problems with the bathrooms, albeit after the inquiry period; on the other hand, I credited Mr. Carolina’s and Mr. Carolan’s testimony that 27 of the 40 violations had already been corrected as of the time of trial.

The testimony about the heat was most problematic. A number of people testified as to persistent heat problems, including Ms. Foster, Ms. Randelman, Mr. Diop, and Ms. Medeiros. Both Ms. Randelman and Ms. Foster testified as to problems this past winter, when it was very cold outside, and there was no heat for a period of time (six or seven days) according to Ms. Randelman. They also testified that the boiler was often out for repairs; Ms. Randelman said it was “always” being repaired. There was also testimony from Ms. Medeiros and Ms. Foster that the windows in the building are drafty. I credited only some of this testimony. I credited the testimony that the building was sometimes cold and that the windows were drafty, with the caveat that this testimony was imprecise and therefore less than fully probative. Despite the heat complaints made against the building, there were no heat violations actually issued, and, as in Porres, OATH 627/06, there was no evidence such as a log of the outside and inside temperature “to establish that the legal requirement for heat was violated on any given date.” See Porres, at 16; Admin. Code § 27-2029 (owner required to maintain heat at 68° from 6:00 a.m. to 10:00 p.m. when outside temperature is below 55° and at 55° from 10:00 p.m. to 6:00 a.m. when outside temperature is below 40°). While I credited the testimony as to old and drafty windows, I also credited Mr. Carolina’s testimony that he replaced the bedroom window in Ms. Medeiros’s unit after she complained.  

Moreover, I did not credit Ms. Randelman’s testimony that there was no heat recently for six or seven days, nor that the boiler was “always” being repaired. I did not do so for several reasons: Ms. Randelman’s testimony often seemed exaggerated, and her use of the word “always” seemed a colloquial, inexact reference, rather than a precise accounting; Mr. Diop testified in a much more subdued manner only that the level of heat was “not always appropriate;” Mr. Theobold did not mention heat problems; and, despite the heat complaints made regarding the building, there were never any heat violations actually issued. Moreover, the 311 complaint history for the building shows a relatively small number of heat complaints made this past heating season: one call in October 2006, four calls in December 2006, six calls clustered on March 6 and March 7, 2007, and apparently no calls in January and February 2007. Similarly, I did not find Ms. Foster’s testimony that the boiler was turned off for maintenance “every couple of weeks” this past winter to be reliable. Again, this seemed more an estimate, than a precise number. I did credit Ms. Foster’s testimony that there was a situation, about a year ago, when the boiler was broken for about four or five days, although it appeared from the 311 complaints that she may have been referring to the period of time from January 18 through January 22, 2005, when 33 calls were made to 311 complaining of a broken boiler and lack of heat/hot water (Pet. Ex. 3). It might be noted that no testimony was offered as to the 311 complaints; all that is known is that various people complained at various times about the heat and/or hot water, including Ms. Randelman on at least three occasions and Mr. Diop, on October 30, 2006, who is indicated as having refused access to his unit when an inspector arrived.

The full record leaves no doubt that at least during some periods within the inquiry period, starting March 20, 2003, the building had problems involving cleanliness of the hallways, garbage disposal, conditions in the bathrooms, vermin, elevator operation, and the maintenance of the boiler. However, the evidence establishes that the building took steps to deal with these issues, including boiler maintenance and repair, extermination weekly upon request, discussions with commercial tenants, elevator repair, renovations of five bathrooms, and some level, although clearly not optimal, of cleaning and garbage removal. Although there were also some recent problems with mail delivery, there was absolutely no evidence that building staff or management was responsible. Although there was testimony about heat and a number of heat complaints, almost half of the heat complaints appeared limited to a discrete incident in 2005, when there were indications that the boiler, which had broken, was being fixed. There were no heat violations, and no log indicating inside and outside temperatures. In sum, therefore, given the lack of any HPD violations on the building until the recently issued (and mostly cured) bathroom violations, the relatively minor number of elevator violations and the sometimes embellished and conflicting tenant testimony, there was insufficient reliable evidence to establish the denial of essential service violations or other serious violations posing a threat to health and safety. See Local Law 19 of 1983, § 1, declaration of legislative findings and intent (noting that methods of harassment may involve force and violence and the denial of essential services and other serious violations of the building code, health code and the housing maintenance code which constitute a serious threat to the health and safety of such occupants and the general public”). The evidence therefore falls short of establishing statutory acts or omissions within the definition of harassment contained in section 27-2093(a) of the Administrative Code.

