Date: Sun, 04 Jan 1998 13:04:49 -0500
Subject: What's New at Housing Court (and other stuff)

In this issue...



We've been busy dealing with more local issues recently. In another
message, we'll fill you in on how Mayor Giuliani, Broadway Theater owners
and the Times Square BID are proposing the destruction of
Clinton/Hell's Kitchen on Manhattan's west side. If they can't get
rid of rent regulation (it's really gone anyway, but that's another
story), they will zone you out of existence. Although it may appear to
be just local to one neighborhood, the legal machinations will soon
threaten many NYC neighborhoods. More information is available at
our sister site Hell's Kitchen Online at and 
we'll fill you in in later TenantNet newsletters. And if you wish to
be on the separate Hell's Kitchen mailing list, send email to


Housing Notebook, a weekly radio show presented by Metropolitan Council
on Housing has moved from its Tuesday slot and can now be heard on
Thursdays at 7 PM, on WBAI 99.5 FM. Now that host Scott Sommer has the
lead in to NBC's Thursday "MUST-SEE TV", hopefully he'll spend less
time railing against Bill Clinton and more against our local machine
Democrats (who might as well be Republicans) and exposing the wimpy
progressive Dems who sneeze any time Silver or Vallone hiccup.


One tenant writes, "I would be very interested to hear about this new
tenants' PAC that Mike McKee and his group has been putting together. My dad
collected over $400 in checks for it and none of the contributors have ever
heard a thing back from them!!"

BUYER BEWARE. We heard that much of this so-called Political Action
Committee (PAC) was actually financed by Albany Democrats and theoretically
the recipients of PAC contributions would be...of course...Albany Democrats.
Doesn't make much sense until you realize that those having "influence" will
not be tenants, but the machine. Business as usual. Thanks, Mike.


who just took office as a NYC Councilmember replacing the landlord lacky 
Antonio Pagan. Of course Pagan landed comfortably even after getting trounced 
in his bid for Manhattan Borough President. Giuliani just named Pagan to be 
Employment Commissioner.


Here's a little known law. The Penal Code states:

     § 180.57  Rent gouging in the first degree.
     A  person  is  guilty of rent gouging in the first degree when, in the
     course of a scheme constituting a systematic ongoing course  of  conduct
     in connection with the leasing, rental or use of three or more apartment
     units, the rental price of which is regulated pursuant to the provisions
     of federal, state or local law, he solicits, accepts or agrees to accept
     from  one  or  more  persons  in  three   separate   transactions   some
     consideration  of  value, knowing that such consideration is in addition
     to lawful rental and other lawful charges established  pursuant  to  the
     provisions of such federal, state or local law, and upon an agreement or
     understanding that the furnishing of such  consideration  will  increase
     the possibility that any person may obtain or renew the lease, rental or
     use of such property, or that a failure to furnish it will decrease  the
     possibility  that  any  person  may  obtain  or  renew same, and thereby
     obtains such consideration from one or more persons.
     Rent gouging in the first degree is a class E felony.

Theoretically this law can be invoked separately from the provisions of
the Rent Regulatory laws, but why is it never used? The answer lies in that
the person invoking it has to be a local District Attorney, such as 
Manhattan District Attorney Robert Morganthou. On tenant issues, the DA
regulary ignores tenant complaints. Any of our lawyer readers have any
experience with this?


Recently the NYC Housing Court announced radical changes in its operation.
Put forth by Chief Judge Judith Kaye, this proposal was dropped on the court
with little or no input from tenants or tenant attorneys. One tenant attorney
stated, "we only hope Judge Kay has the opportunity to practice in the mess
she's created..."

Aside from no input, the so-called "reforms" do little to train the judges
on the actual law (how many times have you heard Housing Court judges
express their ignorance or disdain of the law), it does nothing to
change the process of the actual selection of Housing Court judges
(now controlled by landlords), it does nothing to bring back 600 lost
housing inspectors and does nothing to fix the underlying problem
of housing court... that 95% of tenants have no legal representation
and are often intimidated by uncaring judges, power-tripping court
clerks and guards and intimidation from landlord lawyers. Although
there are a few good ideas somehwere in the mess, overall it's making
an out-of-control system worse. Instead of one-stop shopping, you
now have a plethora of "parts" (i.e., rooms) to go to one after another.
And if you are lucky enough to have a lawyer, be prepared to pay him/her
to wait at every stop.

Thanks a lot, Judge Kaye.

Here's the Executive Summary of the plans, which we understand are now
being implemented. You can access the complete document at

Housing Court Program
New York State Unified Court System   September 1997


The Unified Court System's Housing Court Program includes court
initiatives designed to meet the housing-related justice needs of
New Yorkers. The initiatives are summarized below.

I. Constitutional Reform: The New York City District Court

A constitutional amendment to restructure the trial court system
by creating two tiers of trial courts  -- a Supreme Court with
unlimited jurisdiction and a District Court with limited
jurisdiction. A Housing Division will be established within the
New York City District Court, on equal footing with the other
divisions and with full constitutional status.

II. Modern Case Management

An Expedited Case Initiation system, which eliminates the general
intake part (Part 18) and assigns cases directly to the
appropriate court part upon filing or answering a petition.

Resolution Parts, presided over by Housing Court judges and
staff, to effectively manage the settlement process for specific
case types.

Motion Parts to hear pre-answer motions, which will allow the
Resolution Parts to focus on their calendars without the
interruption of unrelated motions.

Trial Ready Parts, supported by Housing Court Expediters, to hear
trials as scheduled.

A Housing Court Mediation Program within the courthouse, overseen
by a Mediation Coordinator, to provide an effective alternative
to the traditional court process.

III. Specialized Treatment of Cases

Rent Deposit Parts to comply with the requirements of the State
Rent Regulation Reform Act of 1997 and to provide consistent
treatment of rent deposit matters.

Pilot Cooperative/Condominium Resolution Parts to ensure prompt
resolution of matters involving this type of housing.

