Loft Bd. Dkt. No. TM-0066; 545 Broadway, New York, N.Y

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Matter of Newmann

OATH Index No. 2680/08 (Oct. 30, 2008)

[Loft Bd. Dkt. No. TM-0066; 545 Broadway, New York, N.Y.]

Evidence established that owner diminished elevator service of protected residential occupants of an interim multiple dwelling. ALJ recommended that petitioners be given access to the elevator for passengers and freight 24-hours a day, seven days a week.

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NEW YORK CITY OFFICE OF

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ADMINISTRATIVE TRIALS AND HEARINGS

In the Matter of

MARY CAROL AND ROBERT NEWMANN

Petitioners

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REPORT AND RECOMMENDATION

ALESSANDRA F. ZORGNIOTTI, Administrative Law Judge

This diminution of services application was filed pursuant to Article 7-C of the Multiple Dwelling Law (“Loft Law”) and title 29 of the Rules of the City of New York (“RCNY”). Petitioners, Dr. Mary Carol and Robert Newmann, tenants of the interim multiple dwelling (“IMD”) located at 545 Broadway, New York, N.Y. allege that respondent, Mapama Corp. (“Mapama”),whose former and current officersare Ralph Parisi and his wife Angela Parisi, unlawfully diminished their elevator service in May 2007. Petitioners seek access to the elevator for passengers and freight 24-hours a day, seven days a week (“24/7”). Respondent argues that petitioners’elevator access should be limited to their use as passengers only and that use be granted from 8:00 a.m. to 5:00 p.m.,Monday through Friday.

A hearing was held on July 29, August 4, and September 12, and 15, 2008. Petitioners testified and presented the testimony of friends, tenants, relatives, and an architect as well as documentary evidence. Petitioners alleged that between 1976 and 1981 and again between 1989 and 2007 they and their guests had 24/7 access to the freight elevator unless it was broken. Respondent denied that itever agreed to provide 24/7 elevator service to petitioners and argued that the application is barred by res judicata/collateral estoppel, laches, unclean hands, estoppel, and the statute of limitations. Respondent also claimed that petitioners are unfit to be operators of the elevator. Respondent presented the testimony of Mrs. Parisi, an elevator service provider, and a colleague of Mr. Parisi, as well as documentary evidence.

The record was left open until October 16, 2008, when the parties filed post-hearing submissions. For the reasons below, petitioners’ application should be granted.

BACKGROUND

The property in question and the parties involved have been the subject of extensive litigation, hearings, and orders from various forums. The following background sets forth facts and litigationrelevant to this action and details the history of thedispute over the Newmanns’ use of the elevator.

The subject premises is a six-story building with entrancesat 545 Broadway and 116 Mercer Street. The Mercer side currently consists of the Newmanns’ residential loft on the sixth floor and commercial unitsincluding Mr. Parisi’s textile business on the third floor (Tr. 86, 91). A passenger elevator serves the units on Broadway and a freight elevator serves the Mercer side. There is no access to the Broadway elevator from the Newmanns’ loftexcept through the other sixth floor tenant’s residential loft (Tr. 87, 230).

The freight elevator, which has no side walls and no inner door, is an “old” pressure controlled elevator which is manually operated by means of a lever known as a dead man’s switch. To make the elevator go up and down the operator pushes the lever forward or back. When the lever is released, the lever goes to the neutral position and the elevator stops (Tr. 38, 88, 309-10; Pet. Ex. 14). There is a buzzer on each floor to ring for the elevator. The elevator can be called automaticallyto the sub-basement but must be brought to the other floors by an operator (Tr. 46). The elevator doors on each floor can be opened from the inside of the elevator only. Except for the first floor, the elevator does not open on a public landing but instead opens directly into the units (Tr. (Tr. 48-49, 88, 102, 231, 253).

