-5-
Matter of 20 Beaver Street LLC
OATH Index No. 1732/06 (May 23, 2006), rev’d, Loft Bd. Order Dkt. No. 3086 (July 20, 2006)
[Loft Bd. Dkt. No. LS-176; 20 Beaver Street, New York, N.Y.]
Access application in which residential occupant of third floor unit filed an answer, but failed to appear at the hearing. Owner’s application for access to the unit to perform legalization work should be granted. Loft Board rejects recommendation and denies owners access application, finding description of the scope of work to be performed provided in owner’s notices was insufficient under Board’s access rule.
______
NEW YORK CITY OFFICE OF
ADMINISTRATIVE TRIALS AND HEARINGS
In the Matter of
20 BEAVER STREET LLC,
Petitioner
-against-
MICHAEL DAWE AND ELISE DAWE,
Respondents
______
REPORT AND RECOMMENDATION
JOAN R. SALZMAN, Administrative Law Judge
This application, brought by 20 Beaver Street LLC, owner of the interim multiple dwelling at 20 Beaver Street, New York, New York, seeks access, pursuant to section 2-01(g)(3) of the Loft Board rules, title 29, Rules of the City of New York (RCNY), to the third floor apartment occupied by Michael and Elise Dawe. The application was received by the Loft Board on April 11, 2006, and referred to this tribunal on April 25, 2006. A conference and hearing were scheduled for May 16, 2006, at 9:30 a.m., pursuant to a Combined Notice dated May 1, 2006 (ALJ Ex. 1). That notice was mailed to petitioner’s counsel, to Mr. Dawe, who filed an answer received by the Loft Board on April 21, 2006,[1] and to the attorney to whom Mr. Dawe directed a copy of his answer, Lindsay J. Rosenberg, Esq. Neither Mr. Dawe nor Mr. Rosenberg appeared for the hearing, despite the written notice of the hearing, which the owner’s counsel received. Because Mr. Dawe had filed an answer, but failed to appear at the scheduled hearing,
this tribunal attempted to arrange a conference call on the morning of the hearing with Mr. Rosenberg, who never filed a notice of appearance in this matter, but whose name appears in the file and who represents the tenants in other litigation pending before this tribunal. Mr. Rosenberg was unavailable by phone, and the matter proceeded as an inquest. 29 RCNY § 1-06(l) (Lexis 2006).
ANALYSIS
The application appends the notice required by Loft Board rules, section 2-01(g)(1). That notice specifies the commencement date of the proposed legalization work, the duration and scope of the work to be performed: The notice was dated March 13, 2006, was directed to the occupants of the third floor unit, and was properly served by mail and certified mail under Loft Board rules, section 2-01(g)(1). It specified that the work would begin between April 3 and 7, 2006, and would occur between the hours of 8 a.m. and 5:00 p.m., pursuant to the cited rule requiring the provision of a range of five consecutive working days during which work would begin. The owner provided notice that it would undertake the following legalization work:
(a) Demolition of drop ceiling and removal of trash (2 days);
(b) Plumbing/electrical work (3-4 days);
(c) Install new ceiling/complete bathroom work (5-7 days);
(d) Paint Apartment (2 days).
At the hearing, the owner presented the testimony of Kenneth DuBow, a member of the corporation that owns the building and the manager in charge of legalizing the building. I found this witness’s unrebutted testimony credible. Mr. DuBow identified the narrative statement, dated March 21, 1996, which sets forth in greater detail the legalization work to be done (Pet. Ex.1), and testified that the parties had met with Mr. Dawe, who participated, with his architect, Alexandr Neratoff, in the process leading to the narrative statement. Mr. Dawe was well aware of the narrative statement and the work detailed in it to be done in his unit and had appended it to pleadings in other matters before this tribunal, according to Mr. DuBow and his counsel. Mr. DuBow also testified that the owner has undertaken code compliance work in all the common areas, outside areas, rooftop and second and fourth floor units. He described the building as having three units, with a ground floor occupied by a Pizza Hut, and a vacant second and fourth floor. In connection with other litigation pending, this tribunal, together with the assigned conference judge, conducted a site visit on March 28, 2006, prior to the filing of this application, in the presence of the parties and their counsel. That visit confirms Mr. DuBow’s description of the building. He also stated that Mr. Dawe has on numerous occasions denied him access to perform legalization work in the third floor unit.
