Dep’t of Housing Preservation and
Dep’t of Housing Preservation and
Development v. 331 West 22nd Street LLC
OATH Index No. 912/06 (Dec. 29, 2006)
Certificate of no harassment could not be rescinded where petitioner failed to prove that owner harassed tenants after certificate was issued. Owner failed to prove that substantial work had commenced at the time the certificate was suspended.
______________________________________________________
NEW YORK CITY OFFICE OF
ADMINISTRATIVE TRIALS AND HEARINGS
In the Matter of
DEPARTMENT OF HOUSING PRESERVATION AND DEVELOPMENT
Petitioner
- against -
331 WEST 22ND STREET LLC
Respondent
______________________________________________________
MEMORANDUM DECISION
TYNIA D. RICHARD, Administrative Law Judge
This is a proceeding commenced by petitioner, the Department of Housing Preservation and Development (“HPD” or “petitioner”), pursuant to Local Law 19 of 1983, the Single Room Occupancy (“SRO”) anti-harassment statute, to rescind a Certificate of No Harassment that was issued to 331 West 22nd Street LLC, the owner of 331 West 22nd Street, New York, New York, on August 10, 2004. NYC Admin. Code § 27-2093 (Lexis 2006). An owner of a SRO building must obtain a Certificate of No Harassment prior to obtaining an alteration permit from the Department of Buildings. The certificate may be suspended and, after a hearing, rescinded, if the Commissioner finds that harassment occurred at the premises after the effective date of the Certificate of No Harassment, so long as substantial work has not yet commenced. NYC Admin. Code § 27-2093(f). On or about November 15, 2005, HPD found reasonable cause to believe that harassment occurred at the premises after the issuance of the Certificate of No Harassment, and it suspended the certificate. HPD subsequently filed this proceeding.
PRETRIAL MOTIONS
Respondent made an omnibus pretrial motion that sought a stay of this proceeding, as well as summary disposition of the case and other relief. First, respondent sought a stay of this proceeding pending the resolution of an Article 78 proceeding previously filed in Supreme Court. Second, respondent sought summary judgment alleging that no condition can be proven to have existed at the premises that could form the basis of a finding that harassment occurred. Third, respondent sought summary judgment arguing that the only complaining tenant is deceased and his statements are precluded. Last, respondent sought to preclude testimony from employees of Westside SRO Law Project (“Westside SRO”) and to preclude petitioner from introducing any evidence regarding the complaining tenant because he is deceased. The omnibus motion was denied on the record. The reasons therefor are discussed here.
I. This proceeding should not be stayed pending resolution of an Article 78 proceeding, which was commenced prematurely before the owner exhausted its administrative remedies in this forum
Respondent asked that the tribunal stay this matter pending the resolution of an Article 78 proceeding that it filed in Supreme Court seeking to annul, vacate and set aside HPD’s suspension of the Certificate of No Harassment (“CONH”). In that matter, respondent contended that HPD had no jurisdiction to suspend the CONH because substantial work had already commenced at the premises (Resp. Mot. ¶¶ 36, 38). I find that respondent failed to exhaust administrative remedies before filing the Article 78 petition; therefore, its request for judicial relief was premature. Having shown no entitlement to a stay of this proceeding, respondent’s motion for a stay was denied.
Respondent was issued a CONH on August 10, 2004 (Resp. Mot., Ex. A). After conducting an investigation of a complaint of harassment lodged by Westside SRO, HPD issued a Notice of Suspension on November 15, 2005. On November 21, 2005, respondent filed an Article 78 proceeding in Supreme Court seeking to invalidate the suspension (Resp. Mot., Ex. G; Resp. Mot. ¶ 35). Under the Administrative Code, before HPD may rescind a CONH, it must suspend the certificate and provide notice and a hearing so that respondent may answer its charges of harassment. NYC Admin. Code § 27-2092(f). Petitioner served the Notice of Hearing in this proceeding, commenced for the purpose of determining whether rescission is proper, on November 28, 2005 (Resp. Mot., Ex. B). Respondent asserts that, if its prior-filed claim is sustained in the Supreme Court action, the proceeding before this tribunal will be moot (Resp. Mot. ¶ 49). To the contrary, it is the proceeding before this tribunal that provides the exhaustion of administrative remedies that is a condition precedent to jurisdiction in Supreme Court. Without this proceeding, its Article 78 proceeding is not ripe.
Respondent also claims, erroneously, that HPD’s decision to suspend the CONH required a hearing and included a “full and final determination” that substantial work had not yet commenced on the premises; it is the latter determination that respondent claims is subject to Article 78 review (¶¶47, 48).[1] Both arguments are incorrect, as the statute clearly sets forth a two-step process that precedes a final reviewable “determination.”
First, HPD may “suspend” the CONH prior to conducting an evidentiary hearing upon a finding that there is reasonable cause to believe there was harassment. NYC Admin. Code § 27-2093(f).[2] The Rules of the City of New York provide that “[w]here the commissioner has found reasonable cause to believe that harassment has occurred after the date of the submission of an application for certification of no harassment . . . and before substantial work has been commenced, he may suspend the certification . . . and issue notice of a hearing on the issue of recission of such certification.” 28 R.C.N.Y. § 10-08 (b). HPD is not required to make a written determination regarding the extent of work completed or to provide a hearing at the time that it suspends the CONH. Second, within 30 days of the suspension, HPD must provide the owner with a hearing, by which it will find facts that will determine whether there is cause to rescind the CONH. NYC Admin. Code § 27-2093(f)(3). Rescission requires a two-part factual finding: that the owner harassed lawful occupants of the premises after issuance of the CONH, and that substantial work had not yet commenced at the time of the suspension. The requisite hearing is the one conducted in this tribunal, and the factual findings are documented below. Accordingly, Administrative Code clearly creates an exhaustion requirement that must precede the Article 78 filing in Supreme Court and that fully comports with due process.
The doctrine of exhaustion of administrative remedies requires litigants to address their complaints initially to administrative tribunals, rather than to the courts, and to exhaust all possibilities of obtaining relief through administrative channels before appealing to the courts. YMCA v. Rochester Pure Waters District, 37 N.Y.2d 371, 372 N.Y.S.2d 633 (1975) (claim barred where appellant failed to exhaust administrative remedy by appealing assessment to the county board of supervisors). In this case, HPD’s exhaustion requirement is carried out at OATH. Under the provisions set forth above, if the Department made a determination to rescind, it is required to send “written findings” to respondent. NYC Admin. Code § 27-2092(f). No such findings were issued by HPD, as they would issue from the findings of this proceeding. Thus, the Article 78 proceeding is premature, and this proceeding should not be stayed.
Moreover, the provisions set forth above protect respondent’s opportunity to be heard to answer the allegations of harassment and to address whether substantial work had commenced at the premises; therefore, they provide adequate due process. See Ewing v. Mytinger & Casselberry, Inc., 339 U.S. 594, 70 S. Ct. 870 (1950) (no hearing is required by due process at the preliminary stage, so long as the requisite hearing is held before the final administrative order becomes effective); see also Harder v. NYS Dep’t of Envtl. Conservation, 60 A.D.2d 664, 400 N.Y.S.2d 212 (3d Dep’t 1977) (upholding provision for pre-hearing suspension without pay in section 75 of the Civil Service Law). Pursuant to these proceedings, respondent will be afforded a full opportunity to litigate all relevant issues in the instant hearing and an ample opportunity to be heard before the Commissioner decides whether to rescind the CONH.
Accordingly, respondent’s motion to stay the proceedings pending the resolution of its Article 78 proceeding is denied.[3]
II. A prior stipulation with HPD settling claims about building conditions does not require summary judgment on the issue of harassment
Respondent seeks summary judgment on the ground that no condition existed at the premises that could have formed the basis for a finding of harassment. Respondent bases this contention upon a stipulation executed by the parties in an HP proceeding in Civil Court on September 8, 2005, which respondent contends constitutes a final resolution of the harassment claims alleged herein (Resp. Mot. ¶¶ 56, 63). The stipulation settled the HP proceeding upon the parties’ agreement that certain specified conditions had been repaired by the owner and that other conditions would be repaired by the owner.
The stipulation also provided for some degree of finality of the claims, stating at paragraph 9:
If this matter is not restored to this Court’s calendar by any party within seventy-five (75) days from the date of execution of this Stipulation, or if restored but no Order to Correct or Civil penalties and/or Criminal penalties are issued by the Court then in that event, this matter shall be deemed to have been fully settled without the assessment of court costs and/or attorneys fees for or against any party hereto and the owner will be deemed to have promptly and diligently effectuated all required repairs upon notice of same and to have continually employed all reasonable efforts to restore all essential services which may have been interrupted and/or discontinued for any reason, including by not limited to, the fire which occurred at the subject building on or about August 17, 2005.
(Resp. Mot., Ex. N) (emphasis added). The stipulation was executed by Westside SRO, on behalf of the tenant-petitioners, and HPD and the owner, as respondents. It was also “so ordered” by Judge Gerald Lebovits. HPD believes that its execution of the stipulation is irrelevant to the question of whether there was harassment. I disagree.
It is well-established that an administrative agency is bound to a stipulation agreement as would any other party who enters into such an agreement. Thomasel v. Perales, 78 N.Y.2d 561, 570, 578 N.Y.S.2d 110, 114 (1991) (state agency that is a signatory to a stipulation of settlement cannot escape its obligations under that agreement). A stipulation in a settlement between an administrative agency and another party is a contract that is governed by the principles of contract law, and, like a contract, the stipulation must be interpreted according to its unambiguous language. See Modern Medical Lab v. Dowling, 232 A.D.2d 901, 648 N.Y.S.2d 820 (3d Dep’t 1996). The cardinal rule of contract interpretation is that, when the language is clear and unambiguous, the parties' intent is to be discerned from the instrument in accordance with the plain and ordinary meaning of its language. See Tanner v. Adams, 197 A.D.2d 785, 786, 602 N.Y.S.2d 710, 711 (3d Dep’t 1993); Dryden Cent. Sch. Dist. v. Dryden Aquatic Racing Team, 195 A.D.2d 790, 793, 600 N.Y.S.2d 388, 391 (3d Dep’t 1993). The plain meaning of paragraph 9, above, is that in the absence of reinstatement of the HP proceeding within 75 days of the settlement (which was November 22, 2005), HPD agrees that the repairs were made. Skogsberg Const. Co., Inc. v. Hawthorne Indus. Park, Inc., 94 A.D.2d 766, 767, 462 N.Y.S.2d 711, 712 (2d Dep’t 1983) (“where the parties enter into a stipulation recorded in the minutes of the court, the settlement agreement terminates all the claims of the parties . . . made in the action, and the agreement becomes enforceable as a contract binding on all the parties thereto.”), citing Langlois v. Langlois, 5 A.D.2d 75, 169 N.Y.S.2d 170 (3d Dep’t 1957); see also Biener v. Hystron Fibers, Inc., 78 A.D.2d 162, 434 N.Y.S.2d 343 (1st Dep’t 1980).
