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In this issue...
1. Tenant Phone Solicitations
2. A reader's view on the lead issue
3. When it comes to Astoria, Vallone has concerns on Lead (Newsday)
4. City-Wide Task Force on Housing Court seeks Executive Director
5. Loft Law to be Renewed in new Budget Deal (Post)
6. Recent New York Times Real Estate Q & A
7. From City Limits
- You can't stay at this YMCA: 23rd Street Y to close, Evict 40
- Romea Redux, Tenants Lose
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Tenant Phone Solicitations
We've received complaints and inquiries about ongoing phone solicitations
from New York State Tenants and Neighbors (NYSTN). TenantNet has no
association with this group or these solicitations. As we've indicated
before, our opinion is that this group and its leadership has had a
long-term damaging impact on tenants rights and there have been numerous
questions raised about its financing.
We do not recommend that you donate to this organization.
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A reader's view on the lead issue
From: Thomas Vitullo-Martn
Date: Thu, 15 Jul 1999 12:05:21 -0400
How about having a letters column in this newsletter, where letters of
comment can be posted by topic. For example, your headline slant on NYLJ
and expert testimony is incorrect. The changes in the principles of
adjudication are a fact, and tenant plaintiffs should follow them if they
intend to succeed. The article is a good review of the current rules.
It is not clear that these rules will disadvantage plaintiffs. The
scientific studies on the damaging effect of lead on development, or on
weakened immune systems or neural systems, is substantial. The plaintiffs
have this connection on their side. Eliminating junk science from a case
should help them, given competent counsel.
Further, the conclusion that the new lead law lets landlords off the hook
is, I believe, wrong. The landlord is required to inspect each year, and
to remedy problems he finds. How the landlord carries out his
responsibility is left to him or her. If the landlord certifies the
condition of the lead paint in the apartment is not dangerous--i.e. not
damaged, flaking, peeling, or dusting or otherwise deteriorating in such a
way that it posses a health hazard to children--and in fact the conditions
are dangerous, the landlord has forfeited any claim of ignorance of the
condition, and added a factor of recklessness, and possibly deliberate
actions that would harm, to the plaintiffs claims in a tort action. By
taking on responsibility, the landlord does not avoid the consequences of
responsibility.
---
TenantNet responds: Our headline 'slant' was not meant to indicate the
contents of the article were necessarily erroneous; rather that the NYLJ
(as much of NYC media) takes a decidedly pro-landlord viewpoint. This
article was a "how-to" on escaping lead liability. The reader's conclusion
that a landlord is still liable under the new law ignores the real-world
reality of code enforcement. Aside from inspection staff ranks at
ridiculous levels, one essentially can't get a non-heat inspection during
heat season (six months of the year). Self-certification is a well-known
invitation to lie as there's no downside. The city does not prosecute
except in rare media-driven egregious cases. That tenants may have a tort
action ignores the fact that most tenants can't afford attorneys.
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Newsday reports on Vallone's Lead concerns
Newsday, July 28, 1999
by Alfonso A. Castillo
Council Speaker Peter Vallone has raised concerns about a New York City
Transit plan to remove lead paint from a large section of the N subway line
in Queens.
"I certainly don't intend ... to allow this project to spread toxic lead
dust throughout the area," Vallone (D-Astoria) said in a letter written
Monday to John Cummings, project Manager for TAMS Consultants Inc., a
company hired to prepare documents for the project.
Vallone's concerns follow a paint removal project on the Triborough Bridge
three years ago. Area residents complained about paint particles blowing
onto cars and nearby residential areas. The paint was sanded off the bridge
but not properly encapsulated, Vallone said. "The Astoria community was
unnecessarily damaged because of poor safety protocols, and I certainly do
not intend to let this happen again," Vallone said.
Officials with MTA Bridges and Tunnels have said the paint removed in the
1996 project did not contain lead. The planned project on the N line,
however, does specifically involve the removal of lead paint from an
approximately two-mile-long steel structure extending from the intersection
of Northern Boulevard and 41st Street to the Ditmars Boulevard station. In
a letter to Vallone, Cummings said the "the project area is considered
environmentally sensitive due to the immediate proximity of residential
buildings to the structure."
TAMS contacted Vallone requesting his input on the project, which it would
hope to begin in February of next year and conclude the following April.
Vallone has requested meeting with New York City Transit consultants,
elected officials, Community Board representatives and civic leaders to
discuss the project. Vallone told Newsday he "wants to make sure the
Transit Authority does this in the best possible manner." Vallone said he
understands the project to replace the paint on the N line is necessary,
but hopes New York City Transit will find a "21st Century solution" to
solving any safety issues.
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City-Wide Task Force on Housing Court seeks Executive Director
The City-Wide Task Force on Housing Court, Inc.
29 John Street, Suite 1108, New York, New York 10038
(212)982-5512 phone (212)982-3036 fax
Job Announcement: Executive Director
The City-Wide Task Force on Housing Court, a non-profit New York City-based
housing advocacy organization established in 1981, has opened a search for
an Executive Director. The position will
be available in October.
Responsibilities:
* working closely with the Board of Directors to implement on-going programs
and to develop strategic plans for future programs;
* supervising the Task's Force's programs including the Housing Court
Information Table Project;
* work with assistant director in supervising a staff of five borough-based
Coordinators
and additional support staff;
* preparing administrative, legal, and fiscal reports and statistics as
needed;
* maintaining contact with government (State & City) and private funding
sources
and filing reports as contractually required;
* fund-raising and grant-writing;
* promoting activities consistent with the organizational mission of the
Task Force to provide pro-se litigants access to justice in NYC's Housing
Court,
promote court reforms that address the need for balanced, fairer procedures
that prevent
homelessness and evictions and increase the enforcement of housing
maintenance codes.
Qualifications:
Candidates must have supervisory and administrative experience; excellent
grant-writing and fund-raising skills; experience in board development and
program planning; ability to organize around policy issues, preferably
housing, court reform, eviction prevention or related areas.
Salary: $43,000+ depending on experience plus benefits.
Send resume with cover letter by August 27, 1999 to:
Att: Search Committee
City-Wide Task Force on Housing Court
29 John Street , Suite 1108, New York, New York 10038
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LOFT LAW TO BE RENEWED IN NEW BUDGET DEAL
By FREDRIC U. DICKER
New York Post, August 2, 1999
SOME 10,000 Manhattan rent-regulated tenants will get a reprieve this week
when the Legislature and Gov. Pataki agree to renew New York's 17-year-old
Loft Law.
Sources told The Post yesterday that an "understanding" reinstating the
Loft Law, which expired June 30, has been reached by Assembly and Senate
negotiators, who are expected to wrap up a state budget deal as soon as
tomorrow.
"It's going to be part of the final package. The Loft Law will be renewed
this week," said a senior legislative official.
The Loft Law was passed in 1982 to legalize the then-widespread practice of
illegally converting commercially zoned downtown lofts into residences,
many of which were occupied by artists.
The law required owners to provide minimum services to residential loft
dwellers, and tenants were granted rent-control-like protections against
steep rent increases.
The Republican-controlled Senate refused to renew the Loft Law when it
expired this summer because of the budget stalemate, and the
Democrat-controlled Assembly has retaliated by refusing to approve several
bills sought by the GOP.
Insiders said they expected the Loft Law to be renewed for four years.
The overall budget deal - for the fiscal year that was supposed to begin
April 1 - will be $74 billion, $1.1 billion higher than the budget
initially sought by Pataki.
The governor is urging the Legislature to pass the budget package no later
than Wednesday - which would tie the all-time late-budget record from two
years ago.
Pataki's concern is understandable: He pledged when he first ran for
governor in 1994 to end the long string of late budgets that occurred under
his predecessor, Mario Cuomo.
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Recent New York Times Real Estate Q & A
A Noisy Restaurant Downstairs
06/06/99
Q: My rent-stabilized apartment shares an air shaft with a restaurant on
the ground floor of my building. Recently, the old proprietors moved out
and the new tenants are now using the air shaft as a patio, leaving the
back door of the restaurant open so that the music and noise from the
indoor patrons blends with the loud talking of those outdoors. I can no
longer read, sleep, or hear my television between 8 P.M. and midnight. Do I
have any recourse?. . . Pam Shoemaker, Manhattan.
A: Ilyse Fink, a spokeswoman for the New York City Department of
Buildings, said that for the restaurant to use the outdoor space as a
dining area, the use would have to be included on the certificate of
occupancy.
She added that if the letter-writer contacted the department, the matter
would be investigated to determine whether the use of the outdoor area is
permitted under the existing C. of O. If not, she said, the department can
order the restaurant to stop using the space for patrons.
Jeffrey Ween, a Manhattan landlord-tenant lawyer, said that a complaint
could also be filed with the Department of Environmental Protection under
the city's Noise Ordinance.
If the department finds that the noise from the restaurant exceeds
allowable levels, it can order the restaurant to cease the activity
creating the noise. It is also possible, Mr. Ween said, that the noise from
the restaurant violates the tenant's "warranty of habitability."
The warranty of habitability, Mr. Ween said, requires the landlord to
maintain the premises free from any condition that would constitute a
danger to occupants' life, health or safety. And several courts, he said,
have held that excessive noise can be considered a violation of the
warranty of habitability.
Mr. Ween added that since the warranty of habitability extends from the
landlord to the tenant, it is the landlord's responsibility to take
whatever steps are necessary to eliminate the problem — including
bringing an eviction action against the restaurant.
If the landlord fails to take action, Mr. Ween said, the letter writer can
withhold rent — thereby forcing the landlord to initiate eviction
proceedings — and then raise the defense of breach of the warranty of
habitability.
The tenant can also file a complaint in the housing part of Civil Court and
request a rent abatement, or the tenant can file a complaint with the
Department of Housing Preservation and Development, which can impose a fine
against the landlord and order him to take steps to resolve the problem.
The tenant can file a complaint for nuisance against both the landlord and
the restaurant owner in Civil Court. If the tenant wins, the court can
order the payment of damages to the tenant and an end to the noise.
A Washing Machine In Co-op Apartment
Q: My co-op consists of six pre-war buildings. When I bought my apartment
I was told I could not install a washing machine. I have since learned that
there are washing machines in many of the apartments occupied by rental
tenants. When I asked about this, I was told that the previous owner of the
building had given permission to the tenants to have the machines. Does
this "grandfather protection" mean anything today? . . . Ann Gill, Jackson
Heights, Queens.
A: Sheila S. Zeitz, a Manhattan real estate lawyer, said that regulations
governing the installation and use of appliances in co-op apartments are
usually contained in the house rules, which are themselves incorporated by
reference in the proprietary lease. Any "grandfather protection" for
existing appliances, Ms. Zeitz said, should also be documented in the house
rules or proprietary lease.
Generally speaking, she said, house rules apply to all residents and must
be enforced uniformly. Under certain circumstances, however, a board may be
precluded from applying new rules retroactively even without specific
"grandfather protection." For example, she said, tenants or shareholders
who had washing machines in their apartments prior to the adoption of a
rule prohibiting them would likely have the right to keep them.
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CITY LIMITS WEEKLY
An update from New York's Urban Affairs News Magazine
Week of July 12, 1999, Number 185
YOU CAN'T STAY AT THIS YMCA: 23RD STREET Y TO CLOSE, EVICT 40
The McBurney YMCA on 23rd Street has offered plain, cheap single rooms to
both low-budget travelers and longtime New Yorkers since 1904. But the
ornate eight-story building will be shuttered for good this fall, leaving
the Y's approximately 40 long-term tenants with nowhere to go.
James Kirschner, the McBurney Y's executive director, explained that when
the Y began interior demolition as part of a $3 million renovation project
last year, workers discovered some serious problems. The aging building
would need an extra $15 million dollars' worth of work to fix its plumbing
and wiring--so YMCA management decided to sell off the building.
"I don't have the slightest idea where I'll go," said Robert Bryan, a
20-year resident. Bryan, 73 and on a fixed income, said he probably won't
be able to afford rent anywhere else in the city-under rent-control laws,
he's been paying nearly the same rent since the 1970s.
The McBurney YMCA has contracted Lutheran Social Services, an agency that
provides foster care for children as well as supportive housing for adults,
to help tenants relocate. Lutheran executive director Dr. Russell Norris
said that social workers will find the tenants appropriate housing.
