NYTenants Online: Charter Revision News 10/30/99
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Election Day is Tuesday, Nov. 2. Giuliani says he wants to make
permanent the changes he's wrought on this City. Do you really
want that? Rudy is expecting that you won't go to the polls. It's
time to Retire Rudy and Vote "NO" on Charter Revision
(Ballot Question #2).
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The Latest Charter Revision News...
1. Charter Barrage (Gotham Gazatte)
2. Unions Blast Charter Changes (News)
3. Mayors Battle Over Charter (News)
4. A Faulty Charter Reform (Times Editorial)
5. Charter Revision Needs to be Defeated (Times)
6. How Not To Revise A City Charter (Voice)
7. 5% of Voters to Decide on Rudy's Referendum (Voice)
8. Charter Ballot War Heating Up (Post)
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CHARTER BARRAGE
Gotham Gazette, October 29, 1999
"Hi. This is Mayor Rudy Giuliani. I need your help to provide a safer
city for our kids. Please vote Yes on charter change, Ballot Question
Number Two, this coming Tuesday, November Second. The change would
establish gun-free safety zones around schools and require safety locks
on all guns. Let's make sure our schools are gun-free. Vote Yes on
charter change, Ballot Question Number Two, this coming Tuesday,
November Second. Thank you for your support." That's the message that
NYC voters started hearing over their phones yesterday. "Cynical and
misleading," said one good-government critic. The calls were paid for by
the Mayor's PAC, says Deputy Mayor Joseph Lhota. An undisclosed number
of voter households -- perhaps as many as two million -- had already
received a taxpayer-funded "educational" brochure whose largest elements
were a photograph of the Mayor and a headline saying "How Will Our City
Be Governed in the Next Century? YOU Decide." On the other side,
ex-Mayors Koch, Dinkins, and Beame pronounced the charter proposal a
"fraud" and recorded a radio commercial to be broadcast on news
stations. Council Speaker Vallone mailed his own taxpayer-funded
"educational" piece (on a par with the Mayor's for neutrality) to some
350,000 households. More important, probably, were the Vote No phone
banks being set up by labor unions.
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UNIONS BLAST CHARTER CHANGES
Daily News, October 27, 1999
By BILL FARRELL
The Municipal Labor Committee, which represents 325,000 unionized city workers, has
declared war on the proposed changes in the City Charter on next week's ballot.
"Every one of the unions in the Municipal Labor Council is doing their part to
educate their members about these proposals and vote them down," said labor
committee and United Federation of Teachers President Randi Weingarten.
Weingarten noted that Charter revision calls for gun-free school zones, children's
and immigrants' rights, gun-lock legislation and health care reform. "These are
issues we can all support and do support."
She quickly added they are tied into one bundle of 14 parts, which also covers
taxation, budget and other government issues "that will tie the hands of future
mayors and members of the City Council."
She called the measure "a sneaky and cynical way to change city government in a
low-turnout election year. It's wrong for public policy to be set up this way.
"You should not dress up changes to the City Charter in things that are popular,"
said Weingarten. "Who would be for guns in school? If you want to vote on issues,
vote for each on their merits."
Former Deputy Mayor Randy Mastro, who chaired the Charter revision committee,
disagrees.
"We do need gun-free schools, and the City Council has failed to act. The mayor has
been trying for three years to get gun safety-lock legislation passed," said
Mastro.
He said that Charter revision would give permanent status to child service and some
other city employees.
"This is good for city workers," said Mastro. "You would think the MLC would be for
it."
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MAYORS BATTLE OVER CHARTER
Make phone calls, ad
Daily News, October 29, 1999
By MICHAEL R. BLOOD
It's The Mayor vs. The Mayors. The political brawl over an obscure ballot question
in next week's election got personal yesterday, with Mayor Giuliani dialing up New
Yorkers and urging them to support the plan and a trio of former mayors taking the
airwaves to oppose it.
"Vote yes on charter change," Giuliani says in a recorded phone message hitting
homes around the city. "I need your help."
The proposal — known as Ballot Question 2 — calls for 14 changes in the City
Charter, from establishing a gun-free safety zone around schools to placing
restrictions on city spending. It was drafted by a commission handpicked by the
mayor.
But critics say the changes would lead to higher property taxes and tilt City
Hall's balance of power in Giuliani's favor.
In a radio commercial recorded yesterday, former Mayors Abe Beame, Ed Koch and
David Dinkins teamed up to label the proposal "bad government."
"It's undemocratic to combine 14 different proposals into one take-it-or-leave-it
Charter revision," Koch said.
"This is a partisan mayoral power grab," Dinkins chimed in.
Deputy Mayor Joseph Lhota said the phone calls were being financed by Giuliani's
state political committee, but he would not say how much was being spent, where the
calls were being directed or how long they would continue.
One proposal initially was aimed at derailing the mayoral ambitions of Public
Advocate Mark Green, who will replace Giuliani if he wins his expected Senate race
and leaves for Washington. The commission backed away from that proposal.
Green still opposes the plan, though, and held a press conference with others
yesterday to denounce the proposed "fleecing" of taxpayers, faulting the commission
for spending public money on two mailings that Green said improperly promoted the
plan.
The vote — an all-14-or-nothing choice — is Tuesday and is coupled with other local
elections, including a hard-fought battle for the upper East Side City Council
seat.
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A FAULTY CHARTER REFORM (Times Editorial)
New York Times, October 25, 1999
In politics, a dusting of sugar often disguises something far less appetizing.
Mayor Rudolph Giuliani's Charter Revision Commission recommendation, scheduled to
appear on New York City ballots on Nov. 2, offers just such a packet of debatable
or even destructive changes softened by a few sweet-sounding but unnecessary
proposals.