Alternatively, even if the tenant testimony pertaining to garbage removal, bathroom problems, and elevator and boiler break-downs were found to be sufficient to establish interruptions of essential services, falling within the statutory definition of harassment, respondent has rebutted the presumption of harassment through evidence of efforts to remedy conditions in the building. See Dep’t of Housing Preservation and Development v. Wulliger, OATH Index No. 782/06, at 12 (May 5, 2006) (presumption of intentional harassment rebutted by evidence that owner responded to tenant complaints); Dep’t of Housing Preservation v. Weall, OATH Index No. 457/05, at 12 (Feb. 28, 2005) (even if statutory acts of harassment could have been shown, respondent rebutted the statutory presumption of intent to harass through evidence of repair efforts).

The Buy-Out Offers

Beyond the conditions in the building, petitioner alleged that respondent harassed the tenants through repeated and persistent buy-out offers. I found the evidence insufficient to prove harassment.

It is well-settled that buy-out offers alone do not in and of themselves give rise to a finding that harassment under the SRO statute has occurred. See, e.g., Dep’t of Housing Preservation and Development v. Tauber, OATH Index No. 675/07, at 22 (May 16, 2007). Even repeated buy-out offers do not necessarily give rise to a finding of harassment, absent deplorable or terrible conditions of the premises. See Vaughan v. Michetti, 176 A.D.2d 144, 574 N.Y.S.2d 30 (1st Dep’t 1991) (“repeated buy-out offers” sufficient to constitute harassment where the tenant’s unit was also “permitted to remain in a deplorable condition over a lengthy period of time, despite requests by the tenant to the owners to ameliorate the situation”); Nyameke, OATH 1796/04, at 8 (harassment found where there were deplorable conditions including lack of working stove and bathroom, and unfriendly pit bulls in corridors, in addition to name-calling).

In the case at bar, petitioner did not establish that tenants’ units or common areas were permitted to remain in a deplorable condition over a lengthy period of time. The question then becomes whether the nature of the buy-out offers themselves violates section 27-2093 (a) of the Administrative Code, either because they involved the use of force, or threatened use of force, prohibited in section 27-2093(a)(1), or they involved language or conduct so threatening as to fall within the general language of section 27-2093(a)(4): “any other conduct which prevents or is intended to prevent any person from the lawful occupancy of such dwelling unit . . ..” See Dep’t of Housing Preservation and Development v. Greaux, OATH Index No. 1457/02 (Aug. 30, 2002) (finding harassment under section 27-2093(a)(4) where an owner who had made a $1,000 buy-out offer to a tenant engaged in “implicitly threatening” behavior by telling the tenant repeatedly that he had to leave, that she [the owner] could throw the tenant’s possessions out, and that if he remained, she would eventually be unable to pay for electricity and word would spread “around the neighborhood . . . about you being the only one here and you never know what’s going to happen to you”). Greaux, at 8.

Here, Mr. Carolan and Mr. Cassidy acknowledged trying to set up meetings with tenants to discuss the possibility of buy-out offers, coupled with relocation to a rent-regulated apartment elsewhere. Some of the tenants testified that they declined invitations to discuss buy-outs. Mr. Mr. Colvin, for example, testified that he spoke with Mr. Carolan twice and Mr. Cassidy once, all in chance encounters. Mr. Carolan was at the front door and opened it for him twice, as he exited; both men were “very cordial” to each other (Tr. 43). Mr. Cassidy told Mr. Colvin about four months ago that he wanted to meet for coffee to clear up any misunderstandings. Mr. Colvin said he was very busy but would try to arrange a meeting through Mr. Carolina, but he never did so (Tr. 43). Ms. Foster testified only that she got a telephone message on her answering machine this past Christmas from Mr. Carolan, saying that he would like to sit down and talk with her about relocating. She did not call him back. A few weeks later, she got a number of telephone messages from him. Sometime later, she called back and said that she was busy and asked what he wanted. Mr. Carolan did not want to discuss a buy-out on the telephone and said that Ms. Foster should meet with him if she had time. She has not done so and neither Mr. Carolan nor anyone else has called her back (Tr. 145). Mr. Carolan never told her that she would be required to leave the Breslin (Tr. 144).