But some of the buildings' longest-term tenants could throw a wrench into
the Y's plans. Terry Poe of the West Side SRO Law Project pointed out that
tenants who moved into the Y before 1971, when New York's rent control act
was passed, cannot be turned out of the building even if it is sold or
closed for renovation. They could make the process of selling the building
much more difficult if they dug in their heels.
Bryan, for example, certainly doesn't want to go. "I would like to stay,"
he said. "Everyone knows me, in the restaurants, in the stores. People say
hello, good morning when they pass me on the street."
Unfortunately for Bryan and his neighbors, they are bucking the
neighborhood trend. The McBurney, across the street from the shabby-genteel
Chelsea Hotel, sits in the middle of an increasingly fashionable
neighborhood where upscale restaurants proliferate. Just down the street,
women's clothes boutiques like the Chelsea Atelier rub elbows with spots
like a decrepit leather-goods store known only as "Every Item Only $10!"
Across 24th Street from the YMCA residence's entrance, a federal office
building is being remodeled into luxury condos.
But everywhere, it's getting more difficult to hang out with all the boys.
Kirschner explained that over the past 30 years, YMCAs across the country
have been getting out of the single-room occupancy business. In New York
City, aside from McBurney's 220-unit facility, only the West Side and
Vanderbilt YMCAs still run residences.
Single-room occupancy buildings are approaching extinction throughout New
York City, said Elizabeth Kane of the West Side SRO Law Project. She
estimated that over the past 35 years, New York has gone from 165,000 SRO
units to 40,000. "They're disappearing at an alarming rate," Kane said.
--Amanda Bell
ROMEA REDUX, TENANTS LOSE
Last week, a panel of three state Appellate court judges handed down a
surprise decision that stripped the teeth from a relatively new tenant
defense. Contrary to a recent federal court decision, the judges held that
the federal Fair Debt Collection Practices Act wasn't intended to apply to
tenant-landlord disputes, after all.
The decision dismayed tenant advocates, who were jubilant when the U.S.
Court of Appeals decided last December that because landlord lawyers were
in the business of collecting unpaid rent, they were essentially little
more than debt collectors. Therefore, said the judges in Romea v. Heiberger
& Associates, eviction cases should be regulated under federal debt
laws-which, among other things, gives debtors the right to a 30-day written
notice to dispute the claim. (Under housing law, tenants are entitled to a
mere three days notice.)
Under the federal decision, tenants hauled into Housing Court with court
papers drawn up by a landlord lawyer could have their cases
dismissed-although smart landlords get around the rule simply by making
sure to sign and deliver the court documents personally, without legal help.
Now, the federal decision will no longer hold in the Second Department of
the Appellate Court's jurisdiction, which covers the boroughs of Brooklyn,
Queens, and Staten Island.
"I was a little surprised by [the decision]," said dejected Legal Aid staff
attorney Derek Dalmer, who represented the tenant in the case. "In fact, I
was a lot surprised by it. Part of their opinion said that if Congress had
meant to cover rent demands [in the Fair Debt Collection Practices Act], it
would have been in the act already, which is ludicrous: why would Congress
list every type of notice to be covered? It's a very bad decision." The
Legal Aid Society plans to appeal, and a similar case pending before the
First Department of the Appellate Term also may go the other way.
But ultimately, point out tenant advocates, the fate of the Romea decision
may not make that much of a difference to the great majority of tenants who
must brave Housing Court without a lawyer, since few self-represented
tenants know to use the federal fair debt law defense.
--Kathleen McGowan
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In this issue...
1. Your Landlord's Dick (Lobbia, Voice)
2. A 'Tenants Bible' May Lead Readers Astray (Lobbia, Voice)
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Your Landlord's Dick
Building owners hire spies to win evictions
Village Voice, July 28 - August 3, 1999
by j. a. lobbia
Just before midnight on March 20, 1998, Richard Hughes answered a knock at
the door of his Manhattan apartment. Outside were two men who claimed to
work for Cigna Group Insurance. They told Hughes they were investigating a
trip-and-fall that had occurred two flights below Hughes's third-floor
apartment. Given the late hour, Hughes thought the visit odd.
Odder still were the investigators' questions, which quickly strayed off
the accident and became increasingly personal. Did Hughes live alone? Did
he have a home elsewhere, they wanted to know. The situation ended even
more curiously, says Hughes, when one investigator handed him a card. It
was from Beau Dietl & Associates, the detective agency owned by a
flamboyant and headline-hungry former New York City police detective.
It was then that the situation began to make sense. Hughes, a
rent-stabilized tenant paying $381.86 for his one-bedroom Inwood apartment,
has a history as a tenant leader and overall pain in the backside of his
landlord, A. Richard Parkoff. Hughes figured that Parkoff had hired a
private dick in the hopes of finding the 56-year-old tenant engaged in some
action that could get him evicted, like subletting without Parkoff's
permission, or not using his rent-stabilized apartment as his primary
residence. Indeed, this May, Parkoff's Apar Realty Co. made both those
claims in an eviction suit it filed against Hughes.
"It's his dream that I don't live here, but the fact is, I do," says
Hughes, who is preparing for an August deposition. "This is simply a
retaliatory eviction." Parkoff did not return calls, and both his manager
and attorney declined to comment on the pending case. Dietl says his agents
may well have been working for Cigna, although Cigna told Hughes they were
not.
A late-night visit from dubious insurance agents is just one example of a
growing practice among New York City landlords: snooping on tenants. The
hot market has sent landlords of rent-regulated buildings prying into
tenants' paper trails, hiring private investigators to videotape their
comings and goings, even making deals with neighbors to spy on each other.
"If an owner believes a tenant is not living in an apartment as their
primary residence or is subletting, he might hire someone to do research on
where a tenant votes, has insurance, or whatever," says Joe Strasburg,
president of the powerful Rent Stabilization Association, the city's
largest landlord lobby. "The stakes are much higher not only because of the
market, but because of the vacancy allowance," a 1997 change in state laws
that allows a minimum 20 percent hike on vacant apartments, and
deregulation for empty apartments if rent reaches $2000. "If you can prove
your case, there's value there."
Not since co-op and condo conversions swept the city in the 1980s have
private detectives been in such demand, say investigators who work for
landlords. "In the 1980s, I used to do 10,000 tenants in one year," says
Vincent Parco who runs Intercontinental Investigations Inc., which handles
about 500 landlord-tenant cases a year. "If Harry Macklowe or Donald Trump
bought a building to co-op, every apartment they could deliver vacant was
another $200,000 or $300,000 in their pocket."
Business slumped with the recession but is humming again. Angelita
Anderson, whose Citywide Task Force on Housing Court assists tenants facing
eviction, sees at least one case a week that relies on a private
investigator. "People don't realize that yes, a landlord is entitled to use
a private detective," says Anderson. "It's just part of his building a case."
Frank Pandolfi, a former NYPD detective who makes his living tailing
tenants for landlords, owns Pan Associates, and handles about 25
landlord-tenant cases each month. He says an average case costs $500 and
takes 10 says, and usually begins with a routine hike down the paper trail:
car, insurance, and voter registrations; property deeds; and other records
that are easily and legally available. Parco, who charges about $750 for a
case, regularly installs hidden video cameras outside apartments to track
tenants' comings and goings.
PIs also use ruses, which can be legally murky. State law prohibits PIs
from practicing "fraud, deceit, or misrepresentation," but gives them wide
berth (see "Some Rules"). PIs cannot get information by falsely claiming to
represent an actual company, but Parco's firm, for instance, works around
that by setting up fake companies, usually a delivery firm, complete with
logos and stationery.
Parco, president of the Association of LegalMedical Investigative Experts,
says that phone bugging, obtaining tax returns, and getting credit
histories are off-limits. So is impersonating government or law enforcement
officials, or members of the clergy. "Anything after that is okay," says
Parco, who made headlines because he sold Carolyn Warmus of "Fatal
Attraction" fame the gun and silencer she used to kill her lover's wife.
Parco says most landlords play by the rules. A decade ago, he recalls,
owners called "who more or less said they wanted somebody's leg broken. I
joked that we charge by the leg and you couldn't afford us, but I got the
feeling that if we set a certain price, they'd probably hire us." In 1992,
Parco's firm was offered $11,000 by a Manhattan real estate executive and
his lover to kill the exec's wife in a New Jersey mall. Parco reported the
request to the Manhattan D.A.
The leg-breaking days may be over, but the desire to evict tenants—
especially those who abuse rent protections— remains strong. "There was a
time when landlords would go all-out to harass tenants, stopping heat and
hot water and even being violent," says one attorney who represents both
landlords and tenants. "But you don't see that blatant thuggishness
anymore. Landlords today are a lot more sophisticated in their methods."
Richard Hughes moved into 641 West 207th Street in March 1981 and wasted
little time in irritating his landlord, A. Richard Parkoff. By 1984,
Hughes, an actor, was one of four tenant leaders who organized a rent
strike when Parkoff tried to win a huge rent hike. And while the bad blood
between Hughes and Parkoff outlasted the rent strike— over the course of
his tenancy, Parkoff has been ordered to pay Hughes more than $8000 in rent
rollbacks— the landlord is relying on a detail from rent strike days to
evict him.
In 1983, Hughes let Vietnamese refugee Nguyen The San move in with him
temporar- ily. Hughes, a conscientious objector in the Vietnam War, ran an
agency to shelter Saigon's street children from 1968 to 1976. When Nguyen,
a friend from Saigon, came to live with Hughes, Hughes added the refugee's
name to his mailbox, along with that of his own partner, Sherry Hall.
Nguyen moved out after a year and now owns a home in Astoria; Hughes and
Hall have split up and she has moved with their teenage daughter to a
nearby apartment. But the three names— Hughes, Hall, and Nguyen— remain on
Hughes's mailbox.
Citing that mailbox, Apar Realty is alleging that Hughes is subletting to
Nguyen and perhaps others, and that he really lives either with Hall or at
Nguyen's Astoria address. The case also apparently relies on credit
information that Hughes thinks his landlord should not have.
In 1990, Vietnam jailed an economist and a lawyer who were colleagues of
Hughes's when he worked in that country; he began a campaign here on their
behalf. Hughes wrote a petition— signed by the likes of Noam Chomsky, Ted
Koppel, and Paul Newman— that eventually ran as a full-page ad in The New
York Times. But the campaign left Hughes broke, and in 1995, he declared
bankruptcy. To help tide Hughes over, Nguyen named him as an authorized
user on a credit card, creating a paper trail that Hughes believes gave
Parkoff ammunition in the eviction suit. In January, Parkoff's attorneys
obtained part of Hughes's credit report, which lists Nguyen's Astoria home
as an address for Hughes. In March, detectives visited Nguyen's home, a
call that Hughes says "spooked" Nguyen's Vietnamese wife.
"It intrigued me to find out how they linked me to Nguyen," says Hughes,
since the only obvious tie to Nguyen— a common Vietnamese surname— would
have come from the mailbox. "I know they got my credit report, and they did
not bring a suit against me until they had it. Is that legal?" Parkoff's
lawyers say they got only legally obtainable information, including
addresses, social security number, and year of birth, but no credit
history. It is illegal to obtain credit history and financial data without
a person's permission.
Also included in the case against Hughes is an affidavit by PI Pandolfi,
which says he visited Hall's building and was told by tenants that Hughes
lives there and by a postal worker that he receives mail there. Hughes says
he's been unable to find any tenants there who were interviewed by
Pandolfi, and that his regular mail carrier said he was not contacted by
the detective. Pandolfi would not comment on the pending case.
Not mentioned in the suit is the late-night visit from Beau Dietl's agents.
Dietl— a tireless self-promoter, regular on the Don Imus show, failed
Conservative congressional candidate, and partner of Woolworth Building
owner and developer Steve Witkoff— says he does work for Parkoff, but is
unfamiliar with Hughes's case. As for the detectives claiming they worked
for Cigna, Dietl says, "As far as I'm concerned, they might have been there
for them. And if he left his card saying he worked for us, he obviously
wasn't trying to hide anything."
Hughes says Cigna told him it had hired no such investigators. Says Dietl,
"It's true we do use a ruse sometimes, like a trip-and-fall case. You take
that portion of the tool away, and that's the end of the investigative
technique."
Last week, Hughes got a list of 18 categories of documents Apar lawyers
want for his upcoming deposition. "This is not a well- intentioned inquiry,
this is a landlord looking for a pretext to get a tenant activist out of
here," says Hughes, who notes that Parkoff's attorney has offered him money
to move. "It's crazy that I should be evicted, but even beyond that is the
question, Should this happen to other people? I can fight it, but what
about people who can't, who are working two jobs or don't speak English
well and just don't have time for this, don't have records going back for
years?