An Enforcement Part within each borough, with a City building
inspector to perform inspections as deemed necessary by the

IV. Improved Access for Housing Court Litigants

A Night Housing Court in Queens and Richmond Counties to hear
housing-related cases brought by self-represented litigants.

Expanded Hours of Clerks' Offices to limit congestion in the
courthouses and assist those unable to reach the courthouse
during regular business hours.

Resource Centers, located within the courthouses and staffed by
Housing Court Counselors, to provide self-represented litigants
with information on the Court and its procedures. The Centers
will house small libraries, computers, public access terminals
and instructional videos.

The introduction of simplified pleadings and procedures to
eliminate the complexity and confusion of Housing Court for self-
represented litigants.

An expanded staff of pro se attorneys -- known as Housing Court
Counselors -- who will be available to assist self-represented
litigants with court procedures during the course of their
housing matters.

A Volunteer Lawyers Project to pair self-represented litigants
with attorneys at the courthouse who will guide litigants through
the various stages of a court proceeding.

The Housing Court Associates program places volunteers at Housing
Court locations offer non-legal information and assistance to
self-represented litigants.

A toll-free Telephone Reference Service for the public to obtain
information about the Housing Court 24 hours a day.

Exploration of the feasibility of a Community Housing Court to
hear specific aspects of housing matters.

V. Technological Innovations and Improved Information

Informational Monitors in the courthouse lobby and courtrooms to
display easily understandable information about the Court,
including the day's calendar.

A computerized Automated Case Assignment system to expedite case
initiation and ensure equal distribution of cases.

A Case Management Application to streamline case processing by
assisting judges in tracking and managing their large case

A Buildings Database -- merging databases from the Housing Court,
the City Department of Housing Preservation and Development, and
the State Division of Housing and Community Renewal -- for
properties involved in Housing Court proceedings.

Developing partnerships with the City Human Resources
Administration and the State Division of Housing and Community
Renewal to ensure prompter and more effective resolution of
Housing Court proceedings.

An on-line Housing Court Case Information System that makes a
wide array of court information, including case history, status
of proceeding and return date, available on one's personal
computer for a minimal fee.

The Housing Court's "Home Page" on the Internet, which will
provide comprehensive information about the Housing Court.

VI. Enhanced Court Resources

New court facilities in Bronx and Queens Counties with ample
space and resources to accommodate the large numbers of litigants
who appear daily.

Assignment of Resource Assistants to the Resolution Parts to
ensure quicker resolution of housing matters by assisting the
judge in information gathering as well as acting as liaison to
relevant government agencies.

An Expanded Interpreter Staff to ensure the needs of the growing
immigrant population appearing in Housing Court are met.

Judges' Seminars and Training for continued education on relevant
law, case management techniques, computer skills and related

The program covers six broad areas:

I.   Constitutional Reform: The New York City District Court

II.  Modern Case Management

     Expedited Case Initiation
     Resolution Parts
     Motion Part
     Trial Ready Parts
     Housing Court Mediation Program

III. Specialized Treatment of Cases

     Rent Deposit Part
     Pilot Cooperative/Condominium Resolution Part
     Enforcement Part

IV. Improved Access for Housing Court Litigants

     Night Housing Court
     Expanded Hours of Clerks' Offices
     Resource Centers in the Court
     Simplified Pleadings and Procedures
     Housing Court Counselors
     Volunteer Lawyers' Project
     Housing Court Associates
     Telephone Reference Service
     Community Housing Court

V. Technological Innovations and Improved Information

     Informational Monitors
     Automated Case Assignment
     Housing Court Case Management Application
     Buildings Database
     The Partnership Project
     Housing Court Case Information System
     Housing Court's "Home Page"

VI.  Enhanced Court Resources

     New and Improved Facilities
     Resource Assistants
     Expanded Interpreter Staff
     Judges' Seminars and Training

The Tenant Network for Residential Tenants
  NYTenants Interactive:
  NYTenants Express:
  NYtenants Discussion List: email to  and in 
  the body of the message put "subscribe nytenants".
Information from TenantNet is from experienced non-attorney tenant 
activists and is not considered legal advice.

Date: Sun, 11 Jan 1998 00:35:35 -0500
Subject: Legal Monkeywrenching At Its Best!

Legal Monkeywrenching At Its Best!
(and help is sought from NYC tenant groups)

The recent attack on tenants' rights by the New York Legislature, instigated
by the landlord lobby, has not dampened tenants' spirit to fight back by
any means necessary in the legal arena.  Tenant lawyer Colleen F. McGuire
(and Housing Court Decisions Editor for TenantNet), in conjunction with her
co-counsel Robert E. Sokolski, have thrown a monkeywrench into the system by
the recent federal court decision in Jennifer Lynn Romea v. Heiberger &
Associates, United States District Court, Southern District of New York, 97
Civ. 4681.  

In or about December, 1996 tenant Jennifer Lynn Romea (pronounced Row MAY)
asked her landlord 442 3rd Avenue Realty if she could pay half the rent she
owed from September, 1996 (at $700 per month) and pay the remaining balance
in several weeks. He refused and arrogantly told her he was taking her to
court and would have her thrown out of her apartment in a month.  Ms. Romea
is still residing in her home.  

Ms. Romea retained a lawyer, Ms. McGuire, to defend herself against the
landlord's nonpayment proceeding.  The three-day rent demand served on Ms.
Romea was signed by the landlord's attorney, Jaime Heiberger (now of
Heiberger & Associates).  Ms. Romea sued Heiberger & Associates in federal
court for violations of the Fair Debt Collections Practices Act (FDCPA), 15
U.S.C. 1692 et seq.  This 1977 law was enacted to protect consumers from
harassment by debt collectors.  Her class action complaint alleged that the
notice failed to disclose clearly that defendant was attempting to collect a
debt and that any information obtained would be used for that purpose.  It
also alleged that the notice contained threats to take actions that could
not legally or were not intended to be taken.  And the complaint further
alleged that the notice failed to provide her a thirty day period to dispute
the debt.  Each of these three grounds (among others) constitute violations
of the FDCPA.  