Some of the tenants described in-person meetings, and some professed to have found the situation stressful or to have felt threatened. Mr. Theobold, for example, testified that he met with Mr. Carolan and Mr. Cassidy on December 16, 2006, to discuss a buy-out. The upshot was that Mr. Carolan put a $15,000 offer on the table and said that he might be able to find Mr. Theobold an apartment in the Bronx, where Mr. Theobold said he works. Mr. Theobold said he did not think that was a fair offer. When Mr. Carolan asked what a fair offer was, Mr. Theobold said a “fair starting price” would be about $50,000. Mr. Carolan said that was too much money and that basically ended the meeting. Mr. Theobold made it clear “that I was not saying that I would never be amenable to any offer” (Tr. 82). Mr. Theobold testified that he felt “very depressed” and “anxious” in the aftermath of the meeting because Mr. Carolan told him that he would not be involved in the building much longer, and that Mr. Theobold should deal with him, as opposed to other people Mr. Theobold did not know. Mr. Carolan also said, according to Mr. Theobold, that there would be dust, dirt, and loud noise involved with the construction, that he might not feel safe with construction debris and tools around, and that the owner could raise his rent based on improvements that were being made in the common areas (Tr. 80). Mr. Theobold testified that he “came to view” the statement that Mr. Carolan made about dealing with him, as opposed to other people that Mr. Theobold did not know, as a threat (Tr. 84). He acknowledged, however, that he was never told that he could be forced out of the building (Tr. 90, 91).

Mr. Carolan, when asked about any comments he had made to Mr. Theobold, said he did not recall specifically, but recalled telling tenants that they had the right to stay in the building. Mr. Carolan testified that if he was asked if rent could go up, he would reply that he did not really know, but there could be a percentage increase that could be passed along to the tenant (Tr. 203). On balance, I credited Mr. Theobold’s testimony that Mr. Carolan made reference to the possibility of construction debris, tools, dust, and noise, as well as increased rent. As Mr. Theobold appeared throughout his testimony to be a fairly objective witness, I also credited his testimony that Mr. Carolan said he might not feel safe with all the construction debris and tools. These were comments about the risks of living in a building with construction, but they did not constitute the same type of threat, implied or express, as was at issue in Greaux, OATH 1457/02. The comment regarding increased rent also did not constitute harassment, particularly since Mr. Theobold acknowledged learning subsequently that alterations to public areas could result in increased rent, albeit capped (Tr. 92). Similarly, although I credited Mr. Theobold’s testimony that Mr. Carolan said that Mr. Theobold should deal with him, and not people he did not know, it appeared that this was in the context of negotiations over the terms of the buy-out. In sum, although I have no doubt that Mr. Theobold felt anxious as a result of these discussions, because they raised issues about whether it would be more beneficial to him to take a buy-out rather than remain in the building, the comments ascribed by him to Mr. Carolan and/or Mr. Cassidy fell short of harassment under the Administrative Code.

Besides Mr. Theobold, Mr. Diop testified that he met with Mr. Carolan and Mr. Cassidy in December 2006, they offered him $10,000 to leave, he said that he was not interested, and they told him to consider their offer and get back to them. Later, close to the trial date, Mr. Cassidy approached him with a written offer of $20,000 and relocation to a higher floor, and then telephoned and asked him if he had a dollar amount in mind. Mr. Diop testified that he replied that there was no dollar amount, because he wanted to stay put, but he also commented, “[t]hey wanted to do something with the space that I was in, and it was for them to make a proposal to me, and I would go from there” (Tr. 116). Mr. Diop also testified that Mr. Carolan and/or Mr. Cassidy “actually said to me that they could not evict me,” although he indicated, without explaining further, that he was told that “the situation might deteriorate” for him. Absent more, Mr. Diop’s testimony, like Mr. Theobold’s, was insufficient to establish harassment.

The testimony of tenants Suzanne Lenora and Nicole Randelman concerning their conversations about buy-outs was more problematic, but I did not fully credit it. Ms. Lenora testified that she had a conversation with Mr. Cassidy about the rusted dryers in the basement, in which she asserted that the prior manager had kept the building “very clean,” and that Mr. Cassidy then told her that if she was going to stay in the building, she would have to move to a top floor, because they would not be permitted to have residential occupants living below commercial occupants. According to Ms. Lenora, Mr. Cassidy also told her that she would not want to be on the twelfth floor next to a “crazy” person with a “mask” (Tr. 190). Ms. Lenora did not elaborate further on what she thought Mr. Cassidy meant, or whether there was someone with a mask on the twelfth floor whom she would not want to live near, and I did not fully credit this testimony, which seemed implausible. Mr. Cassidy testified only that he had conversations with Ms. Lenora regarding buy-outs or relocation and that she did not tell him that she was not interested in such offers (Tr. 238, 239).