Attorney James Fishman, who won a federal case prohibiting the use of
credit reports to establish primary residence, says court costs can easily
hit $10,000. "A lot of tenants faced with primary residency challenges
would simply pack up and leave when they get the first letter," says
Fishman. "And the landlord gets the apartment back for the cost of a
postage stamp."
It was Halloween day in 1995 when Veronica Galati welcomed Michael Race
into her East 70th Street apartment. But the 64-year-old artist and teacher
was totally unprepared for the trickery that she says ensued, and never
imagined that it would lead to her eviction. Galati says she opened her
door to Race because her landlord, John Paravalos, told her that Race was
an inspector for the state Division of Housing and Community Renewal (DHCR)
who would accompany him to review Paravalos's repairs. But as the
conversation went on, Galati had her doubts.
"Race kept asking me about my artwork, how I do it, where I do it," says
Galati. "He'd say things like, 'If I wanted to buy this picture of Babe
Ruth, how much would it be?' " referring to one of Galati's many baseball
portraits. When he ignored her urgings to inspect a crack in the bedroom
wall, Galati says she repeat- edly asked Race if he really was from the
DHCR; she says he nodded.
Race, it turns out, was indeed an inspector, but not for the housing
agency. He is a private investigator hired by Paravalos to suss out
suspicions that Galati used the apartment solely as an art studio and
business while really living in a family home she owns in Middletown. Race
denies he presented himself as a DHCR inspector, but says perhaps Paravalos
told Galati that he was. Paravalos could not be reached for comment, but
"is not capable of that guile," says his attorney, Mitchell Kossoff.
"I never said anything about who I was; I just went along with John," says
Race. "I did not go there and purposely deceive her; that's criminal
impersonation. But it's also nothing like, 'Hi. My name is Michael Race and
I'm a private investigator and I'm trying to get you evicted.' It didn't go
like that. John did all the speaking, and I just made notes and observations."
Those observations were pivotal in getting Galati evicted from her home of
35 years. Race noted paintings and art supplies throughout the apartment,
and said Galati had no food in the house. At a trial last July,
representatives from Con Ed and Bell Atlantic testified that Galati's
utility usage was minimal, and while tax records listed East 70th Street as
her address, she had claimed the apartment as a business deduction.
Galati says eating meals at a senior center keeps food out of her house and
that macular degeneration has so limited her vision, she uses few lights.
She says a special lease, long ago misplaced, allowed her to use her
rent-controlled apartment as an art studio. As for the Middletown house,
Galati says an aunt willed it to her in 1992, and that her 92-year-old
mother— whom she visits frequently— lives there. But she insists she did
live primarily on East 70th, paying her monthly rent of $195.75, and has
bank statements, social security forms, tax filings, and voter registration
listing the address. Nonetheless, Galati was evicted on January 31, 1999,
and now lives in Middletown.
"The documentary proof was in our favor, but what really put the judge over
was the utilities being so low, and the investigator," says Steven Candela,
an attorney who represented Galati. "The landlord really had nothing to
lose. My client was a rent-controlled tenant who had lived there for a very
long time paying low rent for an apartment that could easily get $2000 on
the market now."
Galati, a figurative artist who taught at the High School of Art and
Design, studied at Hunter College and New York University; losing her
apartment has meant losing some of her identity. "I'm so angry!" she says,
sitting in a diner a few blocks from her former home. "It's little things.
Like this," she says, holding a letter from the New York City Board of
Elections announcing that her voter registration had been canceled. "This
really hurts me."
In the war between landlords and tenants, Gordon Silva is a survivor. Even
though the 40-year-old actor-by-day, bartender-by-night lives in one of the
city's most heated battle zones— the Commander Hotel on West 73rd, where a
new landlord has evicted dozens of tenants— Silva remains relatively
confident that he won't be a casualty.
Not that the landlord, a company called PMG, hasn't tried. Since the firm
took over the residential hotel in 1997, tenants in more than 70 of 219
apartments have moved out, says PMG, "as a result of identifying and
terminating unlawful tenancies." For a time last year, PMG thought Silva
was such a tenant. And Silva, who pays $525 for a one-bedroom, says someone
who he believes was working on PMG's behalf impersonated UPS and Con Ed to
try to prove that mistaken idea. PMG spokesman Ron Simoncini declined to
comment on any specific case, saying only that PMG has used lawful methods
to "recover" illegally occupied rooms.
Silva says the ruse occurred while he was engaged to a woman who lived a
few blocks away, and with whom he occasionally stayed. One day, his fiancée
got a call and was told it was UPS with a package for Silva— they said it
looked like a script from Los Angeles— but that the address was torn. Where
did Silva live?— they wanted to know so they could deliver it.
Silva, who was at the Commander at the time, learned of the call and phoned
UPS to trace the package. No such mail existed for him, he was told."People
in the building know I'm an actor and a screenwriter, and to say they have
a script for me is very misleading," says Silva. "I'm not so against
landlords; I understand that if anyone has an illegal sublet, the manager
wants to get them out. But I am against being misled."
Minutes later, Silva's own phone rang. The caller said he was from Con Ed,
and wanted to warn Silva that basement fuses were going to be shut off.
"They asked me if I worked on a computer in my apartment because they would
let me know when the fuse would be off so I wouldn't lose anything. I asked
them how they got my number and he said Con Ed got it when I signed up. But
we don't get electric bills here; it's part of our rent."
The next day, visiting his fiancée, Silva was stopped by her building
manager, who said someone from PMG had called to ask if Silva had signed a
lease there. When he learned he hadn't, the calls stopped.
Silva says he gets along with the building management now, but doesn't feel
terribly secure. "PMG will push the envelope as far as they can," he says.
"Every day when I look at my mail, I look for a blue dot. That's certified
mail. That could be an eviction. I never know what's up with them."
Some Rules
Rent-Stabilized Tenants:
May own real estate, but must use their rent-regulated apartments as their
primary residence.
May sublet their apartments for up to two years within a four-year period,
but must get the landlord's approval and must intend to ultimately return
to the apartment.
May not assign their apartment to another tenant and may only charge 10
percent more than the lease rent, and only if the apartment is fully
furnished.
Private Investigators:
May phone a person and claim to work for a fictitious company in order to
get information.
May enter an apartment on a ruse, for instance, claiming to be a plumber's
assistant, or may enter with a landlord.
May not gain unaccompanied access to an apartment by use of a ruse.
May videotape outside an apartment, and may tape a phone call, but may not
bug a phone.
May not pretend to be clergy or from a government or law enforcement agency.
-----------------------------------------------------------------
The Not-So-Good Book
A 'Tenants Bible' May Lead Readers Astray
Village Voice, August 4 - 10, 1999
Towers & Tenements, by j.a. lobbia
A tenants' handbook designed in the spirit of radical tracts hit stores
last month, and while it looks promising—the cover is illustrated with a
clenched fist bursting through a cityscape, the author identified only as
Tenant X—its most prominent feature is how radically misinformed it can be.
The 88-page guide, called Tenant Power, is subtitled The Bible For N.Y.C.
Tenant Rights, but it is filled with enough errors that those who rely on
it might find themselves needing a prayer book as well.
"A lot of this book oversimplifies things and, while it's laid out nicely
with some practical tips on nuts and bolts, there's a lot of misadvice,"
says Andrew Scherer, project director of the Legal Support unit at Legal
Services for New York City and author of a 1000-page tome on
landlord-tenant law. "The law is complicated and the book is necessarily
reductive, but you have an obligation to be accurate. I found it certainly
misleading; it could put people in trouble."
X, who wants anonymity because he fears his book will "annoy major
landlords," defends Tenant Power and says it was edited by a top tenant
attorney, although he acknowledges that the book's claim that several real
estate attorneys edited it is wrong. X says TP will be revised to make some
corrections pointed out by the Voice. But he is unlikely to correct
misstatements he insists are not wrong, adding that Barnes & Noble, where
the book is sold, "had their own attorneys check the facts." Debra
Williams, director of corporate communications at Barnes & Noble, says no
such checking was done.
And revisions won't help those who have already purchased the
self-published $15 pamphlet, which boasts, "The writer of this book lived
rent free in New York City and was paid $55,000 from his landlord!!!" In
fact, X says he gained his expertise from a four-year battle with a
landlord who charged him 10 times the legal rent registered with the
state's Division of Housing and Community Renewal (DHCR). Of the $55,000,
$15,000 came from a DHCR order; the rest he got when his landlord "decided
to buy me out of the building." X now rents in a co-op.
>From obvious mistakes like stating that rent-controlled apartments are
stabilized (X says he'll fix that), to bad advice like suggesting tenants
have their walls drilled to test for asbestos, to legally dicey directions
like advising roommates to simply add their name to a lease to gain legal
status, TP could indeed do more harm than good. Perhaps X's best tip is his
constant warning that readers should consult an attorney.
TP does offer some solid advice: Tenants who have been evicted, for
instance, can almost always get a judge to let them back into an apartment
to retrieve medicine. The description of agreements landlords and tenants
make to avoid going to trial in housing court is sound. Indeed, Joe
Strasburg, who runs a landlord lobby, says TP is "not a bad road map" for
tenants, and Adam Weinstein, a tenant attorney with the West Side S.R.O.
Law Project, calls it "oversimplified, but all in all a nice overview."
Dan Margulies, on the other hand, has little good to say about the book.
"It's horribly sloppy and people could get hurt using this," says
Margulies, another landlord lobbyist who can't be expected to like Tenant
Power much. "My conclusion is that first Tenant X ripped off his landlord
for $55,000 and now he's ripping off tenants for $15 each," he says. "He's
going to make a fortune off them, and they will suffer every bit as much as
his old landlord did."
Even some tenant activists have profound misgivings about the book. "Some
of the advice is adequate and acceptable, but some is sketchy, misleading,
or wrong," says veteran tenant organizer Michael McKee of the New York
State Tenants & Neighbors Coalition. "It also doesn't sit right with me
that he won't put his name on the book. But that's a minor concern compared
to the many flat-out errors. In a lot of ways, it could be very dangerous."
Writing a tenants' rights handbook is an ambitious undertaking, and indeed,
as X argues, different tenant attorneys have different approaches. But TP
too often fails not on points of interpretation or approach, but in points
of fact and understanding. Consider:
-- It advises roommates who want to keep an apartment after the prime
tenant leaves to "put your name on the lease." But that could result in
eviction. Only a spouse can be added to a lease without landlord approval,
says tenant attorney Sam Himmelstein. The current edition of TP suggests
that if a landlord wants the name of the roommate, it must be provided in
30 days, and X says he'll add the fact that a landlord can challenge a
roommate.
-- Tenants whose landlord has refused to break a lease should try to get
around it, the book says, by attempting to sublet. But later, X adds vital
information: sublets are illegal unless a landlord approves and the primary
tenant intends to return. "If you're breaking the lease because you're not
coming back and you apply for a sublet, I'd say the owner has good reason
to say no," says Margulies. "The advice is ridiculous."
-- According to X, a landlord can collect a vacancy allowance the first
time an apartment is passed from an original tenant to a qualified
succeeding family member. That's wrong. Vacancy hikes begin with the second
succession.
Other errors that could spell trouble abound, but X dismisses some of them
as "typos." The book confuses a legal document called a Ten Day Notice to
Cure with a Thirty Day Notice to Terminate; readers might mistakenly think
they have more time to remedy a situation. He states that apartments
renting for over $2000 are decontrolled and offered to fix the error by
calling them deregulated. Neither is accurate. Apartments are deregulated
only when the rent hits $2000 upon vacancy, or when occupants are
high-income. Absent that caveat, tenants might believe they could lose rent
protection once their rent hit $2000 through regular increases.
The inexactitude of X's advice for gathering information may be less
legally perilous but is still annoying in a book meant to help. His
information on how to use public computers in housing court is wrong. And
he literally leads readers astray, sending them to a Greenwich Avenue
address to get a book that is actually found in the Manhattan Municipal
Building (he says he'll correct that) and to information tables he reports
as being located in courtrooms; there is only one such table, on the ground
floor of Manhattan Housing Court.
Among his most stunning mistakes is misidentifying tenant.net, an
unabashedly protenant Web site, as belonging to DHCR, a government agency
with a prolandlord reputation among tenants. X again brushes off the error
as a "typo," but it seems more of a fumble that could be made only by
someone who doesn't follow landlord-tenant relations.