The defendant law firm moved to dismiss the complaint and that motion was
denied by District Judge Lewis A. Kaplan by decision dated December 22,
1997.  An article describing the decision was published by the New York Law
Journal on January 8, 1998, page one (see below).  Judge Kaplan held that 
rent is a debt under the FDCPA, that the rent demand constitutes a 
communication under the FDCPA and that the  landlord's attorney who signed 
the notice is a debt collector under the FDCPA.  Since the FDCPA is
and since the rent demand failed to satisfy the statute's requirements, 
Ms. Romea's complaint could not be dismissed.

The defendant's attorneys argued that a rent demand is a legal prerequisite
under New York State's RPAPL 711 and therefore the notice cannot be deemed a
"communication" within the meaning of the FDCPA.  By rejecting this
argument, Judge Kaplan in effect ruled that federal law preempts state law.

On Friday, January 9, 1998, during a conference before the judge to set up a
discovery schedule the defendant announced that she would appeal the
decision to the Circuit Court of Appeals.  Judge Kaplan gave the defendant
two weeks to submit the motion to appeal to him.  The motion must show that
this decision has a great impact and will adversely affecting a large number
of people.  In this regard, it appears as if Heiberger & Associates will be
polling landlord attorneys for their support of a motion to appeal.  In an
unusual move, the general counsel for the Rent Stabilization Association
appeared in court on January 9th with Jaime Heiberger and apparently intends
to submit an amicus brief to the appeal.  It is imperative that tenant
organizations and consumer groups also submit amici in opposition to the
appeal. Contact Colleen McGuire or her partner Daphna Zekaria at (212)
431-3112 if you or your organization are able to prepare and/or sign on to
an amicus.  

Before Judge Kaplan's decision was rendered, Ms. Romea brought a motion to
dismiss in Housing Court on grounds that the rent demand was defective for
its violation of federal law, and since federal law preempts state law, the
Housing Court lacked jurisdiction to entertain the nonpayment proceeding.
Judge Kibbe Payne denied the motion on grounds that the issue belonged in
federal court.  Ms. Romea's attorneys had planned to move to renew and/or
reargue Judge Payne's decision, but the case was settled on terms favorable
for the tenant on January 6, 1998.

The Romea decision is a golden opportunity for tenant lawyers to move to
dismiss nonpayment proceedings in Housing Court where three day rent demands
are signed by a landlord's attorney. In a previous attempt at a similar
dismissal in another case where Ms. McGuire represented the tenant, Judge
Marcie Friedman denied the motion on grounds that the notice did not
constitute a communication under the FDCPA.  The Romea decision clearly
renders Judge Friedman's decision nonbinding and uncontrolling law.  

Landlords and their lawyers consistently complain that Housing Court and
Housing Court judges are biased in favor of tenants.  Tenants and their
lawyers make the same charges.  The reality is that in the streets, in the
arena of the market place, landlords rule.  The working poor and middle
class tenants cannot afford skyrocketing rents that consume a substantial
portion of their incomes.  Housing is a human right, not a commodity to
bargain over.  Tenants, tenant advocates and tenant attorneys must fight
back against this feudal era inherited system called rent by any legal means
necessary.  The Romea decision gives us a big rock to throw in Goliath's
face.  Let the legal monkeywrenchers storm the barricades!

Colleen F. McGuire, Esq.


Fed'l Debt Law Held Violated
The New York Law Journal January 8, 1998

IN A DECISION that will affect New York landlord-tenant practice, a
Manhattan federal judge has ruled that a three-day demand for rent signed
by a landlord's attorney violates the federal Fair Debt Collection
Practices Act (FDCPA).

Southern District Judge Lewis A. Kaplan rejected arguments that the notice
should be exempt from the FDCPA since it complied with a state real estate
law which gives a tenant a three-day period to respond to a rent demand.

Instead, Judge Kaplan reluctantly found that rent was a "debt" covered by
the law and that the notice amounted to a "communication" under its terms.

"It is not without some discomfort that the court reaches this conclusion,"
acknowledged Judge Kaplan in his opinion in Romea v. Heiberger &
Associates, 97 Civ. 4681.

"The broad language of the FDCPA's definition of 'communication' will have
a significant effect on New York's statutory scheme for the fair and
efficient resolution of landlord-tenant disputes."

Moreover, he added, there is "nothing to indicate that such was the intent
of Congress in enacting the FDCPA, a statute designed to protect debtors
from fraudulent and abusive debt collection practices."

The 1977 law, among other things, bars debt collectors from making
late-night phone calls, using profane language, threatening violence or
making groundless threats of litigation.

A key provision of the law requires collectors to advise debtors in writing
that they have 30 days to contest the validity of the alleged obligation.

In late 1996, the plaintiff, Jennifer Lynn Romea, a tenant in a Manhattan
apartment, received a notice from defendant, Heiberger & Associates, her
landlord's attorneys, advising her that if she did not pay four months back
rent in three days, she would face eviction.

Landlord Sued

Ms. Romea responded by suing Heiberger & Associates in federal court,
alleging that the notice violated the terms of the FDCPA.

Specifically, she claimed that the firm did not clearly spell out that it
was attempting to collect a debt, that it made threats which it did not
intend to carry out and that it omitted the required 30-day validation period.

The law firm moved to dismiss, arguing that unpaid rent was not a "debt"
covered by the FDCPA because it did not involve a credit transaction.

It also argued that since the three-day period to pay rent is required
under §711 of New York's Real Property Actions and Proceedings Law, the
notice was not a "communication" within the scope of the FDCPA.

Broader View Taken

Judge Kaplan, however, took a broader view of the FDCPA and allowed the
suit to proceed.

The FDCPA, he declared, "clearly embraces consumer obligations to pay
money" arising out of "personal, family or household purposes" without
regard "to whether the underlying transactions involve the extension of
credit or the deferral of payment."

Citing the law's legislative history, he noted that Congress "dropped
proposed statutory language" which would have "limited the statute to debts
arising from extensions of credit..."