Ms. Randelman’s testimony, if credited, was the most damaging to respondent. According to Ms. Randelman, Mr. Carolan knocked on her door and left voice mail for her on several occasions, indicating that he had seen a sign on her door indicating that she was not going to move, and that he wanted to speak to her. One day she picked up her cell phone when he called and, according to Ms. Randelman,

He basically told me that I was going to have to move one way or another. He specifically told me that the people who were in charge of the building now had ways of making me move, even if I didn’t have to. He told me that if I insisted on staying there, that my rent would go up to as much as $2,400 a month, because they would put it as improvements, even if I didn’t request it. He told me that the building would be under major construction, and that there would be workmen coming in and out of there, and the tenants would be left vulnerable. He said that this was the time to leave anyway, because they have their ways. And that this would be my only chance to get something.

(Tr. 161). When asked whether Mr. Carolan explained what he meant by “they have their ways,” Ms. Randelman testified that Mr. Carolan said that “they’ve been flipping buildings in the neighborhood, other SROs” (Tr. 161). She then said that she was not moving and Mr. Carolan said that she was “no match” for the “businessmen” who were interested in the building (Tr. 161). Mr. Carolan denied making these statements, although he acknowledged talking with Ms. Randelman about a buy-out several times, when he saw her walking through the building, and one time when she “more or less came in” to discuss a buy-out. She “made it clear” that she was not interested and they discussed her rent and whether her rent could increase by work being done in the building. He told her that he was not really sure and to look into it (Tr. 205).

I concluded that it was more likely than not that Mr. Carolan, who admittedly discussed a buy-out with Ms. Randelman, made comments to her about the possibility of her rent going up, as well as what it would be like to live in the building while work was going on, as he had to Mr. Theobold. However, I did not credit the rest of her testimony, largely because it was so divergent from the rest of the tenants’ testimony, all of whom indicated that they were not told that they would be evicted, and one of whom, Mr. Diop indicated that he was expressly told that he would not have to leave. Additionally, I was reluctant to credit the other statements about how “they have their ways,” in light of what seemed to be embellishments throughout Ms. Randelman’s testimony.

The other testimony that was troubling was that of Ms. Nagpal, who did not actually meet with Mr. Carolan and Mr. Cassidy, but who testified as to repeated attempts by Mr. Cassidy, and to a lesser degree, Mr. Carolan, to set up a meeting with her. I credited this testimony, but only to a degree. Ms. Nagpal testified that she had been “hearing stories from other tenants” about being contacted by management about moving out. Then, “one day” Mr. Carolan called her on her way to work and said he wanted to talk. She knew why he was calling, and she did not want to talk to him, because she did not want to move. In an attempt “to avoid him,” she said she was “busy” and “running out” and would get back to him (Tr. 60). She did not do so. Several weeks later, Mr. Carolan called again, on her cell phone. She picked up and said that she could not talk, because she was at work. He called on subsequent occasions, but she recognized the number and did not pick up. Then he called and left a message saying that he needed to speak to her and if she did not want to speak to him, she should call and tell him. She found this “reasonable enough,” even though she was “upset” and “tense” because he had called her at work (although on her cell phone). When she called back, he said that he wanted to set up a meeting. She pressed him for an explanation and he indicated that he had never discussed this before on the telephone, but wanted to know if she would consider a buy-out. She testified that she said she was not interested but if anything changed, she would call him (Tr. 61). He asked how long it would take for her to get back to him, and she said that she did not know (Tr. 61). She felt that he was “kind of abrupt” and she was “a little upset” (Tr. 61).

