Dep’t of Housing Preservation and



Dep’t of Housing Preservation &Development v. Avid

OATH Index No. 801/08 (Apr. 4, 2008)

Department proved that owner harassed SRO tenants within the meaning of section 27-2093 of the Administrative Code. Thus, owner’s application for a certificate of no harassment should not be granted.

______________________________________________________

NEW YORK CITY OFFICE OF

ADMINISTRATIVE TRIALS AND HEARINGS

In the Matter of

DEPARTMENT OF HOUSING PRESERVATION AND DEVELOPMENT

Petitioner

- against -

JACK AVID

Respondent

______________________________________________________

REPORT AND RECOMMENDATION

TYNIA D. RICHARD, Administrative Law Judge

This is a proceeding commenced by petitioner, the Department of Housing Preservation and Development (“HPD”), pursuant to Local Law 19 of 1983, the Single Room Occupancy (“SRO”) anti-harassment statute. Admin. Code § 27-2093 (Lexis 2008). The Department referred this matter pursuant to title 28, section 10-06 of the Rules of the City of New York (“RCNY”) (Lexis 2008). Respondent, Jack Avid, is the owner of 155 West 83rd Street, New York, New York. Petitioner alleges that respondent committed acts of harassment against the building’s tenants and seeks denial of respondent’s application for a certificate of no harassment pursuant to section 27-198 of the Administrative Code.

Trial was held before me on January 14, 17 and 28, 2008, at which time the record was closed. Petitioner presented the testimony of three HPD investigators and one inspector from the Department of Buildings. Respondent testified and presented the testimony of his architect Paul Gregory, his managing agent Ellen Lenza, building superintendent Jorge Godoy, and SRO tenant George Stillman. For the reasons set forth below, I find that the certificate of no harassment should be denied.

ANALYSIS

Respondent filed an application for a certificate of no harassment (“CONH”) on September 28, 2006. Before issuing a CONH, the Department must certify that there has been no harassment of the lawful occupants of the premises within the 36 months preceding respondent’s application. Admin. Code § 27-2093(c) (Lexis 2008). On October 9, 2007, HPD made a finding that there was reasonable cause to believe that harassment of the lawful occupants did occur at the premises during the three-year inquiry period commencing on September 28, 2003.

HPD’s amended petition alleges that the following acts and omissions constitute the owner’s harassment during the inquiry period:

1. failure to provide adequate gas to fixtures at community kitchens on all floors;

2. failure to restore stoves and sinks to all community kitchens;

3. illegally locking doors to community kitchens and failing to provide tenants with access to community kitchens on all floors;

4. illegal removal of kitchens on all floors;

5. illegal conversion of kitchens on all floors into SRO units;

6. causing imminent danger to the life and safety of occupants in apartments 5, 9, 14, and 18 due to unlawful renovations, resulting in the issuance of a Vacate Order for these apartments;

7. failure to discontinue unlawful overcrowding of occupants in SRO units;

8. failure to discontinue unlawful cooking spaces inside SRO units;

9. failure to maintain the building’s exterior brick façade causing separation and bulging;

10. failure to repair defective ceiling at public hall;

11. failure to provide janitorial services;

12. failure to abate the nuisances of vermin and rodent infestation;

13. failure to remove the accumulation of refuse at cellar;

14. failure to provide adequate lighting at front entrance to building;

15. failure to provide iron guard rails at bulkhead opening to the roof;

16. failure to repair defective drop ladder at fire escape;

17. excavating without a permit causing interior walls to crack and shift;

18. storing volatile combustible gas without FDNY permit; and

19. generally interrupting and/or discontinuing and decreasing essential services and repairs.

(ALJ Ex. 1).

Under the SRO anti-harassment statute, “harassment” is defined as conduct by or on behalf of an owner of an SRO multiple dwelling that includes among other things:

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

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

3) the failure to comply with the provisions of [section 27-2140(c)] of this code which causes or is intended to cause such person lawfully entitled to occupancy of such dwelling unit to vacate such unit or to waive any rights in relation to such occupancy.

Admin. Code § 27-2093(a) (Lexis 2008).

Subsection “b” of section 27-2093 of the Administrative Code creates a presumption that any statutory act or omission defined in section 27-2093(a) was committed with the intent to cause a legal occupant to vacate the unit or to surrender occupancy or waive a right in relation thereto. An owner may rebut the presumption by a preponderance of the credible evidence. See Dep’t of Housing Preservation & Development v. McClarty, OATH Index No. 1602/00 (Dec. 7, 2000).

Respondent purchased the building on July 11, 2006 (Pet. Ex. 2). In his CONH application filed with HPD two months later, he indicated that the building was a single room occupancy multiple dwelling containing 34 units, only one of which was occupied (Pet. Ex. 1 (“Application”), at 2). George Stillman was that occupant, renting Unit 55 at $327 per month (Pet. Ex. 1, at 8). According to the Application, the purpose for seeking the CONH was to “refurbish[]” the building “adding bathrooms” (Pet. Ex. 1, at 2). By the time of trial, however, the building was more than “refurbished” – it had been converted from 34 SRO units into 19 class A apartments with 13 market rate tenants in occupancy – without a CONH ever being issued. In the absence of a CONH and an Alteration Type I (“Alt I”) permit, the conversion was illegal.

According to the Application, there were 90 former lawful occupants of the building who surrendered or vacated their units during the three-year inquiry period (Pet. Ex. 1). Sixty-three of them vacated before Mr. Avid bought the building; it was not established when they vacated or why. Twenty-seven occupants vacated in or about September 2006, in the weeks after he took ownership (Pet. Ex. 1, at 9-16). The question here is whether any lawful occupant was harassed during the inquiry period. This question is complicated by the fact that none of the tenants testified to any harassment.