Noting that the FDCPA defines "communication" as the "conveying of
information regarding a debt directly or indirectly to any person through
any medium," Judge Kaplan found that the notice fell within the law.

Since the §711 notice "demanded payment on pain of eviction proceedings,"
he observed, there is "no colorable argument" that it does not satisfy the
FDCPA's definition of "communication."

Colleen F. McGuire and Robert E. Sokolski represented Ms. Romea. Janice J.
DiGennaro of Rivkin, Radler & Kremer in Uniondale represented Heiberger &

The Tenant Network for Residential Tenants
  NYTenants Interactive:
  NYTenants Express:
  NYtenants Discussion List: email to  and in 
  the body of the message put "subscribe nytenants".
Information from TenantNet is from experienced non-attorney tenant 
activists and is not considered legal advice.

Date: Fri, 23 Jan 1998 13:48:55 -0500
Subject: Zoning You Out of Existence


The following three articles (Backstage, Observer and Manhattan Spirit)
come by way of our sister site, Hell's Kitchen Online at
where the Clinton/Hell's Kitchen neighborhood is experiencing a somewhat
new and nefarious threat to tenants. But we would be remiss to claim its
just a tenant issue as it also spells disaster to homeowners, co-op and
condominium owners, environment, transportation and small business. 

It's a very complex issue known as TRANSFER OF DEVELOPMENT RIGHTS or what
some call AIR RIGHTS and if this proposal is enacted, it can be a horrible
precedent that can affect every low/moderate income, low-rise working-class neighborhood
in New York City. Astoria, Woodside, Long Island City and Bayridge are just
a few of many neighborhoods that could be affected through various scenarious.

What happens is that political decisions (read payback to Mayoral campaign
contributors) are made to "create" development rights OUT of thin air, and
are COMPOSED of thin air. 

One-third of the city's net area consists of parks and recreational uses;
schools, hospitals and other public and private institutions and community
facilities; and major airports. Other uses such as cemetaries, railroad yards, 
utilities might also be uses not normally considered residential, commercial 
or industrial. 

In some cases buildings are landmarked for historical significance (such as 
Broadway Theaters). In many cases such uses have what's known as "development
rights" meaning they could normally build larger and taller buildings in the existing
zoning except that something (such as landmarking) prevents this. 

So they have (or the politicans can 'create') development rights, an asset
that can be sold. Up till now, such transfer of development rights has been
limited to adjacent properties or across the street or through contiguous ownership.
What they are trying to do for the first time is open the floodgates to allow
transfering of development rights in a much wider area. This means that they could sell
these rights across town or within a politically-created expanded district to an
area (such as Manhattan's Clinton neighborhood) that is more neighborhood oriented.

Mayor Giuliani wants everyone to believe this is all about "saving theater"
but what they are doing is artificially expanding the Theater Subdistrict (where 
landmarked Broadway theaters are located) and taking the area away from the 
Clinton/Hell's Kitchen neighborhood and saying to developers (i.e., campaign 
contributors) that now you can build higher and bulkier buildings in Clinton.

In the outer boroughs the scenario might be different, but it can play many
ways: find or create sellable development rights and find or create a market to
buy the rights. City for Sale.

What do the theaters get? A measley $360,000 per year. That works out to
about $8 for each of Clinton's 45,000 residents. But what does Clinton/Hell's
Kitchen get for the city grabbing a large part of it's neighborhood. Zip. Nada. $0.
Bupkis. And with the new Broadway show, Disney's Lion King costing $20 million to
produce, how many actors will be hired and how many shows will be produced with that

Of course it's obvious that when major wide-ranging development hits a
residential neighborhood, it will affect tenants with higher rents, lower services and
harassment. Landlords quickly salivate over expectations of luxury housing and tenants
that can afford to pay more. Small "mom-and-pop" businesses will have a harder time
competing with moe upscale businesses and be hit with higher commercial rental

Just like when America expanded west in the 1800's, the converse was that the
Indian nations were forced to contract. Midtown expands, Clinton/Hell's
Kitchen  contracts. Tenants (and others) are zoned out of existence. Thanks Rudy.

Hell's Kitchen Online
Manhattan Spirit article on Hell's Kitchen/8th Ave. Rezoning

Stage Fright
By Monica Rivituso 
Manhattan Spirit, January 22, 1998

When Marilyn Rockafellow moved to New York 25 years ago,
she was directed to the affordable, albeit gritty
neighborhood of Hell's Kitchen.

There she found an apartment for $250 per month, a
stretch of concrete that felt like a neighborhood and a
funky little coffee shop on Ninth Avenue where she could
get breakfast for $2.25.

In 1989, when no one else was choosing Hell's Kitchen,
she bought her place for $30,000. Today, a similar
apartment can command three times as much. Spurred by a
squeaky-clean Times Square, developers are itching to
expand their interests into her long-overlooked
neighborhood which sits adjacent to the famous theater
district. That makes Rockafellow nervous enough. But
now, residents say, a City Planning proposal choked in a
"save-the-theater" rallying cry promises to dismantle a
neighborhood and spike a community known for its
affordable, low-rise walk-ups with expensive high-rises.

"We have lived there, we have made it a nice
neighborhood. We have been left out," Rockafellow told
city planners explaining the proposal at last week's
Community Board 4 Clinton Land Use and Zoning Committee
meeting. "It's called fascism. It's about corporate
mentality. It's not about community."

In what has arguably been the biggest year for Broadway
in years, City planning is aiming to "save" the Great
White Way by allowing theater owners to transfer the air
rights above their landmarked theaters to a variety of
sites, five of which are located west of Eighth Avenue
in the Special Clinton District.

The proposal involves a rezoning of this protected
district's perimeter, a move that will allow larger
buildings to be constructed there. The hope is that it
will ensure the longevity of Broadway theater while
providing a planning strategy and urban design controls
for Eighth Avenue.