Tenant Power's last information concerns learning how much a landlord
"payed for a building," by using a particular real estate directory. X
misstates that the guide includes information on boroughs outside
Manhattan. TP opens with a disclaimer and closes with a typo and a factual
error. Free advice may be worth what you pay for it, but this $15 tract is
no bargain.
-----------------------------------------------------------------
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So it's the Dog Days. This week, Giuliani's hand-picked Charter
Commission did everything in its power to discourage public
participation in the five-borough charter revision public hearings,
from scheduling the meetings in inaccessible locations, to using
rooms that were too small.
We covered this in our CHARTER REVISION NEWS, sent to subscribers on
TenantNet, Hell's Kitchen Online and NYneighborhoods. We combined
these lists so those on multiple lists wouldn't get multiple copies.
Unfortunately a few didn't understand and accused us of spamming --
an entirely different thing. As always, information on how to
unsubscribe is located at the bottom of this newsletter. We have also
opened our own Charter page -- Smarter Charter? (the question mark
is significant) at http://retirerudy.com/charter.
The NYC Charter is very important to tenants and NYC neighborhoods.
It's the fundamental governing document of this city, and any attempt
to consolidate power in one man or one office will have adverse
consequences on tenants. In particular, there are proposals to undermine
community and city council review of the land use process by allowing
the City Planning Department and the Mayor to control many zoning
applications. As we've seen in the last few years in areas like
the East Village, Chelsea and Clinton, irresponsible land use can
and will destroy otherwise stable neighborhoods and drive out tenants
and affordable housing.
The Charter hearings are almost over (see Smarter Charter? for dates),
but the commission is expected to place questions for November's general
election by early September. It will be important for tenants to
organize on this issue, as they do for others.
In this issue... (we're catching up on a backlog)
1. Landlords Praise New Housing Judges (NY Law Journal)
2. Recent Landlord/Tenant Decisions of Interest from
the NY Law Journal.
-----------------------------------------------------------------
Landlords Praise New Housing Judges
New York Law Journal
July 14, 1999
BY DANIEL WISE
WITH THE HOUSING Court under fire from landlords as being too pro-tenant,
the Office of Court Administration last week appointed 12 new Housing Court
judges who drew praise from the landlords' bar.
In addition, two of eight incumbents up for reappointment at the expiration
of their five-year terms did not make it through the process. Judge Carl O.
Callender, who sits in Brooklyn, withdrew his application for reappointment
after drawing complaints from landlords' attorneys, and Judge Sue Ann
Hoahng was not reappointed in the face of opposition from both sides of the
bar.
The new list consists of two lawyers who worked with landlords' firms, two
with city agencies and eight who worked as court attorneys. Three of the
court attorneys have had some experience working for tenants.
With nine of 10 new Housing Court judgeships still unfilled from last
summer, OCA had a major opportunity to reshape the Housing Court bench. The
12 new judges make up 24 percent of the 50 Housing Court judges citywide.
Pay Hike Stalled
As recently as last December, the State Senate blocked a pay raise for
Housing judges at a time when legislators approved a pay hike for
themselves, other judges and some high-ranking government officials. The
Housing judges were excluded, a number of sources reported, on the strength
of complaints by landlords and their allies that the court was hostile to
their interests.
In the intervening months, the opposition to the increase for Housing Court
judges has abated, and Senate Majority Leader Joseph Bruno has expressed a
willingness to work out a pay raise in the context of the current budget
negotiations (NYLJ, June 7).
There has been widespread speculation that OCA would use its appointment
power as an opportunity to soften opposition to the pay raise and to recast
the image of the court as a place where more evenhanded justice is rendered.
While sources report that progress is continuing on working out a pay
raise, no one could point to any direct connection between the latest
appointees and the pay-raise question. Nonetheless, leading landlord
lawyers expressed satisfaction with the new judges, while tenant lawyers
had reservations.
RSA Support
In addition, one source close to the process reported that eight of the 12
judges appointed had been identified early in the process as being
acceptable to the Rent Stabilization Association, a major property owners'
group. Of the 180 lawyers who applied for the new judgeships, the
association had identified about 25 as acceptable, the source said.
Robert D. Goldstein, one of the landlords' representatives on the Housing
Court Advisory Council, which reviewed the candidates for the new
positions, called the group "the best to have been selected in many years."
"Especially, last year," he added, the new batch of Housing Court judges
included people who "were not supported by the landlords' bar," he said.
Scott Edelstein, a name partner in Novick, Edelstein & Lubell, one of the
biggest landlord firms practicing in the city, agreed that "we finally have
a fair group ... one that for the first time is more to the middle, and
that is not all pro-tenant."
Tenants' lawyers, in contrast, expressed disappointment. Judith Goldiner,
the expert on housing law at the Legal Aid Society said, "It seems very
unfair that no one currently representing tenants was appointed, while two
lawyers who represent landlords were." In addition, she pointed out, the
group of lawyers that went before Chief Administrative Judge Jonathan
Lippman, who made the final choice, included a number of tenants' lawyers
who "would have been very good and very fair."
Andrew Scherer, the housing law expert at Legal Services for New York City,
said the OCA picked a large number of court employees, "people with whom
[court officials] may have a high comfort level." But, he added, "that may
not be the best way to select judges."
Other landlord lawyers, who asked not to be identified, noted that three of
the judges, though currently court employees, have had experience as
tenants' lawyers. They pointed particularly to Lizabeth Gonzalez, the pro
se clerk in Bronx Housing Court, as having been active in community work
with tenants.
In addition, they said, Michelle D. Schreiber, who is law secretary to
Civil Court Judge Margaret Cammer, the court's supervising judge in
Manhattan, had handled tenants' work, as had Julia J. Rodriguez, who is the
law secretary to Supreme Court Justice Lucindo Suarez in the Bronx.
Judges' Backgrounds
The two new judges who come from law firms are Cyril K. Bedford, of
Finkelstein & Newman, and Dawn Marie Jiminez, of Borah, Goldstein,
Altschuler & Schwartz. The two judges from government agencies are Gary F.
Marton, who did tax certiorari work at the Corporation Counsel's Office,
and Michael J. Pinckney, of the City Department of Housing Preservation and
Development.
The other five new judges, all court employees, are Thomas M. Fitzpatrick,
a court attorney in Bronx Housing Court; Shlomo S. Hagler, law secretary to
Acting Justice Martin Shulman in Manhattan; Larry S. Schachner, law
secretary to Bronx Supreme Court Justice Howard R. Silver; Bruce E.
Scheckowitz, court attorney for Brooklyn Housing Court Judge Walter
Strauss, who is not seeking reappointment to a new term; and Deighton S.
Waithe, a court attorney in the Queens Housing Court.
Two Not Reappointed
Several attorneys reported that the opposition to Judge Hoahng came from
both sides. Richard J. Wagner, the director of litigation at Brooklyn Legal
Services, said that his group had filed a formal complaint against Judge
Hoahng for defaulting a tenant after ordering her out of her courtroom for
chewing gum. He also said Judge Hoahng had ordered both the tenant and her
friend, whom she had asked to remain in the courtroom to protect her
interests, jailed on disorderly conduct charges.
A leader of the landlords' bar, noting the bar's lack of support for the
judge, said, "she once ordered a landlord's lawyer handcuffed."
Another landlord's lawyer described Judge Callender as quick to jail
landlords for failing to make repairs. "Many landlord lawyers would
discontinue their cases rather than go before him," the lawyer said.
But Ms. Goldiner of the Legal Aid Society said that Judge Callender, though
at times "prickly," was fair to both sides. "We were disappointed that he
was not reappointed," she said.
Judge Callender was not found qualified for reappointment by the Housing
Court Advisory Council, but was approved by The Association of the Bar of
the City of New York after a rehearing, according to sources. Judge Hoahng
was rejected by both groups, those sources said.
-----------------------------------------------------------------
Recent Decision of Interest
New York Law Journal
The text of these decision can usually be found on the Law Journal's web
site at http://www.nylj.com under 'Previous Decisions of Interest.'
TENANT IN MITCHELL-LAMA COOPERATIVE CAN CURE NON-PRIMARY RESIDENCE BREACH
Petitioner brought a holdover proceeding against respondent tenant in a
Mitchell-Lama cooperative apartment. He had allegedly sublet the apartment
without prior permission of petitioner, as required by the occupancy
agreement. Court found that although respondent improperly sublet, he could
not be evicted because he cured the violation pursuant to the notice to
cure. Petitioner also alleged, and the court found, that respondent did not
occupy the apartment as his primary residence. However, as this was not a
rent-stabilized apartment but a Mitchell-Lama co-op, and non-primary
residence was a violation of the occupancy agreement, the court found
respondent was entitled to a 10-day stay during which he could cure the
non-primary residence violation. Amalgamated Warbasse Houses Inc. v.
Aldridge, Kings, Civil Court, Housing Part Q, Judge Finkelstein.
CITY IS GRANTED SUMMARY JUDGMENT IN HOLDOVER PROCEEDINGS AGAINST SQUATTERS
Five related squatter holdover proceedings brought by the City were
consolidated. In 1987, the City had become the owner of the building in a
condemnation proceeding brought under the Eminent Domain Procedure Law as
part of an urban renewal project. Respondents unsuccessfully argued that
they had become tenants at sufferance because of the City's toleration and
acquiescence in their occupancy. The City argued in part that
tenancy-at-sufferance status could only be created after termination of a
lawful tenancy. Summary judgment was granted to the City. However, one of
the proceedings was dismissed because the underlying 10-day notice
contained the wrong apartment number, a non-amendable defect that was not
waived when traverse was waived. City of New York v. Whitehurst, Kings,
Civil Court, Housing Part 18A, Judge Alterman.
OBJECTION TO DOG IS DEEMED WAIVED, AS LANDLORD HAD CONSTRUCTIVE KNOWLEDGE
In a holdover proceeding, landlord argued that tenant was violating her
lease by keeping a dog without consent. As her sole defense, tenant relied
on the waiver provision of City Administrative Code §27-2009.1(b). The only
issue requiring trial was whether landlord brought the proceeding within
three months of first obtaining knowledge of the dog. Tenant said she
adopted her big Akita dog about two and a half years ago and had walked it
twice a day, frequently seen by the porter. The court found that tenant was
disingenuous when she insisted that her dog was in the apartment on two
scheduled inspections in 1997 and 1998. However, it found that dismissal
was warranted based on landlord's constructive knowledge of the pet more
than three months before this proceeding. Bronx Park South I Associates v.
Asceneth, Bronx, Civil Court, Housing Part D, Judge Heymann.
FOUR-YEAR STATUTE OF LIMITATIONS APPLIES TO FAIR MARKET RENT APPEALS
Petitioners challenged determination of respondent Commissioner of Division
of Housing and Community Renewal that their Fair Market Rent Appeal
complaint was untimely and that the failure to challenge their landlord's
1988 rent registration statement within four years, pursuant to the Rent
Regulatory Reform Act of 1997, established the rent therein as the legal
rent. Petitioners argued that because the RRRA did not mention FMRAs that
none of its terms were meant to apply to their complaint. The court stated
that the language cited by the commissioner was unqualified, noting it did
not refer to any exception for FMRAs. It rejected petitioners' argument
that the doctrine of equitable tolling should apply, stating that the
four-year rule applied to pending proceedings. Matter of Schutt v. New York
State Division of Housing and Community Renewal, New York, Supreme Court,
IA Part 50B, Justice Allen.
UNAUTHORIZED USE OF ATTORNEY'S NAME RESULTS IN FINE FOR PRO SE LANDLORD
Petitioners landlord brought a nonpayment action against respondent tenant.
He indicated on the petition that Martin Tenebaum was his attorney. Mr.
Tenenbaum claimed he had not been retained by petitioner and moved for the
imposition of sanctions as well as withdrawal of the petition. Petitioner
claimed he thought he had permission from Mr. Tenenbaum to prepare and
draft the papers in his name and refused to withdraw his case. The court
found that petitioner deliberately used the attorney's name because he
wanted to get the tenants out of the building in a hurry. It imposed a
$2,000 fine and awarded the attorney his costs and expenses, citing
petitioner's assertion of false information, his refusal to withdraw the
petition and his attitude toward the truth. Gordon v. Nieves, Kings, Civil
Court, Housing Part H, Judge Callender.