Some of the most damaging changes listed in this ballot question disguise the harm
that they would do. One item appears to make it vastly more difficult to raise
taxes by requiring approval by two-thirds of the City Council instead of a simple
majority. What the item does not say is that property taxes are exempt. That means
if a future mayor and City Council need extra funds to balance the budget, they
might be forced to raise property taxes, on commercial properties as well as
private homes.
Other items that sound like improvements, such as "gun free" school safety zones,
should be enacted through the normal legislative route by the City Council and the
mayor. No matter how lofty these items appear, the charter, once changed, cannot be
easily amended to take care of unintended consequences.
Moreover, the City Council has already signaled its intention to approve some of
the better suggestions on the Charter Commission's wish list. The Council passed
legislation last week requiring all gun owners to use trigger locks to prevent
accidental shootings. A similar requirement is part of the charter question on the
ballot. Other charter proposals that should be enacted through the normal
legislative process include those simplifying procedures for awarding city
contracts, such as abolishing competitive bidding for city purchases under $100,000
instead of the present $25,000.
In sum, this Charter Commission, like its predecessor in 1998, is a patchy,
unnecessary piece of work that has been a waste of the taxpayers' money. Spending
even more on commission mailings to voters and responses from the City Council and
the Public Advocate's office simply adds to that waste of public funds, since the
city already puts out a Voter Guide to describe races and issues in great detail.
If the Mayor wants to change the charter for the better, his commission should
start now to ready a list of individual questions for the ballot in November 2000.
The crowning flaw of this very flawed package is the commission's decision to
bundle all its ideas into one question on the ballot. Even voters who would like to
pick the better charter changes are out of luck. The Mayor's commission offers all
14 changes or none. None is by far the wiser choice. "No" is the right vote on the
proposal recommended by the New York City Charter Revision Commission on the ballot
Nov. 2.
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NEW YORK TIMES SAYS "NO" OF CHARTER REVISION
New York Times, October 29, 1999
Ballot Proposal Two: As we have asserted before, these changes in the city charter
need to be defeated. Mayor Giuliani has put considerable energy into backing the
charter revisions. But they were hastily conceived with too little input from
citizens and other officeholders. The measure includes tricky language that would
disrupt the balance between the mayor and City Council and could force unnecessary
increases in property taxes.
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HOW NOT TO REVISE A CITY CHARTER
By Wista Jeanne Johnson
A Guide to Subverting the Process of Democracy
Village Voice, October 27, 1999
Charter Revision is supposed to be a chance for all New Yorkers to shape the
constitution of our city. But few seem to be aware of the contents of the
referendum on next Tuesday's ballot. Fewer still are fully aware of the steps Mayor
Rudy Giuliani's Charter Revision Commission, chaired by Randy M. Mastro, former
mayoral chief of staff, took to get us here. So in the interest of spreading the
gospel of democracy, here are a few lessons culled from the short history of the
Mastro commission. Let us hope future charter revision commissions avoid these
tactics next time around:
Packing the Charter Revision Committee with political cronies of the mayor.
Scheduling public hearings and Charter Revision Committee deliberations in August
during peak vacation time.
Quashing meaningful public debate by allowing only three minutes per person for
citizen and expert testimony.
Throwing in attention-grabbing amendments (establishing gun-free school safety
zones and requiring safety-locking devices) alongside more complex issues (creating
an emergency fund with surplus monies or merging two city health departments) that
beg for reasoned, prolonged public debate.
Using the charter revision process to push through an issue previously and
appropriately considered by the City Council.
Marketing 14 unrelated amendments in seven areas (budget, civil rights, elections,
government reorganization, immigrant affairs, procurement, and public safety) as
one jumbo-size referendum for easier voter consumption.
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THE FIVE PERCENT SOLUTION
Will Rudy Giuliani and Randy Mastro have the last laugh on November 2?
Fraction of Voters to Decide on Rudy's Referendum
Village Voice, October 27, 1999
BY ANDY HUMM
On November 2, every registered voter in New York will have the power to decide
whether our mayor will have his way in refashioning the city charter—our local
constitution—in his image. Just as last week's City Hall Park rally for the home
team featured a huge banner reminding us that 'Mayor Rudy Giuliani Salutes the New
York Yankees,' every voting booth should have one that says 'Charter Revision: A
Rudolph W. Giuliani Production." That characterization is not just being made by
opponents of the 14 proposals that have been lumped into one ballot measure, but by
the mayor himself.
"If you like what I've done for New York City," Giuliani writes in the nonpartisan
voter guide that voters should have received from the Campaign Finance Board, "vote
'yes' on November 2nd and make these reforms permanent."
Charter Revision Commission chair Randy Mastro adds that this is "a referendum on
preserving the successes the city has had in recent years and not going back to the
failed policies of the past."
Giuliani is counting on his personal popularity among the handful of New Yorkers
who will go to the polls in this off-off year election and the attraction of a
laundry list of changes that begins with "'gun-free' school safety zones" and
safety locks for all firearms. The proposal is also sweetened with clauses about
making the Human Rights Commission—an agency Giuliani once wanted to eliminate
entirely—a charter agency; "simplifying" procedures for awarding contracts; making
the Administration for Children's Services an "independent agency"; "protecting
immigrant rights" to access city services; and requiring "executive coordination"
to "prevent domestic violence."