One recipient of this move is the Broadway Initiative, a
public-private partnership comprised of unions, guilds,
individual artists, producers, theater owners,
off-Broadway and not-for-profit theaters and the public
sector, whose goal is to strengthen the theater

But opponents contend this isn't about theater at all.
They said the plan, cloaked in good intentions, is
actually a land grab ultimately serving real estate
interests and developers with deep pockets. And an
unlikely group is speaking out against this "save the
theater" plan: members of the theater community. Many of
Hell's Kitchen residents, such as Rockafellow, who work
in the theater, are steadfastly opposed to the measure,
worried that their affordable, low-density neighborhood
would be destroyed.

Critics maintain the plan comes at a suspicious time.
Times Square is charged, coming off the biggest season
in recent history, and 60 percent of the audience is
comprised of tourists. One aim of this plan is to
address the need for large musical and theatrical
productions, the kind tourists flock to. This leaves
many residents with fiery opinions wondering what
lengths the city will go to capture the big tourist

"The Broadway Initiative is nothing more than a
pacifier. It is nothing more than a sugar coating of a
massive, greedy, ugly pill that is called 'development,"
Gilbert Annoual, who lives on West 51st Street between
Eighth and Ninth avenues, said.

Anne Zimmerman, the new coordinator of the Broadway
Initiative, said her group has not taken a position on
City Planning's zoning proposal; members were a part of
the discussions, but are still waiting to have the plan
presented to them, as is mandated by the Uniform Land
Use Review Process. It is through such presentations and
dialogues that everyone's point of view is heard, she
said. The aim of the initiative is to have a coalition
of people from all parts of the theater industry working
together to benefit the industry, city and state,
Zimmerman said. And that process has just begun. Every
new initiative, especially one with such a varied group
of people, needs time to plan and coordinate the
process, which is what is now happening, she said.

"What is really important here from the Broadway
Initiative's perspective is that after years of trying
to get the theater industry to sit down together and
coalesce on something, it's happening," she said.
"That's vital to the industry."

Still, opponents, including some of the 3,000 actors and
technicians who work in theater and live in Hell's
Kitchen, have grown increasingly vocal in the past
several weeks. They charge a document referred to as the
"Bain Report," the proof that action is needed to save
theater, has been kept secret. The recently released
report, funded in part by tax dollars, was completed in
May by the management consulting firm, Bain and Company.
Some residents even got the attention of Actors' Equity,
which has supported the Broadway Initiative.

After it was brought to members' attention that rezoning
of Eighth Avenue could negatively impact the Hell's
Kitchen community, the organization voted January 9 to
request the Council of Actors' Equity Association to
review its support of the Broadway Initiative.

But the trio of City Planning representatives who
trudged from Community Board 4 to Community Board 5 for
back-to-back presentations last week had a different
story to tell. Something needs to be done to save the
theater, Jack Goldstein, executive director of the
Theater Development Fund, said. Thirty years ago there
were 100 theaters, now there are less than half that
number. The prognosis? Unless a change was made, there
would be 10 theaters left. And that change needs to come
through rezoning because previous methods to encourage
theater have gone unused.

Through rezoning, the city will provide 24 landmarked
theaters, which have a total of 2 million square feet of
developable rights, additional options to use them for
theaters. The plan would help support and protect the $2
billion theater industry that supports 250,000 jobs,
Richard Barth, director of the Manhattan office of City
Planning, told residents last week. It further ensures
that theatrical use inside the structures would
continue, a provision that isn't secured with the
landmarking of a building. Overall, the plan would
protect the future of Times Square.

"The proposal is designed to address how to preserve
that uniqueness," Barth said.

Also, a portion of the proceeds from the sale of
development rights, $10 per square foot will go toward a
Theater Fund, which will be used for theater maintenance
and expanding the size and diversity of audience. All
members of the Broadway Initiative will be contributing
to the fund as well, officials said. However, many
weren't pleased with the proposal which was certified by
City Planning last week.

"It keeps being pitched to us as 'save the theater'
plan," Joe Restuccia, Community Board 4 member, told
city planners last week. "We are a footnote in this and
that's a problem. We really need to get you guys to
understand this."

Throughout the discussions that have wound their way
through the community, much blame has fallen on the
shoulders of the Giuliani administration and the
expanding interests of Times Square theater district.
But Suany Chough, a representative from the Times Square
BID said at the full Community Board 4 meeting that her
organization was a surprised as the Hell's Kitchen
community by this plan. Christine Tripoli, assistant
director of marketing, said the Times Square BID Board
had not discussed a position about the rezoning proposal
or the Broadway Initiative, and wouldn't have one until
the end of April. The mayor's office was unable to
comment by press time.

While the proposal would overlay the Theater Subdistrict
on the Clinton Special District, affecting 150 feet west
of Eighth Avenue from 42nd to 57th streets, it would not
alter the special district areas, Barth said.
Anti-harassment, anti-demolition and affordable housing
measures would remain. It would provide design controls
for the avenue, which don't exist now, such as having
buildings flush with one another to create a "street
wall." But its that 150 feet of the Clinton Special
District perimeter which is perceived by residents as
the foot in the door to the area.

What's at stake for the approximately 45,000 residents
of Hell's Kitchen is nothing short of protecting their
way of life. According the the Clinton Special District
Coalition, there are over 29,000 renters in the area,
whose median renter income is $19,389. Over 80 percent
of the residents have household incomes of less than
$50,000 and about 22 percent of households are below
poverty level. This is an affordable neighborhood that
hasn't gentrified. It doesn't have the artsy glam of
SoHo or the polished feel of the Village; it's more
relaxed and no corporate neon signs have been put up. At
least not yet. Residents are afraid of being melded with
Times Square through zoning and losing their community's
familiar feel, local shops and affordable living.

"What you are saying is that by expanding the theater
district, you are taking part of the Clinton District
and saying it is no longer Clinton," John Fisher,
Community Board 4 member, told Barth last week.

To protect the neighborhood from encroaching developers,
a group of residents, block associations and tenant
groups last year organized the Clinton Special District
Coalition. The group, headed by Fisher, continues to
mount opposition to Eighth Avenue's rezoning by
explaining the issues at community meeting and
disseminating its view on the Web. Members maintain its
wrong to put a false face on this plan, pitting theater
interests against a community made up of many connected
to the arts.