Respondent points out as a weakness in the Department’s case the absence of tenant testimony alleging harassment. The cases before this tribunal in which the Department was unable to produce complaints of harassment and/or tenant testimony supporting a claim of harassment have produced mixed results, but a lack of tenant complaints does not “instantly vitiate the Department’s case.” Dep’t of Housing Preservation & Development v. Wulliger, OATH Index No. 782/06, at 13 (May 5, 2006) (CONH granted where Department offered no tenant complaints or testimony to illuminate the bare written record and, thus, failed to show that lawful occupants were affected by the conditions); see also Dep’t of Housing Preservation & Development v. Zimmerman, OATH Index No. 347/05 (Oct. 4, 2004) (CONH denied where owner conceded conditions and failed to rebut the presumption); Dep’t of Housing Preservation & Development v. Serradilla, OATH Index No. 1802/01 (July 18, 2001) (CONH denied where corporate owner failed to rebut presumption).

Here, petitioner has alleged harassment relating to acts and omissions of the prior owner and of the current owner, respondent Jacob Avid. It does not matter which owner performed an act of harassment so long as it occurred within the three-year inquiry period. Serradilla, OATH 1802/01, at 15-16. There is only one remaining SRO occupant, Mr. Stillman, who denied that he was harassed. Thus, there are two constituencies that consist of former lawful occupants (all departed), and current lawful occupants who commenced market rate tenancies with respondent after the inquiry period ended. Claims alleged as to the newer market rate tenants are appropriately reviewed in this proceeding since the anti-harassment statute protects all “lawful occupants,” not only SRO occupants (see Admin. Code ¶ 27-2093(a); see Dep’t of Housing Preservation & Development v. Rice, OATH Index No. 1838/04, at 8 (Mar. 23, 2005) (the present usage and configuration of a building does not establish that it is not a single room occupancy multiple dwelling)), and because respondent’s acts and omissions may be reviewed for evidence of harassment post-inquiry period. See 10 RCNY § 10-01, as amended and published in The City Record, Nov. 13, 2007 (inquiry period ends on the date of HPD’s final determination); Dep’t of Housing Preservation & Development v. Mamudoski, OATH Index No. 771/01 (Feb. 21, 2002) (evidence of acts of harassment taken after filing for certificate should be relied upon in order not to frustrate legislative intent of anti-harassment statute).

Violations

The building was issued violations by both HPD and the Department of Buildings (“DOB”) during the inquiry period from September 28, 2003 to September 28, 2006. The building amassed 29 pages of violations issued by HPD, which have been closed (Pet. Ex. 6); 16 open violations remain (Pet. Ex. 7). There was testimony establishing that many of the violations had been falsely certified by the owner as repaired because reinspections found them still existing. According to HPD’s records, there were 11 such false certifications during the inquiry period (Pet. Ex. 7). An additional 15 open violations were issued by HPD in the months since the inquiry period ended.

DOB issued six violations during the inquiry period: for removing kitchens without a permit and creating an additional unit on each floor (June 2005), illegal occupancy for converting 7 SRO rooms to 8 SRO rooms (issued in June 2005 and August 2006), excessive occupancy with more than 105 occupants in 34 SRO rooms, exterior hazards on the fire escape and rear landing, and an exterior hazard created by a separating and bulging brick façade (Pet. Exs. 12A-12F).

DOB issued additional violations after the inquiry period for conditions related to the illegal conversion. They include failure to maintain the exterior wall (Pet. Exs. 12G & H), storage of flammable materials without a permit (Pet. Ex. 12I), failure to provide approved plans for renovation (Pet. Ex. 12J), plumbing a modified sprinkler system without a permit (Pet. Exs. 12K & 23), installing new plumbing without a permit (Pet. Exs. 12L & 24), obstructing passageways (Pet. Ex. 12M), failure to provide a secondary means of egress for which a vacate order was issued (Pet. Ex. 12N), hazardous construction without a permit (Pet. Ex. 12O), occupancy contrary to the certificate of occupancy (Pet. Ex. 12P), hazardous condition created by a sealed door leading to the roof and the illegal installation of steel beams at the roof (Pet. Ex. 12Q), and defective electrical wiring (Pet. Exs. 13 & 13A).

For eight years Ellen Lenza has worked for management companies owned by respondent (Tr. II 209-11). Her job is the maintenance and repair of his properties; in particular, she responds to notices of violation issued by the regulatory authorities. She acknowledged that respondent inherited a lot of violations from the prior owner when he purchased the building. She testified initially that all of the violations issued by HPD and DOB had been corrected and dismissed (Tr. II 214, 217-21; Pet. Exs. 7, 12A-Q). That testimony proved to be false. Although she had filed certificates of correction with DOB representing that the conditions had been corrected (Resp. Exs. B-H), many of those representations were proven false.[1] Moreover, she revealed that rather than visiting the site herself she had relied on workers’ representations that corrections were made, so in many instances she could not accurately attest to what had been done (Tr. II 226). In all, I concluded that Ms. Lenza had an interest in vindicating her employer that limited the reliability of her testimony.

In some instances, she continued to maintain that violations were corrected despite the evidence to the contrary. For example, she insisted that Mr. Avid had corrected the violation issued to the prior owner for illegally converting the community kitchens on each floor into an additional SRO unit by restoring the premises to its legal use, even though the units are clearly no longer SRO units (Tr. II 236, 241; Pet. Exs. 12B & C). She stated that respondent restored the community kitchens after purchasing the building, a claim that lacked much credibility since shortly after buying the building respondent began to convert it to apartments and did so to save money. It was inconceivable that he would have restored those kitchens before converting to apartments, and there was no evidence to corroborate her claim. The violation for constructing without a permit new interior partition bathrooms, kitchens, floors and ceilings throughout the first to fifth floors (which required new plumbing and electrical work) remained uncorrected (Pet. Ex. 12O; Tr. II 256). The violation for constructing class A apartments throughout the building whose certificate of occupancy designated class B SRO units remained uncorrected (Pet. Ex. 12P; Tr. II 256). Obviously, the violation for failing to obtain a certificate of occupancy or to restore the premises to its prior legal condition has not been corrected (Pet. Ex. 7, at 9).