Deeper in the proposal is a clause that would require the City Council to muster a
two-thirds supermajority to pass any tax increase or new tax and a four-fifths vote
to override a mayoral veto on a tax issue. (Property taxes are exempted, lest the
referendum alarm Giuliani's core constituency.) The proposal would also limit
spending increases "generally to the rate of inflation" and mandate that 50 percent
of all surpluses be put in a fund to pay down the city's debt.
"Of the 14 items in the proposal, two are constitutional and the others public
relations gestures that have no place in charter revision," says Conn Nugent of
Citizens Union, the 102-year-old-civic group that endorsed the mayor for reelection
in 1997 ('fact for which I have received unbounded grief," he adds). The group's
chair, attorney Ogden Lewis, calls the fiscal terms "imprudent and unnecessary."
Indeed, adds Nugent, the only people coming out for the proposal are "those that
want to be on the right side of the mayor."
Those folks include, most prominently, borough presidents Guy Molinari of Staten
Island and Claire Shulman of Queens, as well as conservative councilmembers Noach
Dear, Martin Golden, and James Oddo.
The opponents of this charter revision package include Public Advocate Mark Green,
Comptroller Alan Hevesi, Council Speaker Peter Vallone, borough presidents Fernando
Ferrer (Bronx) and C. Virginia Fields (Manhattan), Ruth Messinger, congressmember
Jerry Nadler, most council members, District Council 37, the United Federation of
Teachers, and virtually every good-government group alive (and some that have come
back to life on this issue): Citizen Action, Citizens Union, Common Cause, NYC
Americans for Democratic Action, the New York Public Interest Research Group
(NYPIRG), People for the American Way, and the Women's City Club of New York.
Some of that opposition is due, says Neal Rosenstein, the Government Reform
Coordinator of NYPIRG, to the fact that the proposed changes "could dramatically
effect the balance of power" in city government, taking away much of the power
gained by the City Council in the 1989 charter reform process.
Led by East Side Democrat Gifford Miller, the Council convened a Select Committee
for Charter Reform that not only opposed this proposal, but called for amending the
state's Municipal Home Rule Law to "prevent mayors from using charter revision
commissions to upset the system of checks and balances and to circumvent the normal
legislative process."
The original quarry in this whole enterprise, convened by former deputy mayor Randy
Mastro and a host of mayoral cronies in late June, was Giuliani nemesis Mark Green.
If Rudy beats Hillary for the open U.S. Senate seat next year, he does not want
Green to finish his term. That "personal vendetta," as Green calls it, did get some
public attention for charter revision. "We outdebated him and he retreated," Green
says. "The whole proposal has gone from being obnoxious to offensive." He has
helped organize a grassroots campaign called "No on 2" to defeat the proposal,
hoping that the public has "Giuliani fatigue and is weary of government by enemies
list."
The clause on mayoral succession now calls for a system to begin in 2002 that lets
the public advocate succeed to the mayoralty within 60 days, then requires a
special election with no party labels—and a run-off if nobody gets 40 percent of
the vote. It also strips the public advocate of not just the power to break ties in
the City Council, but removes him or her from presiding over Council meetings.
Predictions on the outcome of Tuesday's vote are little more than feelings.
"There's no way to predict or poll when there's only a 5 to 10 percent turnout of
eligible adults," says Green.
NYPIRG's Rosenstein is "gloomy" and thinks Giuliani will have his way because of
the "clever" wording of the proposal and the lack of organized forces against it.
Citizens Union's Nugent "would have said it would fail two weeks ago," but feels
that even the Campaign Finance Board's official mailing "confers legitimacy on the
pro side" and is worried about the lack of union involvement and what he calls
"radio silence" from Comptroller Hevesi and other leaders.
According to Andy Inglesby, assistant political director of District Council 37,
the union's new leadership has been phone banking against the proposal since
September, will have twice mailed to its members and retirees urging a no vote, and
will send 400 volunteers to leaflet polling places on election day in coordination
with the UFT and Central labor councilmembers.
Barbara Rochman, public policy VP of the Women's City Club, is more hopeful than
optimistic that the proposal will be defeated. Her appeal to voters? "Show that
you're smarter than you've been given credit for and vote no."
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CHARTER BALLOT WAR HEATING UP
New York Post, October 24, 1999
By DAVID SEIFMAN
THE battle over revamping the City Charter isn't getting much public attention, but
all hell's breaking loose as the warring sides try to gain an edge in a
little-noticed Nov. 2 election.
Randy Mastro, chairman of the mayor's Charter Revision Commission, said his panel
will mail an "educational" brochure about the hotly contested ballot proposals to
every city household.
"There may be more than one," he added, declining to elaborate.
By law, government funds can't be used to support or oppose the 13 proposals.
Critics charge Mastro is doing the bidding of Mayor Giuliani, who has promised to
push the proposals "very very heavily," and they suspect the taxpayer-funded
brochures are aimed at eliciting a "yes" vote.
The proposals include the establishment of "gun-free" zones around schools, new
rules for mayoral succession and different regulations for enacting most tax
increases.
"I think this is a huge ripoff of the taxpayers,' said Gene Russianoff of the New
York Public Interest Research Group.
He pointed out that the Campaign Finance Board has already mailed guides to every
registered voter, providing detailed "pro" and "con" statements from 54
individuals.
The cost of that effort: about $1.5 million.
Russianoff was equally critical of the City Council, which opposes the proposals
and is doing a taxpayer-funded mailing to about 500,000 "likely voters," also
supposedly "educational."
The CFB mailing has provoked a separate controversy.
"Pro" statements submitted by Schools Chancellor Rudy Crew and three commissioners
were rejected because the board said it is illegal for agency heads to use
government resources to advocate for or against a ballot proposition.
"Anyone who believes the Campaign Finance Board is impartial lives in Oz," said
Deputy Mayor Joe Lhota.