More importantly for our purposes is the question of how the stipulation relates to the present claims of harassment. Petitioner contends that the stipulation does not resolve the issue of whether the conditions documented in the stipulation constituted harassment, that is, whether they caused or were intended to cause lawful tenants to vacate the premises (Pet. Opp. ¶6). The language of the stipulation deems the owner’s repairs to be “prompt” and “diligent” and its efforts to restore essential services “continuous” and “reasonable.” Harassment, however, is intentional conduct that tends not to be reasonable, prompt or diligent. See, e.g., NYC Admin. Code §27-2093(a)(2) (Lexis 2006) (defining harassment as “the interruption or discontinuance of essential services” that “interferes with or disturbs or is intended to interfere with or disturb the comfort, repose, peace or quiet of” a lawful tenant; and §27-2093(b) (defining it as “acts or omissions . . . committed with the intent to cause a” lawful tenant to vacate the unit or to surrender or waive rights to the unit); see also Dep’t of Housing Preservation & Development v. Ibrahem, OATH Index No. 1779/06, at 12 (Oct. 26, 2006) (delay in unclogging drain may warrant a finding of harassment so long as notice was provided to landlord about the problem); Matter of Tenants of 13 E. 17th Street, OATH Index Nos. 1343/03, 1354/03, and 1357/03, at 10 (Aug. 17, 2005) (in the absence of proof as to when the owner was placed on notice of the problem, the delay in completing the repair could not be found to be unreasonable or negligent), aff'd in part, rev'd in part, Loft Bd. Order No. 3041 (Apr. 20, 2006).
I find, however, that this language explicitly acknowledges the good faith of the owner in agreeing to repair the claimed conditions and repudiates any claim that conduct evincing an ill intent or motive occurred. Petitioner cannot now make claims to the contrary. Hallock v. State, 64 N.Y.2d 224, 485 N.Y.S.2d 510 (1984) (party present during negotiation of the settlement and failed to voice an objection thereto cannot be heard to challenge the settlement). Moreover, the language of the stipulation evinces an intent to extinguish the specified claims about conditions that existed at the premises at that time.
The stipulation did not resolve all of the allegations of harassment stated in the petition, however. Thus, there are material facts in dispute that preclude summary judgment on the issue of harassment. See Zuckerman v. City of New York, 49 N.Y.2d 557, 427 N.Y.S.2d 595 (1980) (summary judgment is appropriate where there is no triable issue of fact and the movant has established entitlement to relief as a matter of law); Tankard v. Abate, 213 A.D.2d 320, 624 N.Y.S.2d 161 (1st Dep’t 1995). Petitioner may assert in this proceeding any acts of harassment occurring after the stipulation, and may assert any claims of harassment contemporaneous in time with those in the stipulation that were not a part of the prior action.
Accordingly, I conclude that a hearing is required to determine whether acts or omissions alleged in the petition that were not resolved in the prior stipulation constituted harassment that caused or was intended to cause lawful tenants to vacate the premises.
III. The representation made in a settlement agreement by one of the last two remaining tenants, Mr. Giron, that he was not harassed is insufficient grounds by itself to dismiss this proceeding
On September 12, 2005, Francisco Giron, one of the last two tenants in the building, entered into a Tenancy Cancellation and Apartment Surrender Agreement (“Settlement”) with the owner in which he acknowledged and agreed that the owner had never harassed him, as that term is defined in section 27-2093 of the Administrative Code, and that he had notice of the interruption of essential services during the demolition and was offered relocation during the demolition process which he refused (Resp. Mot. Ex. J, Settlement, ¶4). He also was paid $25,000 to vacate the building pursuant to the settlement (id., ¶5). The Settlement further issued a directive to Mr. Giron’s prior counsel, Westside SRO, to withdraw any claims it made on his behalf in connection with rescission of the owner’s CONH and to notify HPD of same in writing (id., ¶9). It should be noted that Westside SRO admitted that, despite notice of the settlement, it never notified HPD to withdraw Mr. Giron’s claims. In fact, even after obtaining notice of the agreement, HPD continued to press claims on Mr. Giron’s behalf in this proceeding. I find that the settlement effectively precludes the introduction of allegations of harassment on behalf of Mr. Giron in this proceeding (Tr. 465). See Matter of Frutiger, 29 N.Y.2d 143, 149-50, 324 N.Y.S.2d 36 (1971) (only where there is cause sufficient to invalidate a contract, such as fraud, collusion, mistake or accident, will a party be relieved from the consequences of a stipulation made during litigation).
Nevertheless, since the tribunal must consider the allegations of the last remaining tenant, Edwin Merrill, summary judgment must be denied.
IV. The death of the last remaining tenant, Edwin Merrill, is insufficient grounds to dismiss the proceeding or to preclude all evidence pertaining to him
Respondent also seeks dismissal of the petition on grounds relating to the passing of the sole remaining complaining tenant in the case, Edwin Merrill, who died on or about January 13, 2005, before the trial of this matter commenced (Resp. Mot. ¶ 77). Respondent argues that there is no individual who would benefit from revocation of the CONH and the only effect of revocation would be to delay the construction process (Resp. Mot. ¶¶ 78-79). Nevertheless, Mr. Merrill’s death does not mandate dismissal of this proceeding.
First, respondent argues that this proceeding should be dismissed under section 1015(a) of the New York Civil Practice Law and Rules because an action abates as to a party who dies before a decision is rendered. While that statement of procedure is correct, Mr. Merrill was never a party to this action. HPD is the petitioner and as petitioner it has interests separate and apart from its complaining witness. Thus, this ground for dismissal is without merit.
In an apparent effort to prevent Westside SRO from testifying about statements that the deceased allegedly made about conditions in the building, respondent further contends that Westside SRO may not participate because, upon the death of its client, it had no further interest in this matter. Citing Rocha Troussier y Asociadoes, S.C. v. Rivero, 184 A.D.2d 398, 585 N.Y.S.2d 385 (1st Dep’t 1992) (participation by counsel is without authority upon the death of the client). The argument is without merit here where Westside SRO does not appear as counsel, but as interested “persons.” The Rules of the City of New York explicitly provide that “[a]fter a certificate of no harassment . . . has been issued, any person may submit information to [HPD] that harassment has occurred after the date of the submission of the application for certification of no harassment.” 28 RCNY § 10-08(a) (emphasis added). Accordingly, the Westside SRO attorneys and employees are interested persons, and, as such, are permitted to submit information to HPD that harassment occurred at the subject premises, which includes testifying in this proceeding.
In the alternative, respondent seeks to preclude petitioner from introducing any evidence pertaining to Mr. Merrill, because he is now deceased (Resp. Mot. ¶ 86). First, respondent contends that, if Westside SRO sought to introduce Mr. Merrill’s statements through the testimony of attorneys who represented Mr. Merrill at the time he made them, such statements would breach the attorney-client privilege (Resp. Mot. ¶¶ 87, 88). Respondent’s argument falls short, however, because respondent may not assert the privilege on Mr. Merrill’s behalf. The attorney-client privilege may be asserted by the client or the attorney, or by someone who stands in their interest. See, e.g., People v. Shapiro, 308 N.Y. 453, 459, 126 N.E.2d 559, 562 (1955) (“privilege of nondisclosure [of communication between attorney and client] belongs to the client alone”); see also Kenny v. Cleary, 47 A.D.2d 531, 363 N.Y.S. 2d 606 (2d Dep’t 1975) (an attorney is entitled to claim the privilege to which his client is entitled); see also Hendrick v. Avis Rent A Car Sys., Inc, 944 F. Supp. 187 (W.D.N.Y. 1996) (attorney-client privilege attached to communications between attorney and clients agents, which were his parents). A litigant may not prevent potentially damaging evidence from coming in by claiming it violates his adversary’s privilege. Moreover, even if respondent could assert Mr. Merrill’s privilege, the utterances attributed to him at trial were not protected “client confidences.” See Poteralski v. Colombe, 84 A.D.2d 887, 888, 444 N.Y.S.2d 765, 766 (3d Dep’t 1981) (where the party asserting the privilege fails to show that the information sought to be protected was a “confidential communication” made to the attorney for the purpose of obtaining legal advice the claim of privilege will not be sustained); see also Matter of Priest v. Hennessy, 51 N.Y.2d 62, 68-69, 431 N.Y.S.2d 511, 514 (1980).
Respondent further contends that if Mr. Merrill’s statements are not protected by the attorney-client privilege, they surely must be precluded by New York’s Dead Man’s Statute. Respondent argues that any evidence, testimonial or otherwise, regarding Mr. Merrill is inadmissible under the Dead Man’s Statute because it would be prejudicial and unfair to allow such testimony since respondent is unable to confront the declarant (Resp. Mot. ¶ 92). The statute does not apply under these circumstances, however.
The Dead Man’s Statute, codified as section 4519 of the Civil Practice Law and Rules, applies to proceedings in which an interested person seeks a benefit based upon a transaction with a deceased (or mentally ill) person and limits testimony by such interested individuals concerning personal conversations and transactions with the decedent. NY Civ. Prac. Law & Rules § 4519 (Lexis 2006); see 1 New York Civil Practice: CPLR P 4519.00; see also In re Estate of Rosenblum, 284 A.D.2d 820, 727 N.Y.S.2d 193 (3d Dep’t), app. den. 97 N.Y.2d 604, 735 N.Y.S.2d 493 (2001) (attorneys who had worked with decedent in the past were properly allowed to testify regarding decedent's intent in acquiring and selling property, since their respective interests were far too uncertain to bar such testimony). The purpose of the statute is to prevent efforts to defraud the deceased person’s estate. Such a purpose would not be served in this instance.