Ms. Lenza eventually conceded that several violations remained uncorrected for extended periods of time (Tr. 245, 247). She admitted that some of the violations were not corrected because the Alt I plans had not been approved (Tr. II 222, 224). The condition consisting of a failure to maintain the exterior of the building with defects noted at the rear fire escape landing on the second floor, and the front fire escape drop ladder support bracket which was loose and hanging existed from March 2004 to November 2007 (Pet. Ex. 12E). The exterior brick façade was separating and bulging from August 2006 until November 2007, and led to the imposition of a $10,000 fine (Pet. Exs. 12F, G & H; Tr. II 248).

Some violations were corrected by prompt removal of the conditions; for example, the beams installed in the illegal conversion were removed from the roof (Tr. II 224; Pet. Ex. 7, at 3). According to Ms. Lenza, the violation for obstructing the bulkhead door with concrete and for the accumulation of debris at the rear exposure was corrected right away (Tr. II 254; Pet. Ex. 12M). Likewise, she said that the violation for having a sealed door leading to the roof and steel beams blocking the parapet wall was corrected the following month (Tr. II 257; Pet. Ex. 12Q). The violation for failing to provide a required means of egress for apartments 5, 9, 14, and 18 was corrected in November 2007 by vacating the apartments and moving the tenants to other units where proper egress was provided (Tr. II 255-56; Pet. Ex. 12N). In connection with the violation for failure to provide approved plans for the renovation (Pet. Ex. 12J), respondent corrected the condition by stopping the work (Tr. II 250-51).

The allegations of harassment are more specifically addressed below.

Failure to provide adequate gas to fixtures at community kitchens on all floors

Failure to restore stoves and sinks to all community kitchens

Illegally locking doors to community kitchens on all floors

Based upon violations issued on June 29, 2005, an Environmental Control Board (“ECB”) hearing officer found that the kitchens on each floor had been removed and converted into SRO units, and that there were no gas lines for the stoves and no kitchen sinks (Pet. Ex. 12A). Respondent also was cited for illegal occupancy because the kitchen conversions led to each floor illegally containing eight SRO units when there should have been seven (Pet. Ex. 12B) -- work that was done without a permit and that violated the certificate of occupancy. The inspector noted that the building residents were unable to speak English or did so with difficulty. Although respondent filed certificates of correction for these violations in November 2007 (Resp. Exs. B & C), it is unclear what significance they have since, by then, the SRO units had been converted to apartments, another illegal conversion.

A few weeks after respondent purchased the building, on August 31, 2006, HPD Inspector Louis Plaza visited and found the public kitchens locked on all floors (Pet. Ex. 8). When the kitchens were unlocked for his inspection, he saw that the sinks were either missing or disconnected from the water supply. There were no stoves, only hotplates. A man approached him in the hallway and, speaking in Spanish asked who he was; when the inspector told him that he was there to inspect, he said, “Isn’t it kind of late? Everybody’s moving out. They want us out of here” (Tr. I 57).

Although the inspector believed there was no gas in the building, he admitted that he did not check the gas meter for usage and made the assumption because there were hotplates instead of stoves in the kitchens (Tr. I 58, 69). Inspector Plaza also observed 15 or 20 rubbish bags on the first level and debris and garbage throughout the building (Tr. I 53-56).

Inspector Plaza issued violations for accumulated refuse at the cellar, removal of the stoves and failure to supply gas, and for the locked community kitchens (Pet. Ex. 6, at 37 & 40; Pet. Ex. 11, at 18). The conditions remained uncorrected by the time of Investigator Sequinot’s visit in October 2006. The owner falsely certified that the conditions were corrected as of September 22, 2006 (Tr. I 87; Pet. Ex. 9).[2]

When Investigator Abimael Sequinot inspected the building in October 2006, he too noted that the kitchen units on all floors were no longer used as kitchens because the stoves had been removed and the gas lines were capped (Tr. I 83-85). On all floors, there was debris in the hallways and sheetrock crumpled on the floor; the walls were torn down as if there was demolition work in the SRO units (Tr. I 86). The first, second and fourth floors had no sinks or water supply. He reported that the property was “broom clean,” but he testified that construction debris was present and swept to the walls (Pet. Ex. 5, Question 9; Tr. I 134).

Respondent claimed that the supply of gas in the building continued from the time that he purchased the building in July 2006, throughout the period of the conversion (Tr. III 12-14). But he stopped short of confirming that the gas lines were actually connected to the community stoves on each floor. He also failed to provide proof of gas usage with a utility bill, despite the Department’s demand for all such bills in discovery (Pet. Ex. 37).

The evidence showed that as early as 2005 the owner of the building had illegally disabled the community kitchens on all floors by converting them to additional SRO rooms. The record shows that, by 2006, the owner again was depriving residents of access to the community kitchens, and the sinks and stoves were disabled and the gas capped. The repeated violations since 2005 show an extended history of depriving the occupants of this essential service as well as a history of performing unpermitted work. See Admin. Code § 27-2093(a)(2).

Causing imminent danger that resulted in the issuance of a Vacate Order

Petitioner alleges that respondent caused imminent danger to the occupants of apartments 5, 9, 14, and 18 by performing unlawful renovations that resulted in the issuance of a Vacate Order for these units.

A stop work order was issued by DOB on October 17, 2007, “due to [the] illegal installation of [a] sixth floor and conversion of SRO [units] into class “A” studio apartments” (Pet. Exs. 12J, 15 & 16). An inspection on October 16, 2007, resulted in the issuance of a vacate order “because there is imminent danger to the life and safety of the occupants,” and because “unlawful interior renovations” impeded access to the second means of egress. Also, fireproof passage at the cellar front and rear were blocked, and construction debris hampered safe passage through rated a corridor (Pet. Ex. 15). The violation required units 5, 9, 14, and 18 to be vacated or a second means of egress provided (Pet. Ex. 12N). The violation was corrected by vacating the apartments (Tr. II 255-56).