CONTINUED RETENTION OF RENT CHECK INVALIDATES NOTICE OF TERMINATION
Petitioner served a notice terminating respondent's tenancy as of Nov. 30,
1998, and commenced a holdover proceeding on Dec. 10. Respondent moved to
dismiss, claiming petitioner had received and retained his rent check,
which nullified the termination notice. Petitioner argued it never
negotiated the check and thus preserved its right. The court ruled as a
matter of law that acceptance of respondent's check after termination of
the tenancy but before the holdover proceedings invalidated the termination
notice. It applied both a waiver and estoppel rationale, noting the failure
to negotiate the check did not negate the presumption of a waiver and that
petitioner's continued retention of the check estopped it from maintaining
the proceeding. Heights Realty Associates v. Smith, New York, Civil Court,
Part Y, Judge Billings.
MORTGAGE REFINANCING FOR BUILDING DOES NOT ALTER TENANT'S RENT OBLIGATION
In 1995, petitioners purchased subject property from respondent tenants to
stave off foreclosure. Petitioners secured a mortgage and received a deed
to the premises. They then entered into a lease with respondent Rosa Crum.
Within a few months, the rent was not paid and petitioners brought this
nonpayment proceeding. In the instant motion, respondents moved, in part,
to vacate a December 1996 consent judgment of $68,583. They argued that
petitioner's refinancing of the mortgage on the building resulted in a
credit to them of $90,259 which satisfied the judgment. The court rejected
the argument, noting the respondents reliance on an unsigned loan proceeds
document and stated the lease did not provide for any change in tenant's
obligations if the building were refinanced. Maggi v. Crum, Kings, Civil
Court, Housing Part Q, Judge Finkelstein.
BID FOR IMPROVEMENT INCREASE IS DENIED WHERE COSTS CANNOT BE SUSTANTIATED
Petitioner commenced a summary nonpayment proceeding. Respondent claimed,
in part, rent overcharge. Petitioner argued the rent increase was justified
by alleged improvements made prior to respondent's tenancy in December 1996
and submitted an invoice listing work done but without further itemization.
The court denied the increase, stating petitioner had failed to meet its
burden of substantiating its expenditures, as the invoice did not provide a
sufficient cost breakdown to enable the court to determine if the equipment
installed or the work done constituted an upgrade or improvement. The court
noted that it believed work was done on the premises and that some of it,
with proper documentation, might have qualified for the increase. 2307
Clarendon Corp. v. Barnett, Kings, Civil Court, Housing Part 18E, Judge D.
Thomas.
DHCR'S RECALCULATION OF RENT, OVERCHARGE TO INCLUDE IMPROVEMENTS IS UPHELD
In an Article 78 proceeding, rent-stabilized tenant sought a judgment
vacating that portion of a decision and order of New York State Division of
Housing and Community Renewal that partially granted the owner's petition
for administrative review and recalculated the rent and overcharge to be
refunded. In its petition for administrative review, landlord contended in
part that it never received a final notice that treble damages would be
imposed, and that the apartment was exempt for several years because the
superintendent had lived there. Although the deputy commissioner rejected
these arguments, it found that the rent administrator, in calculating rent
and overcharges, failed to add back an amount for apartment improvements.
The court ruled that the DHCR's decision had a reasonable basis in law, was
supported by the record and was not arbitrary. Barriga v. New York State
Division of Housing and Community Renewal, Queens, Supreme Court, IA Part
3, Justice Milano.
NO PRIVATE 'LEAD PAINT' CAUSE OF ACTION EXISTS AGAINST NYCHA AS SECTION 8
ADMINISTRATOR
Plaintiffs alleged that the infant plaintiff was injured by ingesting lead
paint chips in premises rented from defendant landlord. The rental was
under the U.S. Department of Housing and Urban Development's Section 8
subsidy program. Landlord brought a third-party action against the New York
City Housing Authority as an administrator of the Section 8 program. As
part of the program, NYCHA had inspected the apartment. Landlord argued
that NYCHA negligently certified the premises as safe and sanitary, thereby
entitling landlord to indemnification or contribution. Here, NYCHA moved
for summary judgment dismissing the third-party complaint on the ground
that federal lead-paint regulations did not provide for a private cause of
action against NYCHA. Although the motion was untimely, the court allowed
it and granted it. Murdock v. Harris, Kings, Supreme Court, Trial Part J,
Justice Belen.
EVICTION PETITION FAILS ABSENT STATEMENT OF SECTION 8 STATUS, CAUSE FOR
PROCEEDING
A holdover proceeding was brought against respondent tenants in the Section
8 subsidy program. They moved to dismiss on the ground that (1) petitioner
failed to properly state the status of the apartment in the termination
notice and petition and (2) the notice of termination failed to state the
legal basis for the eviction proceeding. The court agreed that the notice
of termination and petition were deficient because they failed to state the
Section 8 status. It said the mere fact that landlord served the Housing
Authority with a copy of the termination notice and petition did not render
the notice or pleadings sufficient. Also, it agreed that landlord was
required to state a basis for eviction, as there was governmental
participation in the landlord-tenant relationship and Due Process required
landlord to provide cause for eviction. The proceeding was dismissed.
Liberman v. Schmerler, Kings, Civil Court, Housing Part G, Judge Wendt.
EARLIER RULING HAS NO RES JUDICATA EFFECT ON RESPONDENTS' BID FOR
SUCCESSION RIGHTS
In a holdover proceeding, landlord contended that the license given to
respondents to occupy a rent-stabilized apartment was terminated on the
death of the licensor. Respondents, licensor's daughter and son-in-law,
claimed succession rights. They moved in in 1993 when the mother was
hospitalized. She was transferred to a nursing home, where she eventually
died. In 1995, landlord had brought a holdover proceeding against mother
and daughter for non-primary residence and illegal sublet. A court had
dismissed the proceeding, determining that mother's absence was temporary.
Landlord now argued that the earlier decision had a res judicata effect on
the issue of succession. The earlier court had said there would be no
succession if the mother did not return. Instant court found no estoppel,
as this case encompassed different and subsequent events. Schultz v.
Gonzalez, Queens, Civil Court, Housing Part A, Judge Brown.
'PET LAW' TIME FRAME DOES NOT APPLY WHERE LEASE PROVISION WAS ACCOMMODATION
Respondent tenant was living with four dogs. In a summary holdover
proceeding, landlord alleged that tenant was violating a substantial
obligation of her lease. The lease had a specifically bargained for
provision allowing the tenant to have one cat and one dog. This was an
accommodation for the tenant, because when she applied she said she already
owned a cat and dog. Tenant now argued that, pursuant to New York City
Administrative Code ¤27-2009, the so-called "Pet Law," landlord waived its
right to maintain this proceeding because it was not brought within three
months of landlord's knowing of the multiple dogs. The parties disagreed on
when landlord learned of tenant's four dogs. The court ruled that, in any
event, given the lease accommodation, the pet law did not apply to require
the landlord to bring a breach action within three months. 69 West 105
Corp., New York, Civil Court, Housing Part 20, Judge Evans.
LANDLORD FAILS TO SHOW THAT TENANT SURRENDERED POSSESSION OF APARTMENT
In a licensee holdover proceeding, the court found that landlord had failed
to prove her theory of the case — that the tenant of record vacated the
rent-stabilized apartment and then her daughter vacated, and thus any
license that the tenant and/or her daughter may have given respondent to
occupy the premises was terminated when they vacated. The court discussed
two kinds of surrender of a lease, express surrender and surrender by
operation of law. It found that although the daughter had moved out, the
tenant of record had never surrendered possession of the premises nor
surrendered her leasehold estate. It found credible that the mother had
stayed elsewhere for a while after her son was fatally shot nearby. Also,
the mother had worked as a live-in health aide, only coming home on
weekends. The petition was dismissed. Tulloch v. John Doe, Kings, Civil
Court, Housing Part Q, Judge Finkelstein.
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Tenants Online (Part 1) 8/21/99
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In this issue...
1. NYCHA activists to open new web site
2. Reader on Village Voice article on Landlord investigations
3. Lead Poisoning Act: Favors Landlords, Kills Plaintiff Cases (Law Journal)
-----------------------------------------------------------------
http://NYCHA-Spotlight.com will soon be open.
Every time a politician uses the Internet to find info on New York City
Housing Authority (NYCHA), or anytime a student is doing a report on Public
Housing, they will find Housing Spotlight reports on the terrible state of
affairs at NYCHA.
-----------------------------------------------------------------
A Reader's response
The 8/4/99 story from the Village Voice ("Your Landlord's Dick") prompts me
to write about a recent experience in my building:
On April 1 of this year our doorbell rang at 6 AM. I had already left for
work, but my (adult) daughter awoke, looked out the window to see a police
car and a van, but did not answer the bell. A few minutes later she heard
male voices on our floor (the 3rd floor of a 12-storey building), other
doorbells ringing and voices calling. No one rang our bell, however, and
she did not open the door: silence for a few minutes, then she saw
approximately 8-10 men in NYPD shirts and jackets get into the car and van
and drive off.
I checked other tenants on the floor (5), but no one heard or knew anything
about police: several people had been away. Hours on the phone to the
local precinct, the Community Affairs and Public Relations officers
downtown, netted nothing except the following: it could have been any of 8
or 9 agencies that don't have any records of encounters or entries unless
"a result" occurs - arrest, shooting, etc.
Or, and this is the scary part, it could have been "a sweep," a term the
local precinct captain used repeatedly. Finally someone explained a "sweep."
Landlords authorize, in writing, the police to enter and search the common
areas in a building whenever the police feel a need to or if the landlord
reports there is a problem that the police should investigate: our
building is on the authorized list. Again, no record is kept, no reason
listed or available, no paperwork or accountability or record of the entry,
of the bells rung, or of the places visited.
The new management company in our building, an excellent prewar building
with a lot of rent stabilized apartments, has been trying to evict people
by giving them three-day notices when they are a few days late with the
rent, harassing them with frivolous legal actions designed to cost money,
and using other pressures on them. Three people (at least) on our floor
have been subjected to these tactics.
Is it possible that the landlord used this tactic to frighten tenants, or
find something incriminating about them? No doors were broken down, but
bells were rung, entry requested. No tenants are admitting having seen,
much less admitted, the police that day, but no other explanation for their
presence has been offered by any police official, despite my exhaustive
attempts to find out what happened. No subpoenas were served by the police
that day, according to the official record. The super denies having
admitted them into the building, but the police probably entered with the
newspaper delivery man. But why my bell, my floor, my building, at 6 AM?
If the police had a good reason to be there, they probably would have
broken in somewhere, but there is no official reason for their presence Are
landlords now using the police as private enforcers, trying to intimidate
people or provoke an incident? There doesn't seem to be any other
explanation possible.
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NYC's New Lead Poisoning Act: Favors Landlords, Kills Plaintiff Cases
New York Law Journal
July 29, 1999 by Robert Vilensky
ON JUNE 30, 1999, New York's City Council passed a bill called the Lead
Poisoning Prevention and Control Act for the City of New York. The proposed
law was enthusiastically supported by Mayor Giuliani, and was passed
despite significant rancor and dissension by tenant and consumer groups.
The power of the real-estate industry in New York City is quite apparent in
the new legislation. In the days leading up to its passage, journalists in
various newspapers indicated that once passed, it would make it more
difficult for injured infants to bring lead poisoning cases.
The journalists were only half right. The new legislation does not really
make it more difficult to bring cases, but rather, the real question is,
does it kill lead-paint actions? The answer is, that although the cases
will still be brought, the bill has placed a tremendous burden upon injured
children in lead poisoning actions that will be almost impossible to overcome.
Once effective, the new law will repeal subdivision h of ¤27-2013 of the
Administrative Code of the City of New York, also known as Local Law 1.
In part, Local Law 1 provides a rebuttable presumption that all paint in
apartments built prior to 1960 in a multiple dwelling is lead-based paint
that exceeds allowable requirements. Local Law 1 further states that if a
child who is under 6 years of age resides in such an apartment the
lead-based paint must be removed. Local Law 1 declares the paint to be an
immediate hazard, subject to a violation and states that it must be removed
within 24 hours. Local Law 1 required that the City of New York, Department
of Housing, Preservation and Development enforce the law and require
landlords to comply.
Local Law 1 was rarely enforced by HPD, and what usually happened was that
the children would be tested for lead by a local medical clinic as part of
a routine visit. Once the test came back with a result of more than 20
micrograms per deciliter (mg/dl) of lead in their bloodstream, the New York
City Department of Health would be notified. Health Department inspectors
would then go to the apartment where the child lived and test the walls for
lead. If they found lead-based paint on the walls, they would issue a
violation to the landlord and order an abatement of the condition. All of
this occurred however, only after the child was found to be lead poisoned.