That drew this response from CFB spokesman Ian Michaels:
"The board has an 11-year record of impartiality. Through five citywide voter
guides on ballot proposals, we have never received a complaint about the
impartiality of the voter guide."
A coalition of municipal unions, Public Advocate Mark Green and Manhattan Borough
President Virginia Fields are also joining the opposition effort with mailings of
their own.
With only 10 percent of the city's registered voters expected to go to the polls,
it's anyone's guess how this one will turn out. *
Mayor Giuliani called FBI Director Louis Freeh's office to complain that the local
FBI office wouldn't back up his statements that they were the ones pushing for
tighter security at City Hall, according to sources.
Giuliani has been saying for months that the FBI and the NYPD are calling the shots
on restricting access to City Hall.
"Every time that I've had to impose any access limits, I've always done the least
limit possible and only because the FBI and the Police Department wanted me to do
it, in fact sometimes implored me to do it," the mayor said last week.
So he wasn't too thrilled when the FBI denied that.
Joe Valiquette, the FBI spokesman here, said the NYPD has access to its
intelligence reports through the Joint Terrorism Task Force and "it's logical to
assume City Hall would be a terrorist target."
But Valiquette reiterated yesterday that "the FBI has made no recommendation to the
city as to any specific security measures that should be taken."
As for the call to Freeh, Valiquette said:
"We feel it would be more appropriate for the mayor to discuss whom he called,
rather than us."
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SAY "NO" TO RUDY'S CHARTER REVISIONS. They are horrible and the
process was a sham. (we'll remind you again). Just Say 'NO'
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In this issue...
1. 1999 Election Rundown
2. Eight Reasons to vote against Mike Nelson (Brooklyn's 48th District)
3. Payback Blues: Mike Nelson's Campaign Irregularities (Bay News)
4. Failing to Get the Lead Out (Voice on Mike Nelson)
5. Rent deposit law rarely used (Crains)
6. Landlord Firm Sanctioned for Subpoenas (Law Journal)
7. Kempner v. NYS DHCR (full text of decision)
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1999 Election Rundown
On Manhattan's east side, in the Fourth Council District (14th-96th Sts, 5th Avenue
to 2nd Avenue), go out and vote for Eva Moskowitz (D). Some tenants are skeptical
as she reportedly takes contributions from landlords (but not the RSA). Even with
this failing, she outstrips the Republican challenger Reba White Williams who is
not participating in the Campaign Finance Program and is a Giuliani apologist. We
don't need another Andrew Eristoff. Vote for Eva.
In Brooklyn's 48th District, Vallone loyalist Mike Nelson is being challenged by
Sonya Ostrom. For the many reasons articulated in this issue, we support Ostrom and
tenants of Brooklyn should send Peter Vallone, his pit bull Bruce Bender and Mike
Nelson a message.
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EIGHT REASONS TO VOTE AGAINST MIKE NELSON
Nelson is running for City Council in Brooklyn's 48th District
(Midwood, Manhattan Beach, and Sheepshead Bay, parts of Flatbush)
1. Voted for Landlord Lead-Paint Bill in City Council
2. Claims he made the Lead Bill good for tenants
3. Nelson is a loyalist to Peter Vallone
4. Political ally with Bruce Bender
(Vallone's Chief of Staff/Pit Bull and protege of RSA's Joe Strasburg)
5. Nelson was endorsed by Michael McKee in February's election
6. Nelson reportedly violated NYC Campaign Laws
7. Gets campaign contributions from Landlords
8. Forced most of his opponents off the ballot in February
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PAYBACK BLUES
Bay News, Brooklyn Courier-Life, October 25, 1999
by John Rizio-Hamilton
Councilmember Mike Nelson may be facing a big, fat fine for a possible violation of
New York City campaign finance rules that allegedly occurred during his 1999
special election campaign.
Because the campaign is currently being audited, officials from the Campaign
Finance Board (CFB) declined to discuss it in detail, but the investigation's
centerpiece is a $50,000 loan that Nelson made to his campaign on January 25, 1999.
"The rule says that if the loan is not paid back by Election Day, it becomes a
contribution," said Ian Michaels, a spokesman for the CFB.
Nelson confirmed that he did not repay the loan by Election Day, which was February
16. So his loan then became a contribution - and one that is way, way over the
legal limit of $2,500.
The rule applies to those who participate in the Campaign Finance Program, which is
designed to level the playing field between monied and start-up candidates. The
program provides matching funds - at the rate of $4 for every $1 - for candidates
who agree to abide by spending and contribution limits, as well as offer full and
public disclosure of their records.
"What it is, is that they're wrong," said Nelson of the allegation. He said that
his campaign was not required to repay the loan until it had received all of the
matching funds it was entitled to.
"I'm still waiting for the money from the CFB for that election, and they're
sitting on it," he said.
So will be eventually pay the loan back?
"Oh, absolutely. Most candidates for office do loan their campaigns as a kick-off.
It's a natural process," he said.
Nelson is currently facing a challenge from Sonya Ostrom, a Green Party candidate
who he dismissed early on. Ostrom has since been endorsed by the United Auto
Workers Region 9A, and the Working Families Party, a coalition of community
organizations that normally endorses Democrats.
The centerpiece of Ostrom's campaign is Nelson's affirmative vote on the lead paint
bill, a law that limits the responsibilities of landlords to remove the dangerous
substance, as well as the rights of tenants to demand action and seek recourse.
In a candidate's forum shortly before the [February] election, Nelson said he would
vote against any bill that weakened tenants' rights - a position he reversed as a
new councilman under pressure from landlord lobbyists and council leadership.
