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Matter of Filippini
OATH Index No. 940/07 (Mar. 7, 2007)
[Loft Bd. Dkt. No. TH-0181; 112-114 West 14th Street, New York, N.Y.]
Application for harassment finding by loft tenants. ALJ found that the landlord’s approval of fitness studio’s hanging of two punching bags from the ceiling directly below tenant’s unit and failure to take action upon tenant complaints for two months constituted harassment. ALJ recommends fine of $1,000 and that finding remain in effect for two years.
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NEW YORK CITY OFFICE OF
ADMINISTRATIVE TRIALS AND HEARINGS
In the Matter of
ROBERT FILIPPINI and GORDON WALLACE
Petitioners
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REPORT AND RECOMMENDATION
JOHN SPOONER, Administrative Law Judge
This is an application for a finding of harassment filed by petitioners, Robert Filippini and Gordon Wallace, tenants of unit 3E at 112-114 West 14th Street, New York, New York, an interim multiple dwelling (“IMD”). In an application filed with the Loft Board on September 29, 2006, petitioners allege that respondent Western Development Group, LLC (hereinafter “Western”), theowner of the building, harassed them by performing construction work without permits,leasing space to a gym, a pilates studio, and an adult video store, and failing to maintain the elevator. Respondent answered on October 31, 2006, and,on December 29, 2006, filed a motion to dismiss certain allegations in the application for failure to comply with the timeliness and specificity requirements applicable to harassment applications. On January 19, 2007, this motion was granted in part as to allegations concerning construction work performed prior to March 29, 2006, and petitioner was provided one week to file an amended application. See Matter of Filippini, OATH Index 940/07, mem. dec. (Jan. 19, 2007). No amended pleading was filed.
A hearing was held before me on January 30, February 5, and February 14, 2007, during which each party called three witnesses. As discussed below, I find that the landlord’s consent to the fitness studio’s hanging of two punching bags directly below tenant’s unit and failure to take action upon tenant complaints about noise and vibrations for some three months constituted harassment. I recommend that Western be fined $1,000.
ANALYSIS
Petitioners’ harassment complaint describes various actions by the owner, including construction work, allegedly undertaken without proper permits, the installation of commercial nuisance tenants, and failure to maintain elevator service. The evidence offered by petitioners at the hearing depicted disruptive noise and vibrations from a fitness studio in the space directly below their unit. Western’s evidence showed that it initiated eviction proceedings against the fitness studio, which remained pending at the time of the harassment hearing.
The building is a five-story building with four residential IMD units located on the third, fourth, and fifth floors. When Western purchased the building in August 2005, most of the first and second floors were vacant and there were three other residentially occupied units on the fourth and fifth floors. The rear portion of unit 2E was occupied by a Chinese therapy operation, which vacated sometime around June 2006 (Tr. 209). Robert Filippini and his partner, Gordon Wallace, resided in 3E, an IMD unit on the third floor.
In September 2005, the owner entered into a ten-year lease for a ground floor store with an adult DVD establishment (see Pet. Ex. 24). In October 2005, unit 2W was leased for three years to RedCenter for a pilates studio (see Pet. Ex. 22). Then, in November 2005, Western entered into a three-year lease (Pet. Ex. 21) for the front part of unit 2E, just below Mr. Filippini and Mr. Wallace’s unit, with a fitness trainer named George Katsigiannis, doing business as George K. Fitness. The agreed rent was$3,500 for the first year, with the first rental payment due on February 1, 2006. The lease required that the tenant submit plans to the landlord describing any planned alterations to the leased space.