On March 29, 1976, previous tenants entered into a lease with the former owner of the building to occupy the Mercer sixth floor loftfrom May 1, 1976 until April 30, 1981 (Resp. Ans. Ex. A).[1] In paragraph 30 of the lease, the landlord agreed to “provide necessary elevator facilities on business days from 8 a.m. to 5 p.m.” (Id.). The Newmanns moved into theirloftin October 1976(Tr. 85, 89). On March 21, 1977, the prior landlord consented to the assignment of the 1976 lease to the Newmanns(Resp. Ans. Ex. A). In April 1977 Mapama purchased the building (Tr. 89, 245, 369). After the lease expired on April 30, 1981, the Newmannsnever entered into a lease with Mapama (Tr. 147, 369).

The Newmanns testified that between 1976 and July 1981, theyhad24/7 access to the elevatorfor themselves, their freight, and guests (Tr. 16-17, 89, 246, 249, 348). When they moved into the building there was an elevator operator during business hours. During non-business hours the tenants would pass the elevator back and forth and/or leave it on the first floor with the door open (Tr. 90, 244). Dr. Newmann testified that after Mapama purchased the building, the operator was let go and operation of the elevator was left to the tenants. The Newmanns’ rent was reduced to compensate for not having an operator and tenants cooperated in passing the elevator back and forth (Tr. 245-49; Pet. Ex. 15). Mrs. Parisi denied that the Newmanns had24/7 access to the elevator between 1977 and 1981. She testified that there was a power switch on the first floor to disable the elevator after business hours (Tr. 369-70).

It was undisputed that after July 1981Mapamadenied the Newmanns and other IMD tenants living on the Mercer side access to the elevator. Dr. Newmann testified that during business hours, commercial tenants were instructed not to allow the Newmanns on the elevator (Tr. 251). During non-business hours, Mapama employed various means to prevent anyone from using it including removing the key (which no longer exists), padlocking the door, chaining the elevator to the first floor, parking the elevator in the locked sub-basement or the Parisis’ third floorloft, or turning the power off by means of a switch installed in theirunit (Tr. 98-99, 166, 252, 393). The Newmanns filed an application with the Loft Board seeking an order that Mapamarestore access to the freight elevator (Tr. 99, 166).

On May 1, 1984, the Loft Board initiated an application to determine whether Mapama was required to provide elevator service to the Newmanns. In 1988the Loft Board issued an order that they had legal use of the freight elevator from 8:00 a.m. to 5:00 p.m. Monday through Friday as provided by the 1976 lease. The Board relied on section 3(B) of the Minimum Housing Maintenance Standards,the precursor toTitle 29 of the RCNY, and found that the Newmanns were entitled to those services provided as of June 1982 and/or which were mandated by the most recent lease, even if such lease had expired.[2] Whether they had used the elevator 24/7 was not considered since such use was terminated prior to the effective date of the Loft Law in 1982. Matter of Newmann, Loft Board Order No. 769 (June 16, 1988).

Both parties appealed Order No. 769 and the matter was consolidated before Justice Myriam Altman. The Newmanns claimed that the Loft Board erred in holding that they had use of the elevator during business hoursonly. Mapamaclaimed that the Board incorrectly ordered it to provide any elevator service to the Newmanns. Judge Altman found the determination that the Newmannswere entitled only to elevator services provided in the lease was inconsistent with decisions holding that actual services provided after the expiration of the lease constitute part of the rental agreement without reference to a particular date. The case was remanded to the Loft Board to clarify whether section 3(B) of the Minimum Housing Maintenance Standardsrequired that services provided after the expiration of a lease must be continued to the effective date of the Loft Law in order to be considered part of the rental agreement. Matter of Mapama Corp., Index Nos. 21655/88, 21280/88(Sup. Ct. N.Y. County June 7, 1989).

In 1988 and 1989residential tenants were given access to the elevator during business hours (Tr. 252). However, some disputes arose. In 1988, the Newmanns commenced an action against Mapama in Housing Court. The record is unclear what the nature of the proceeding was but on July 15, 1988, the parties entered into a stipulation that “pending the determination of these proceedings”Mapama would provide freight elevator service to the Newmanns,“Monday through Friday, legal holidays excluded,from 8 a.m. to 5 p.m. upon request”(Resp. Ans. Ex. E).[3] On September 26, 1988, Mr. Newmann wrote to Mrs. Parisialleging that on Wednesday, September 21, 1988, the elevator was not in service in violation of the Loft Board Order (Resp. Ex. K). On January 11, 1989, Mrs. Parisiwrote to the Newmanns advising that she shut down the elevator because someone vandalized it thereby “endangering” her life (Resp. Ex. V). The next day, Mr. Newmann wrote to Mrs. Parisi that she was in violation of the Housing Courtstipulation, that her excuse was “transparent,” and that her actions constituted harassment (Resp. Ex. W). On May 9, and July 27, 1989, Mr. Newmann sent correspondence to Mapama concerning the failure to provide elevator service during business hours as per the Housing Courtstipulation (Resp. Exs. H & I). The record is not clear what the outcome was of the 1988 Housing Court proceeding.