Moreover, even if the Dead Man’s Statute were applicable in these circumstances, it would not necessarily be invoked in this forum. The strict or technical rules of evidence reserved for more formal court proceedings are not required in this tribunal. See NYC Charter § 1046(c)(1); see also Health and Hospitals Corp. (Lincoln Medical and Mental Health Center) v. Huling, OATH Index No. 1359/05, at 5 n.1 (July 22, 2005). In particular, these quasi-judicial administrative proceedings are not bound by the CPLR. CPLR § 101 (CPLR applies to “civil judicial proceedings in all the courts of the state”). As has already been recognized by this tribunal, the Dead Man’s Statute will not be applied reflexively to preclude a witness from testifying about conversations with a decedent. See, e.g., Matter of Sultan, OATH Index No. 1314-15/98, at 14, n. 1 (Aug. 18, 1998), adopted, Loft Bd. Order No. 2323 (Oct. 27, 1998) (finding the statute inapplicable to administrative proceedings).
In addition, respondent’s due process argument claiming prejudice if statements of the deceased are allowed that respondent is unable to cross-examine also is without merit. Hearsay statements, which also may deny a litigant the ability to cross examine the declarant, have always been admissible in these administrative proceedings (48 RCNY § 1-46(a)), and that does not dilute the capacity of the tribunal to render process that is fair to all parties. See People ex. rel. Vega v. Smith, 66 N.Y.2d 130, 495 N.Y.S.2d 332 (1985) (use of hearsay statements as sole basis for administrative determination satisfied due process where hearsay was sufficiently relevant and probative).
Thus, due process is not undermined here for want of a strict application of the technical rules of evidence, and respondent has provided no basis for precluding statements attributed to Mr. Merrill under the Dead Man’s Statute. Having found respondent’s arguments unpersuasive, its motion to preclude evidence pertaining to Mr. Merrill is denied.
The following constitutes my report and recommendation regarding the facts adduced at the hearing of this matter, which was conducted on February 13 and 17, April 24, May 16, and June 1, 2006. Petitioner called as its witnesses Terry Poe, a tenant organizer employed by Westside SRO, Molly Doherty, an attorney at Westside SRO, Frederick Thomasel, a housing inspector for HPD, and Lamont Headley, an investigator employed by HPD. Respondent called as its witnesses Margaret Streicker Porres, a representative of the limited liability company that owns the building, Malcolm Kaye, an architect, Lilias Folkes, the property manager, and Wes Bradley, a former tenant.
ANALYSIS
Respondent purchased the subject premises, a four story building at 331 West 22nd Street, on July 22, 2004. On August 10, 2004, HPD issued respondent a Certificate of No Harassment (“CONH”), certifying that there had been no harassment of the occupants of the premises within the 36 months preceding respondent’s application. See NYC Admin. Code § 27-2093(c) (Lexis 2006). On August 1, 2005, the Department of Buildings issued respondent an “Alt 1” permit to perform alterations on the building, and on or about August 11, 2005, the work commenced. The conditions caused by this work, in large part, form the basis for petitioner’s claims of harassment in this proceeding. After receiving a complaint from the Westside SRO Law Project (“Westside SRO”) on August 23, 2005, HPD conducted an investigation into allegations of harassment and suspended the CONH on November 15, 2005.
By this proceeding, HPD seeks to rescind the CONH. To do so under the Administrative Code, the Department must show that respondent committed acts of harassment against the building’s lawful tenants “after the period of time covered by [the CONH] but prior to the commencement of substantial work pursuant to an alteration permit or demolition permit issued on the basis of such certification.” NYC Admin. Code § 27-2093(f)(1).
I. Harassment
The issue to be determined is whether harassment occurred at the premises following the issuance of the certificate of no harassment on April 11, 2005.[4] Pursuant to section 27-2093(a) of the Administrative Code, “harassment” is defined as 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 [a lawful tenant] to vacate his or her unit or to surrender or waive any rights therein; (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.” NYC Admin. Code §27-2093(a)(1), (2) (Lexis 2006).
Additionally, section 27-2093(b) creates a presumption against an owner of a single room occupancy multiple dwelling in that, whenever a statutory act or omission falling within the definition of harassment is proven, it “shall be presumed” that such acts or omission were “committed by or on behalf of the owner” of the multiple dwelling and “that such acts or omissions were committed with the intent to cause a person lawfully entitled to occupancy of [an SRO unit] to vacate such unit or to surrender or waive a right” in such lawful occupancy. Thus, a two-pronged analysis should be employed, first asking whether petitioner proved a statutorily defined act of harassment and, if so, then asking whether respondent successfully rebutted the presumption. See Dep’t of Housing Preservation and Development v. Rice, OATH Index No. 1838/04, at 11 (Mar. 23, 2005); Dep’t of Housing Preservation and Development v. McClarty, OATH Index No. 1602/00, at 2-3 (Dec. 7, 2000).
The petition alleges that the following 28 acts and omissions constitute the owner’s harassment of the tenants of 331 West 22nd Street:[5]
1. Failure to provide heat and hot water;
2. Failure to paint and plaster unit 4B (3rd floor);
3. Failure to repair broken vinyl floor tile;
4. Failure to remove rubbish in public hall (4th floor);
5. Failure to abate uncapped steam riser in unit 4F (3rd floor);
6. Failure to abate vermin;
7. Failure to repair broken intercom and bell buzzer system;
8. Failure to repair broken wood floor 2nd story public hallway;
9. Failure to cement and plaster public hallway ceiling on 3rd floor;
10. Failure to repair leaky and defective bathtub faucet in unit 4B;
11. Failure to repair defective light fixture and electrical outlets in unit 4B and public hallway on 1st floor;
12. Failure to replace broken wood tread from bottom stairs at public hallway on 1, 2, 6, 8, 9, 10, 11, and 12th floors;[6]
13. Failure to supply adequate gas;
14. Failure to remove obstruction to bathtub waste line in unit 4 B;
15. Failure to properly secure the loose scuttle ladder at roof at public hallway;
16. Failure to replace missing handrail stairs at 4th story public hall;
17. Failure to remove wood panel obstructing scuttle to roof;
18. Failure to secure exposed electrical wiring at all floors;
19. Failure to provide fire watch at cellar after moving the sprinkler system;
20. Failure to repair flushing apparatus in bathroom and maintain same unit 4B;
21. Failure to provide adequate cold water;
22. Failure to cleanse and disinfect bathroom after removal of excretal waste water closet;
23. Failure to provide electrical supply throughout unit 4B;
24. Failure to remove protruding nails during construction;
25. Aggressive efforts to get tenants to relocate or move out by telling them to do so after the tenant said “no”;
26. Generally interrupting and/or discontinuing essential services without prior notice and making the premises unhabitable and unsafe during construction;
27. On December 16 and 17, 2005, (i) failure to provide an adequate supply of hot water for entire building; (ii) failure to provide electricity; (iii) failure to provide adequate gas supply; (iv) failure to provide heat from an approved central heating system, or an approved system of gas or electricity in good operating condition; and (v) failure to provide cold water for the fixtures in room located at 4B (4th story); and
28. Failure to provide a continuous safety plan and safety environment for tenant during ongoing construction at the premises.
As was discussed in the decision on the omnibus motion, above, many of the allegations in the petition are precluded by a prior stipulated agreement entered into by the parties. [7] Thus, the list of allegations to be reviewed in this proceeding has been pared down to reflect this ruling and to reflect the fact that the only remaining allegations of harassment pertain to Edwin Merrill, the last tenant to reside in the building, who passed away on or about January 13, 2006 (Tr. 268).[8]
Some of the remaining allegations were unsupported by any testimony or other evidence on the record and should be dismissed. They include the following: failure to repair broken vinyl floor tile; failure to remove rubbish in public hall on the 4th floor; failure to repair broken intercom and bell buzzer system; failure to cement and plaster public hallway ceiling on the 3rd floor; and failure to repair electrical outlets in unit 4B and in public hallway on 1st floor.[9]
The allegations that remain to be addressed in this proceeding are the following:
1. Failure to provide heat;
2. Failure to supply adequate gas;
3. Failure to secure exposed electrical wiring on all floors;
4. Failure to cleanse and disinfect bathroom after removal of excretal waste water closet;
5. Failure to remove protruding nails during construction;
6. Aggressive efforts to get tenants to relocate or move out by telling them to do so after the tenant said “no”;
7. Generally interrupting and/or discontinuing essential services without prior notice and making the premises unhabitable and unsafe during construction;
8. On December 16 and 17, 2005, (i) failure to provide an adequate supply of hot water for entire building; (ii) failure to provide electricity; (iii) failure to provide adequate gas supply; (iv) failure to provide heat from an approved central heating system, or an approved system of gas or electricity in good operating condition; and (v) failure to provide cold water for the fixtures in room located at 4B (4th story); and
9. Failure to provide a continuous safety plan and safety environment for tenant during ongoing construction at the premises.
The original complaint to HPD from Westside SRO was drafted by Terry Poe, a tenant organizer who visited the building on August 22, 2005, after being summoned by Edwin Merrill (Pet. Ex. 7). When Mr. Poe visited, Francisco Giron, the only other tenant who still resided in the building also was present. Mr. Giron told Mr. Poe that he “had recently been arrested for what he believed were . . . false charges of destroying property or something in the building” (Tr. 85). Ms. Porres testified that she believed that Mr. Giron caused a suspicious fire that occurred in the building on August 17, 2005.
In sworn testimony, Mr. Poe described the conditions of the building as “a real trifecta”:
There was no water, no electricity, and no gas anywhere in the building. The only light in the building was from the power lights that the workers were using and hanging in the hall. Some tenants were actually illegally plugging in to the power lights in order to run extension cords into their room to light them.
(Tr. 85-86). It should be noted that, even if petitioner’s claims that the owner failed to provide water and electricity were not precluded by the prior stipulation, petitioner still would have failed to establish harassment.
First of all, there was electricity in the building, though perhaps there was none in Mr. Merrill’s room. Mr. Poe contradicts his own testimony that there was no electricity “anywhere in the building” by admitting that the tenants were using extension cords to plug into the lights being used in the common areas by the workers. Ms. Doherty, who visited in September, noted that electricity was provided by construction lights hung on the beams (Tr. 255). This is consistent with Ms. Porres’ testimony that, after the fire, the entire building had to be rewired for electricity, so she provided extension cords so the workers could work and the tenants could light their rooms by tapping into a power source until the rewiring was completed. Mr. Poe makes no mention of the fire, nor does he indicate in his letter that he conducted any investigation to inquire of the owner why the conditions were as they were.