A DOB special report confirmed that work performed on the building under Alteration Type II (“Alt II”) permits obtained by respondent was “much more than the original scope of work” (Pet. Ex. 16) and that the tenants in apartments numbered 5, 9, 14, and 18 “have no second means of egress from their apartments due to current layout” and the “egress stair is closed with plywood boards at [the] fifth floor due to construction on the roof” (Pet. Ex. 16). The report also noted that the doors in the cellar “are closed from inside . . . creating a restriction in egress” and that construction debris and minor excavation caused a “hazard in egress.” The report concluded that the current layout of the building caused a “serious safety hazard for the tenants.” Respondent did not dispute or contradict the evidence that the conditions constituted a hazard to the tenants.

Under the anti-harassment statute, harassment is defined as the owner’s failure to comply with section 27-2140(c) (which requires correction of a condition that renders the dwelling “unfit for human habitation” within 10 days) such that it causes a lawful occupant to vacate. Admin. Code § 27-2093(a)(3). One of the new tenants, Shawn Constable, decided to move out because her apartment was vacated under the order (Tr. I 113, 115, 118; Pet. Ex. 1, addendum).[3] Although this condition rendered Ms. Constable’s unit unfit for human habitation and led to her decision to vacate the premises, respondent remedied the condition by promptly providing her with comparable alternative accommodations which she declined. Thus, respondent’s failure to remedy the condition did not cause her to vacate. See Dep’t of Housing Preservation and Development v. Blanchard, OATH Index No. 553/06, at 7 (Aug. 9, 2006) (the necessity for issuance of a vacate order and subsequent failure to correct the condition should result in the denial of a certificate of no harassment).

Failure to discontinue unlawful overcrowding of occupants in SRO units

HPD and DOB issued violations for overcrowding in 2004, 2005, and 2006. In 2004, an inspector found 105 occupants residing in the 34 SRO units (Pet. Ex. 12D; Pet. Ex. 6, at 24). After a hearing, an $800 fine was imposed. The Department found that the owner falsely certified that the condition was corrected (Pet. Ex. 7, at 6). Overcrowding was again cited on premises on March 16 and June 29, 2005 (Pet. Ex. 7, at 7).

On June 29, 2005, the owner was cited for illegal occupancy because four floors illegally contained eight SRO units where there should have been seven and one floor contained seven units where there should have been six (Pet. Ex. 12B) – the additional units were constructed without a permit and violated the certificate of occupancy. The building was cited for the same violation on August 18, 2006, where five people were found per SRO unit and, because of the absence of community kitchens, there were hot plates and refrigerators in the rooms (Pet. Ex. 12C). Respondent admitted the charges at an ECB hearing and paid an $800 fine.

Thus, overcrowding was an ongoing condition disturbing the comfort, repose, and peace of the lawful occupants. See Admin. Code § 27-2093(a)(2).

Failure to provide janitorial services

Failure to abate the nuisances of vermin and rodent infestation

Failure to remove the accumulation of refuse at cellar

Petitioner alleges that respondent failed to provide janitorial services. On September 15, 2006, the building was issued a violation for failure to provide a janitor (Pet. Ex. 7, at 8). Again, after the owner certified that the violation had been corrected, the Department reinspected in December 2006 and found the certification to be false. Ms. Lenza said the condition was corrected by December 2007 (Tr. II 228).

Jorge Godoy testified that he has been the janitor for the building for two years and that he reports to the building seven days a week (Tr. II 322-24, 331-32). Mr. Godoy was listed as the superintendent on a notice inside the building. Although he lives in New Jersey, he said he works 12-hour days providing full time services for 155 West 83rd Street, as well as nine other buildings owned by Mr. Avid (Tr. II 334). He said he has five assistants working for him (Tr. II 342). Mr. Godoy testified that his responsibilities at the building include general cleaning and maintenance of the public areas of the building and garbage removal (Tr. II 324). He was also involved in the renovation construction and did plumbing, framing and sheetrock work in the building (Tr. II 325, 330). And he performs repairs as instructed by the management office (Tr. II 326).

Petitioner points out that, under the Housing Maintenance Code, janitors of multiple dwellings of nine or more units must reside within a distance of one block or 200 feet from the dwelling, and janitors who perform janitorial services for more than one multiple dwelling must not serve more than 65 units. See Admin. Code § 27-2054. Respondent’s work as a janitor violates this provision. However, there was insufficient evidence that Mr. Godoy’s responsibilities elsewhere kept him from rendering proper aid to 155 West 83rd Street. The new tenants appeared to be familiar with him and did not list his absence among their complaints about the building (Pet. Ex. 5, Oct. 18, 2007 memo).

When informed of a bedbug problem, Mr. Godoy sprayed the building but did not get rid of them, so the management company contacted an exterminator who sprayed (Tr. II 327, 279; Pet. Ex. 30).

Mr. Godoy said he received complaints from the tenants about mice in the cellar, but not in their apartments (Tr. II 329). Although Rebecca Coddington complained of mice coming through holes in her apartment, he said he covered the holes but saw no droppings. In email messages sent to respondent, a number of tenants complained that garbage was not being picked up by the Department of Sanitation and was collecting in the building and attracting mice and rats (Pet. Exs. 34-36).

Amber Ward complained on November 7, 2007, that she had seen “rats the size of shoe boxes” by the trash which was “piled extremely high” in front of the building “due to lack of pick up” (Pet. Ex. 34). On November 8, Lori Oshansky complained that garbage was “continuing to pile up” (Pet. Ex. 35). On December 5 and 6, Ms. Coddington exchanged email with respondent’s management company expressing dismay at being lied to by Mr. Avid about the amenities in the building and stating that there were “families of rats . . . flourishing in and around our building” while the tenants’ complaints were ignored (Pet. Ex. 36, at 3). She indicated that the sanitation department had refused to pick up the tenants’ garbage for “a couple months” because the garbage and recyclables were being combined with construction debris, and sanitation was not allowed to pick up construction debris (id.).