"There are serious questions whether or not this is the
correct mechanism to advance the needs of theaters and
the workers of the theater craft," Fisher said.

The issues pose serious concerns for Hell's Kitchen
residents. Critics have said the affordable housing
bonus dangled in front of developers is rendered
ineffective because other more attractive bonuses are
added. The transferring of theater development rights
will become an "as of right" move, meaning it will not
be subject to community review. Residents are worried
that this will not only give developers the mandate to
build high-rises throughout the Clinton Special
District, but that it will set a precedent for the
city's other low-density, low- to moderate-income areas.
On this front, Pat Dolan from the Queens Civic Council,
a coalition of 85 neighborhood organizations in the
borough, said that if this occurred in one part of the
city, it could happen to others.

"We have concerns that the effect is to short circuit
the community review process," she said.

Saundra R. Halberstam, a screenwriter and president of
the 49th/50th Street Block Association, said the
rezoning is a sweet proposal for theater owners, but
it's the Hell's Kitchen community that will bear the
brunt of this deal. One recent afternoon on roof of her
five-floor walkup on 50th Street between Ninth and Tenth
Avenues she showed how. Gazing across the stubby
landscape of walk-ups, peppered here and there with
affordable housing towers, she said this flat, quiet
picture would drastically change if the area were
rezoned. This is where many in the theater call home. In
her building alone, every tenant is involved in the

"If all these folks can't afford to live here, how will
the theater survive?" she asked.

One of those folks is Annoual, a company manager, stage
manager and producer. Since moving to the United States
from France 20 years ago, he said he found the same type
of community he left in Europe. In Hell's Kitchen, he
became a part of a neighborhood where people know each
other and shop owners have been mainstays of the
community fabric. The neighborhood has long supported
theater, he said, but the plan to rezone Eighth Avenue
and permit the transfer of development rights is not a
move to benefit the theater, but the theater owners. In
the end, it's a massive real estate deal, he said.

"Clinton/Hell's Kitchen is the last place on this island
that hasn't been developed. It's the last neighborhood.
This is it," he said.

Lucy Bradley, who resides on 51st Street between Ninth
and Tenth avenues, said she was scared at how the
neighborhood that she and her husband have lived in for
five years could change.

"If you walk up and down [Eighth Avenue], you'll look at
a whole different range of shops," she said. "Mom and
Pops literally still run. If this gets overdeveloped,
these places will be run out and that's a shame."

But it's not over yet, residents maintain. This is an
issue that has galvanized the community. Nancy Kyriacou,
housing conservation coordinator of the Clinton Special
District Coalition, said residents are pulling together
to protect their neighborhood.

"It's like the old days when everybody came out," she

The group is planning to let people know what residents
are facing in Hell's Kitchen. Members are planning to
show up at a Times Square BID meeting this week and
there has been talk of showing up at mayoral
appearances. Regardless, many of the players in this
issue will be hearing from the Clinton Special District
Coalition, Fisher said.

"They don't call it Hell's Kitchen for nothing," he
said. "It's hot here and Giuliani's going to see what
people from Clinton are like."


Hell's Kitchen Online
Backstage and NY Observer articles on Hell's Kitchen/CSDC

Residents Oppose Eighth Avenue Rezoning 
Clinton Denizens Argue Plan Benefits Developers, not Theatre 
By Robert Simonson
Backstage, January 23, 1998

The battle over the future of Eighth Avenue has begun. Residents of the the
Clinton/Hell's Kitchen neighborhood have branded the city's recently
revealed plan to rezone the avenue as potentially disastrous to the
neighborhood, also claiming that the proposal has been devised more for
real estate interests than for its ostensible beneficiary, the theatre

Hell's Kitchen's residents and members of the Clinton Special District
Coalition (CSDC) packed to a recent meeting of Community Board 4 on Jan. 4,
and voiced their objections to the city's plan to aid the theatre industry
through the sale of theatre air rights to nearby developers. Under current
zoning laws, a Broadway theatre owner can sell its air rights only to an
adjoining or opposite property. The new proposal would allow real estate
developers desirous of building on Eighth Avenue to exceed current zoning
laws by purchasing development rights from a nearby theatre. The benefiting
theatre owner would then be required to deposit a portion of that income
(specifically $10 per square foot of space sold) to a Theatre Fund. The
Broadway Initiative--a coalition of theatre labor and management--would
have access to this fund, using it for, among other things, the inspection
and enforcement of theatre maintenance, and the development of new plays
and small musicals for the Broadway stage.

The CSDC--which was formed in April 1997 when talk of the rezoning plan
began--does not, however, believe the city's plan has the theatre's welfare
at heart.

``I understand the difficulties the [theatre] business goes through,'' said
CSDC spokesman John Fisher, ``but this whole thing was a carrot that was
dangled in front of the theatre [community] so the city could develop
Eighth Avenue. They found that the goals of the Broadway Initiative fit in
with their intentions.''

Fisher contends that the Clinton neighborhood is a testing ground for the
way in which development rights may soon be used throughout the city.
``This is a citywide issue,'' he charged, ``not just what's happening here
on Eighth Avenue... Up until now, [development rights] have been about an
adjacent building or something in a very narrow area. Now they're opening
it up into a very wide area.''

Richard Barth, the director of the Manhattan Office of City Planning,
disagreed, saying the new zoning plan was not conceived with developers in
mind, but was only the latest example of the city's long-standing interest
in the area. ``For the past 30 years, since the theatre subdistrict was
created, the city has made a conscious effort to treat this area
differently, to address the problems in the theatre industry and the
area,'' said Barth. ``This proposed plan is specifically geared toward
those problems. This is something that goes back 30 years.''

A Failure to Communicate A major bone of contention between community and
city leaders has been the level of communication. The CSDC claimed the
rezoning plan was devised without ``meaningful community consultation.''
Fisher said that, contrary to previous zoning issues, he had to piece
together the details of the Eighth Avenue proposal through newspaper
accounts and hadn't seen the text of the plan until two weeks ago.