Ms. Porres testified that she was present when a suspicious electrical fire started in the building on August 17, 2005 (Tr. 518-20).[10] As a result, all electrical power coming into the building was shut off by the Fire Department. Ms. Porres believed the fire was started by Mr. Giron, who had been seen leaving the building minutes earlier (Tr. 524-25). She said the fire inspector told her that the fire was the product of deliberate sabotage in which a BX cable was wrapped around a sprinkler head and tied to a metal that would disintegrate quickly to create a spark and ignite the metal, thus creating a sort of “electrical water bomb”; she said the Fire Department severed the sprinkler system because other “bombs” might remain in the system. Ms. Porres said the damaged part of the sprinkler system was located outside of Mr. Giron’s door on the third story of the building with BX cable wrapped around it (Tr. 538). The Fire Department’s Incident Report did not confirm the water bomb explanation that Ms. Porres provided; it merely noted “a short from a BX cable” (Resp. Ex. B).
Ms. Porres testified that the electricians started rewiring the building the day after the fire, but she restored electricity to the building immediately with construction lights and extension cords that were run from the building next door (Tr. 526-29, 758). She said that, within a week, permanent sources of electricity had been restored to many parts of the building. In addition, a new sprinkler system was built. All of this work was completed by early October.
Inspector Thomasel also noted there were extension cords running through the building, but he did not investigate how the electricity was brought into the building (Resp. Ex. C). He acknowledged that the electricity could have been cut off by the Fire Department if there had been an electrical fire in the building. Although Mr. Merrill told him there had been a fire, he did not investigate the matter further. He said that the electricity to the rooms was off on August 30 when he inspected but was on in the public hallways, but both were available the following day when he returned to inspect (Tr. 201-02). Thus, while there was no electricity in Mr. Merrill’s room for a period of time, the evidence showed that respondent was working on restoring it permanently and provided the tenants with extension cords as a temporary solution.
Petitioner also claims that Mr. Merrill was deprived of running water. Mr. Poe testified that there was no water “anywhere in the building” on August 23rd (Tr. 85-86). Given the lack of veracity in his allegation about the electricity, however, I found Mr. Poe’s testimony on this point unreliable. Whether his misrepresentations, more of which will be discussed herein, were intentional or negligent, they undermined his credibility. HPD issued a violation for lack of hot and cold running water, reported on August 29 (Pet. Ex. 13, p. 10). Inspector Thomasel testified that the water was off on August 30th but was restored in some areas when he returned on August 31st; the water in Mr. Merrill’s room, including hot water, had been restored but the water in his bathroom was not (Tr. 213). Ms. Doherty did not report a problem with water when she visited in September (Tr. 255).
Petitioner claims there was evidence that the tenants were without these services from August 22nd when Mr. Poe visited, until August 30th when Inspector Thomasel visited and that this deprivation constituted harassment, but there was no convincing evidence that the conditions existed the entire time. Petitioner must establish that the owner allowed a condition to continue despite notice of its existence before it can establish there was an intent to harass the tenants. Dep’t of Housing Preservation and Development v. Ibrahem, OATH Index No. 1779/06, at 11-12 (Oct. 26, 2006) (failure to fix clogged drain was not harassment absent proof tenant notified owner that drain remained clogged after owner attempted to fix it).[11]
However, the record was short on evidence that the tenants notified the owner of many of the conditions alleged. The owner’s property manager denied refusing any repairs requested by Mr. Merrill (Tr. 771). Ms. Doherty did not recall if Mr. Merrill told her whether he had contacted the owner with his complaints before going to Westside SRO (Tr. 253). Mr. Poe had not been involved with the tenants in this building immediately prior to his August visit, and he admitted that he “hadn’t visited the building for quite a while” before August 22nd (Tr. 144). Of course, Ms. Porres had notice of the electrical outage, but she acted promptly to provide electrical access to the tenants. There was no reliable proof that the water was out for a prolonged period of time; the violation was reported on or about August 29, and the problem was corrected days later.
Thus, petitioner could not have established that respondent harassed the tenants by failing to supply electricity or running water, even if it had not settled these claims in the prior action.
Failure to provide heat
The petition provides no specific time period in which heat was not provided to the tenants, nor does the post-trial brief mention a lack of heat. Thus, I will recount the available facts. Under New York law, the landlord’s obligation to provide heat arises in October, when the temperatures begin to drop. See Mult. Dwell Law § 79 (requiring that landlords supply heat to tenants from October 1 through May 31 when outdoor temperature falls below 55 degrees Fahrenheit between 6:00 a.m. and 10:00 p.m., and when outdoor temperature falls below 40 degrees Fahrenheit between 10:00 p.m. and 6:00 a.m.). There is no evidence that Mr. Merrill was residing in the building from October 2005 until approximately December 14, when he returned from an extended hospital stay. There is also no violation issued for a lack of heat during this period (see Pet. Exs. 12 & 13). (The only violation issued to the building for inadequate heat occurred on December 17, 2005 (Pet. Ex. 13, p. 11), which is discussed below, in connection with the separate allegation that the owner failed to provide essential services on December 16 and 17, 2005.) If there is no evidence that a complaining tenant even resided in the building during the heating season, it is reasonable to deduce that there can be no harassment. See Dep’t of Housing Preservation & Development v. Mendoza, OATH Index No. 556/05, at 3 (Feb. 17, 2005) (heat complaints found “questionable” where at time of the complaint tenant was hospitalized, her daughter was living with a friend, and no other person was living in the apartment). This allegation should be dismissed.
Failure to supply adequate gas
In his August 23rd letter, Mr. Poe claimed that there had been “no supply of gas for cooking since construction work began over a month ago” (Pet. Ex. 7). It was obvious from his testimony, though, that he had no idea when the construction work began. He guessed that it started in the Spring of 2005 or in July (Tr. 143), but the work actually started much later, on or about August 11, 2005.
Respondent did not dispute that the gas was shut off and claims that it was necessary during the demolition. Violations were issued for an inadequate gas supply to room 4B, Mr. Merrill’s room, on August 11 and August 29, 2005 (Pet. Ex. 13, pp. 7, 9).[12] Respondent’s architect, Malcolm Kaye, testified that the gas is normally shut off prior to conducting demolition because of the possibility of banging a pipe and creating a gas leak; since there was only one gas meter for the entire building, the whole gas supply had to be turned off (Tr. 615).
By letter dated August 8, 2005, the owner provided Mr. Merrill with prior notice that the gas would not be available during the demolition; the owner also promised to supply him with an electric stove. The August 8th letter states that:
the gas lines in the building are being capped beginning Tuesday morning. To the extent that you presently have cooking gas in your room with a full gas range, we will provide you with an electric range. . . . [W]e will assume that you have only a gas stove-top as is standard throughout the building and have set an equivalent electric range by your door as an immediate replacement.
(Resp. Ex. A). There was no evidence that the absence of gas would have affected Mr. Merrill but for his need to cook, and it was not disputed that an electric range was observed outside of his door in August 2005 (Resp. Ex. D; Tr. 196). Even Mr. Poe admitted that around the time of his visit he heard that the tenants had been given electrical appliances (Tr. 164). In the absence of evidence that Mr. Merrill was even affected by the lack of gas, petitioner did not establish there was harassment; therefore, this claim should be dismissed.
Failure to secure exposed electrical wiring on all floors
The only testimony about exposed electrical wires was given by Mr. Poe who said he observed exposed electrical wires hanging near apartment 3C, Mr. Giron’s room, on his August 22nd visit (Tr. 90, 157). He did not test the wires to see if they were live or not, nor did he indicate that he reported this hazard to the workers who were in the building that day. He said he thought the wire was a choking hazard. Inasmuch as Mr. Merrill lived in apartment 4B, there is no evidence that this wire was a choking hazard to him. There is no evidence that it created any hazard or discomfort to Mr. Merrill at all. A violation was issued on August 29, 2005, that stated “expose[d] electrical live wires all stories” (Pet. Ex. 13, p. 8), but there was no credible evidence that corroborated the existence of exposed live electrical wiring “on all floors.”
As previously noted, Ms. Porres explained that a fire caused the owner to have to rewire the entire building, so there were wires necessary for the rewiring as well as many extension cords that were placed throughout the building (Tr. 530-33). Photographs of the building during this time show the extension cords throughout (see Resp. Exs. C & K). Ms. Porres denied that any cords presented a choking hazard. Given the lack of reliability I accorded Mr. Poe’s testimony, I found it more likely that his reference to “live wires” was to these extension cords rather than actual exposed live electrical wires. Incredibly, the HPD violation also states that “live wires” were found throughout the building, which would be an extreme hazard that would seem to warrant a more active response than the mere issuance of a violation. At a minimum, such a condition would have presented an intolerable hazard to the workers. I found the violation also to lack credibility.
I therefore found little credence to the allegation that “live wires” existed throughout the building. Moreover, I found no evidence that the existing wiring and extension cords, which were necessary to the rewiring of the building, were a hazard to the tenants. Accordingly, this claim of harassment should be dismissed.
Failure to cleanse and disinfect bathroom after removal of excretal waste
Mr. Poe testified that when he visited the building on August 22nd, he observed that the toilet that Mr. Merrill had been using on the third floor was clogged (Tr. 99). On August 30th, Inspector Thomasel observed that the third floor toilet was so full with excrement it could no longer be used, and Mr. Merrill was using the facilities at a local restaurant (Tr. 193). When the inspector returned the following day, the water was working and Mr. Merrill had cleared the obstruction from the toilet and was able to use it from that point on; the inspector made no further comment about the cleanliness of the bathroom (Tr. 197). The claim regarding the clog was resolved in the prior stipulation. Although the clog was fixed, HPD then issued a violation on August 31st for the failure to “cleanse and disinfect to the satisfaction of this department after removing the escretal [sic] waste” in the fourth story bathroom (Pet. Ex. 13, p. 9), which is the allegation of harassment that is before the tribunal. There was no testimony about the condition of the bathroom apart from the clog, however. The violation appears to be the first point at which the owner was notified of the condition and it is unclear how long it existed thereafter.