"He clearly doesn't know that there are 15,000 to 20,000 people living in
rent-controlled apartments throughout the district," said Craig Seeman, chairman of
the Green Party. "That's more people that the sum total of votes he got in the
special election."
However, most sources have said that Nelson - an incumbent backed by the Kings
County Democratic Machine - will most likely defeat Ostrom anyway.
In that light, by endorsing Ostrom, the Working Families Party and the UAW are
taking a risk by running counter to the local leadership and afoul of a candidate
who will most likely be sitting in the catbird's seat on November 3.
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FAILING TO GET THE LEAD OUT
Should Brooklyn Pol Mike Nelson Keep His Council Seat?
Village Voice, October 27, 1999
BY J. A. LOBBIA
For a new member of the City Council, Mike Nelson of Brooklyn seems to already have
the knack. Campaigning last winter in a special election, Nelson promised voters at
a candidate forum that he would oppose any weakening of the laws protecting
children against lead-paint poisoning. In June, with the council in the throes of a
roiling battle over a lead-paint bill that was drafted by and for landlords, Nelson
won praise from New York Post columnist Jack Newfield, who reported that the
newcomer had announced he would buck the system and vote against the bill.
But just nine days later, with barely four months of elective office under his
belt, Nelson demonstrated his apparently innate talent for doing what comes
naturally, at least to politicians: He caved. Nelson reversed himself, voting for
the landlords' lead bill, which also happened to be the bill of Mayor Rudy Giuliani
and Council Speaker Peter Vallone. And later in the summer, Nelson pulled a prank
that showed the true level of his political prowess: He sent out campaign
literature claiming that he "forced the City Council to protect tenants and stop
the landlord's lead-paint bill."
Such impressive duplicity is usually attempted only by seasoned back-roomers. But
Nelson, facing a November 2 election, apparently feels up to the tactic. He is
running again because his February election put him in the council only
temporarily, to fill the seat that was vacated when Anthony Weiner took Chuck
Schumer's old congressional post. If Nelson wins in November, he will be elected to
represent Midwood, Manhattan Beach, and Sheepshead Bay, and parts of Flatbush, for
two years.
"For Mike Nelson to say he forced the council to do anything good on lead paint is
totally bogus," says Michael McKee, associate director of the New York State
Tenants & Neighbors Coalition, which got candidate Nelson to commit to a strong
stand on lead-paint laws in his winter campaign. "He had taken a very forthright
position, and after he was elected I sent him a letter of congratulations and
reminded him of his promise. He's being totally disingenuous."
Nelson did not return calls for this story. His campaign literature claims that
among the improvements he won is a "firm and legally enforceable" timetable in
which landlords must remove lead paint and "forcing landlords to use approved safe
work practices." But the fact is that Nelson voted against 14 amendments that could
have turned the landlord-drafted bill into a truly protective law for children who
live in lead-painted apartments. Instead, the bill that Nelson did support allows
landlords great leeway in how and when they remediate lead-paint violations, and
perhaps worst of all, severely limits the rights of lead-paint poisoned children
and their families in court.
Council sources say Nelson was heavily leaned upon particularly by Vallone's chief
of staff, Bruce Bender. "Word was that Nelson wanted to vote against the bill so he
could represent his constituents, but because his ties to leadership are so strong,
he was forced to vote with them and smart enough to realize he had to vote with
them." Bender, who did not return calls, and Nelson both hail from Brooklyn's
famous Thomas Jefferson Democratic Club, which still flexes muscle as other
political clubs are retrenching.
It's that political pedigree that could make Nelson a victor in next week's race.
His opponent is Sonya Ostrom, a longtime teacher in New York City's public schools
and president of the Metro Peace Action Council. Ostrom is the candidate of two
parties that only last year won status on New York ballots: the Green Party and the
Working Families Party. She supports living-wage and union jobs and increased arts
funding, and opposes the sale of public hospitals.
Ostrom says she has so far raised about $10,000 and won endorsements from the
United Auto Workers, a musicians' local, NOW, and several tenant groups. Since he
began campaigning for his February election, Nelson has raised nearly $40,000, plus
another $75,350 in public matching funds. While he has no contributions from
heavyweight landlord lobbies like the Rent Stabilization Association (RSA), his
donors include property managers and landlords. Nelson's campaign committee was
chastised by the Campaign Finance Board in February for its sloppy reports, and he
could face trouble for a $50,000 loan he made to his own campaign in November 1998
but did not pay back, as required, by the time of the election. An unpaid loan is
considered a contribution, and a $50,000 contribution would greatly exceed the
$3750 limit for a special election.
Tenants citywide see the Brooklyn race as a bellwether for the council's upcoming
vote on extending rent laws, which must be renewed by March 31, 2000. While there's
little doubt that the laws will be renewed, the vote presents an opportunity to
harm tenants, which is exactly what Vallone did with the lead-paint bill. If voters
reject Nelson because of his lead-paint ballot, that could send a sign to the
council that tampering with rent laws would be unwise.
Tenants' greatest fear is that Vallone will continue his earlier scheme of rent
deregulation. In 1994, Vallone's council passed a bill allowing rent-regulated
apartments to be decontrolled for tenants whose income exceeds $250,000 for two
consecutive years if their rent is $2000 or higher; he also allowed for the
decontrol of vacant regulated apartments if the rent reaches $2000. In 1997, the
state legislature lowered the income threshold to $175,000. RSA president Joseph
Strasburg, who served for years as Vallone's chief of staff, has said his goal in
the council is to further the "successes that occurred in Albany" in 1997.