``The details of the plan and opportunity for meaningful input was
completely absent,'' said Fisher. While admitting that there had been
meetings with the city before the plan's unveiling, he said, ``The
information was vague. There were no details. There was no room for
consultation and negotiation.''

Barth responded that specific information on the proposal was provided at
the Jan. 4 Community Board 4 meeting, but that ``to some extent, people
came not to listen, but to put forth a point of view.'' He added that the
review process is six months long and, ``There is no set method for putting
forth a proposal.''

Opponents of the rezoning say that, if passed, the city's plan and the
opportunities it would create for significant development along the avenue
could have a devastating effect on the neighborhood, driving up rents and
altering the character of the area. Fisher said he had already seen the
effects of increasing real estate speculation. As an example, he cited the
Longacre Hotel, a single room occupancy (SRO) residence in a neighborhood
known for its SROs. According to Fisher, many people were forced out of the
hotel over the past year, and that the building, now called the Alladin
Hotel, has been remade as a youth hostel and ``tourist trap,'' thus robbing
the neighborhood of over 100 housing units. In other changes, Eighth
Avenue's Camelot diner and Acropolis Restaurant have recently closed,
making way for a Ranch 1 fast-food outlet and a souvenir shop, respectively.

He also questioned the viability of the Theatre Fund, saying it was not
likely that the fund would collect its projected income of $20 million from
the sale of theatre air rights; and that the cost in property development
on Eighth Avenue would far outweigh the potential benefits in play

1998 Back Stage


Developers Plot to Buy Air;
Hell's Kitchen Fights Back
New York Observer, January 26, 1998

First, they changed the name from the hard-bitten "Hell's
Kitchen" to the more yuppie-friendly "Clinton." Then, they zoned
the porn shops and the perverts and the two~bit hangers-on out
of Times Square and points west. Oh, the plan is coming together
now. Next up: Eighth Avenue-you know, that seedy strip of cheap
clothing store and hole-in-the- wall trinket shops and Irish
bars (yes they still exist in midtown)---where skyscrapers will
rise like falling dominoes in reverse.

How do we know this? Clinton's residents said so at Community
Board 4's meeting on Jan. 7, and they don't like what they're

In a show of protest marked--or perhaps marred--by dramatic
flair worthy of the theater district, around 35 Clinton
residents rose to their feet in silent protest during the
meeting's public session. Many of them clutched orange signs
saying: "Don't let developers steamroller Clinton-Hell's

Why the outcry now? Well Mayor Rudolph Giuliani recently
unveiled plans to allow Broadway's theater powerhouses--
particularly the Shubert, Nederlander and Jujamcyn
organizations--sell the "airspace rights above their roofs. Even
air costs money in this city.) The plan would allow 25 area
theaters--many of which are landmarked, meaning they won't he
expanding upward any time soon--sell a total of 2 million feet
of air rights to developers. City planners have reportedly
identified some 22 sites, mostly along Broadway and Seventh and
Eighth avenues, that could buy the air rights, allowing them to
build taller, denser towers.

According to Variety magazine, going office space rates in the
area average $50 a square foot, so the plan is a boon to any
developer who might he feeling his or her growth stunted of late
by various midtown zoning restrictions.

Mayor Giuliani has touted his plan as a way to boost the city's
theater industry. But isn't it really just a real estate swindle
cloaked in highfalutin talk about arts and culture? Isn't it a
gift to tycoon developers salivating at the prospect of
expanding midtown's business core out to Eighth Avenue?

Yes, asserted Clinton residents at Board 4's meeting. They fear
rising real estate values will lead to conversions of rental
buildings into condominiums, the closing of beloved mom and pop
shops and other oft-welcomed ripple effects of gentrification.
(Board 4 didn't vote on the issue, pending a public forum it has
scheduled along with Board 5 for Feb.5.)

"We see this as nothing more than a massive real estate deal,"
local resident Gilbert Annoual told the meeting.

"It's midtown expansion," local resident John Fisher told The
Observer. "It's very much like when America expanded West."

Oh, come on, aren't our fears overinflated just a tad? Of
course, the Mayor's sole aim is to help the theater industry.
After all, his affection for the stage is well known. Theater,
he has said, "defines the soul" of the city. And isn't he an
opera buff? And hasn't he been a thespian in recent months on
Saturday Night Live and elsewhere?

The Tenant Network for Residential Tenants
  NYTenants Interactive:
  NYTenants Express:
  NYtenants Discussion List: email to  and in 
  the body of the message put "subscribe nytenants".
Information from TenantNet is from experienced non-attorney tenant 
activists and is not considered legal advice.

Date: Sun, 25 Jan 1998 08:40:49 -0500
Subject: Attn: Actors Equity Members (tenants and non-tenants)


At the January 9 Eastern Regional Membership meeting, a motion passed 53 to
1 (with 4 abstentions), asking Equity Council to rescind its support of the
Eighth Avenue Zoning until the details (which are just now beginning to
emerge) can be fully investigated.

  Actors’ Equity Association
  Special Council Meeting
  Tuesday, January 27th at 1:30 PM
  14th floor, Equity Building
  165 West 46th Street
  Open to all AEA members 
  call the Audition Center at 869-8530

Equity Council will consider if Actors’ Equity should withdraw its support
for the Eighth Avenue Rezoning that allows the Air Rights of Broadway
theaters to transfer to the west side of Eighth Avenue so developers can
build bigger and taller buildings in the Clinton neighborhood.

   ...opponents contend this isn't about theater at all. 
   They said the plan... is actually a land grab... 
   serving real estate interests and developers with 
   deep pockets. And an unlikely group is speaking out 
   against this "save the theater" plan: members of the 
   theater community. Many of Hell's Kitchen residents... 
   who work in the theater, are steadfastly opposed to 
   the measure, worried that their affordable, low-density 
   neighborhood would be destroyed.
        --- Manhattan Spirit, Jan. 22, 1998


How many shows will be produced, how many actor work-weeks will result from
the air rights transfer? How many theaters will really be built? Can owners
get out of the requirement to use theaters as theaters?