I find this evidence insufficient to support a claim of harassment
Failure to remove protruding nails during construction
Mr. Poe testified that, during his visit to the building on August 22nd, he observed two boards with nails protruding from them on the floor in front of Mr. Merrill’s room (Tr. 99). Despite his stated concern, he did not question the workers present about the boards, and he did not know whether the boards were removed after he left (Tr. 156). There was no further evidence about the boards and no indication of how long the boards were present. No violations were issued, and there was no evidence that any injury resulted from them. Inspector Thomasel, who inspected on August 30th, did not report finding boards with protruding nails.
Given the context of the demolition being conducted and the failure to show that this hazard was reported to the workers or to the owner, I found the evidence insufficient to establish harassment.
Aggressive efforts to get tenants to relocate or move out
Petitioner alleges that respondent harassed the tenants by using aggressive efforts to get them to relocate or to move out of the building. This claim appears to originate from Mr. Poe’s August 23rd letter, which accuses the owner of using “aggressive efforts to force tenants to relocate to unsuitable alternative housing” (Pet. Ex. 7, p. 2). Respondent admitted approaching Mr. Merrill both to offer him a financial arrangement to leave the building permanently and to offer him temporary housing at another building owned by respondent at 442 West 22nd Street to avoid the inconvenience of the demolition and construction. Respondent disputes that any of these conversations were intended to harass.
As an initial matter, there was no evidence that the housing offered to the tenants was “unsuitable.” Inspector Thomasel saw the room offered to Mr. Merrill at 442 West 22nd and testified that it was habitable (Tr. 234). There was no evidence that Mr. Poe ever inspected the room himself. Mr. Poe testified that he was told about verbal encounters with the owner that he considered to be “aggressive efforts” to get the tenants out (Tr. 138), but he did not recount any in his testimony.
In support of his claim of “aggressive efforts,” Mr. Poe cited a letter written by the owner to one of the tenants on August 11, 2005, which he said suggested that the owner would force the tenants out of the building (Tr. 137, 147-48):
Rest assured that immediately upon the issuance of the District Rent Office Order granting our demolition application, we will proceed in furtherance of the plans filed and complete the demolition of 331 West 22nd Street in complete accord with all filed and approved Department of Buildings Plans which includes the removal of your unit after possession of the same has been lawfully returned to the landlord.
(Pet. Ex. 7, p. 2). The same paragraph can be found in a letter from the owner to Mr. Merrill, dated August 8, 2005 (Resp. Ex. A). In addition to the language quoted above, the August 8th letter further advises Mr. Merrill that the owner had received the necessary permits to begin construction on the building and the demolition would commence on August 11.
On September 29, 2004, respondent applied for a demolition permit from the Division of Housing and Community Renewal (“DHCR”) pursuant to which it planned to gut renovate the building, leaving exterior walls, and construct two luxury triplex apartments (Pet. Ex. 21, Ex. “A”). As indicated, respondent’s letter notified Mr. Merrill that this application was pending and, after receiving the necessary approvals, respondent would seek to evict him. Represented by Westside SRO, Edwin Merrill filed an objection to the application. Nevertheless, on October 28, 2005, DHCR issued an Order that found that the owner had obtained the necessary approvals from the Department of Buildings and the Landmarks Preservation Commission for the demolition of the building, and granted the owner’s application for permission to refuse the renewal of Mr. Merrill’s lease (Resp. Ex. M-1; Pet. Ex. 21, Ex. “B”). The Order gave Mr. Merrill three months to voluntarily vacate the premises. Although the demolition Order had not yet been granted on August 8th and respondent had no authority to evict Mr. Merrill then, respondent did not claim to have authority to evict Mr. Merrill (Resp. Ex. A). Respondent correctly stated in the letter that it was awaiting authority to do so. Under the circumstances, that statement of intention was not harassment.
Petitioner cites Vaughan v. Michetti, 176 A.D.2d 144, 574 N.Y.S.2d 30 (1st Dep’t 1991), in support of its argument that the owner’s “repeated” buy-out offers to Mr. Merrill contributed to his harassment. The case is inapposite. While the Appellate Division confirmed in Michetti a finding that the tenant had been made to feel "threatened" by the making of repeated buyout offers, it found that the harassment also was established by the fact that, simultaneous with making these offers, the owner had permitted the “tenant's unit . . . to remain in a deplorable condition over a lengthy period of time, despite requests by the tenant to the owners to ameliorate the situation.” Id. Here, petitioner failed to establish that Mr. Merrill was subjected to “deplorable conditions” for a lengthy period and, as noted herein, often failed to prove that reports of the conditions had been made to the owner. To the contrary, the trial record contains evidence that the owner responded to a myriad of issues that arose during the demolition. Petitioner appears to have preferred that the owner not conduct a demolition at all; nevertheless, respondent was acting in accordance with the Alt 1 permit issued to it by the Department of Buildings which permits demolition and construction within an existing building (Tr. 617, 640-42; Resp. Ex. P1).[13]
The owner’s August 8th letter also offers the tenant temporary relocation to 442 West 22nd Street to avoid the inconvenience and disruption of the anticipated three-week demolition. Mr. Poe did not recall whether he spoke with Mr. Merrill about the contents of this letter (Tr. 154). He said that Mr. Merrill told him he was being asked to relocate permanently, not temporarily, although the letter is clear in indicating the accommodations are being offered “temporarily.”
Ms. Doherty testified that, in October 2005, she met with Mr. Merrill to discuss offers the owner had made for him to leave the building (Tr. 256-57). She said she knew of two occasions when the managing agent for the building had asked him to relocate.[14] She also stated that the owner’s attorney had contacted her many times to find out if Mr. Merrill would relocate to 442 West 22nd or take money to leave altogether. Mr. Merrill told her he did not want to move to 442 West 22nd because he was intimidated by another tenant named “Kitty” and was afraid that she and her friends would “do something to him” (Tr. 310). She conveyed his refusal to the owner.
Besides relocation to 442 West 22nd Street, Mr. Merrill also had refused a sum of money to move out permanently (Tr. 318). Ms. Doherty thought that Mr. Merrill might have been interested in moving for the “right amount of money,” which she believed might have been $200,000 (Tr. 257).[15] She said that the owner’s attorneys contacted her “at least once a month” to inquire about Mr. Merrill’s interest in being bought out (Tr. 264). They did not threaten her or threaten that Mr. Merrill would be moved out of the building. Counsel also asked Ms. Doherty to visit Mr. Merrill in the hospital to ask him about vacating the building, but Ms. Doherty said she refused to pressure him while he was in the hospital (Tr. 285-86).
There was evidence of more troubling conversations between Mr. Merrill and the owner’s agents, however. By letter dated September 19, 2005, Ms. Doherty informed HPD that Mr. Merrill recently had complained about a request by the owner that he accept a monetary offer to leave the building within 24 hours or he would be evicted (Pet. Ex. 8). She said he told her that several times the owner suggested he move to 442 West 22nd Street, because the city was going to vacate the building and he would have no place to go (Tr. 263). Ms. Doherty assured Mr. Merrill that she knew of no plans by the city to vacate the building; she said she told the owner’s attorney on two occasions to stop telling Mr. Merrill that he would find himself homeless if he did not move.
Threatening statements made to a tenant may indeed constitute a statutorily defined act of harassment. Mauro v. Div. of Housing and Community Renewal, 309 A.D.2d 678, 765 N.Y.S.2d 868 (1st Dep’t 2003) (verbal abuse and intimidation can constitute harassment). Such statements may contain clear-cut threats of harm, or indirect suggestions of harm, both of which may constitute harassment. See, e.g., Dep’t of Housing Preservation and Development v. Rice, OATH 1838/04, at 24 (if credited, allegations that owners of a building told tenant “we are going to get you . . . if we have to burn you out” would have constituted harassment); Dep’t of Housing Preservation and Development v. Greaux, OATH Index No. 1457/02, at 19-20 (Aug. 30, 2002) (harassment sustained where, among a number of wrongful acts, ALJ found “most significant” the owner’s “veiled, but clearly implied, threat that harm might befall [the tenant] if he did not leave,” as well as owner's suggestion that the tenant might find his belongings on the street, and her reference to the tenant's inability to afford court proceeding).
If credited, the claims that the owner’s agents told Mr. Merrill that he would be evicted in 24 hours if he did not accept a buyout offer and that he would find himself homeless are serious accusations that could constitute harassment. Here, the evidence was not sufficiently reliable to prove that harassment occurred. First of all, respondent denied that its agents told Mr. Merrill that he would become “homeless.” Ms. Folkes testified that, after the fire, Inspector Thomasel told her that if Mr. Merrill continued to refuse housing at 442 West 22nd Street, he would be homeless unless the owner installed a fireguard (Tr. 760-61). Ms. Folks said she conveyed the message to Mr. Merrill. This conduct does not constitute harassment.
Most important to my finding, however, is the fact that Mr. Merrill is not present for the tribunal to test the credibility of his statements. Thus, his alleged statements are submitted in the form of hearsay, on behalf of a declarant who is deceased, and there are no witnesses to corroborate the statements (Tr. 310). While hearsay evidence is admissible in this forum and may provide the sole basis for a finding, it must be “carefully scrutinized as to its reliability and sufficiency to meet petitioner’s burden of proof.” Health and Hospitals Corp. (Lincoln Medical and Mental Health Center) v. Huling, OATH Index No. 1359/05, at 5 (July 22, 2005). In addition, while the threat of eviction would create consternation for any tenant, in this case, it was not a spurious claim, because respondent was proceeding under applicable laws that would permit Mr. Merrill’s eviction. The likelihood of his eventual legal eviction could have provided an incentive for Mr. Merrill to embellish or fabricate the alleged threatening statements.
In sum, I did not find the evidence sufficiently reliable to prove that the owner and/or its agents threatened Mr. Merrill or made repeated buy-out offers in an effort to make him waive his rights of tenancy, thus this claim should be dismissed.
As to the owner’s efforts to get Mr. Merrill to relocate temporarily during the demolition and construction to 442 West 22nd Street, I found those efforts to be entirely appropriate in tone and content.
