-23-
Dep’t of Housing Preservation & Development v. Tauber
OATH Index No. 0675/07 (May 16, 2007)
Certificate of no harassment for single room occupancy building should be rescinded given evidence of harassment after issuance of certificate.
______
NEW YORK CITY OFFICE OF
ADMINISTRATIVE TRIALS AND HEARINGS
In the Matter of
DEPARTMENT OF HOUSING PRESERVATION
AND DEVELOPMENT
Petitioner
- against -
LARRY TAUBER
Respondent
______
REPORT AND RECOMMENDATION
FAYE LEWIS, 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 2006). Petitioner seeks to rescind a certificate of no harassment (“CONH”) that was issued to respondent, Larry Tauber, for 246 West 21st Street, New York, New York (“the building”) on January 13, 2004, but suspended on September 8, 2006. Petitioner seeks a finding that harassment occurred at the premises during the inquiry period, defined as March 20, 2004 to the date of the hearing.
Petitioner served respondent with a notice of suspension of the CONH on September 13, 2006, and filed a petition to revoke the CONH with this tribunal on September 25, 2006. On November 27, 2006, petitioner and respondent mutually scheduled a trial for January 24 and 25, 2007. Subsequently, respondent filed a motion to dismiss the matter based on petitioner’s failure to hold a hearing within thirty days of issuing a notice to rescind. Administrative Law Judge Alessandra F. Zorgniotti issued a memorandum decision on December 18, 2006, denying the motion because respondent had consented to the delay in holding the trial. Dep’t of Housing Preservation & Development v. Tauber, OATH Index No. 675/07, mem. dec. (December 18, 2006). The matter was reassigned for trial.
A hearing was held before me on January 24, 2007, and continued on January 25, February 5, and February 13, 2007, at which time the record was closed. Petitioner presented the testimony of six witnesses, including one HPD employee and five tenants of the building. Respondent testified in his own behalf, and also presented the testimony of George Guzman, the building’s superintendent. For the reasons set forth below, I find that harassment occurred at the premises during the inquiry period. I recommend the CONH be suspended.
ANALYSIS
Introduction
Under the Administrative Code, a CONH may be rescinded if the Commissioner finds that harassment occurred on the premises after the CONH was issued, and prior to commencement of substantial work pursuant to an alteration permit or demolition permit. Admin. Code § 27-2093(f) (1) (LEXIS 2006). Section 27-2093(a) of the Administrative Code defines harassment as follows:
any conduct by or on behalf of an owner of a [SRO] multiple dwelling that includes . . . the interruption or discontinuance of essential services, which interferes with or disturbs or is intended to interfere with or disturb the comfort, repose, peace or quiet of any person lawfully . . . in use or occupancy of such dwelling unit and causes or is intended to cause such person . . . to vacate such unit or to surrender or waive any rights in relation to such occupancy . . . or any other conduct which prevents or is intended to prevent any person from the lawful occupancy of such dwelling unit.
Admin. Code § 27-2093(a) (LEXIS 2006). Section 27-2093(b) of the Administrative Code creates a presumption that any statutory act defined in 27-2093(a) was committed with the intent to cause a legal tenant to vacate the unit. An owner may rebut the presumption by a preponderance of credible evidence. Department of Housing Preservation and Development v. McClarty, OATH Index No. 1602/00, at 2-3 (Dec. 7, 2000).
The building in question is a turn of the century building with five floors and 29 rooms in total. Each floor has a shower room and bathroom (Tr. 388). The building is owned by Chelsea Partners, LLC, of which respondent and his siblings, Michael Tauber and Florence Goldsmith, and Florence’s husband, Barry Goldsmith, are partners (Tr. 373).[1] Respondent has managed the building since June of 2000. He has been in the real estate business for over 30 years, and has owned SRO buildings in the past. He has received certificates of no harassment for several other buildings which he owns, including 150 West 76th Street and 252 West 21st Street. In May 2005, a “PC Filing Prefiling Checklist” and “Technical Report” was filed with the Department of Buildings seeking to increase the size of the building in question from four stories and a basement to six stories, with a recreation area on the roof, and to deepen the structure from 40 feet to 30 feet (Pet. Ex. 5, 20, 21).