According to Ms. Coddington’s email, the tenants solved the problem by explaining to the workers in the building that they had to segregate the construction debris from the garbage and then arranging for a sanitation inspector to visit and verify the garbage was being sorted. Ms. Coddington’s email states: “As you can see by this picture, if your office had taken a few moments to visit the building, and make a few hone [sic] calls this would not have been an issue. Instead, I solved the problem. I asked for your help then and you didn’t remedy the situation” (Pet. Ex. 36, at 3). The management company responded to Ms. Coddington’s email the same day without disputing her version of events. Ms. Lenza recalled few details about this exchange and said she believed that someone in her office had handled the problem (Tr. II 280).

Respondent testified that the problem with garbage pick up did not continue for months as petitioner alleged. Ms. Coddington’s email stated that there had not been pickup for “a couple months.” According to the dates on the email messages themselves, the problem lasted at least a month: Ms Ward’s email is dated November 7 and Ms. Coddington’s email December 6. Notably, the purpose of the December 6 email, which was initiated by the owner’s management company, was to seek information about the problem from Ms. Coddington ostensibly so that the owner could defend against a violation in court. Had the management company been working on the problem, it would not have had to seek information from the tenant. Mr. Avid claimed the vermin problem, to the extent that it was not exaggerated by the tenants, was caused by the stop work order issued in October 2007 (Tr. III 32).

Inspector Plaza observed 15 or 20 rubbish bags on the cellar level and debris and garbage throughout the building on August 31, 2006 (Tr. I 53-56), and he cited the owner for the accumulation of refuse and/or rubbish at the cellar (Pet. Ex. 6, at 36). No violations were issued in 2006 or 2007 for the presence of vermin.

I did not find sufficient evidence that the owner allowed the garbage and vermin condition to continue for an extended period of time. Within a month, the owner took action to root out the vermin problem and remedy it. Even if a statutorily defined act of harassment had been established, the owner rebutted the presumption of harassment by his substantial efforts to convert the building to accommodate market rent-paying tenants, who he did not want to leave the building.

Failure to maintain the building’s exterior brick façade

Failure to provide iron guard rails at bulkhead opening to the roof

Failure to repair defective drop ladder at fire escape

The following three hazardous conditions lasted for extended periods of time, thus interrupting essential services that interfered with the comfort, repose, and peace of the lawful occupants. It should be noted that all three hazardous conditions existed prior to the departure of the SRO tenants who occupied the building when Mr. Avid purchased the building and could have contributed to their harassment.

DOB issued violations on August 18 and December 7, 2006, and April 10, 2007, for the hazardous condition consisting of an exterior brick façade that was separating and bulging above a fifth floor window (Pet. Ex. 12F, G & H). Notably, all three violations were issued during the period of respondent’s ownership. Respondent appeared and admitted guilt for the first violation and was assessed an $800 fine. Ms. Lenza admitted that this condition remained open from August 2006 at least until November 2007 (Resp. Exs. G & H). The severity of this condition was “high” and it eventually led to the imposition of a $10,000 fine (Tr. II 248).

A violation was issued on August 18, 2006, for the failure to safeguard egress by providing iron guard rails or parapet walls (Pet. Ex. 7, at 8; Tr. 35). The owner again falsely certified on September 12, 2006, that the violation was corrected, according to Department inspectors who found that the condition remained. Ms. Lenza said this condition was corrected by December 2007 although she did not observe it herself (Tr. II 227). Thus, the condition remained uncorrected for at least 16 months.

A violation was issued by DOB on March 18, 2004 for hazardous defects noted on the fire escape, including a necessary repair to the drop ladder on the front fire escape (Pet. Ex. 12E). After a hearing, the prior owner paid an $800 fine. Another violation was issued on October 22, 2007, for the incorrect installation of the drop ladder at the fire escape (Pet. Ex. 6, at 41). Thus, this condition remained uncorrected for at least 3 years and eight months, until November 2007, when Ms. Lenza said it was corrected (Tr. II 247).

Excavating without a permit causing interior walls to crack and shift

Storing volatile combustible gas without FDNY permit

Petitioner alleged that excavation conducted without a permit caused interior walls to crack and shift. Investigator Sequinot inspected the building in October 2007 after a complaint made by tenant Lori Oshansky about cracks in the building structure (Tr. I 96-97). During the visit, he observed surface cracks in her bathroom and living room (Tr. I 99-100). However, there was no violation issued for this condition, no evidence that an excavation was believed to cause the cracking, and no evidence that the walls had shifted.

DOB issued a violation on October 1, 2007, for the storage and use of flammable volatile combustible substances (four tanks of oxygen and acetylene) on premises without a permit from the Fire Department (Pet. Ex. 12I). According to Ms. Lenza, this violation was corrected in December 2007 (Tr. II 250).

Both of these conditions are alleged on behalf of the new market rate tenants. Although they are lawful occupants for whom a claim of harassment may be asserted by HPD in this proceeding, to the extent that these claims could establish a statutory claim of harassment, the owner rebuts the presumption of harassment by his substantial efforts to refurbish the building to accommodate market rent-paying tenants, who he did not want to leave the building. Thus, a claim of harassment is not established.

Failure to provide adequate lighting at front entrance to building

A violation was issued on June 21, 2006, for failure to provide adequate lighting at the front entrance of the building (Pet. Ex. 7, at 8). This remains an open violation, but there was no further evidence of this condition, including the extent to which it affected the tenants. The evidence regarding this condition was not sufficient to determine to what extent it interfered with the occupants’ use or enjoyment of the premises. Thus, the allegation was not sustained.

Failure to discontinue unlawful cooking spaces inside SRO units

Failure to repair defective ceiling at public hall

There was little or no evidence presented of the allegations that respondent failed to discontinue unlawful cooking spaces inside the SRO units or that he failed to repair a defective ceiling at the public hall. Thus, the allegations were not sustained.