Interrupting and/or discontinuing essential services without prior notice, making the premises unhabitable and unsafe during construction
As has been discussed, there was no dispute that essential services to the building were interrupted. Nevertheless, to the extent possible, the owner provided prior notice of the interruptions to the tenants (see Resp. Ex. A), although some interruptions, such as those caused by the fire, could not be anticipated. The record was clear that, despite many offers of alternative temporary living accommodations, until December 2005, Mr. Merrill refused them all.
The interruption of essential services that were specifically alleged in the petition are addressed in other parts of this report and recommendation. Any other claims that petitioner desired to assert here should have been specifically alleged. In the absence of more detail, the tribunal is unable to further assess this claim. Accordingly, the general allegation that essential services were denied should be dismissed.
Petitioner also claims that respondent created an unsafe condition in Mr. Merrill’s room because a sprinkler pipe fell on him and injured his arm. Inspector Thomasel testified that he saw a large black and blue mark on Mr. Merrill’s arm when he visited on August 30 and that Mr. Merrill told him part of the sprinkler pipe had fallen on him (Tr. 213-15). He saw a pipe, four to five feet long, on the floor beside the bed. Mr. Merrill claimed that the pipe fell in his room when part of the sprinkler pipe in the public hall was cut. Inspector Thomasel saw a hole in the ceiling that he assumed the sprinkler pipe had come through. He said there was no sprinkler piping running along Mr. Merrill’s ceiling at the time of his visit. Ms. Doherty made a completely different observation when she visited in September. She said the sprinkler pipe had detached from the ceiling and was hanging above Mr. Merrill’s bed (Tr. 284). The inconsistency in their testimony was unexplained.
Ms. Porres testified that portions of the sprinkler system were removed from Mr. Merrill’s room sometime after the fire and before the first stop work order was issued on September 6, 2005 (Tr. 542). She claimed that the sprinkler pipe to his room had been cut but, at the time she visited his room in October 2005, the sprinkler head remained in the ceiling and nothing appeared to have fallen from his ceiling (Tr. 545). She said she was unable to gain access to Mr. Merrill’s room to work on the sprinkler system prior to October.
Ms. Folkes credibly testified that Mr. Merrill told her that the sprinkler pipe fell but that he was not at home at the time that it fell (Tr. 759). She said that she noticed a bruise on his arm and asked him if the pipe had fallen on him, and he denied it did. She said that around that time he had fallen on Staten Island. HPD investigator Lamont Headley reported in a memorandum that Mr. Merrill told him he had dislocated his elbow after falling or being pushed at the Staten Island ferry in August 2005 (Pet. Ex. 15).
The facts about what happened to the sprinkler pipe and whether it fell on Mr. Merrill are widely in dispute and I found no version of what happened particularly persuasive. There is no written notification to respondent that such an event occurred, nor was there testimony that such notice was given. In the end, it is petitioner’s burden to prove that the owner harassed Mr. Merrill, and it did not sustain that burden here. There being no other evidence of respondent creating an unsafe condition, this claim should be dismissed.
Failure to provide essential services on December 16 and 17, 2005
The petition alleges that, on December 16 and 17, 2005, respondent failed to provide (i) an adequate supply of hot water for the building, (ii) electricity, (iii) adequate gas supply, (iv) heat from an approved heating system in good operating condition, and (v) cold water for the fixtures in Mr. Merrill’s room. Violations were issued by HPD on December 19 citing the owner’s failure to supply heat to Mr. Merrill’s room, failure to supply cold water to Mr. Merrill’s room, kitchenette, and bathroom, and failure to supply gas, hot water and electricity to the entire building (Pet. Ex. 13, pp. 10-12). Respondent did not dispute that it failed to provide these essential services for the period alleged; respondent claims that it was prevented from supplying these services by stop work orders issued as a result of HPD’s investigation.
Ms. Doherty testified that, shortly after he returned home from the hospital on December 14, 2005, Mr. Merrill called and reported to her that there was no heat or hot water in the building (Tr. 263). The previous day, Ms. Doherty had called respondent’s counsel to notify her that Mr. Merrill would be returning to the building (Tr. 295-96; Resp. Ex. G). During the telephone conversation, respondent’s counsel advised Ms. Doherty that access to the building would be difficult because of work being done on the front stoop.
After their phone conversation, counsel wrote Ms. Doherty a letter dated December 13 further advising her that there was “no heat in the building and . . . due to the lack of heat, the water was shut off to prevent the pipes from bursting.” The letter stated that the owner was “not able to alter any of these conditions based upon the . . . stop work order” (Resp. Ex. G, p. 1). The letter also renewed the offer to temporarily relocate Mr. Merrill.
Ms. Doherty said the December 13th letter was faxed to her on December 14. By letter dated December 15, Ms. Doherty advised respondent’s counsel that a complaint had just been filed with HPD and stated that “[y]our client is obligated to provide essential services to Mr. Merrill and maintain the building in accordance with the Housing Maintenance Code, and such obligations exist irregardless [sic] of the issuance of [a] stop work order” (Resp. Ex. G, p. 3).
Respondent’s counsel replied on December 16. She chastised Ms. Doherty for making such a demand despite knowing that a stop work order prevented them from installing the heating system. In her letter, counsel described the building conditions as they existed then, which she claimed were a direct result of the stop work order:
Accordingly, other than the electric heaters that have already [been] supplied to your client, no additional heat can be provided as a heating system is not physically installed in the building, nor can it now be. Further, although water was being supplied to Mr. Merrill’s room, that pipe has now burst and must now be shut down. Water is being supplied to the sprinkler system. The water to the bathroom will be turned on given the favorable temperatures over the next few days. However, the water will be shut off again, to prevent the pipes from freezing, as soon as the temperatures drop again. Regarding the electricity, your client has informed my client that he tripped the circuit when he plugged two (2) heaters into the bathroom outlet. My client is checking this condition as I write.
I have on countless occasions, prior to your client’s return to the building from his alleged “hospitalization,” offered to temporarily relocate your client to a room in 442 West 22nd Street, located just up the block from the building, so that your client could comfortably inhabit a premises and receive all essential services. You have not only rebuffed each and every offer, you have affirmatively stated that you would not “bother your client with these matters while he was hospitalized.” Moreover, you had little time to entertain our offer that your office consent to and support our request to HPD and DOB that certain work be permitted at the premises so that the building could be protected from the elements, the water could be restored and heat could be provided to the building. It was our position that a united front on these issues would be most persuasive in securing HPD’s and DOB’s consent to the work despite the current stop work order.
On December 13, 2005, upon being advised by you that your client would be returning from the hospital the next day, the offer was again made to temporarily relocate your [client] to 442 West 22nd Street. Despite knowing of the conditions that your client would be returning to, and the fact that the owner cannot now in any way alter these conditions, you and/or your client again rejected the offer and elected, instead, to move back into the building in its current state. In fact, you advised me that you did not have the time to negotiate an agreement regarding Mr. Merrill’s temporary relocation. And now, you have the audacity to lodge complaints about the conditions that your client knowingly and voluntarily subjected himself to.
(Resp. Ex. G, pp. 4-5) (emphasis in original). The record does not indicate that Ms. Doherty sent a written reply to counsel’s correspondence. The lack of any contrary response from Ms. Doherty in writing or in her trial testimony lends support to respondent’s contention that it was unable to provide services under the circumstances, not unwilling.
Ms. Doherty testified that she discussed respondent’s offer of a room at 442 West 22nd with Mr. Merrill on December 14 and he, again, refused it (Tr. 298). She subsequently called 311 to report the lack of heat and running water and then called Debra Rand at HPD to expedite an inspection of the premises, which occurred shortly thereafter (Resp. Ex. H; Tr. 298-301). Ms. Doherty was unsure whether Mr. Merrill was still residing in the room at the time of the inspection, because by December 19th he had relocated to 442 West 22nd because of the cold (Tr. 305; Pet. Ex. 11).
The matter of the stop work orders was hotly disputed by the parties. Petitioner disputed respondent’s contention that the stop work orders prevented respondent from correcting conditions at the building. The record indicated that stop work orders were twice issued during the relevant time period. The first was issued on September 6, 2005, apparently because of the sprinkler system in the building (Tr. 648; Resp. Ex. J-1). That stop work order was rescinded on November 7, 2005 (Resp. Ex. J-3), but a second stop work order was issued two weeks later on November 23, 2005 (Resp. Ex. J-2), based upon HPD’s decision to suspend the CONH (Resp. Ex. J-4). The second stop work order was partially lifted on December 16, 2005, after the lack of heat and hot water was reported by Ms. Doherty. Incredibly, petitioner had not anticipated that with the issuance of the stop work orders the work would stop and the condition of the building would deteriorate during the winter months (see Resp. Ex. H). It appears that petitioner and Westside SRO both lacked sufficient knowledge about the condition of the building and the state in which it was left as a result of the stop work orders.
Inspector Thomasel learned during his August 2005 inspection that there was no heating system in the building and that hot and cold water were introduced into the building through pipes that ran from the adjacent building (Tr. 227-28). It was unclear to what extent this information was passed on and assimilated by those in authority at HPD and Westside SRO.
Malcolm Kaye, respondent’s architect, testified about the heating system at 331 West 22nd Street (Tr. 613-17). For years, the building had been using the heating system located in an adjacent building, 329 West 22nd Street. The Alt 1 plans included installation of a heating system in 331 West 22nd Street that would consist of two boilers located in the cellar that would serve the two new duplex units being constructed and Mr. Merrill’s remaining room. The plans also included a new three-story rear extension to the building. The boiler in the rear of the building would pump hot water up the rear wall of the building; thus, in order to restore heat to the building, the new rear extension to the building had to be built. At the end of August, respondent cut off the old heating system from the adjacent building (Tr. 618). Under the original work plan, the work should have been completed in four to six weeks and the boilers installed in time for the 2005-06 heating season (Tr. 616, 619). The stop work orders prevented respondent from doing anything other than safety work specifically designated by the DOB Commissioner (Tr. 624). When the stop orders stopped the work prior to completion of the rear extension, of course, the construction and installation of the boilers also stopped. When the first stop work order was lifted in November, heating season had begun and work immediately recommenced on the rear extension so the wall could be completed and the heating system installed (Tr. 626). But, of course, the second stop work order was issued just two weeks later and all work was required to stop before the rear extension was completed (Tr. 627, 649). The permits that had been issued for the work authorized cutting off the heating system from the adjacent building and installing a new heating system, but did not authorize reattaching the heating system from the adjacent building (Tr. 631-32). Obtaining approval to reattach the old system would have required a new permit and, according to Mr. Kaye, the law no longer authorized connecting to a neighbor’s heating system, so it could not legally be done. Despite numerous meetings and requests, the DOB would not allow respondent to proceed in that manner without a lifting of the stop work order. Mr. Kaye was told that, absent a CONH, which had been suspended, they would not approve the work.