According to Mr. Filippini, the work on the second floor gym began in January 2006 and finished in March 2006. He observed workers erecting partitions and moving in gym equipment (Tr. 46-47). One day in March 2006, he was working in his studio when he felt and heard a loud vibration from drilling just below his floor. He went downstairs to the gym and saw that the tin ceiling was pulled back, exposing a beam or joist supporting the floor in Mr. Filippini’s third floor unit. A workman was drilling into this beam, apparently in order to hang two large punching bags. Mr. Filippini could see that there was no soundproofing material in the ceiling. Mr. Filippini asked the gym owner, Mr. Katsigiannis, to stop this work. Mr. Katsigiannis said that the owner, JackJangana, was “responsible” for it (Tr. 57-58). One of the workmen called Mr. Janganaon the telephone and, at some point, handed the telephone to Mr. Filippini. Mr. Filippini complained to Mr. Jangana that it would be “structurally unsound” to suspend the heavy punching bags from the floor joists and would cause “huge noise and disruption” to his space. Mr. Jangana asked, “What do you want me to do?” Mr. Filippini asked that he consider alternatives to hanging the bags from the floor joists and Mr. Jangana agreed to do so. Early the following week Mr. Filippini observed workmen hanging the two punching bags from the floor joists by means of chains which distributed the weight of the bag between two joists instead of one (Tr. 59).
Mr. Filippini insisted that the workmen he saw doing construction work in unit 2E were the same workers he had previously seen performing work for Mr. Jangana elsewhere in the building (Tr. 63). He also noted that one of the workmen referred to Mr. Jangana as “boss” (Tr. 100).
Even prior to Mr. Katsigiannis opening his studio, the relationship between Mr. Filippini and Mr. Wallace with the landlord was strained. In October 2005, Mr. Wallace complained to Mr. Jangana in an email (Pet. Ex. 7) about some eight items, including work being done without a permit and elevator outages. Mr. Wallace indicated that, unless the email was responded to, he would complain to the Loft Board, the Department of Buildings, and other City agencies. In a letter (Pet. Ex. 8), Eze Bashi, an employee ofWestern, stated that the owner was “carefully monitoring” all construction work, that it would soon be renovating the elevator, and that it would appreciate the tenants’ “continued cooperation” in enabling the work to be completed. This prompted another letter (Pet. Ex. 9) from Mr. Wallace stating that Mr. Jangana had made verbal commitments to address many of the problems identified in Mr. Wallace’s earlier letter and once again warning that, if the problems continued, the tenants would “pursue a solution with appropriate City and State agencies.”
Mr. Filippini indicated that, during the last months of 2005 and the early months of 2006, he continued to be upset about the conditions in the building. These emotions apparently reached a peak in February 2006. Mr. Filippini admitted that, around this time, he knocked down two newly installed security cameras set up by the owner in the ground floor hallways. Mr. Filippini testified that he did so in anger because he believed the devices were “spy cameras” and because the landlord had not addressed other safety problems, such as inadequate lighting and a lack of smoke detectors, as promised (Tr. 119-20). The owner’s criminal complaint against Mr. Filippini resulted in Mr. Filippini pleading guilty to destroying the landlord’s property and paying restitution of $800.
According to Mr. Filippini, beginning in March 2006, the pervasive noise from the second-floor gym was extraordinarily disruptive. He heard music, loud voices, yelling, dumbbells clanking, and shaking and rattling caused by the punching bags being used by George K clients. Although the noise was not constant, it would occur from four to seven days per week, beginning as early as 8:00 a.m. and ending as late as 11:00 p.m. (Tr. 71-72). The vibrations caused by the punching bags were particularly upsetting, since they would cause the floors and furniture to shake so hard that objects rolled off his work table (Tr. 73). The noise became unendurable and Mr. Filippini was unable to work or sleep. As a result, he was forced to move out of the space to a sublet from May 2006 until October 2006, when he could no longer afford the second apartment (Tr. 76-77).
Mr. Filippini initially complained about the loud music directly to Mr. Katsigiannis, who turned the music down. Subsequent complaints were ignored, however, and the relationship soon became hostile (Tr. 109). On December 10, 2006, Mr. Filippini asked Mr. Katsigiannis to lower the music and Mr. Katsigiannis angrily warned him never to knock on the door again. On December 22, 2006, Mr. Filippini encountered Mr. Katsigiannis in the hall. Mr. Katsigiannis shouted, “You fucking cocksucker. I am going to make you pay. You’re going to suffer. You’re going to be in the gutter sucking cock” (Tr. 107).