The illegal conversion of SRO units into apartments

While not alleged as a separate act of harassment, petitioner emphasized the significance of the owner’s illegal conversion of this single room occupancy multiple dwelling from SRO units into class A apartments without obtaining a certificate of no harassment from HPD or an Alteration Type I (“Alt I”) permit from DOB to authorize the conversion. Respondent converted the building after filing for the CONH that is the subject of this proceeding, but before the CONH was granted. I agree that it is a critical aspect of this case.

Respondent applied for the CONH in September 2006, shortly after purchasing the building. While awaiting its approval, he also applied for and received Alteration Type II (“Alt II”) permits which allowed him to commence non-structural work on the building, in this case, to improve the building’s condition and to cure some of the violations he inherited from the previous owner. Specifically, the Alt II permits authorized the owner to refurbish public areas of the building, including the public halls, community kitchens and baths, and cellar spaces (Pet. Exs. 14A, B & C). By its nature, an Alt II permit may not authorize the structural changes necessary to convert SRO units into class A apartments. Converting a building from one use to another -- to add floor area or change uses of the floors – encompasses structural modification that may only be authorized by an Alt I permit (Tr. III 37-38).

The Department learned of the conversion coincidentally during an inspection conducted in October 2007 by Investigator Sequinot (Pet. Ex. 5, Oct. 10 & 18, 2007 memos), who was surprised to find that the 34 SRO units were gone and had been replaced by 19 newly renovated apartments for which the owner was charging a minimum of $2,000 in monthly rent (Tr. I 98-99, 146). Fourteen of the apartments were occupied. Investigator Sequinot requested and received a list of new tenants from the owner and began calling them to find out about the building conditions during the construction (Pet. Ex. 1, at 77-78). The new tenants complained to him about vermin, cracks in the walls, debris blocking fire escapes, dangling electrical wires, no roof access from the fire escape, a garbage bin outside attracting vermin, and a sixth floor being added to the top of the building (Tr. I 103, 147; Pet. Ex. 5, Oct. 18, 2007 memo). They also wanted to know if they were safe in the building and whether it was legal (Tr. I 150). He told the tenants to call 311 to lodge their complaints (Tr. I 105; Pet. Ex. 11).

Investigator Sequinot observed during this visit that the public kitchens and bathrooms were gone and walls had been erected. Of the 27 SRO occupants existing at the time of purchase, only one remained (Tr. I 138). When he asked Mr. Avid how the building could have gone from an SRO to a reconstructed building without the issuance of a CONH, Mr. Avid said simply that he could not wait any longer for the CONH. He had been waiting over a year. Mr. Avid did not refute Investigator Sequinot’s recollection of their conversation.

The owner was issued several violations on October 16 and 22, 2007, by DOB and HPD for the illegal conversion and for the conditions created therein. DOB also issued a stop work order on October 17, 2007 (Pet. Ex. 16).

The owner, Jacob Avid, has been a real estate developer for 20 years, in Manhattan, Staten Island and New Jersey (Tr. II 343). He buys buildings, usually in poor condition, and renovates the buildings so that he can rent them out. In today’s market, he said, “[t]he only way you really can make it worthwhile is to renovate the buildings and be able to accommodate the tenants.” He has purchased 10 buildings in the last five years; six of the 10 were SRO buildings – five of which he has renovated (Tr. II 344). He complained that the process of CONH approval was much longer for this building than for the other buildings.

He said that his intent when he purchased the building was to remedy the violations and stabilize the condition of the building, file for a CONH, and “down the road repair the building and get it to a condition it would be able to be rentable to tenants.” He admitted that he “counted on that income” to pay bills and that the rents he received from the SRO tenants paid the mortgage, taxes and insurance, and expenses (Tr. II 351-52).

When he purchased the building in July 2006 it was in “terrible shape” and “needed a lot of repair” (Tr. II 347). “There were a lot of people living at the place,” transients who he believed to be of South American descent who did not speak English. He said he did not communicate much with the residents because of the language barrier. He said the residents would “get drunk” and cause disruptions in the neighborhood. There were a number of violations issued against the building and a lot of “situations that required police action,” including stabbings and alleged prostitution. These claims were never corroborate as the only evidence of criminal activity on premises was a misdemeanor complaint sworn by Mr. Avid alleging that he saw a man trespassing on the premises (Pet. Ex. 1, at 76).

Once the work began, according to Mr. Avid, they uncovered more damage in the building than they anticipated (Tr. II 355-56). The beams were rotting and, as they took down the walls to replace them, they found that the water pipes were rusted and broken and the electrical panels antiquated. Mr. Avid stated that, after discussion with his architect who advised him that his ultimate plan to convert the building into a mixed use of SRO units, apartments and business offices would likely be approved by DOB (Tr. II 358, 366), he decided to reconstruct the walls and floors in accordance with his ultimate plan, rather than performing the work authorized by the DOB Alt II permits. According to Mr. Avid’s own testimony, the conversion was so extensive as to include reducing the height of the ceilings on each floor so there would be enough room to create a sixth floor without extending the total height of the building. The new sixth floor and the steel beams used to construct it were captured in photographs taken by inspectors on October 17 & 18, 2007 (Tr. II 118, 176; Pet. Ex. 21, photos 14, 15, 31-33; Pet. Ex. 22, photos 8, 9, 10 & 24).

He explained that he decided to:

reconstruct the floors, reconstruct the walls based on what we anticipated we would be able to build once we got the [CONH]. And the reason for that was an economic reason. I just couldn’t sit there and just have a vacant building with no walls, no electricity running, no plumbing and I couldn’t sit there indefinitely and not do something with it.

(Tr. II 356).