While the city was not enforcing the law, plaintiffs' lawyers took notice.
Within the last ten years, more lead poisoning cases have been brought.
Initially, lawyers contended that Local Law 1 imposed either absolute
liability or a negligence per se standard upon the landlord.
'Juarez' Case
Prior to the New York Court of Appeals deciding Juarez v. Wavecrest
Management Ltd. (88 NY 628; 649 NYS2d 115), the Appellate Division in
Juarez (212 AD2d 38, 627 NYS2d 620), analyzed 27-2013 and held that a
violation of 27-2013 was, "negligence per se," but was not "absolute
liability." All a plaintiff had to prove in a lead poisoning case was that
the Health Department had issued a violation upon a finding of lead in
excess of statutory requirements and that the landlord had the right to
enter the premises to make repairs. Once these two items were established,
liability ensued. After the Appellate Division's decision, a plethora of
cases ensued. Plaintiffs' lawyers saw lead cases as the new version of the
old DES or Dalkon Shield cases.
When Juarez came to the Court of Appeals, the real-estate lobby submitted
numerous amicus curie briefs to the Court in order to overturn the
Appellate Division's decision. They felt that the negligence per se
standard was tantamount to imposing absolute liability. The Court of
Appeals tried to balance the interests of the landlords with their
obligations under 27-2013, and reversed the Appellate Division's imposition
of a negligence per se standard upon a violation of Local Law 1; holding
that prior to the imposition of liability on a landowner under Local Law 1,
it must be established that the landowner had notice that children, 6 years
of age and under, resided in the dwelling unit and of the presence of lead,
in excess of the statutory minimums, in the dwelling unit. Once the
landlord had notice that such a child was living in the dwelling unit,
Local Law 1 imposed an affirmative duty to inspect for and abate the
hazardous lead condition. The court in Juarez said, "To be liable for
injuries caused by the lead hazard . . . a landlord must have actual or
constructive notice of both . . .," lead levels in excess of the statutory
minimums and the residency of a child 6 years of age or younger. The Court
of Appeals in Juarez further stated that once a landowner had notice of the
residency of such a child, the landowner may be charged with constructive
notice of
Proof Under 'Juarez'
Under the Court of Appeals standards, prior to the imposition of liability
under Local Law 1, it had to be established that the landlord breached his
statutory duty to maintain leased premises in a safe condition. A landlord
breached this duty when it was demonstrated that, despite the presence of a
lead paint hazard — such as, excessive lead levels in the dwelling and the
residency of a child 6 years of age or younger in that dwelling — the
landlord failed to take diligent and reasonable steps to prevent and/or
abate a lead paint hazard. If a landlord had not acted diligently and
reasonably, liability would ensue.
After the Court of Appeals decision in Juarez, all that a plaintiff in a
lead poisoning case had to prove was that the landlord knew that a child
under the age of 6 was residing in the apartment. Once established, and
assuming that the dwelling was built prior to 1960, the landlord was under
a duty to make reasonable inspections for the presence of lead. Most
landlords in the past did not inspect for the presence of lead and
therefore liability would ensue. Accordingly, while the Court of Appeals'
standard made proving a lead poisoning case more difficult, it did not, by
any means, stem the tide of cases and the ensuing plaintiffs' verdicts.
Landlord Lobby
The real-estate industry, having received what they considered to be no
real relief from the Court of Appeals, extensively lobbied members of New
York's City Council and the result is sections 27-2056.1 through 27-2056.11
of the Administrative Code. These sections will seriously discourage, if
not altogether kill, lead paint cases in the City of New York.
Section 27-2056.1 (2) of the new bill defines a lead paint hazard as
lead-based paint that is peeling, or presumed to be lead-based pursuant to
¤27-2056.4, in a multiple dwelling where any child, who is under the age of
6, resides. This definition does not include lead dust as a hazard. In past
cases, lead dust was just as important, if not more so, to plaintiffs'
lawyers in arguing how lead caused serious injuries to young children.
Dr. John Rosen, a leading expert on lead poisoning, has written numerous
articles and testified extensively that lead dust from dilapidated
lead-painted walls and ceilings can be extremely hazardous to children when
they continuously inhale these dust particles. Unlike lead paint chips,
which a child may eat on a few occasions, lead-contaminated dust is a
continuous presence in an apartment. Over a period of several months, this
lead-contaminated dust is inhaled directly into the child's bloodstream
where it can cause serious harm. The City Council ignored lead dust as a
hazard altogether. Furthermore they failed to realize that under the
federal Residential Lead-based Paint Hazard Reduction Act (42 USCA
Sec.4851(b)) lead-contaminated dust is considered a hazard. Accordingly,
after passage of the bill, the New York City Department of Health may not
even consider lead-contaminated dust to be a hazard for children.
New Bill's Definitions
Section 27-2056.1 (4) of the new bill defines peeling as paint or other
coating material that is curling, cracking, scaling, flaking, blistering,
chipping, chalking or loose in any manner, such that a "space or pocket of
air" is behind the surface, or such that the paint is not completely
adhered to the underlying surface. An "unstable or unsound surface"
including, but not limited to, rotted or decayed wood or wood or plaster
that has been subjected to moisture, is included in the definition.
This section will lead to much litigation over its terms and likewise make
it harder for plaintiffs to prove a case. What does a "space or pocket of
air" mean? What exactly is an "unsound" or "unstable" surface? In the past,
plaintiffs had only to prove that there was peeling or chipped walls or
ceilings in the apartment. Now a plaintiff has to prove that there is a
pocket of air between the paint chip and the underlying plaster or wall.
Does a pocket mean any amount of air behind the chip, or one big enough to
have a pocket? This section will need extensive judicial review.
Children's Health Risks
These two sections combined also demonstrate that the drafters of the new
law have little real knowledge as to how children actually become lead
poisoned. The majority of these children become that way because they sit
in front of windows whose wooden sills and frames have been painted over
and over throughout the years. Every time the window is opened, the
resulting friction and abrasion along the frames and sills creates lead
dust, which is directly inhaled into the child's bloodstream. Additionally,
over time, pieces of the window sill and frame become chipped and break
off. Young children, who have hand to mouth movement, eat the broken chips
as the lead has a sweet taste. The drafters of the bill make no provision
for ensuring that old window frames and sills open easily to prevent the
hazards which result from the friction and abrasion.
In many older apartment buildings in the city, the chipping, peeling and
cracking conditions of walls and ceilings are not limited to individual
apartments, but are instead prevalent throughout the building, including
the hallways and laundry rooms. In the winter, children use these places to
play. Nowhere in the bill is there any provision for repairing these areas
and landlords will have absolutely no obligation to abate any lead
condition, presumed or otherwise, in these areas. If there is a defect in
the floor or carpet in a hallway and someone falls, liability ensues,
assuming the landlord had notice of this condition. With the new bill, the
landlord can have notice of a peeling paint condition in a hallway, a child
can eat lead-paint chips in the hallway and the landlord would not be
liable because the condition occurred in a common area.
Plaintiff's New Hurdle
The most important change in the new legislation and the biggest hurdle for
plaintiffs is in ¤27-2056.3. It involves what the framers of the bill
termed the "Owner's Duty to Notify Tenants and to Inspect." It requires
that landlords, in each new year by January 16, provide a document to the
tenant, in English and Spanish, with a notice which asks the tenant to
inform the landlord whether a child under the age of 6 resides there. The
landlord may include this notice with the rent bill or deliver it in some
other way. The tenant must return the notice to the landlord by March 15 of
the same year, and if the tenant does not do so, the landlord is deemed to
have fulfilled the obligation to find out if a child under age 6 resides in
the apartment.
Notwithstanding its title, "Owner's Duty," the new bill, in reality, places
the burden of proof upon the tenant. It should have been called the
"tenant's duty." It will be quite easy for landlords to include with their
rent notices, a form inquiry to determine if the tenant is living with a
child under 6 years of age. Once provided to the tenant, it is now
incumbent upon them to respond, in writing, to the landlord. However, many
tenants are wary of landlord questionnaires and will not fill out forms
given to them with the rent. Also, there may be tenants who cannot read or
write. How will they be able to respond to these inquiries? It is also
apparent that the drafters of the new legislation forgot that New York City
is the melting pot of America. While it is to their credit that they
required the notice to be in Spanish, they forgot about the large
Pakistani, Russian, Chinese and other ethnic populations that inhabit the
city.
The bill states that by March 15, a landlord who has not received a
response is deemed to have complied with the law. What happens to those
children who move into a dwelling after March 15 and who, over the next
eight or nine months, eat lead-based paint chips and/or inhale lead-based
dust. Under these circumstances, the landlord would have no responsibility
or obligation to do anything about the condition of the apartment after
March 15.
Modeled After Failed Law
What is most surprising about ¤27-2056.3, is that it is modeled after a
1976 version of the window-guard law, or ¤131.15 of the New York City
Health Code, which set forth a detailed landlord/tenant
inquiry-and-response procedure to be followed by landlords to determine
which apartments needed window guards. This law failed because tenants did
not, for one reason or another, respond to the inquiry. Window guards
therefore were not installed in many apartments and children continued to
fall out of windows. Accordingly, in 1986, ¤17-123 of The New York City
Administrative Code was amended, including regulations requiring landlords
to provide tenants with annual notices concerning window guards and to
attach such notices to all leases. The landlord/tenant inquiry-and-response
provision was deleted. Passing a new law which is based upon a law that did
not work shows the power of the real-estate lobby.
Additionally, section b of 27-2056.3 of the Administrative Code, involves
the landlords so called "Duty to Inspect," which requires a landlord, who
has received a notice from the tenant that a child under 6 years old
resides there — or in any dwelling unit for which the occupant has not
responded to such notice, but for which the landlord has actual knowledge
that a child under 6 years of age resides therein — to perform an annual
visual inspection for peeling paint.
While ¤27-2056.3 is titled "Owners Duty to . . . Inspect", the inspection
is really not what its title implies. Once a tenant has sent in a notice
informing the landlord that a child under 6 years old resides there, all a
landlord has to do to comply with the law is make a visual inspection for
peeling surfaces. Does that mean that if the superintendent of the building
makes a repair and while in the apartment looks around for peeling paint,
the landlord has now complied with the bill? It would seem so. Suppose the
landlord goes to the apartment and stands at the doorway having a
conversation with the tenant and while there, looks into the apartment. Has
the landlord now complied with the law? Again, it would seem so.
The bill only requires the landlord to make an annual inspection. Many
children become lead poisoned after there has been a water leak in their
apartment. When a pipe breaks in the apartment above them or the
above-tenant's tub overflows and water cascades down the walls and ceilings
to the apartment below. The water gets behind the painted surfaces, causing
the paint to chip and crack. If the landlord did their annual inspection in
the apartment below, prior to the paint-damaging leak, are they now
relieved of any liability to repair the apartment so that the child does
not eat and/or inhale lead-based paint chips and dust? It would appear they
are.
Landlord's Defenses
The clearest example of the one-sidedness of the bill is ¤27-2056.3
subsection c, which provides the landlords with not one, but four,
different defenses in actions against them. In any action against a
landlord all they need to show is:
1. They did not receive the notice from the tenant and did not have actual
notice of the child's presence;
2. They did receive a notice in return, but it did not list that a child
under 6 years old was living there;
3. The tenant failed to provide access to the apartment;
4. The landlord made the required visual inspection.
Also, the bill ignores any provision requiring a landlord to keep records.
There is no requirement that the landlord send in any notice, of any kind,
to any agency concerning the annual inspections. They need not provide the
tenant with any notice indicating that they actually inspected the
apartment for lead. They do not even have to record or note anywhere that
they did the inspection. All they have to do in order to comply with this
section is simply say that they made the inspection.
As in the repealed ¤27-2013, the new bill states that in any dwelling
erected prior to Jan. 1, 1960, where a child under the age of 6 resides, it
is presumed that painted surfaces contain lead-based paint in excess of the
requirements. However, ¤27-2056.4, states that this presumption is to be
used "solely for the purposes of this article." Furthermore, the section
states that the presumption may be rebutted by the owner by showing
independent test results which exhibit otherwise. The proponents of the
bill have stated that the words "solely for the purposes of this article"
were added for the purpose of limiting its application. Does that mean it
cannot be used in lead poisoning actions against landlords? Does it mean
that now tenants in lead poisoning actions have to actually prove the lead
was in the apartment in excess of allowable requirements? Both of these
seem unlikely, but possible. The courts will have to resolve this issue.
