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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.
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NEW YORK CITY OFFICE OF
ADMINISTRATIVE TRIALS AND HEARINGS
In the Matter of
DEPARTMENT OF HOUSING PRESERVATION AND DEVELOPMENT
Petitioner
- against -
JACK AVID
Respondent
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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).