Mr. Newmann testified that in 1989 the Loft Board contacted him to schedule the remand hearing. He learned at a Loft Board meeting attended by Mrs. Parisi that the building had been taken in remby the City of New York for Mapama’s failure to pay real estate taxesand that it no longer owned the building. Since the City was the owner of the building, no one knew what to do about the remand and no hearing was held (Tr. 101, 110-11).

The building was managed by the Department of Housing Preservation and Development (“HPD”) and the Parisis remained as tenants. By letter dated September 19, 1990, HPD advised all tenants that the elevator was for the use of everyone in the building (Pet. Ex. 6). On October 3, 1990, Mr. Newmann wrote to Mrs. Parisi that Mr. Parisi was interfering with tenants’ elevator use by denying service to repairmen and by locking the elevator after business hours (Pet. Ex. 6). OnNovember 27, 1990, HPD appointed Mr. Newmann interim superintendent of the building and stated that the elevator was available to all tenants 24/7. HPD put Mr. Newmann in charge of the elevatorand stated that no one except himcould keep the elevator after business hours (Tr. 254; Pet. Ex. 7; Resp. Ex. A-3). On December 17, 1990, HPD wrote to the Parisis advising that it had come to HPD’s attention that they were interfering with operation of the building and that as former owners they had no rights except as legal tenants (Pet. Ex. 8). On December 24, 1990, Mr. Newmann wrote to Mrs. Parisi advising that it was contrary to HPD’s policy for Mr. Parisi to store possessions in the basement. Mr. Newmann advised that the elevator would be available to remove Mr. Parisi’s belongings during business hours on an appointment basis (Resp. Ex. J).

Mr. Newmann testified that while the City was the owner of the building, HPD allowed the tenants to use the elevator 24/7 and that the tenants shared it in a cooperative manner (Tr. 108-09). HPD managed the building until 1993 whenMapama paid the outstanding taxes and regained ownership over the objection of some tenants including the Newmanns. The Newmanns testified that discussions were held at the Borough President’s office with the Loft Board, HPD, tenants, and Mapama regarding the City’s transfer back to Mapama and the legalization of the building pursuant to the Loft Law (Tr. 255, 355-56). According to Mr. Newmann, during these discussions Jeffrey Glenn, the attorney for Mapama, made representations that access to the elevator would continue 24/7 and that the legalization of the building would subsume the need for a hearing concerning the diminution of services (Tr. 110-12, 150-52, 209-10). Mr. Newmann testified that in 1992 he had conversations with the Loft Board about the remand and that he advised the Board that he was receiving 24/7 service from Mapama (Tr. 110-11). On July 31, 1992, Mr. Newmann wrote to the Loft Board that he had 24/7 access to the elevator, that he was confident based on his conversations with Mr. Glenn that this would continue, and that legalization of the building would subsume the need for a hearing. Accordingly, Mr. Newmann requested that the hearing be delayed pending the filing of Mapama’s narrative statement (Pet. Ex. 10). Dr. Newmann testified that they did not want to expend money on legal fees for a remand when they had 24/7 service (Tr. 355). Mrs. Parisi denied that promises were made to provide the Newmanns with 24/7 access to the elevator (Tr. 409) but acknowledged that she was not present for a meeting that Mr. Glenn attended (Tr. 437).