Ms. Doherty testified that she was aware that a stop work order had been issued, but she did not know when (Tr. 288-89). She said that no one at Westside SRO researched when or whether stop work orders had been issued on the building, and that she had assumed that any stop work order would allow repairs to be performed to maintain code compliance. Nor did she review the plans or permits to determine what construction was underway. Even after being told by the owner’s attorney that the stop work order prevented all work from being done in the building, Ms. Doherty did not investigate it, although she said that someone in her office did (Tr. 290-91). She said she first learned that the stop work order had prevented all work from being done in the building in December. In the end, it was respondent’s property manager who provided Mr. Merrill with a warm place to live, the details of which Ms. Doherty was apparently unaware.
Ms. Folks testified that Mr. Merrill, who was 71 years old, called her the night he planned to return home from the hospital so she could let him into the building (Tr. 769-71). She arranged for the superintendent to meet him, and she also tried to convince him to move into the temporary housing because the building had changed significantly since he was last there and looked like “a construction site.” There was still no permanent lighting, and given the fact that he was returning from a long hospital visit, she thought it better for him if he lived in more appropriate housing. After he eventually agreed, she gave him a room at 442 West 22nd Street, and purchased him a new bed, sheets and blankets.
I find that the evidence fails to prove that respondent was responsible for the lack of essential services when Mr. Merrill returned from the hospital or that their absence constituted harassment. To the contrary, the evidence amply demonstrates that the stop work orders, prevented respondent from being able to provide essential services to the building in December 2005.
Accordingly, this claim should be dismissed.
Failure to provide a continuous safety plan and safety environment for tenant during ongoing construction at the premises
This allegation is a bit of a mystery since a “safety plan” was never identified by any of petitioner’s witnesses or entered into evidence. There was no violation issued because of it. The allegation perhaps arose from a representation in Mr. Poe’s August 23rd letter accusing the owner of harassing the tenants by a “recent flurry of work in violation of their permit and the Tenant Safety Plan filed with their [Alt 1] application” (Pet. Ex. 7, p. 2). Similarly, Ms. Doherty testified that she had not reviewed any tenant safety plan. Mr. Poe admitted under cross examination, that he had never reviewed the permits issued by the Department of Buildings for the work nor had he pulled the plans submitted with the owner’s application for the Alt 1 permit; therefore, he had never reviewed the tenant’s safety plan and had no basis for asserting that it had been violated (Tr. 129). Investigator Headley testified that he reported to his superiors at HPD after his inspection in November 2005, that a safety plan was not posted at the building, but he admitted that he was not familiar with the requirements of when such plans were required (Tr. 351-53). Given this lack of evidence, the further question is why the Department asserted this claim at all.
Mr. Kaye testified that a tenant safety plan was not required for this building because it is not a hi-rise building (Tr. 610-11). Tenant safety notes were included on the plans submitted to the Department of Buildings; these were necessary because a tenant still resided in the building.
In the absence of any evidence that there was a tenant safety plan that was violated or a requirement to submit one, this claim must be dismissed.
This tribunal finds on the basis of the record adduced at trial that petitioner has failed to prove by a preponderance of evidence that respondent harassed the tenants. Accordingly, petitioner has failed to demonstrate an entitlement to rescind the Certificate of No Harassment.
II. The commencement of substantial work on the premises
Respondent makes another argument seeking to divest OATH of authority to issue a recommendation on the question of substantial work. Citing the language of the Administrative Code, respondent argues that OATH has no jurisdiction to issue a recommendation to the Commissioner on the question of whether substantial work had commenced (Resp. brief, at 26). Respondent points out that the Administrative Code authorizes the Commissioner to rescind a CONH, in certain specific instances, without holding a hearing, upon the Commissioner’s own determination that substantial work has not commenced. The provision states as follows:
As soon as reasonably possible, but not later than thirty days after such suspension, the commissioner shall hold a hearing in the manner provided in section 27-2092 of this article upon appropriate notice and shall determine whether to rescind such certification; provided, however, that if prior to the commencement of substantial work, the owner has been found by the office of rent control, the conciliation and appeals board or any court having jurisdiction, to have engaged in harassment, unlawful eviction or arson at the multiple dwelling, the commissioner may rescind such certification without holding a hearing.
Admin. Code § 27-2093 (f) (3). Respondent finds “implicit” in this provision the notion that the determination about whether substantial work commenced is exclusively within the purview of the Commissioner (Resp. brief, at 27). Therefore, respondent asserts, OATH only has authority to find facts regarding the issue of harassment in rescission proceedings. While there is nothing offensive about respondent’s argument, I found no caselaw that interprets this provision of the law, or that ascribes to it the meaning attributed by respondent. Contrary to respondent’s assertion that HPD had determined prior to this hearing that substantial work had not commenced, the Supreme Court held that “the determination presented for review does not constitute a final agency determination.” Porres v. Dep’t of Housing Preservation & Development, Index No. 116262/05 (Sup. Ct. N.Y. Co., May 21, 2006). Thus, I found no merit to respondent’s procedural arguments.
In order to rescind the CONH, besides establishing that harassment occurred, petitioner must also prove that substantial work on the premises had not yet commenced at the time the CONH was suspended on November 15, 2005. This element need not be tested since the first element was not proven; however, I have done so to complete the record. I find that substantial work had not commenced, as defined under the Rules of the City of New York.
The commencement of substantial work is defined as:
Substantial work has commenced upon the payment of the first advance by a lender on a building loan contract which is financing the alterations or demolition for which a certification of no harassment or waiver was granted. In the event that such alteration or demolition is not financed by a building loan contract, substantial work shall be defined as the actual expenditure or [sic] more than fifty percent of the total cost of the alteration or demolition.
28 RCNY § 10-08 (h). Respondent claims that it has established both prongs of this definition of substantial work.
Building loan contract
In this proceeding, respondent contends that it received a $500,000 building loan to finance the alterations or demolition for which the CONH was granted, and the full amount was advanced in June 2005 (Resp. brief, at 31).[16] Thus, not only a first advance but the full amount has been tendered, respondent argues, as is evidenced by its bank statement showing a June 22, 2005, deposit of $500,000 transferred from Sentinel (Pet. Ex. 21, Ex. C). As proof that the monies were transferred pursuant to a building loan contract, respondent cites two letters purportedly written by Leland Roth, Sentinel’s treasurer, dated December 27, 2005, which state that Sentinel “advanced construction draws” of $500,000 and $250,000 “for demolition and construction” at the premises (Pet. Ex. 21, Exs. E & F). Respondent’s other documentation consists of (i) its application with DHCR to alter or demolish the building, which estimates a total cost of $500,890 for the project ($60,000 for demolition, $390,890 for construction, and $50,000 for miscellaneous) (Pet. Ex. 21, Ex. A, p. 2); and (ii) a promissory note dated June 22, 2005, which makes no mention of the purpose of the indebtedness (Pet. Ex. 21, Ex. D). I found the Roth letters unreliable evidence of this indebtedness. Despite the significance of this proceeding to the continuance of construction, respondent submitted two letters, one of which is not even signed. Neither provides so much as a notary stamp to authenticate the signature. There was no sworn affidavit or testimony of a bank representative. In all, I found the letters to be unreliable evidence of the loan, not only for the reasons stated here, but also because respondent’s counsel contradicted them in prior representations to HPD that there was no project financing (see Pet. Ex. 19).
HPD disputes that respondent’s loan documents constitute evidence of a “building loan contract.” Petitioner asserts that the description of a building loan contract can be found in the New York Lien Law, which defines the term in section 2 as follows:
The term "building loan contract," when used in this chapter, means a contract whereby a party thereto, in this chapter termed "lender," in consideration of the express promise of an owner to make an improvement upon real property, agrees to make advances to or for the account of such owner to be secured by a mortgage on such real property, whether such advances represent moneys to be loaned or represent moneys to be paid in purchasing from or in selling for such owner bonds or certificates secured by such mortgage upon such real property, providing, however, nothing herein contained shall be deemed to construe as a building loan contract a preliminary application for a building loan made by such owner and accepted by such lender if, pursuant to such application and acceptance, a building loan contract is thereafter entered into between the owner and the lender and filed as provided in section twenty-two of this chapter.
NY Lien Law § 2 (13) (emphasis added). Respondent concedes that its Sentinel loan is not secured by a mortgage on the property, because its prior mortgage prohibits further encumbrances; thus, the Sentinel loan does not fit the definition (Pet. Ex. 21, p. 3, n. 1).
The Sentinel loan fails to comport with the definition of a building loan contract in other respects as well. That is, section 22 of the Lien Law requires that a building loan contract, which must be in writing, must be (i) duly acknowledged, (ii) contain a true statement under oath, verified by the borrower, showing the consideration paid, or to be paid, for the loan described therein, and showing all other expenses incurred or to be incurred, and the net sum available to the borrower for the improvement, and (iii) it must be filed in the office of the county clerk on or before the date of recording the building loan mortgage made pursuant thereto. NY Lien Law § 22. None of these characteristics apply to the Sentinel loan. Respondent neither disputes this definition nor offers an alternative authoritative definition.
Respondent describes its loan as a “contract financing the alterations or demolition for which a certificate of no harassment . . . was granted” and states that the loan was made pursuant to a writing that evidences the promise to lend money and the obligation to repay it, and it was advanced for the sole and exclusive purpose of renovating real property for which there was consideration, which in this case was interest on the loan (Resp. brief, at 31-32). These terms fall short of the requirements of the Lien Law for a building loan contract.
I therefore conclude that the Sentinel loan was not acquired pursuant to a building loan contract.
More than 50% of the cost of the alteration must have been spent
Substantial completion is alternatively defined in the rule as follows:
In the event that such alteration or demolition is not financed by a building loan contract, substantial work shall be defined as the actual expenditure or [sic] more than fifty percent of the total cost of the alteration or demolition.