Mr. Filippini described various efforts to have the landlord remedy the noise problem. He initially complained to the landlord in March about the excessive noise. He also complained to the Department of Buildings and the Department of Environmental Protection, but was never able to get an inspector to come to the building when the noise from the gym could be heard. When nothing was done by Western, Mr. Filippini hired an attorney and brought a proceeding in Housing Court in late March 2006. After a hearing in June and July 2006, the Housing Court issued a decision (Pet. Ex. 18) on August 16, 2006, finding Mr. Filippini’s testimony as to the noise and vibrations “vague and conclusory” and insufficient, in the absence of sustained noise violations or expert testimony, to support a finding that the noise from the gym violated the Administrative Code.
In the instant hearing, petitioners offered both expert testimony and other evidence tending to corroborate the disturbing nature of the noise from the gym. They produced an electronic video file (Pet. Ex. 15), depicting both the noise and the vibrations from the punching bags. Mr. Filippini noted that the oak floorboards directly above where the punching bags were suspended had begun to separate, as vividly demonstrated in a photograph (see Pet. Ex. 16). Based upon an online website for boxing equipment (Pet. Ex. 14), Mr. Filippini estimated that the punching bags weighed around 100 to 200 pounds.
Alan Fierstein, an acoustic consultant hired by petitioners, provided the tenants with a special recording system to capture the sounds coming from the George K. Fitness studio. He set up his equipment just outside Mr. Filippini and Mr. Wallace’s bedroomon November 27, 2006, and, one week later, returned to pick up the equipment and the recordings (Tr. 13-14). Upon analyzing the recordings, he concluded that the music reached as high as 74 decibels at 80 herz, some 30 decibels higher than loudest allowable level under the applicable law (Tr. 23). See Admin. Code § 24-231 (Lexis 2007). The average level of the music was 70 decibels (Tr. 27). The sounds of the punching bag were much louder, at around 99 decibels. Mr. Fierstein explained that, although this level was only about 25 decibels louder than the music, it would have sounded some six times louder due to the nature of the decibel measurement (Tr. 29). According to the noise log (Pet. Ex. 17) kept by Mr. Filippini during this week, the punching bag noises and music occurred every week day as follows: Monday: 6:00 p.m. to 7:30 p.m.; Tuesday: 4:45 p.m. to 7:30 p.m.; Wednesday: 4:10 p.m. to 5:20 p.m.; Thursday: 8:30 a.m. (no end time recorded); and Friday: 9:00 a.m. to 11:38 a.m. and 4:00 p.m. to 5:30 p.m.
The evidence from the landlord focused upon legal actions begun in June 2006, whereby Western sought to evict the commercial tenants based in part upon the repeated complaints received from Mr. Filippini and Mr. Wallace. Jack Jangana, the “managing member” of Western, testified that the partners of Western include Mr. Jangana and his two sisters, Jenny Haim and Joyce Rice. When he took over operation of the building, he made every effort to expedite the legalization process. He insisted that, despite the vandalism of the security cameras by Mr. Filippini, Western had done everything possible to alleviate the noise and vibration issues complained about by Mr. Filippini and Mr. Wallace. When Mr. Filippini and Mr. Wallace first started to complain in March 2006, Mr. Jangana met with Mr. Katsigiannis and told him that he “had to solve this” and had “to live with your neighbors” (Tr. 219). Mr. Katsigiannis responded that he had only a few clients per week and that his sessions with these clients lasted approximately an hour (Tr. 288). Mr. Katsigiannis denied that he played his music too loud. He stated that he had a considerable sum of money invested in the space. Although Mr. Jangana asked him to remove the punching bags, Mr. Katsigiannis refused to do so (Tr. 222). At approximately this time, Mr. Jangana hired a structural engineer to inspect the second floor, specifically the punching bags, and ensure that the bags posed no structural hazard (Tr. 289).