Respondent acquired a CONH for the building on January 13, 2004 (Pet. Ex. 4). HPD alleges respondent committed 19 separate forms of harassment between March 19, 2004 and the present, as follows:
1. Failure to provide a superintendent at the premises
2. Failure to provide adequate cleaning services to the premises
3. Bringing frivolous lawsuits against tenants to get them to vacate the premises
4. Verbally abusing tenants by calling them derogatory names
5. Making substandard repairs
6. Failure to repair the intercom and buzzer system
7. Failure to dispose of garbage properly
8. Excavating without permits
9. Failure to repair leaks in the roof which have caused ceilings to collapse
10. Failure to respond to emergencies at the building, i.e. restoring circuit breakers
11. Failure to plaster and paint
12. Failure to repair a broken window frame
13. Failure to replace a light fixture
14. Failure to repair broken ceramic tile
15. Failure to refit the entrance door
16. Failure to exterminate for roaches
17. Failure to remove outstanding Housing Maintenance Code violations against the property
18. Failure to provide adequate lighting at the front entrance
19. Generally interrupting and/or discontinuing essential services without prior notice to tenants and making premises inhabitable and unsafe during construction
(Pet. Ex. 6).
Respondent denies all of petitioner’s allegations, and maintains he did not harass the tenants. He claims that he made a good faith effort to fix various problems in the building, closing over 105 violations. Petitioner contends, however, that respondent essentially did too little, too late, and that even if respondent made improvements to the premises, he did so only after the tenants sued him in Civil Court in 2005. Petitioner presented its case through a combination of tenant testimony, and documentary evidence as to the litigation and violation history.
The Litigation History
It is not disputed that on February 10, 2005, tenants, represented by the West Side SRO Project (“SRO Project”), filed an order to show cause in the Housing Part of Civil Court seeking an order requiring respondent to correct violations throughout the building (Pet. Exs. 12). Annexed thereto was a Building Summary Report showing 50 violations relating to tenant units and public areas of the building, including a leaking roof and a defective bulkhead door to the roof; defective entrance doors to individual rooms, bathrooms and showers; loose floor coverings; broken floor and ceiling tiles; walls and ceilings needing repair, plastering and painting; and inadequate lighting (Pet Ex 12). By consent order issued on March 8, 2005, Judge Gerald Lebovits found that the listed violations existed and were violations of the Housing Maintenance Code and Multiple Dwelling Law. The consent order gave respondent 30 days to cure violations in tenant units and 45 days to cure violations in common areas (Pet. Ex. 13). On March 25, 2005, respondent filed an order to show cause objecting to a provision of the March 8, 2005 order, making respondent responsible for moving the tenants’ personal belongings while repairs were made in their rooms (Pet Ex. 14). On April 5, 2005, the parties entered into a stipulation of settlement providing access dates to tenants’ rooms and resolving issues relating to moving the tenants’ belongings while work was being done (Pet Ex. 15).
On July 26, 2005, the tenants filed a motion for contempt, alleging that respondent failed to meet his obligations under the March 8, 2005 consent order (Pet. Ex. 16). The contempt motion alleged, inter alia, that respondent failed to appear for almost all of the access dates set forth in the April 5, 2005 stipulation or otherwise arranged between the tenants and owner. Attached thereto was an HPD printout showing 99 violations to the building as of July 25, 2005 (Pet Ex. 16). A final stipulation of settlement was issued on November 28, 2005, which named 17 remaining violations to be addressed (Pet. Ex. 19). Those violations included inoperative intercoms in rooms 8, 14, 16, 23, 26 and 27; leaks from the roof into the ceiling of rooms 23 and 26; broken light switches and fixtures; leaks and needed repairs in the third and fourth floor shower and toilet rooms; lack of a smoke detector and a blocked sprinkler head on the third floor. The stipulation also required respondent to repair numerous “alleged conditions” in tenant rooms and common areas.