There's no doubt that the RSA will be key in Vallone's anticipated 2001 mayoral
race, nor that it will be the sole source of landlord dollars for the campaign.
Just two weeks ago, Steve Spinola, president of the powerful Real Estate Board of
New York, made an unprecedented appeal to REBNY members on Vallone's behalf;
sources say Vallone has asked REBNY for $15 million. Asked by Crain'sNew York why
REBNY was soliciting for Vallone, Spinola explained, "Peter has been a friend of
the industry."
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RENT DEPOSIT LAW RARELY USED, BUT STILL HELPFUL [to landlords]
Crains, November 1, 1999
The deposit of rent law enacted two years ago amid much controversy is rarely being
used in city Housing Court, but landlords say it is helping them get fairer
treatment.
Since the court began keeping track of the law in March, only 68 tenants have been
required to put their rent in a court escrow account. This is out of 316,000 cases
filed annually in Housing Court. The law requires tenants to pay rent to the court
if their case is postponed twice or if they seek to block an eviction. The aim was
to stop tenants from using the court system to avoid paying rent.
Landlord attorneys say judges are reluctant to impose the deposit law; court
officials say attorneys rarely ask for it. Nonetheless, landlords say the law has
had a positive impact because it has become an effective weapon to force tenants in
contested cases to agree to quick trials or out-of-court settlements.
"The threat of a deposit is allowing owners to get speedier resolution of their
cases," says Dan Margulies, executive director of the Community Housing Improvement
Program, a landlord group. "People think owners want rent deposits. They don't.
They want their cases resolved quickly."
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LANDLORD FIRM SANCTIONED FOR SUBPOENAS
New York Law Journal, October 26, 1999
BY CERISSE ANDERSON
A Landlord's law firm has been sanctioned for improperly issuing subpoenas for a
second time to obtain information from a tenant's financial institutions and
medical providers.
Civil Court Judge Debra Rose Samuels imposed costs and attorney's fees on Kucker,
Kraus & Bruh for issuing subpoenas duces tecum to 17 non-parties without notice to
the respondent tenants in a holdover proceeding involving an apartment on Sullivan
Street in SoHo.
The judge in Henriques v. Boitano, filed in Civil Court, New York County, Part Y,
further granted the tenants' motion to suppress any information obtained by
landlord's counsel, which had returned the documents to the non-parties immediately
after the tenant's lawyer protested the issuance of the subpoenas.
Judge Samuels noted that the subpoenas issued to various financial institutions and
one health-care provider seeking production of records for Paul J. Boitano and
Theresa Boitano stated "all information may be sent directly to Kucker Kraus &
Bruh," even though the subpoenas were made returnable to the courthouse.
The language "certainly appears calculated to yield a turnover of documents
directly to petitioner's counsel," Judge Samuels wrote.
Since the documents were returned, it was not necessary to quash the subpoenas, the
judge said.
Suppression was appropriate, however, since Kucker Kraus had the benefit of seeing
the improperly obtained documents and never stated whether it had retained
photocopies of the records, the judge said.
The landlord's contention that the Boitanos did not have standing to seek
suppression was rejected by the judge, who said the criminal authorities cited by
the landlord were distinguishable.
"In this purely civil context, where the subpoenas at issue were issued not by duly
constituted legal authorities but by counsel for one side, acting without notice to
the other side and in violation of proper disclosure procedures, the court holds
that respondents do have standing to seek suppression of the fruit of the poisoned
tree," Judge Samuels said.
Kucker Kraus's "back door" discovery techniques had been previously condemned by
Justice David Goldstein in Supreme Court in Queens in a 1997 ruling, Brussels
Leasing LLP v. Henne, 174 Misc2d 535, Judge Samuels said.
"In light of the firm's experience with precisely the same issue just two years
earlier, even if the court accepts counsel's representation that the improper
subpoenas were issued by inadvertence, counsel's conduct must be viewed as highly
negligent at best as well as 'frivolous' withing the meaning of §130-1.1(c)(1) of
the Rules of the Chief Administrator ...," she said. She ordered Kucker Kraus to
pay the tenants' costs and attorney's fees for the motion to quash.
The Boitanos were represented by James B. Fishman, of Fishman & Neil.
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MATTER OF KEMPNER v. NEW YORK STATE DIVISION OF HOUSING AND COMMUNITY RENEWAL
October 27, 1999
SUPREME COURT
IA Part 37
Justice McCooe
MATTER OF KEMPNER v. NEW YORK STATE DIVISION OF HOUSING AND COMMUNITY RENEWAL—This
is an article 78 proceeding to review the determination of the New York State
Division of Housing and Community Renewal (DHCR) which held that the petitioners'
fair market rent appeal (fmra) was time barred by the passage of the Rent
Regulation Reform Act of 1997 (RRRA-97). There are no factual issues present. The
petitioners are self represented rent stabilized tenants who would otherwise be
entitled to relief if the four year statute of limitations was not applied.
The legal issue is whether the RRRA-97 time limitation amendments apply to fmras.
DHCR contends that it applies to both rent overcharge complaints and fmra
complaints. The petitioners contend that it applies only to rent overcharge
complaints.
The question is whether the RRRA-97 changed the prior law regarding fmras. It
cannot be answered without understanding the law as it existed at the time of the
passage of the RRRA-97.