28 RCNY § 10-08 (h). Respondent failed to prove that more than 50% of the cost of the alteration has been spent.
First, respondent claimed that it secured a $500,000 loan from Sentinel to cover the cost of the demolition and construction (Pet. Ex. 21, Exs. A & C). Respondent proved that the entire $500,000 was advanced and deposited in its bank account, but it did not establish that $500,000 was the entire loan amount. One of the letter’s from Sentinel’s treasurer states that an additional $250,000 draw was made for purposes of renovating the premises. Thus, the total amount of the Sentinel loan would be $750,000. Respondent did not prove that half of that amount was expended on work at the premises at the time HPD suspended the CONH.
Respondent contends that more than 50% of the costs of the demolition were expended, thus it has proven substantial completion (Resp. brief, at 32). It takes literally the article “or” in the rule’s statement that “more than fifty percent of the total cost of the alteration or demolition” must be spent. Specifically, respondent produced evidence that $187,792 had been expended, “an amount clearly in excess of 50% of the cost of the demolition.” The expenditure of half of the cost of demolition also is not the appropriate measure here, however. The language “alteration or demolition” refers to the same language in the previous sentence:
Substantial work has commenced upon the payment of the first advance by a lender on a building loan contract which is financing the alterations or demolition for which a certification of no harassment or waiver was granted.
In this sentence, the phrase “alterations or demolition” is modified by the phrase “for which a certification of no harassment or waiver was granted”; thus, the measure is of 50% of whatever work was expected to be completed under the CONH. In this case, the work for which the CONH was granted was both construction and demolition. Respondent cannot use the lower cost of the demolition to establish its entitlement to relief, because it conflicts with the meaning of the statute. If the CONH had been granted to conduct demolition alone, half of its cost would be used to calculate whether substantial work had commenced.
Respondent further asserted that it had expended more than 100% of the “estimated cost for the entire renovation project” (Resp. brief, at 32). This, however, is not the standard defined in the statute.
Accordingly, the record failed to demonstrate that “substantial work” had commenced at the time the CONH was suspended.
FINDINGS AND CONCLUSIONS
1. Petitioner failed to establish that the owner harassed the tenants of 331 West 22nd Street, as the term is defined under section 27-2093(a) of the Administrative Code.
2. The record failed to demonstrate that substantial work had commenced at the time the CONH was suspended.
3. Petitioner may not rescind the certificate of no harassment inasmuch as it has failed to prove that harassment occurred.
RECOMMENDATION
I find that harassment did not occur at the premises during the relevant time period. Accordingly, respondent’s certificate of no harassment should not be rescinded.
TYNIA D. RICHARD
Administrative Law Judge
December 29, 2006
SUBMITTED TO:
SHAUN DONOVAN
Commissioner
APPEARANCES:
PHILLIS LU SIMPSON, ESQ.
Attorney for Petitioner
KOSSOFF & UNGER
Attorneys for Respondent
BY: STACIE BRYCE FELDMAN, ESQ.
-----------------------
[1] Respondent insists that the determination that substantial work has commenced is an occurrence of some formality that HPD failed to undertake in this instance. Counsel argued:
So HPD has to first make a determination or finding that substantial work has or has not commenced. That determination by HPD is then a full and final determination that is reviewable under Article 78 before the Supreme Court because it’s what vests HPD with its initial jurisdiction to even commence this proceeding and bring it before OATH.
(Tr. 17). HPD adamantly disputed this reading of the statute (Tr. 18).
[2] The Administrative Code provision states as follows:
If the commissioner has reasonable cause to believe that such harassment has occurred, the commissioner shall suspend the certification of no harassment . . . . Notice of such suspension shall be mailed to the owner of record . . . and shall be filed with the city register. As soon as reasonably possible, but not later than thirty days after such suspension, the commissioner shall hold a hearing . . . upon appropriate notice and shall determine whether to rescind such certification . . . . At such hearing the owner shall have an opportunity to be heard by the commissioner or a designee of the commissioner. . . . If the commissioner determines that such certification shall be rescinded, notice of such determination accompanied by written findings indicating the grounds for such determination shall be provided to the commissioner of buildings and shall be mailed to the owner of record . . . and filed with the city register. Such determination shall be subject to review pursuant to article seventy-eight of the civil practice law and rules.
NYC Admin. Code § 27-2093(f) (2)-(5); see also 28 R.C.N.Y. § 10-08(b).
[3] The ruling of this tribunal also comports with that of Justice Wilkins in the Supreme Court who dismissed respondent’s Article 78 proceeding. Porres et al. v. Dep’t of Housing Pres. and Dev., Index No. 116262/05 (Sup. Ct. N.Y. Co., Mar. 21, 2006) (dismissing proceeding “as the determination presented for review does not constitute a final agency determination inasmuch as further proceedings are imminent which may ‘prevent or significantly ameliorate’ the injury claimed by petitioner.”).
[4] The parties stipulated that evidence of harassment would be limited to acts and omissions occurring on or after April 11, 2005 (Tr. 37).
[5] I have numbered the allegations for ease of reference. It should be noted that, petitioner withdrew its allegation that respondent brought “frivolous lawsuits to get tenants out” (Tr. 74).
[6] This is an apparent misstatement inasmuch as the building has only four floors. It likely is intended to state the following, which was set forth in paragraph 4 of the stipulation: “replace with new the broken or defective 1st, 2nd, 6th, 9th, 10th, 11th, and 12th wood tread from bottom stairs 1st to 2nd story at public hall.”
[7] Paragraph 2 of the stipulation states that the tenants acknowledge that the following work was performed by the owner:
• safe electrical service was provided in the rooms and in the public areas and hallways, but room/vestibule near entrance door inside Unit 4B has no electric service;
• running hot and cold water restored to [the] rooms and community bathrooms;
• work has begun on public stairs to secure loose stairs;
• removed obstructions in waste line bathtub in bathroom located 4th story, violation #5656750;
• provide fire watch at cellar, violation #5687313; and
• repair flushing apparatus in 4th floor bathroom, violations 5687319 and 5687321.
In paragraphs 3, 4 and 5, the owner agreed to repair numerous violations, including:
• repair the broken or defective wood floor in public halls, violation #5687325;
• replace the missing west handrail at 4th story, public hall, violation #5687326;
• replaced the missing south handrail at 4th story, public hall, violation # 5687327;
• abate nuisance consisting of wood panel obstructing scuttle to roof at public hall, violation # 5687323;
• secure the loose scuttle ladder to roof at public hall, violation # 5687324;
• make self-closing the entrance door to room 4B, violation # 5687330;
• replace with new the broken or defective 1st, 2nd, 6th, 9th, 10th, 11th, and 12th wood tread from bottom stairs 1st to 2nd story at public hall, violation # 5687332;
• repair the defective light fixture ceiling 1st story vestibule at public hall, violation # 5687332;
• provide adequate lighting at or near outside of front entranceway of building, violation # 5687333;
• repair broken or defective light fixture at ceiling in room 4B, violation # 5656695 (entryway vestibule inside room);
• repair leaky or defective faucets in bathtub in 4th story bathroom, violation # 5656712;
• abate nuisance of vermin mice in room 4B, violation # 5656767;
• abate nuisance of vermin roaches in room 4B, violation # 5656769;
• plaster and paint room 4B, violation # 5687336 (painting work will not be performed unless petitioner moves all his personal belongings prior to the painting which may not be kept or stored in the hallways or common areas of the building); and
• replace with new the broken or defective refrigerator door gasket in the kitchenette located in room 4B, violation # 5656633.
These repairs presumptively were made since HPD failed to reinstate the action within the 75 days (Tr. 274), as stipulated. Ms. Doherty confirmed this in her testimony about her only visit to the building, which she made sometime in September, after the court settlement, to confirm the conditions had been corrected (Tr. 254-55). When she visited, there was electricity and most of the other conditions raised in the lawsuit had been repaired.
[8] Respondent submitted in evidence settlement agreements with three other former tenants, Wes Bradley, Daniel Priest, and Stephan Sheehan, executed from June to August 2005, surrendering their tenancies in exchange for monetary payments and representing that they were not the subjects of harassment by the owner (Resp. Exs. O-1, O-2 & O-3). Two other former tenants, Christian Thompson and Eric Stiller, executed surrender agreements before April 11, 2005 (Tr. 501).
[9] Because of petitioner’s failure to timely submit them in evidence at the hearing, certain violations noticing conditions that were not otherwise evidenced in the record were not admitted (Tr. 789).
[10] She said she was told that Mr. Merrill was in the building at the time and refused requests to leave the building, so the firefighters had to remove him (Tr. 519). Mr. Merrill was known to deny access to his room so that repairs could be performed, and he was frequently away from the building, thus avoiding giving access (Tr. 536-37).
[11] Petitioner also submitted the testimony of HPD’s Chief Investigator Lamont Headley who met with Mr. Merrill once, on November 21, 2005, when he interviewed him at a nursing home facility. Mr. Headley testified and submitted an affidavit reporting the same information given by other witnesses about the conditions at the building, but provided little detail about when and for how long essential services were unavailable (Tr. 349; Pet. Ex. 15). I found little to credit about Investigator Headley’s testimony. He seems to have been inserted into HPD’s investigation of this matter moments before its decision to suspend the CONH was issued. Further, he demonstrated little familiarity with this matter when he testified that his unit first received a report of harassment at the building in April or May 2005 (Tr. 386), when actually there was no complaint until August 2005. Incredibly, despite this alleged April or May complaint, he admitted he did not dispatch any investigators to interview the tenants until his first and only visit to the building on November 14, 2005 (Tr. 389).
[12] Another violation issued on December 17, 2005, for inadequate gas in the building is addressed below.
[13] The allegation, apparently reported to DOB by HPD (Resp. Ex. W), that respondent had failed to disclose to DOB that a tenant still resided in the building was disproven by the Alt 1 plans, which show Mr. Merrill’s room as an “existing occupied unit to remain” (Resp. Ex. BB, p.1; Tr. 643).
[14] It was often unclear from her testimony whether Ms. Doherty was referring to temporary or permanent offers to relocate.
[15] The other former tenants settled for amounts ranging from $5,000 to $22,000 (Resp. Exs. O-1, O-2, O-3).
[16]Contrary to its representations here, respondent’s counsel stated in a letter to HPD dated September 30, 2005, that it had not obtained any financing for the project and therefore had no loan documents or disbursements from any lender (Pet. Ex. 19, p. 1).
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