The owner contended, without opposition, that the scope of the legalization work to be done was well known to Mr. Dawe, and that the notice of the proposed work met the intent and letter of the rules, to put the occupants on notice of the work to be done. I find that items (a), (c) in part, and (d) in the notice suffice to show the scope of the work on the demolition and replacement of the drop ceiling, removal of trash and painting the apartment, which consists of one room and a bathroom, as described in the record. I find further that the narrative statement provides additional detail of the scope of the work to be done and that the tenants were on notice of the scope of the proposed work: provision of mechanical ventilation for the bathroom using metal ducts and an exhaust fan; provision of a shutoff valve at all plumbing fixtures, using four plumbing valves and plumbing piping; painting of the entire unit using flat white latex paint; provision of a vent line for the kitchen sink drain using plumbing pipe; provision of a waterproof floor and 6-inch waterproof base at the bathroom using ceramic tile and 6-inch base on a one-inch “mud job”; removal of PVC pipe at the bathroom sink and replacement with proper piping using plumbing pipe; replacement of the existing gas hot water heater with an approved type; and verification by a licensed electrician that the electric work in the unit complies with the applicable code. This last item is described as involving a light fixture, switch and GFI outlet in the bathroom; two dedicated appliance outlets in the kitchen, and one air conditioning outlet and another outlet in the living area, as well as putting all existing wiring in a conduit or otherwise enclosing it (Pet. Ex. 1). Mr. DuBow testified that there is exposed wiring in the third floor unit that must be enclosed.
Mr. DuBow also testified that although Mr. Dawe asserted in his answer that there is asbestos in the ceiling, the owner had the building tested on May 6, 2006, by Singer Environmental Group Ltd., for asbestos, and that the second floor unit has ceiling tile identical to that in the third floor apartment, to which the occupants denied access. The test of the identical second floor ceiling showed that there was no asbestos in the ceiling tile (Pet. Ex. 2). When asked to respond to Mr. Dawe’s expressed concern that the owner wanted access as a pretext to harass the tenants, to destroy the apartment, and thereby to render their space uninhabitable (Resp. Answer), the owner’s counsel responded that the owner’s intent is simply to perform the legalization work, that Mr. Dawe’s assertions were baseless, that the owner must do the work in compliance with the building code, and that if Mr. Dawe’s claims were correct, Mr. Dawe would file another harassment application. There was no showing that the owner is seeking access for illegitimate reasons. To the contrary, the owner showed that it is seeking access to bring the building into compliance with applicable codes. See generally Matter of Pelli, OATH Index No. 546/05 (Oct. 18, 2004), adopted in pertinent part, Loft Bd. Order No. 2892 (Jan. 20, 2005), reconsideration denied, Loft Bd. Order No. 2899 (Feb. 24, 2005) (bona fide application for access granted); Matter of Benaresh, OATH Index No. 1209/04 (Mar. 22, 2004), adopted, Loft Bd. Order No. 2856 (Apr. 27, 2004) (access granted where owner’s request was rationally related to moving the building toward legalization).
Moreover, the owner showed that the tenant is actually on notice of the scope of the legalization work to be done. Indeed, Mr. Dawe handed to this tribunal a copy of the same narrative statement as Petitioner’s Exibit 1 during the site visit on March 28, 2006 (ALJ Ex. 2). In accordance with 29 RCNY section 2-01(g)(2), Mr. DuBow personally delivered to Mr. Dawe a second notice letter dated April 5, 2006, from the owner’s counsel, Joseph Burden, Esq., confirming that the code compliance work would begin at 9:00 a.m. on Friday, April 7, 2006. Mr. Rosenberg e-mailed the owner’s counsel on April 5, 2006, stating that access would be denied, and raising issues about asbestos and allegedly illegal removal of elevator machinery by the owner. Mr. Dawe refused access in April, according to the undisputed testimony of Mr. DuBow. Mr. Burden contended that the tenant would continue to deny access in the absence of an order requiring it.
I find that the owner’s request for access rationally related to moving the building toward legalization and that the owner has met its burden to show that its request for access satisfied the access rule and was otherwise reasonable. Benaresh, supra, OATH 1209/04, adopted, Loft Bd. Order No. 2856 (Apr. 27, 2004).
RECOMMENDATION
Based on the foregoing, I recommend that the Loft Board grant the owner’s application for access to the third floor unit at 20 Beaver Street, New York, New York, for the sole purpose of performing the legalization work specified in the notice appended to the access application and in the narrative statement within the time frames set forth in the notice (ALJ Ex. 1).
Joan R. Salzman
Administrative Law Judge
May 23, 2006
SUBMITTED TO:
MARC RAUCH, ESQ.
Chairperson
APPEARANCES:
JOSEPH BURDEN, ESQ.
Attorney for Petitioner
No Appearance for Respondents
[1] Mr. Dawe filed an answer, but Elise Dawe, his wife, did not file a separate answer. It appears that Mr. Dawe filed the answer on behalf of his wife and himself.