There are two sections of the Administrative Code of the City of New York to be
considered. Rent Stabilization Law §26-513 applies to fmras and §26-516 applies to
rent overcharge complaints. DHCR and the courts have recognized the differences and
treated the complaints accordingly. Smitten v. 56 MacDougal Street Co. et al., 167
AD2d 205. Noticeably R.S.L. §26-513 provides that the time period for a tenant to
file a fmra begins to run only when a tenant receives an initial legal regulated
rent notice. Matter of McKenzie v. Mirabal et at, 155 AD2d 194, 196. This had also
been the position of DHCR. These tenants never received such a notice and DHCR now
contends that the RRRA-97 amendments contain an overall four year time limitation
applicable to both sections even if the initial legal regulated rent notice was not
served as in this case.
DHCR contends that the legislative intent reflected both in the language of the
amendments in the RRRA-97 and the memorandum of the legislature was that the four
year time limitation applies to both rent overcharges and fmras.1 It cites the case
of Schutt v. DHCR, Index #116272/98, Sup. Ct. N.Y.Co. (Allen , J.) which supports
its position and is directly in point. This appears to be the only decision on this
issue and it is on appeal. The tenants contend that the amendments and the
legislative memorandum address rent overcharges only.
R.S.L. §26-516. Enforcement and Procedures, insofar as relevant states:
a. Subject to the conditions and limitations of this subdivision, any owner of
housing accommodations who, upon complaint of a tenant ... is found ... to have
collected an overcharge ... (emphasis supplied).
(i) ... Where the amount of rent set forth in the annual rent registration
statement filed four years prior to the most recent registration statement is not
challenged within four years of its filing, neither such rent nor service of any
registration shall be subject to challenge at any time thereafter. (amendment).
(2) ... and no determination of an overcharge and no award or calculation of an
award of the amount of an overcharge may be based upon an overcharge having
occurred more than four years before the complaint is filed. (amendment).
(ii) ... This paragraph shall preclude examination of the rental history of the
housing accommodation prior to the four year period preceding the filing of a
complaint pursuant to this subdivision. (amendment) (emphasis supplied).
The Order and Opinion denying the Petition based its decision solely upon the
ground that the amount of rent was not challenged within four years of the most
recent registration. Contrary to administrative law legal principles, DHCR seeks to
add a second ground for denial. It argues that the amendment to R.S.L. §26-5 16
"shall preclude the examination" of the rental history for the four year period
prior to the filing of the complaint applies. Nevertheless this Court addresses
this argument in the event a reviewing court decides to consider it but it does not
address the distinct issue as to the landlords duty to maintain records which is
also not raised and is not before this Court.
R.S.L. §26-513 relating to fmras was not amended by the Legislature in passing the
RRRA-97 except for one insignificant point. Subdivision b which contains the
initial legal regulated rent notice requirement to trigger the time limitation has
not been deleted nor has a time limitation for a refund of excess rent from 1974 or
the commencement of the tenancy been eliminated. These provisions are clearly
inconsistent with the amendments to R.S.L. §26-516.
1 disagree with the position of DHCR for the following reasons. First, the issue
under review is "one of pure statutory reading and analysis" dependent on
legislative intent and the rational basis test should not be applied. Kurcsics v.
Merchants Mutual Insurance Company, 49 NY2d 451, 459. Even if the rational basis
test was applied, the result would be the same since statutes should be interpreted
to reflect the legislative intent to favor the protection of tenants. Matter of
McKenzie v. Mirabal et al., supra at 203.
Second, the following rules of statutory construction are applicable. Ascertaining
the legislative intent is the primary consideration in the construction of
statutes. Braschi v. Stahl Assoc. Co., 74 NY2d 201, 208; McKinney's Consolidated
Laws of NY, Book 1, Statutes §92. The fact that the Legislature amended R.S.L.
§26-516 and not §26-513 is the clearest expression of its intent. "Courts will not
impute to the Legislature an intent to change a long-standing, well established
rule without a clear showing of such intent." Board of Education et al. v. Helsy et
al., 64 Misc. 2d 473, 476. (citations omitted). See Statutes §191, footnote 8. The
Legislature did not amend R.S.L. §26-513, except as indicated. Logically the
Legislature would have expressly amended this section if it intended to do so and
not leave inconsistent provisions in place. DHCR seeks to repeal a part of the
subdivision by implication from R.S.L. §26-516. Statutes § §74, 391. The minor
amendment to §26-513 indicates that it considered this subsection and did not
significantly amend it. These same rules of construction apply to precluding the
examination of rental histories prior to the four year filing of the complaint
pursuant to this subdivision. R.S.L. §26-516 and its limiting language does not by
implication apply to fmras. In the construction of a statute, meaning should be
given to all its language and words are not considered superfluous. Statutes §231.
"Pursuant to this subdivision" clearly refers to R.S.L. §26-516.
Third, there is no reference in any legislative memorandum to fmras. The only
reference is to rent overcharges. DHCR has consistently taken the position that
fmras and rent overcharges are treated differently. They cannot now reverse their
position and argue that there is no difference.
The language in Matter of McKenzie v. Mirabal et al., 155 AD2d 194, 201, is
instructive where it states in referring to the notices under R.S.L. §26-513 "the
express provisions of the laws under consideration and public policy require a per
se rule in cases such as this that unless and until the mandatory notices are duly
served, the tenant's time in which to file a fair market rent appeal does not start
to run, regardless of how much time elapses."
In summary, the Legislature did not amend R.S.L. §26-513 and this reflects its
intent that the law should remain the same. The Legislature did amend R.S.L.
§26-516 and this reflects its intent that only this law should change. DHCR's
determination under review is an act of administrative legislation. It is not its
role to substitute its judgment for that of the Legislature. Similarly the role of
the courts is not to indulge in judicial lawmaking and I decline to do so.
The motion by the landlord to intervene is granted.
Judgment for petitioners annulling the Order dated January 15, 1999 and the matter
is remitted to DHCR.