Will it be cash or other contributions? Will it affect dues? How many know
what this is all about? Are politicians and real estate developers trying
to use the theater community to break the barrier into the Clinton Special

Will housing become more expensive? Will small stores be run out of the

How much money will come to the Broadway Initiative from the Air Rights
from 8th Avenue? Are those benefits worth the cost to Clinton or should the
cost be borne by the entire city? Will this affect other parts of the city?
Can the goals happen without the money from the air rights?

There are inches of legal documents and, at the very least, should Equity
find out the specifics of what it is getting into? Should theater be in the
real estate business or politics?

Clinton Special District Coalition
Clinton Should Remain the Home to Artists — not Midtown overflow

The Tenant Network for Residential Tenants
  NYTenants Interactive:
  NYTenants Express:
  NYtenants Discussion List: email to  and in 
  the body of the message put "subscribe nytenants".
Information from TenantNet is from experienced non-attorney tenant 
activists and is not considered legal advice.

Date: Sun, 25 Jan 1998 18:57:13 -0500
Subject: News article: New Ruling On Eviction Procedures

We clipped this from today's New York Times (in case you missed it)

New Ruling On Eviction Procedures
New York Times, January 25, 1998

Jennifer Lynn Romea recalls spending the 1996 New Year's Eve alone in her
Manhattan apartment, out of work, four months behind in her rent and
wondering how things could possibly get any worse. Then a process server
slipped a notice under her door saying she must pay the rent in three days
or vacate the premises.

"Needless to say," said the 28-year-old Ms. Romea, "I was pretty ticked off."

So irritated, in fact, that she is now a plaintiff in a federal lawsuit
inspired by that notice. In her suit Ms. Romea, a former debt collector,
charges that her landlord's lawyer, who signed the notice on behalf of the
landlord, violated the federal Fair Debt Collection Practices Act. Among
other things, the act requires debt collectors to inform debtors that they
have 30 days to contest a debt -- something a three-day notice clearly
fails to do.

Last month, rejecting a motion to dismiss the case, a U.S. District Court
judge in Manhattan ruled that a rent demand made by a lawyer on behalf of a
client makes the lawyer a debt collector subject to the federal law.

"It is not without some discomfort that the court reaches this conclusion,"
wrote Judge Lewis Kaplan in his Dec. 22, 1997, opinion. Nevertheless, he
said, the "unambiguous" language of the federal statute compelled him to
apply the law as he did. And that, Kaplan observed, "will have a
significant effect on New York's statutory scheme for the fair and
efficient resolution of landlord-tenant rent disputes."

Lawyers in the case say that the decision, which is being appealed, may
create some problems for landlords in Housing Court if lawyers representing
tenants in similar situations use it to seek to have those cases dismissed.
While it is unclear whether such motions will be successful, the lawyers
say, it is likely that the issue will ultimately have to be resolved by the
appellate courts, a process that could take years.

Moreover, they say, the decision opens the door for tenants who have been
served with three-day notices signed by individuals other than the landlord
to sue the signers for damages for up to one year after the notice was

"There are a lot of vulnerable lawyers out there," said Colleen McGuire, a
Manhattan lawyer who represents Ms. Romea. "And we're putting together a
case now against a management company that signed three-day notices."

Ms. McGuire, who specializes in representing tenants, explained that the
Fair Debt Collection Practices Act was a "strict liability" statute,
meaning it does not matter whether someone who violates the law intended to
do so or was acting in good faith. Violation of the law, she said, can
result in a damage award to the plaintiff of up to $1,000, plus payment of
the plaintiff's reasonable legal fees.

And while $1,000 may not seem like a lot of money in an individual case,
Ms. McGuire pointed out, some lawyers and managing agents issue thousands
of three-day notices each year, making them prime targets for class-action

Ms. McGuire said that under state law, before an action for nonpayment of
rent can be filed, a tenant must be served with a notice giving the tenant
no fewer than three days to pay all rent due. If payment is not made, the

In contested cases, the matter is set for trial. If the tenant loses, he or
she has five days to pay the judgment in full, after which time a warrant
can be issued to a city marshal who then gives the tenant 72 hours to
vacate the premises.

Ms. McGuire said that if all communications are between the landlord and
the tenant the federal law does not apply. But, she said, if someone other
than the landlord attempts to collect the unpaid rent, that individual is
considered a debt collector and must give the tenant 30 days to dispute the

Lawyers who represent landlords disagree. "The statute is designed to deter
and punish abusive debt collection practices," said Janice DiGennaro, a
Uniondale, L.I., lawyer who represented the defendant in Ms. Romea's case.
"It was never intended to impair a creditor's remedies."

In a motion to dismiss the case against her client, Heiberger & Associates,
Ms. DiGennaro argued that unpaid rent is not a "debt" covered by the
federal statute because it does not involve the extension of credit.
Moreover, she said, the three-day notice is not a "communication to collect
a debt" -- but a legal document required by state law.

Judge Kaplan, apparently with reluctance, rejected both arguments, pointing
out that even though it appeared that Congress did not anticipate that the
law would be applied to such cases, the clear language of the law, he said,
"affords no basis to carve out an exception to the statute's applicability."

Paul Klein, a retired Housing Court judge, said that Kaplan's legal
reasoning would be difficult to attack on appeal. "Even if this is not a
result Congress anticipated, it's the result you get," said Klein. "When
the language of a law is ambiguous, you can interpret legislative intent.
But when the language is clear, there's nothing to interpret."

Klein said the easiest way for lawyers and managing agents to avoid
problems was to make sure that the landlord (or, in buildings owned by
corporations, a corporate officer) issues the necessary notices.

But even that may not be as simple as it sounds. "Some owners live out of
state, some go on vacation, some go out of town," said Alan Kucker, a
Manhattan lawyer who often represents landlords. "That's why they hire
lawyers and managing agents."

The Tenant Network for Residential Tenants
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  NYtenants Discussion List: email to  and in 
  the body of the message put "subscribe nytenants".
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activists and is not considered legal advice.


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