Bill to Kill Lead Cases
The only section of the new law which seems to favor tenants is 2056.6,
which involves an owner's duty when a vacancy occurs. Under this section,
upon a vacancy, the landlord must paint all areas where peeling paint is
present, vacuum and wash all floors to remove dust and repair all
deteriorated surfaces. Failure to do so results in what is called a
"hazardous violation." This may be the only section under which a tenant
has a chance to sue and win. If a child moves into the apartment after a
vacancy and the apartment has not been repaired and/or repainted and the
child becomes lead poisoned, liability may ensue.
The proponents of the bill publicly stated that they proposed the bill to
make it easier for landlords to comply with the requirements of removing
lead-based paint once found. However, a reading of the bill clearly reveals
its intent to make lead poisoning cases a thing of the past. The bill does
little to eradicate lead poisoning as a medical condition and simply
provides landlords with a way to avoid liability. Once signed into law,
these young victims will have little or no recourse.
Robert Vilensky is a partner at Ronemus and Vilensky. Arlene E. Costanzo,
an associate with the firm, contributed to the preparation of this article.
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Tenants Online (Part 2) 8/21/99
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In this issue...
1. Leading the City Astray (Breslin, Newsday)
2. City Lead Paint Law Open to Interpretation (NY Law Journal)
3. Speaker Vallone's Pamphlet Flies Like a Lead Balloon (Voice)
Note: Two of the articles below quote Michael McKee of New York State
Tenants and Neighbors Coalition (not the Coalition to End Lead Poisoning).
While tenant and health advocates were rallying at City Hall in June to
oppose the Peter Vallone/Landlord Lead Paint Bill, Mr. McKee was enjoying a
vacation. He also endorsed Peter Vallone for Governor.
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Leading the City Astray
Jimmy Breslin, Newsday, June 30, 1999
Peter Vallone is known here, and for all time, as Son of Manes. He is the
Speaker of the City Council who cannot speak.
He was issued this job by the late Donald Manes of Queens and Stanley
Friedman of the, Bronx, who presided over perhaps the worst scandal of
politicians in this city until today, when we have one that is far worse.
In the last scandal, Manes unfortunately killed himself, and Friedman went
to prison. But they were only steeling and extorting money. In this
scandal, Vallone, the Son of Manes, is putting a bill through the City
Council that helps landlords and endangers children.
The song turns crazy when you discover that Mayor Rudy Giuliani who chased
Manes is partner with Vallone, the Son of Manes in this bill. Vallone, the
Son of Manes, is doing it on behalf of the landlords of buildings in areas
where the poor live and lead can be found in the walls.
Lead dust smothers a child's brain, and everybody calls him dumb when he
can't make it in school. Every single solitary doctor I have spoken to says
the bill is crazy unless you can tell them that somebody is getting paid.
Then at least the immorality has a financial base.
The landlords group has hired Joe Strasburg, who for years ran Son of
Manes' business in City Hall. He now runs it from outside city Hall.
It is obvious that for letting landlords put children at risk, Vallone, the
Son of Manes, will receive financial backing for what he says will be a
campaign for mayor. Already, Son of Manes was the one saddest candidate for
governor we ever have had. He wobbled and stuttered and was an embarrassment.
Two thieves got him the job as speaker. He rules the council by handing out
small money for these fake and fraudulent committee chairmanships. The poor
fools on these committees show that they can be bought for a cup of coffee.
The lead paint dust problem is one found in neighborhoods such as
Brownsville, Morissania, Harlem, Bedford-Stuyvesant and East New York.
There are councilmembers from these areas who are being told by Son of
Manes to vote for the landlord's bill, that it is all right he personally
guarantees that the children of the poor will be protected.
Archie Spigner of South Jamaica. whose buildings have the most lead of any
place in Queens was attempting to tell people why it was good for him to
vote for the landlords. Decent people should chase him out of Jamaica. His
game is infamy.
Lead dust isn't some municipal housing word. I have a friend in Canarsie
who had water come through the ceiling in the kitchen and in one other room
in his apartment. The ceiling collapsed in two places. He asked what it meant.
A doctor told him that he was in an old building, and the ceilings had lead
in the paint and that dust from this, if taken in only once by a child,
could insure that the kids never would be able to do math the rest of their
lives.
The first thing he did was seal the rooms off with double thick curtains of
plastic and begin the long, tedious job of washing the lead out of the
paint by himself. There are no workmen who'll do that kind of job.
He first had to take art done by the children, which he wanted to save
forever, and throw it out because of the lead dust on the paper. And here,
as he worked last night, I showed him a copy of this bill by Son of Manes.
There is supposed to be a lead dust clearance test. Vallone insists there
is. He must think that all people are cocker spaniels who will flop along
with anything you tell them.
Under the landlord's bill that he is trying to pass, the landlord is
supposed to make the test, send it to a lab and then, well then, nobody
knows what happens. For there are no lead dust clearance standards. So he
sends the test and whatever the result, it's all right, it is lost out
there in the stars.
It is a landlord's bill, and since the invention or roofs, money comes
first with them and let the people drop dead the way they should.
Reading it last night my friend in Brooklyn asked, "Why does this guy do a
thing like this? It's an outright lie. "He does it for a landlord's money,"
I said.
There is bill already in the council that seems designed to protect the
children. It was introduced by Stanley Michels of Washington Heights more
than three years ago. Because this Son of Manes rules the council, it never
came out of committee. This should be the last time Michels comes to work
with patience.
Vallone never even allowed a hearing on the Michels bill. Everybody sat
like cocker spaniel, while this Son of Manes stalled and stopped everything
until the landlord came in with their bill.
Which says you no longer should presume that there it lead based paint in
apartments built before 1960 and now have children living in them who are
under the age of 6. Now you can only say this when the city issues a violation.
Obviously, if you have a poisoned child, who is barely going to be able to
count for the rest of his time, you can not have the basis for a lawsuit or
this would not be a good law for landlords.
And if any lead dust get into a kid's brain, that simply is the way it is
in life. Your kid gets a good whiff of it, and he can't do any math. And
the people supposed to represent him stand up and vote for the landlords
and against their own children, and the leader is Vallone, who is the Son
of Manes. That's the way it is when you live in a poor neighborhood where
the landlords give money to some fake and fraud politician most vile.
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City Lead Paint Law Open to Interpretation
New York Law Journal
July 27, 1999
BY MICHAEL A. RICCARDI
THE LEAD-PAINT bill, signed into law this month by Mayor Giuliani and
scheduled to take effect in November, may significantly alter the playing
field in lead poison litigation. Or it may not.
There is no agreement among lawyers and advocates on both sides of the
issue on how the new law might affect current and future tort claims.
What they do know is that the statute leaves plenty of unanswered questions
for New York courts. Suzanne Mattei, the public policy director for the New
York State Trial Lawyers Association, termed the situation "murky."
"I don’t think there is anyone out there who can say with certainty what
the courts will do," Ms. Mattei said.
Tenants’ rights advocates fear that the new law may make it nearly
impossible for plaintiffs to prove landlords liable. In City Council
hearings, trial lawyers testified that it could block tort liability
against landlords.
While the law expands the presumption that housing units built before 1960
(when the use of lead paint was banned in New York City) contain lead-based
paint, it potentially removes the presumption in tort claims.
The presumption that the units contain lead paint is expanded under the
bill to cover all pre-1960 apartments, not just those with peeling paint.
It will be up to the courts to decide whether the City Council intended for
that presumption to be ignored in lead-paint liability suits, which form a
major portion of the civil dockets in Brooklyn, Queens and the Bronx.
Tenant advocates say that discarding the presumption will force plaintiffs
to show the landlord had actual notice of the dangerous condition in order
to establish liability.
The key language in the bill is a phrase limiting the use of the lead
content presumption to regulation of lead-paint removal and containment.
Whether that phrase extinguishes use of the presumption in tort claims is
up in the air, according to Mitchell Posilken, general counsel to the Rent
Stabilization Association.
Alan Kaminsky, of Wilson Elser Moskowitz Edelman & Dicker, a lead-paint
liability defense litigator, said that the atmosphere for lawsuits is
"still evolving, with a lot of uncertainty."
"The trend in court and in legislative bodies has been to make it much
stricter for landlords in terms of what may be presumed, and what they are
expected to know and to do," Mr. Kaminsky said.
A recent Wilson Elser letter to clients admonishes property owners to be
prepared for possible changes in the litigation landscape. "[I]t is
anticipated that the recent amendments will significantly impact upon the
strategies and context of lead-poisoning litigation," the letter concludes.
Lawyers with the New York Coalition to End Lead Poisoning are considering
whether to challenge the law, which was passed by a 36-15 margin in City
Council.
But Mr. Posilken of the Rent Stabilization Association said, "I can’t begin
to imagine what sort of challenge could be brought…. This bill represents a
comprehensive local approach to one of the most important issues facing the
city. It imposes new obligations on property owners that have never existed
before, and children are protected far better than before."
It remains to be seen, he said, how courts interpret the presumption language.
"There has been a presumption that where there is peeling paint in a
housing unit where there is a young child, it is lead paint, since the
Michels law was enacted in 1982," Mr. Posilken said.
The Michels law, drafted by City Council member Stanley Michels,
D-Manhattan, regulated lead paint removal in New York City. The new law
amends the 1982 law, known as Local Law 1.
"That presumption continues in this law [and applies to all pre-1960 units,
whether or not the paint is peeling]. But there is language in the bill
making reference to the fact that the presumption of lead content is a
matter solely for the purpose of the articles in the Housing Maintenance
Code," said Mr. Posilken.
If the presumption is indeed extinguished, the courts must decide whether
to apply the law retrospectively to untried cases in the pipeline.
The main thrust of debate on the bill came over abatement procedures, which
have been overhauled.
The law allows landlords three months to abate lead paint hazards, and then
to self-certify their compliance with the law. If the City Department of
Housing Preservation and Development inspects the property and finds it not
in compliance, it will step in, do the necessary repairs and fine the
landlord $25,000 for false certification.
One of the main flaws of the bill, according to Michael McKee of the New
York Coalition to End Lead Poisoning, is that it does not classify lead
dust in the air as a health hazard, only peeling or flaking lead paint. To
Mr. McKee, that classification flies in the face of scientific
understanding of lead poisoning.
"Over the years, scientific knowledge has changed," Mr. McKee said. "If the
paint is intact, it is better not to remove it, but to contain it, to make
sure that it doesn't deteriorate. In removing lead paint, you can create a
greater hazard."
But Mr. Posilken said that the bill addresses lead dust by requiring a
"dust-wipe" test to be performed on windows, wood trim and other likely
sites for lead paint dust to settle after abatement procedures are completed.
Mr. Posilken pointed to new obligations to be imposed on landlords. If
these are breached, he said, that may be brought up in court as evidence
against a property owner. For example, landlords must ask their tenants on
an annual basis whether a child of less than 6 years of age has entered the
housing unit, Mr. Posilken said. And they are required to inform tenants
about the possible presence of lead in the apartment at the commencement of
the lease.
"These are obligations that did not exist before," he said.
But Matthew Chachere of the Northern Manhattan Improvement Association,
disagreed, saying there are no important new obligations on landlords.
"A landlord must go in once a year to look for peeling paint on the walls,
and that’s it," Mr. Chachere said. "And that obligation only arises if the
tenants return a certification that there are children under 6 living in
the apartment."
Local Law 1 created a continuing obligation to monitor the paint inside a
dwelling, Mr. Chachere said. By stating the once-a-year obligation
explicitly, Mr. Chachere said, the council in 1999 was "circumscribing,"
not expanding, a landlord’s obligation to maintain lead-safe properties.
An issue left over from Local Law 1 is whether the city may be brought in
as an additional defendant in lead-poisoning cases, on the theory that lead
paint regulations created a special duty from the government to children at
risk of poisoning.
City lawyers, speaking on background, said the new law could clarify the
city’s position that it should not be hauled into court in every lead
poisoning case.
The clarifying language is the portion dealing with remedies for failure to
properly abate lead-paint exposure. The remedy is an Article 78 proceeding,
and tort claims against the city are not explicitly authorized.