The Newmanns testified that after Mapama regained ownership of the building in 1993 they had24/7 access to the elevator until 2007 except when it was broken (Tr. 210, 256, 337, 348). During this period, Mapama did not lock the elevator after business hours and never took legal action against the Newmanns concerning their 24/7 use (Tr. 114, 256). On January 30, 1993, Mr. Newmann wrote to Mr. Glenn objecting to Mr. Parisi’s decision not to provide elevator service to the second floor tenants. Mr. Newmann wrote that for the past two years all tenants had enjoyed 24/7 access to the elevator and that Mapama had agreed to resolve the elevator issue during the legalization process (Resp. Ex. Q). The Newmanns also testified that several times a year, Mr. Parisi would come to the building on the weekends or evenings tofix the boiler or make repairs. Mr. Parisi would ring for the elevator and the Newmanns would bring it to him. Mr. Parisi never complained that they were using the elevator 24/7 (Tr. 93-96, 125-27, 257-59). In 2006 Mapama installed security cameras in the building and were able to monitor elevator use (Tr. 128-29, 259-60, 432-33; Pet. Ex. 14).

Mrs. Parisi testified that Mapama never consented to the Newmanns’ use of the elevator 24/7. Whenever they sought 24/7 access in a proceeding, Mapama would oppose the application (Tr.399-400). Moreover, there were incidents between 1977 and the present where people tampered with the elevator, including the Newmanns who attached a rope inside the shaft (Tr. 393-95). Mrs. Parisi also testified that Mr. Newmann cut the wires on the elevator bell (Tr. 400-01). In her view, the elevator is unsafe and people could get hurt (Tr. 400). Mrs. Parisi did not explain the procedure for locking the elevator during non-business hours.

On February 28, 2003, Carl Peluso, counsel to Mapama, wrote to the Newmanns’ counsel that on the day before the elevator was not working, that Mr. Newmann knew it was out of service and did not report this to Mapama. When Mapama had the elevator repaired, Mapama was advised that “jumper cables” were attached to the sixth floor elevator door which were removed by the technician. This was dangerous because the door could open when the elevator was not on the sixth floor. Mr. Peluso advised that they were conducting an investigation as to who placed the cables on the door including a fingerprint analysis (Resp. Ex. L).

On April 7, 2004, Mapama and the 545 Broadway Tenants entered into a stipulation at this tribunal concerning the legalization of the building (Tr. 122-23) which provided, inter alia, that Mapama and the Newmanns, “will negotiate the possibility of installing a self-service automatic elevator. If it is not agreed to the owner will upgrade the existing elevator to a service car. The cost of upgrading the elevator will be a code compliant adjustment” (Pet. Ex. 13, ¶ 16).

On December 20, 2004, Mr. Peluso, wrote to the Newmanns directing them to disconnect a rope that was attached inside the elevator shaft and advised that they were allowed to use the elevator during business hours only (Pet. Ex. 11).

Mr. Newmann testified that because the elevator door can be opened from the inside only, he attached a rope to the inner lock which he would feed through the crack of the door so that itcould be opened from his loft by pulling on the rope. This was done in case the elevator door accidently shut and to keep cold and hot air as well as bad odors from coming into hisloft when the elevator was on his floor (Tr. 115-21; Pet. Ex. 12a). The Parisis objected to his use of the rope and he detached it when the elevator was not on his floor. When it became an “issue,” he stopped using the rope altogether (Tr. 203-04). Mrs. Parisi acknowledged that a similar rope is attached to the elevator door in the sub-basement (Pet. Ex. 12b) but stated that it was not installed by Mapama (Tr. 427). With regard to Mr. Peluso’s statement that theNewmanns’were allowed to use the elevator during business hours only, Dr. Newmann testified that they did not take the letter seriously because Mr. Peluso had written them “hundreds” of “blowhard” letters and that Mapama did not lock the elevator after business hours or take steps to prevent them from using it 24/7 (Tr. 343-45, 354, 357).

In February 2005 the elevator was taken out of servicefor repairs (Tr. 140, 263). On May 13, 2005, Dr. Newmann filed a complaint with the New York City Commission on Human Rights (“CHR”) claiming discrimination on the basis of a disability for Mapama’s failure to repair the elevator and provide her with elevator service(Tr. 276). Dr. Newmann testified that in 1999 she suffered a stroke resulting in ataxia which causes her to lose her balance and fall (Tr. 266).