Although Mr. Carolan did not call again, several weeks later, Mr. Cassidy telephoned her in the evening. She was upset and said she had already spoken with Mr. Carolan, and that she had “specifically told” Mr. Carolan not to call her, and had indicated that she would get back to him if she wanted to (Tr. 63). Mr. Cassidy said that Mr. Carolan asked him to call her. She became “mad” at Mr. Carolan’s statement that they had moved a number of people into Brooklyn, and at his suggestion that she could live in Brooklyn. She found this “so unreasonable” because she is a “single girl” and wanted to be close to work, “rather than being in some shady area” in Brooklyn (Tr. 63). She told Mr. Cassidy that she was not interested in moving and would get back to him if she was interested. He indicated that he would make a note against her name that he had spoken to her and that she would get back to them. Ms. Nagpal said, “[Y]es, I will get back to you” (Tr. 64). According to Ms. Nagpal, her phone rang the very next morning at 10:30, with the same number showing up on the cell phone. She did not pick up. “Everyday” or “almost every day” she received phone calls from the same number, which all went to “missed calls” or to voicemail (Tr. 64, 68). She became very anxious, wondering if they would “kick me out” (Tr. 65). She is now “so suspicious about everybody who’s in the building,” that when she saw a man leaning against the wall on her floor, she thought he was “spying,” even though she would not have given this “a second thought” before all the phone calls (Tr. 68). She also saw a man “tinkering with the electrical box” and wondered if he was “going to mess around with the electricity” (Tr. 69). Ms. Nagpal acknowledged, however, that neither Mr. Carolan nor Mr. Cassidy ever told her that she would be evicted or forced to leave the building if she did not take a buy-out; she got this idea from speaking to other tenants in the building, who said that they had been investigated to see if they were living elsewhere and that the owner had used this information against them (Tr. 71). She believed they felt like they had been “kicked out” (Tr. 73).

When shown her cell phone records (Resp. Ex. D), Ms. Nagpal indicated that Mr. Carolan had called her on October 31, 2006, and left her a voicemail indicating that if she called him back, he would not bother her again. She indicated that she called him back on November 13, 2006. Mr. Cassidy then called her in the evening on December 4, 2007; and the next time that he called when she picked up the telephone was January 6, 2007 (Tr. 67). There was also a time in January when Mr. Cassidy called and left her a voice mail, which she immediately deleted the moment she recognized his voice (Tr. 68). The last telephone call that she answered from Mr. Cassidy was about April 18, 2007 (Tr. 67). She testified that the telephone company indicated that missed calls – the ones she did not answer – would not appear on her bill (Tr. 66). When asked about other telephone calls or contacts with Mr. Cassidy, she indicated that Mr. Cassidy had run into her once in her hallway, which she found troubling because the corridor is “a dead end,” albeit with a freight elevator (Tr. 68). According to Ms. Nagpal, they just looked at each other and Mr. Cassidy “[j]ust shrugged me off and just . . . walked straight past me” (Tr. 68). Several other times, Mr. Cassidy saw her sitting in the lobby and looked at her, but she averted her face (Tr. 68).

When asked about Ms. Nagpal, Mr. Carolan testified that he had a few conversations with her on the telephone. There were two meetings set up. She did not appear and she called, apologetically, and said she was too busy. He asked if he could call later to set up the appointment and she said that was fine. He called a couple of times after that to try to set up another appointment, but that “never happened” (Tr. 204). She never told him not to call.

Mr. Cassidy also testified that Ms. Nagpal did not show up for a few meetings and that he followed up and asked if she wanted to re-schedule. When shown the telephone records (Resp. Ex. D), he identified two telephone calls on November 13 as being made to or from the telephone for the Breslin doorman and the office telephone for the Breslin. It was unclear from the records whether the calls were outgoing or incoming. He also identified the phone number listed for January 2006 as his cell phone (Tr. 234). He indicated that she never said that she was not interested in relocation or to stop calling (Tr. 235).

On balance, I concluded that there were multiple calls made to Ms. Nagpal to try to schedule a meeting to discuss the buy-outs. It was clear that Ms. Nagpal was upset and anxious about whether she would be forced to leave the building even before these calls, although her concern seemed to stem from conversations with those people who may have been the subject of nonprimary residence investigations or proceedings. Ms. Nagpal became more upset and more anxious when Mr. Carolan tried to call to set up a meeting. I did not conclude, however, that Ms. Nagpal specifically told Mr. Carolan not to call her. Ms. Nagpal did not make this assertion in her direct testimony; instead, she recounted a scenario in which she said she was not interested but would call if anything changed. Only when recounting her conversation with Mr. Cassidy (Tr. 63), did she indicate that she had told Mr. Carolan not to call her. It was unclear whether she actually made this comment to Mr. Carolan, or whether she left it more open-ended, telling Mr. Carolan that she would get back to him, while believing in her own mind that this meant that he would not call her. Moreover, in the absence of corroborating documentation, I did not find Ms. Nagpal’s statement that Mr. Cassidy called her “every day” or “almost every day” in December 2006 to be reliable, but found it more likely to be an exaggerated characterization of the number of telephone calls from Mr. Cassidy’s phone to her cell phone. The scenario that Ms. Nagpal recounts, partially credited, amounts to a number of repeated attempts, by Mr. Cassidy, to talk to her on the telephone to follow up on the December 2006 telephone conversation about buy-out and relocation. This fails to fall within the statutory definition of harassment.