As for the city’s exposure to liability as a property owner, city officials
pointed out that the city owns 20,000 rental units of "high-risk housing"
in which there are generally four or five cases of lead poisoning per year,
compared to a citywide average of 1,000 to 1,500 new cases annually.
Compared to the heated advocacy around passage of the new lead paint law,
people on both sides have settled into the realization that it is the city
and state courts that are going to be laying down the new rules.
"Whether there is less tort liability or more is something we will only
know down the road,'' Mr. Posilken said.
But Mr. Chachere prefers the position of City Comptroller Alan Hevesi, whom
he quoted as saying that the best way to reduce liability is to reduce the
number of children being lead-poisoned.
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City Council's Whitewash
Speaker Vallone's Pamphlet Flies Like a Lead Balloon
Village Voice, August 18 - 24, 1999
by j. a. lobbia
When City Council Speaker Peter Vallone sent a flier to 800,000 voters
across the five boroughs last week, he was obviously trying to pique their
interest. The cover of his threefold pamphlet, simply entitled Children's
Report, contains only these words: "Our children deserve . . ." Readers are
left to wonder what Speaker (and mayoral hopeful) Vallone thinks New York's
youngsters merit. Given Vallone's record on two recent housing issues that
affect kids— especially those who are poor— the possibilities are frightening.
In March, Vallone's council passed a bill requiring sprinklers for fire
protection, but made it apply only to newly constructed buildings with four
or more units and buildings that are undergoing substantial renovation.
That means the city's best-protected children are those whose parents can
afford to live in new or renovated apartments. Citing complaints from the
real estate industry that retrofitting buildings with sprinklers would be
too expensive, the council didn't even consider that option. It also
ignored more affordable but significant protections, like requiring
self-closing fire doors and hiring more inspectors to guarantee buildings
meet fire codes.
More egregious, in June, Vallone forced a diluted lead-paint protection
bill onto the city's law books, taking his cue from the landlord lobby.
Under the law, landlords have more time to remove lead paint and can work
under relaxed rules. And families of lead-poisoned children are limited in
how much money they can win in court. Those and other provisions were
bitterly contested by physicians who treat lead-paint poisoned children as
well as by a network of lead-paint safety advocates.
A bruising and highly publicized battle ensued, and while Vallone's version
prevailed, the speaker emerged sullied by news accounts and columns. So it
is surprising that Vallone's flier not only mentions the lead bill but
actually boasts of his achievement in reducing the effects of lead-paint
poisoning. "Speaker Vallone and the City Council have allocated $2 million
to increase existing efforts for lead testing, prevention, and education,"
the flier reads. "In addition, funds will be used for the development of
several safe houses for lead-poisoned children and their families who are
temporarily displaced during lead abatement of their homes."
To Megan Charlop, director of the lead poisoning prevention project at
Montefiore Medical Center in the Bronx, the boast is shameful. "It's like
passing out cigarettes to kids and then building cancer treatment
facilities," says Charlop. "It seems to me that the money was a bribe to
get people to vote for a very bad bill, to sweeten the bitter pot. The name
of the game here should be prevention, not treatment afterward."
Vallone has defended the bill, saying it "will go a long way toward
protecting our children." And in a letter circulated to councilmembers on
the day of the vote, he noted that despite intense lobbying by lawyers,
landlords, and city government itself "this body will not bow to their
pressure nor yield to their influence." Ironically, Vallone staffers
crafted the bill in daylong meetings with landlord lobbyists.
Vallone's Children's Report is one of three mailings the speaker sent
citywide, as is his custom each year after the budget is resolved. The $2
million he mentions in the report reflects money budgeted for the city's
Department of Health (DOH) before the bill was passed; in addition, Vallone
and Mayor Rudolph Giuliani have agreed to use another $3 million to pay for
DOH staff in neighborhoods hard-hit by lead-paint poisoning, for mobile
outreach vans, and for 10 safe houses with an estimated 30 to 50 units.
Building safe houses will likely be the biggest expense. Charlop, who
helped create the city's first safe house, says the need for them became
apparent in the 1980s when children who had been treated for lead poisoning
at Montefiore could not be sent home because they would be recontaminated.
"We'd have kids languishing for weeks on a hospital floor for no medical
reason except that their own homes were not safe for them, or they'd go to
foster care or homeless shelters," says Charlop. Montefiore's six-unit safe
house is the largest of only three safe houses in the city.
"Do I think we could use a few more safe houses in New York City?" asks
Charlop. "Yes. But is this offering the best effort? No. The city should be
making sure the apartments where children live are safe, but that's
antithetical to what has happened. Vallone has been so disingenuous, it
makes you want to puke."
Also stomach-turning was the administration's maneuvering to cram the lead
bill onto the council's agenda, claiming it had to meet a complicated July
1 deadline imposed by state supreme court judge Louis York, who is
overseeing a 15-year-old lawsuit against the city over lead-paint laws. All
along, the plaintiffs told city lawyers they would accept an extension of
the deadline to accommodate fuller debate on the lead bill, but corporation
counsel refused. One day after the bill was signed, however, the city asked
York for an extension of some provisions, and York was amenable. The
deadline has been pushed to September 1.
The lead bill bodes poorly for another tenant issue coming before the
council, says Michael McKee, associate director of the New York State
Tenants & Neighbors Coalition (NYSTNC). In March 2000, the council must
vote on rent regulations and has wide berth to alter them in ways that
could help or harm tenants.
"I'm very worried," says McKee. "The lead bill has two lessons: first,
Peter Vallone's allegiance is, without question, to the real estate
industry. And second, if he puts his mind to doing a [rent] decontrol bill,
he will get his votes one way or the other.
"But what's also relevant is a looming mayoral election. Vallone will have
to understand that he can't get elected as the candidate of the landlords,
and that's what he is. I think he has made a serious political mistake with
the lead bill."
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In this issue...
1. Did someone say they liked Vallone?
2. Rudy's Blacklist
3. How Landlords Screen Tenants (News)
4. More than one way to skewer a tenant (Voice)
5. We're all artists, right? (New York Law Journal)
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SNOTTY ARE WE?
City Limits (http://www.citylimits.org/weekly/index.htm) recently published
its Web Resource Guide, reviewing TenantNet, City Limits stated:
* Tenant.net is the local champion, with a regularly updated
index of housing court decisions, good advice on surviving
Housing Court and snotty attacks on Peter Vallone. You'll
find the court goods at http://tenant.net/Court/Hcourt/current.html.
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RUDY'S BLACKLIST
Norman Siegel, Executive Director
New York Civil Liberties Union, Inc.
125 Broad Street
New York, New York 10004
August 9, 1999
Re: Disqualification from HPD Low-Income Housing
Due to "Housing Court History"
Dear Mr. Siegel:
Our Block Association works closely with our local elected officials,
Community Board #4, the Manhattan Neighborhood Council, and the
Chelsea-Village Partnership, Inc. on issues of concern to the 1,600
residents of this block. One of the families on our block has come to the
Block Association with a problem that we feel needs to be brought to your
attention.
This husband and wife just gave birth to their second child and has been
seeking adequate housing for their growing family. They are an Hispanic
family of limited economic means and they responded to an ad in the Sunday,
May 2, 1999 New York Post, which was accepting applications for "affordable
housing" residences under reconstruction at 2570-2572 Adam Clayton Powell,
Jr. Blvd. The bottom of the published ad emphasizes that the project is
sponsored by Rudolf W. Giuliani, Mayor and Richard T. Roberts,
Commissioner, HPD.
As instructed in the published ad., on May 3, 1999, the family sent their
application to "The North Central L.P., P.O. Box 408, Woodmere, NY
11598." In response, they received a form Disqualification Letter dated
June 21, 1999 which had a preprinted list of reasons for
disqualification. Their form had one check mark and that was next to "5)
Poor credit history or Housing Court history." with only "Housing Court
history" being circled.
Since when is a "Housing Court" history on its own without any further
qualification legal grounds to disqualify someone from housing enjoying
benefits from city government? In fact, the Housing Court history of the
tenant involved two issues. The first was a major rent overcharge with NYS
DHCR ordering the landlord to reimbursement the tenant. The second
regarded the dangerous conditions in the apartment after a major fire in
the apartment immediately above. That fire was so bad that the tenant was
burned to death and the building required major structural repairs.
Since this rejection based merely on "Housing Court history" is a
preprinted form letter, it implies strongly that this is an issue regarding
far more than one family alone. This seems to reflect a well-established,
ongoing pattern of City and taxpayer subsidized discrimination against
anyone entering Housing Court regardless of the issues and regardless of
the outcome of the litigation.
We urge you to review this situation and policy as a violation of civil
liberties. Please alert us as soon as possible to your response. Thank
you very much.
On behalf of the Block Association, sincerely yours,
Stanley Bulbach
The 200 West 15th Street Block Association
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How Landlords Screen Tenants, Part 1
By LETA HERMAN
Inman News Service (from the Daily News, August 8, 1999)
It’s not just the credit report anymore. Anyone who’s tried to buy
something on credit has heard the horror stories about credit report
errors. Smart consumers make sure their credit reports are accurate by
ordering from at least one or more of the major credit reporting systems,
Experian (formerly TRW), Equifax, or Trans Union. But if you’re shopping
for an apartment instead of a car, you need to understand that there’s more
to tenant screening than just the standard credit report, which folks in
the consumer-reporting industry call the "retail" report.
Recently a reader asked the following question, which gets to the heart of
the matter.
"I am unable to rent an apartment mainly due to an eviction on my record. I
was evicted due to a family illness and major surgery. I recently received
copies of my credit report from all three credit bureaus. I was surprised
to not find any record of an eviction. One landlord also told me that I
owed my former landlord money. But I didn’t see this on my credit report
either. Where do landlords see this information, and how can I get an
apartment with the eviction on my record?"
Whether you like it or not, when you fill out your next rental application,
your landlord is probably going to run a credit check on you.
In the old days, your landlord might have been satisfied with your retail
credit report, which usually contains information about your credit cards
and car loans but nothing about your rental history.
But times have changed. Nowadays, landlords work with consumer-reporting
agencies that specialize in "resident screening," which is a much more
in-depth probing of a tenant’s personal history. It might include prior
evictions or even negative landlord references.
"Our reports contain your history as a tenant, just like a credit report
shows your history as a borrower," says Edward Byczynski, president and
general counsel for the National Tenant Network, Inc., a nationwide
tenant-screening agency based in Oregon (http://ntnnet.com). "They contain
public record data on evictions as well as lease violation information."
Your prospective landlord can even pay an agency to search for any possible
criminal history in your background, though few landlords do this because
it is costly and more difficult from a legal standpoint.
Little White Lies
Why are landlords paying more money for all this information?
"There’s a lot of creative writing on applications," says Gene Gayda,
landlord and president of the New Hampshire Property Owners Association,
which maintains a helpful landlord/tenant law web site (www.nhpoa.org). "In
the past tenants could float a good story and most landlords weren’t
sophisticated enough to check up on it. Now, as more and more landlords are
getting on the bandwagon and using these services, it’s changing the rules."
Tenant-screening services give landlords access to information that they
couldn’t practically obtain themselves.
"A lot of times tenants provide false information to landlords," says
William Stergios, a landlord and co-owner of The Landlord Connection, Inc.
(www.landlordconnection.com), which provides tenant screening for landlords
in New Hampshire. "Now if a tenant puts down his mother’s phone number, the
landlord can verify that phone number."
All this information can be faxed over to your landlord within an hour
after the order is placed. And most landlords pass on the cost of the
reports to tenants by charging application fees.
"Landlords are doing a lot more screening," says Jennifer Strawn, staff
vice president of member services, California Apartment Association. "We
recommend that landlords get a combined report that includes a search for
evictions and not just a retail credit report."
But what does this mean for renters?
If you’re the type who always pays your rent on time and has never had a
dispute with your landlord, you’re probably going to pass your credit
check. But what if there’s a mistake on your report?
We, as tenants, can’t be satisfied with a review of our retail credit
reports anymore. With local agencies in every part of the country, it’s
nearly impossible to review our records in every database in the nation.
Even locally we may have five or more of these agencies keeping different
sets of data—a credit-reporting nightmare if a mistake turns up somewhere.
A recent trend in the industry is making it even harder for tenants.
Reporting agencies that provide resident screening are consolidating across
the nation, says Norm Magnuson, vice president of public affairs for the
Associated Credit Bureaus, Inc., the credit-reporting industry group in
Washington, DC.
"It’s similar to where retail credit reporting was in the late 60s," says
Magnuson. "The indust