He clearly identified his decision as an economic one, having assessed that it was not feasible to do otherwise and conceding that he went beyond the scope of work allowed by his permits (Tr. II 358-59). Mr. Avid said the construction work in the building started in October or November 2006 -- after the tenants left in September (Tr. II 353-54). He started the Alt II renovations before the permits were even issued, in December 2006 (Pet. Ex. 14). In December, Mr. Avid spoke with his architect about beginning some of the work without the CONH because winter was approaching and the building was unoccupied except for Mr. Stillman. By then the Alt II permits had been approved to do work along the corridors, staircases, bathrooms and kitchens, the cellar and roof. “My intention was at some point start making the building produce money for me, because at that point I had a huge mortgage on it. It had taxes, . . . insurance, . . . water bills. It was really draining me” (Tr. II 354). Thus, after concluding that completion of the Alt II permitted work would not be cost effective, respondent pushed forward with the illegal conversion rather than simply stopping the work and waiting for the CONH. His imperative was to completely convert the building in order to attract new market rate tenants, a goal more directly connected to a profit motive that to a need to cover expenses.

Respondent’s architect Paul Gregory testified that they filed Alt I plans in December 2007, to add a sixth floor without adding to the height of the building (Tr. III 24, 27; Resp. Ex. I). These plans were reviewed by DOB and disapproved (Tr. III 28; Resp. Ex. J). The primary objection to the plans was the absence of a CONH but also included issues regarding egress and zoning and the additional floor (Tr. III 31, 40). Mr. Gregory has since modified the plans but they remain unapproved.

Mr. Avid expressed confidence in his Alt I plans for the building:

I felt that once we did get the [CONH], the building would comply because there was nothing there that we were recommending that we felt was not allowable or would not be approved. We were not changing the size of the building. We were not making it non-compliant on any basis. If anything, I think we took a very conservative approach in terms of what we wanted to do there. So the decision was financial and also, you know, from my experience of dealing with things.

(Tr. II 359). The “conservative approach” that he speaks of is somewhat at variance with the fact that his plans encompassed adding a sixth floor. To add the new floor, they were reducing the height of each of the five original floors, a significant undertaking. Mr. Avid’s claim that these ambitious plans would not be controversial because he was not adding square footage to the building conflicts with the fact that, according to his architect, their Alt I plans were disapproved by DOB at least in part because of the examiner’s concerns about that additional floor.

Crucial to Mr. Avid’s ability to accomplish so extensive a conversion is the fact that practically all of the SRO tenants had vacated the building. Mr. Avid told Investigator Sequinot that, after he purchased the building, the tenants “randomly” decided to move out and he did not know where they went (Tr. I 90-91). Ellen Lenza, the managing agent for the building, told Investigator Sequinot that she believed a lot of the tenants were illegal aliens and they had just decided to move out.

Mr. Avid testified that he did not know why the tenants left (Tr. II 348-49). He explained the sudden exodus of 26 SRO tenants as the result of an August 2006 visit by a DOB task force that issued violations for illegal multiple occupancies of the SRO units and blocking fire escapes, which made the tenants fearful.[4] He said he was surprised when the tenants started leaving the building and that he “wasn’t really prepared for that” (Tr. II 349). He admitted that his superintendent told the tenants that they “received some violations for overcrowding that had to be corrected.” He denied commencing any legal proceedings against the tenants, paying them to vacate, or diminishing services to them (Tr. II 350). Petitioner conceded there were no criminal cases pending and no DHCR cases filed involving diminished services or harassment (Tr. I 130-31; Pet. Ex. 5, Question 19).

After his October 2006 inspection, Investigator Sequinot tried to locate the former tenants by using database searches and writing letters to available current addresses, 84 of which respondent produced at trial (Tr. I 136-37; Resp. Ex. A). None responded and some of the letters were returned undeliverable. Given the belief that these tenants were non-English speakers who may or may not be legal residents of the U.S., this result was not surprising. Petitioner disputed the contention that the tenants all were transient and would be so easily intimidated by inspectors, citing DHCR registration records that indicated that many of them had lived there for a number of years and were documented as lawful occupants of the building (Pet. Ex. 1, at 22-31; Pet. Ex. 5, Question 18). Respondent points to the absence of any complaint of harassment from the remaining SRO tenant.

As for Mr. Stillman’s apparent lack of complaint, I found it no great mystery having observed him as exceedingly grateful for the most modest of accommodations provided by the landlord.[5] While his “apartment” was little more than an SRO unit, albeit renovated, his attitude might be explained by the fact that his residence in the building originated 20 years earlier in what had formerly been a storage closet (Tr. II 304-05).[6] Although gratefulness is not a witness disqualification, bias and interest are, and I believe that they colored his testimony and made him a less than disinterested witness. See Dep't of Sanitation v. Menzies, OATH Index No. 678/98, at 2-3 (Feb. 5, 1998), aff'd, NYC Civ. Serv. Comm'n Item No. CD 98-101-A (Sept. 9, 1998) (bias and interest are two factors in determining witness credibility).

I was disinclined to believe respondent’s theory that the DOB violation scared the SRO tenants into leaving the premises. The significant overcrowding uncovered during the August 2006 inspection – five persons to a room – is a condition that only the most desperate of residents would tolerate. I doubted that such tenants would be scared by the issuance of a mere violation; violations for overcrowding had been issued before, yet the overcrowding persisted. Moreover, HPD and DOB inspectors were not strangers to the building, visiting for a myriad of reasons and conditions over the years. Their visits had not caused such departures.

Investigator Plaza was told by a building occupant during his August 2006 inspection that everyone was moving out because “They want us out of here” (Tr. I 57). While this testimony was only moderately probative since the investigator could provide no information about the speaker’s identity or exact context for the remark, it is consistent with the conditions under which the tenants were living. In the midst of persistent overcrowding documented over three years, the SRO tenants had no kitchens and were forced to use hot plates inside their overcrowded units. And, according to Inspector Plaza, there was debris and garbage throughout the building at the time, including 15 or 20 rubbish bags on the first floor of the building. These were conditions that could have communicated to the tenants that the landlord wanted them out. I concluded that the building conditions, not the visit by DOB inspectors, caused the tenants to leave.