The only other testimony regarding buy-out conversations was either in the form of testimony offered by respondent or in the form of hearsay statements attributed to other tenants. With regard to respondent’s evidence, a former tenant, Melissa Leifer, testified that she was not pressured or coerced into taking a buy-out, but did so because of the money and because Mr. Cassidy found her an apartment which fit her “price range and criteria and location” (Tr. 270). Mr. Cassidy testified as to giving a buyout to a family of four and relocating them to an apartment in Queens (Tr. 243). As to the tenants, Mr. Colvin testified that one woman moved out because she “didn’t want to deal with it anymore” (Tr. 49, 53). She took a $10,000 buy-out (Resp. Ex. E). Ms. Medeiros testified that she spoke to a tenant, Ms. Tanaka, who said that Mr. Carolan was calling her, and leaving messages with her, even though she said she wants to remain in the building (Tr. 102). Ms. Medeiros told her not to call him back (Tr. 102). She also spoke to a former tenant, who took a buy-out, who said that management had called her at her workplace and left messages on her cell phone (Tr. 104; Resp. Ex. F). Ms. Medeiros’s and Mr. Colvin’s testimony, even if credited, falls far short of proving harassment; it indicates that the Breslin was reaching out to tenants about buying them out, and that some tenants took the buy-out offers. Ms. Randelman testified that she spoke with a former tenant, Sue Jin Park, who said that she had had a “really scary” conversation with Mr. Carolan, who had talked with her manager at work and said that she was going to have to leave the building (Tr. 162). As to that, Mr. Cassidy said that he called the number for Ms. Park, which turned out to be a job number, and asked for Soo Jin. The woman who answered asked for his name, and she engaged him in conversation about what was going on in the building, and brought up the possibility of a buy-out. He then spoke with Ms. Park, briefly, whose English is broken and who seemed “thrown off” by his having spoken to her employer. Subsequently, he met Ms. Park in the building, by chance, and apologized for calling her at work accidentally (Tr. 246). She then retained a private attorney, with whom he reached a buy-out agreement (Tr. 238). Ms. Randelman’s testimony that Ms. Jin had a “really scary” conversation was not reliable, for a number of reasons: Ms. Randelman’s tendency to exaggerate; the hearsay nature of the comment, attributed to Ms. Park; Ms. Park’s apparently limited English; and Mr. Cassidy’s testimony that it was Ms. Park’s supervisor who engaged him in conversation about the buy-out. The evidence regarding these encounters demonstrates that the Breslin management made continued efforts to reach buyout agreements with as many tenants as possible, including financial payouts and relocations to rent-regulated apartments. This falls far short of harassment.

In sum, on this record, petitioner failed to establish harassment under the Administrative Code during the inquiry period. Therefore, respondent’s application for a certificate of no harassment should be granted.

Faye Lewis

Administrative Law Judge

August 9, 2007

SUBMITTED TO:

SHAUN DONOVAN

Commissioner

APPEARANCES:

SUSAN BRONSON, ESQ.

RONIT JOSEPH, ESQ.

Attorneys for Petitioner

BELKIN, BURDEN, WENIG & GOLDMAN LLP

Attorneys for Respondent

BY: KARA RAKOWSKI, ESQ.

STEWART SMITH, ESQ.

-----------------------

[1] As noted, there were varying estimates from the tenants of the number of elevators in the building, ranging from four (Mr. Theobold) to six (Mr. Dios). Mr. Carolan testified that there were seven elevators in the building, one of which was a freight elevator and one of which went to the penthouse.

................
................

In order to avoid copyright disputes, this page is only a partial summary.

Google Online Preview   Download