The Housing Maintenance Violations
Petitioner presented violation reports illustrating the Housing Maintenance Code violations on the building. As indicated by Milagros Molina, Deputy Director of HPD’s Enforcement Services Callback Unit, violations are classified as class A, class B, or class C, with class A viewed as the least serious and class C as the most serious. Class A violations must be corrected within 90 days, class B violations within 60 days, and class C violations within 30 days, with the exception of those class C violations which are considered “dire,” such as heat or hot water violations, which must be corrected within 24 hours (Tr. 41-42).
The Closed Violations Report for the building indicates that 105 violations that were placed on the building beginning in January of 1977 have been closed. Approximately 90 of these violations were closed or dismissed during the inquiry period (Pet. Ex. 11). However, the violation history reveals that respondent closed the majority of these violations after August of 2005, following the filing of the tenants’ July 26, 2005 contempt motion (Pet. Ex. 11). Respondent took several years to address certain violations, some of which were severe. Many of the violations closed in August of 2005 were certified as overdue, including a violation directing that the entrance door to the building be refit, issued in 1993, and a violation directing replacement of the bulkhead door to the roof, issued in 2002 (Pet. Exs. 11, 23). Overdue violations also included: broken shower tiles reported in 1999, and closed in 2006; an inoperative intercom, reported in 2002, and closed in 2005; violations requiring respondent to abate the nuisance of roaches and mice, issued in February of 2005, and closed in September of 2006 and August of 2005, respectively (Pet. Ex. 11). .
Also closed in August of 2005, were violations regarding inoperative intercoms in rooms 16, 23 and 26, issued in February and June of 2005; lighting in the fourth floor hall, issued in August of 2004; painting of the walls and ceilings of the second floor public hall and fourth floor showers, issued in 2002; and inoperative faucets in the fourth floor shower room, issued in August of 2004. There were also several violations that were not closed until December of 2005, regarding fire retarding walls and ceilings in the second and third floor bathrooms and halls, issued in March of 2005. Other violations were not closed until September of 2006, including: painting and plastering of the third floor public hall and bathroom, and the first floor shower room and bathroom, issued in 2002; fixing ceramic tiles in the second floor shower, issued in 1999 and again in 2002; abating painted-over sprinkler heads on the second and fourth floor halls, issued in September of 2005; and repairing windows in rooms 23, 26 and 27, issued in February of 2005.
There are 35 open violations named in the Violations Summary Report for the building (Pet. Ex. 10). Violations issued on July 10, 2006, direct respondent to repair the roof so that it will not leak over the fourth floor public hallway and over the ceiling in the “first room from north located at [apartment] PA, fourth story, first apartment from east at south” (Pet. Ex. 10). Additional violations issued on January 16, 2007, direct respondent to repair the roof and bulkhead as to prevent leaks in rooms 23 and 26, which are on the fourth floor of the building, as well as the public hall stairway on the fourth floor. Twelve painting and plastering violations also remain, dating from 2002, and including the walls and ceiling of rooms 16, 23 and 26, as well as the fourth floor and second floor bathrooms (Pet. Ex. 10).[2] Other open violations include a defective sprinkler head in room O, dating back to 1993; a painted-over sprinkler head in room 15, from 2002; torn floor vinyl throughout the building, broken floor tiles and ceramic floor, from 2002, 2005 and 2006, respectively; a defective intercom in room 15, from 2002; and failure to provide adequate lighting at the front entrance of the building, from 2004. There are also four violations for failing to refit entrance doors to individual units, bathrooms and bathtub compartments on all four stories, and the basement stairway to the cellar; the violations pertaining to the bathrooms, bathtub compartments, and basement stairway date to 1979 (Pet. Ex. 10).