Respondent’s decisions showed a disregard for the law and a preoccupation with his needs above those of the authorizing agencies whose job it is to protect public safety. I believe that Mr. Avid decided before starting the work that he was going to convert the building with or without a CONH and that his determination to do so also motivated him to empty the building of its SRO occupants. At trial, he admitted that he had no intention of restoring the building to SRO status now that he had market-rate tenants in it (Tr. II 364).

Mr. Avid claimed that he started renting out the apartments when, ten months after filing for the CONH at the “height of the rental season,” the CONH had not been granted and he was experiencing “a lot of financial difficulties,” having operated the building for almost a year without any income. The fact that the work was completed in July or August 2007, just in time for rental season (Tr. II 360-61) supports my belief that there had been a plan early on to get the building ready for the Fall rental season. While he offered the 10-month delay in the CONH approval as an explanation for his actions, by the time rental season arrived, his decision to violate the law and convert the building had long been made. When he made the decision to proceed with the conversion the previous December, he had no reason to think that the CONH would take a year to be granted.

His decisions regarding his newer tenants were similarly self-interested. He began moving tenants into the building as early as August 2007 even though there was sure to be ongoing construction continuing around them for some months. Almost all the tenants complained of it when interviewed by HPD (Pet. Ex. 5, Oct. 18, 2007 memo).

Even in the absence of any evidence of why the tenants actually vacated, once a statutory act of harassment is established, the law creates a presumption that the owner must rebut. Zimmerman, OATH 347/05, at 4. The owner’s intent may be inferred from the facts. See, e.g., Serradilla, OATH 1802/01, at 16 (corporate owner demonstrated intent to harass when it failed to remedy condition for which vacate order was issued during its ownership, and shortly after the vacate order sold the building). I concluded that respondent’s illegal conversion of the building created a reasonable inference of his intent to empty the building of its lawful SRO occupants, particularly in light of its timing which coincided with the unexplained exodus of 26 SRO tenants only weeks after he purchased the building, and the substantial financial incentives to do so.

I agree with the holding in Zimmerman, that “[i]t is logical to presume that the owner intended to cause the tenants to vacate their units from the state of disrepair of the building” coupled with complaints and violations for a lack of essential services. Zimmerman, OATH 347/05, at 4. In this case, there were substantial violations for conditions, some of them hazardous, that continued for lengthy periods of time. I found the owner’s explanations wholly insufficient to rebut the presumption.

FINDINGS AND CONCLUSIONS

1. The record established that respondent harassed lawful SRO occupants of the building during the inquiry period by proof that he and predecessor owners interrupted and discontinued essential services in the building by illegally removing the community kitchens and otherwise depriving tenants of access to functioning kitchen stoves and sinks, by allowing overcrowding and other hazardous conditions, and by making repeated false certifications that conditions had been corrected when they had not.

2. Respondent failed rebut the presumption that he acted with the intent to force lawful tenants to vacate the building.

3. Respondent’s illegal conversion of the building created a reasonable inference of his intent to empty the building of its lawful SRO occupants, given its timing which coincided with the unexplained exodus of 26 SRO tenants only weeks after respondent purchased the building.

RECOMMENDATION

I find that harassment occurred at the premises during the relevant inquiry period. Accordingly, a certificate of no harassment should be denied.

Tynia D. Richard

Administrative Law Judge

April 4, 2008

SUBMITTED TO:

SHAUN DONOVAN

Commissioner

APPEARANCES:

RONIT JOSEPH, ESQ.

Attorney for Petitioner

BORAH, GOLDSTEIN, ALTSCHULER, SCHWARTZ & NAHINS

Attorneys for Respondent

BY: ROBERT H. BERMAN, ESQ.

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

[1] Respondent’s use of these certificates of correction was of questionable value since they represent the owner’s certification but not a confirmation by DOB that the correction was made. This is especially true since the evidence revealed several instances where the owner falsely certified that conditions had been corrected. The prior owner was sued in Housing Court in 2005 by HPD who sought civil penalties for Housing Maintenance Code violations and for willful and repeated false certifications (Pet. Ex. 10). The prior owner entered into a consent order resolving the case by the payment of a monetary fine.

[2] The owner certified on September 22, 2006 that the violations were corrected and, when the Department failed to reinspect, the violation was dismissed as “deemed complied” (Tr. I 32-33). The certification was found to be false based upon Investigator Sequinot’s later inspection.

[3] Eight of the new tenants have left the building since issuance of the vacate order. Like Shawn Constable, six other tenants departed in accordance with agreements that refunded their rent, security deposits, broker commissions and other expenses. They included Katie Hench, Michelle McDonald, Jordi and Elizabeth Dominguez, Nicole Doniger, and Dorian Mergler (Pet. Ex. 1, addendum). Rebecca Coddington subsequently left (Tr. III 9). HPD did not investigate why these tenants left (Tr. I 155).

[4] DOB violations were issued in March 2004 and August 2006 for excessive occupancy of the SRO units (Pet. Exs. 12C & D).

[5] Investigator Sequinot interviewed him on October 16, 2007, observing that Mr. Stillman had no furniture in his apartment. When visited, Mr. Stillman “was laying down on a quilt and resting his head on a roll of Scott towels. His apartment has no second means of egress. A small window leads to an airshaft, were [sic] you will find no fire escape. The tenant has no stove and the sink in his kitchen is not connected. The tenant must get water from the bathroom when he needs it” (Pet. Ex. 5, Oct. 18, 2007 memo).

[6] Recalling the storage closet, he stated “they cleaned it out for me and I accepted it and I stayed there with no problems at all” (Tr. II 306). He lived in that very same unit until Mr. Avid renovated it into an apartment. He therefore understandably considers Mr. Avid to be a “very good landlord.” He was quite upbeat about all that had happened at the building and declared that “the workers were doing very good work on the building, renovating it according to the rules and regulations” even though he had no basis for knowing whether rules and regulations had been followed (Tr. II 307).

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