On June 6, 2006, Western Development served George K. Fitness and two other second floor commercial tenants with notices to cure their operation of “physical cultural establishments” without a permit from the Board of Standards and Appeals (see Resp. Exs. B, C, D, and E). In the notice sent to George K. Fitness, the notice also indicated that George K. Fitness was playing, or permitting to be played in the premises, loud music, during and after regular business hours, thereby disturbing one or more of the other tenants in the building. Apparently intimidated by the expense of obtaining this permit, one of the tenants vacated the building soon afterward, although George K. Fitness remained. On August 16, 2006, Western served second notices to cure on George K. Fitness and the remaining second floor tenant (Resp. Exs. E and F).
On October 25, 2006, Western served a notice of termination on George K. Fitness based upon its failure to obtain the required permit and, on January 5, 2007, filed a petition seeking to evict George K. Fitness. In an answer (Resp. Ex. I) dated January 23, 2007, George K. Fitness asserted that the absence of the permit was not a “material breach” of the lease and that its operation of the fitness studio did not rise to the level of a nuisance. According to Mr. Jangana, these proceedings remained pending at the time of this hearing.[1]
Furthermore, both Mr. Jangana and Mr. Bashi denied that Western performed or supervised any of the construction work for George K. Fitness (Jangana: Tr. 212, 215; Bashi: Tr. 149-50). They insisted that, following Western’s purchase of the building in August 2005, they had completed a number of improvements, including renovations of some of the loft units, work on the elevator cab, replacement of nine elevator doors, repair of the building façade, and roof repair (Jangana: Tr. 217).
Hesky Haim testified that he supervises construction on behalf of Western. He had five security cameras installed in February 2006, three outside the building and two inside. He noticed they were gone around March 6, 2006, and checked the recorded video. The video showed that Mr. Filippini hit the missing cameras with a 2 by 4. Mr. Haim had criminal charges filed against Mr. Filippini (Tr. 193-95).
Mr. Jangana indicated that he had offered Mr. Filippini and Mr. Wallace $100,000 for their rights and that they had turned down this sum as “too low” (Tr. ). Mr. Wallace confirmed that, at the time Mr. Jangana was about to purchase the building, he received a call from the broker who told him that Mr. Jangana wanted to buy out Mr. Filippini and Mr. Wallace. Neither Mr. Filippini nor Mr. Wallace responded to this offer (Tr. 127-28). Mr. Jangana noted that none of the other tenants had complained about George K Fitness.
The issue raised by the hearing was whether the evidence supported a finding that the owner’s actions were intended to force the tenants to vacate their unit. Harassment is defined as:
. . . any course of conduct engaged in by the landlord or any other person acting on its behalf that interferes with or disturbs the comfort, repose, peace or quiet of an occupant in the occupant’s use or occupancy of its unit if such conduct is intended to cause the occupant to vacate the building or unit, or to surrender or waive any rights of such occupant . . .
29 RCNY § 2-02(b) (LEXIS 2007).
As a preliminary matter, it must be noted that petitioners offered no evidence at the hearing as to several harassment allegations made in the application.[2] No evidence was offered as to any adverse effects of the leasing of the storefront to an adult video store or unit 2W to a pilates studio. There is thus no basis to conclude that Western’s leases to these commercial tenants were intended to disturb the residential tenants or force them to vacate. In addition, no evidence was offered from either Mr. Filippini or Mr. Wallace as to any problems with the elevator, other than to mention that they believed that the elderly and wheel-chair bound fourth floor tenant, Margo Hoff, may have been inconvenienced by some elevator service failures. While the admission in Mr. Bashi’s letter of October 26, 2005, (Pet. Ex. 8), is sufficient to confirm that elevator problems existed, there is no indication that the lapse in elevator service lasted for an extended period of time or that the owner failed to repair and restore service upon being notified of the problem. The allegations concerning the elevator should also be dismissed.