This Decision constitutes the Judgment and Order of the Court.
NOTES:
(1) Rent Regulations, Estis and Turkel, N.Y.L.J., Nov. 4, 1998, p.5
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The Tenant Network(tm) for Residential Tenants
TenantNet(tm): http://tenant.net
email:
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and in the body of the message put "subscribe nytenants".
Information from TenantNet is from experienced non-attorney tenant
activists and is not considered legal advice.
Vote "NO" on Rudy's Charter Revision Proposals
PLEASE CIRCULATE -- send to friends, family and co-workers.
Your Vote matters.
==========================================================
Today, November 2 is Election Day and Mayor Giuliani is
counting on a low voter turnout. That's why it's important
that you do vote. Vote "NO" on ballot question #2 --
that would revise the New York City Charter.
-----------------------------------------------------------
THE CHARTER REVISION PROCESS LEFT THE PUBLIC OUT OF DEBATE
Meetings were conducted in August when most people were on vacation, often in
out-of-the-way places. In Manhattan, many members of the public were prevented from
entering the hearing room by a bogus claim of the room being too full. Some parts
of the proposal are feel-good measures (such as gun control) -- that panders to
those genuinely concerned about crime and violence, but it hides more complicated,
hard-to-understand and potentially dangerous measures. The proposals are being
presented in an off-year election, with an expected low voter turnout. The City
Charter is the fundamental document of this city; it should not be tampered with
lightly. And ten of the Charter Commission members contributed to Giuliani's
campaign.
A MAYORAL POWER GRAB BY-PASSES THE CITY COUNCIL
Giuliani's referendum abolishes competitive bidding for most city contracts.
Requires all City Council tax votes to pass by a 2/3 super-majority, and a
virtually impossible 4/5 hyper-majority to override a mayoral veto. This
drastically weakens the City Council and gives the mayor unprecedented power over
the budget.
IT'S A BAD IDEA.
New Yorkers desperately need funding for after-school programs and housing. This
Charter revision will make it much harder to invest in our neighborhoods.
UNFAIR TO VOTE ON 14 PROPOSALS AS 1.
All 14 proposals will be lumped together into one take-it-or-leave-it referendum on
November 2. People will be forced to vote YES or NO on ALL of the revisions instead
of separating the good from the bad.
WHO'S AGAINST IT?
Virtually all Good Government Civic Organizations are urging voters to regect the
Charter Revision Proposals. Some include:
* Common Cause
* NYPIRG (New York Public Interest Research Group)
* Citizen's Union
* Women's City Club of New York
* Citizen Action of New York
* The Center for Legal Rights & Immigration Advocacy
FROM THE NEW YORK TIMES:
"Ballot Proposal Two: As we have asserted before, these changes in the city charter
need to be defeated. Mayor Giuliani has put considerable energy into backing the
charter revisions. But they were hastily conceived with too little input from
citizens and other officeholders. The measure includes tricky language that would
disrupt the balance between the mayor and City Council and could force unnecessary
increases in property taxes."
For more information, got to these web pages:
http://www.citizensunion.org/99votdir/Charter.html
http://www.cbcny.org/99charter2.html
http://www.nytimes.com/yr/mo/day/news/national/regional/ny-charter-revision.html
http://www.retirerudy.com/charter/index.html
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NYtenants Tenant's Online is subscription-based. To unsubscribe, go to TenantNet's
web page at http://tenant.net and insert your email address on the NYtenants
Mailing List form. Make sure your email is exactly the same as when you subscribed,
including capitalization. Check "unsubscribe" and click "submit".
-----------------------------------------------------------------------
The Tenant Network(tm) for Residential Tenants
TenantNet(tm): http://tenant.net
email:
NYtenants(tm) Discussion List: email to
and in the body of the message put "subscribe nytenants".
Information from TenantNet is from experienced non-attorney tenant
activists and is not considered legal advice.
Tenants Online 11/16/99
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To unsubscribe, see the bottom of this newsletter
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In this issue...
1. Update on TenantNet
2. Last Word on the Charter Revision
3. NY Post takes another jab at tenants (Post)
4. New York Law Journal Recent Decisions of Interest (NYLJ)
5. Rent deposit law rarely used, but still helpful [to landlords] (Crains)
6. Tony Bennet and Landlords will croone Toxic Peter Vallone
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UPDATE ON TENANTNET
Dear TenantNet Readers:
We get email and our logs give us numbers, but sometimes one wonders how many
people a service like TenantNet reaches.
When we asked you for help last month, it was a pleasant surprise to hear from many
website visitors and newsletter readers -- many of whom made very generous
contributions (and a little advice here and there).
We've sent thank you letters to everyone who contributed; some didn't want us to
publish their name, so we won't put out a list. But we're certainly grateful.
We expect the old computers to go down in a day or two and we're working to get the
new server configured and installed. If the website does go down, it will be only
temporarily. In the meantime, we can be reached at our alternative email address:
tenant@ tenant.net.
We're backed up on material for the newsletter and we'll try to catch up asap.
Thank you for your support.
John Fisher
Director/Webmaster
TenantNet
-----------------------------------------------------------------
LAST WORD ON THE CHARTER...
76 percent of the voters cast "no" ballots and 24 percent voted in favor of the
revisions.
NEWSDAY
In an embarrassing defeat for Mayor Rudolph Giuliani, voters on Tuesday
overwhelmingly rejected revising the City Charter in order to increase the power of
the mayor... In addition to appointing the commission that proposed the charter
amendments, Giuliani told voters the issue was important in order to ensure his
legacy after he leaves office.
DAILY NEWS
City voters turned a cold shoulder to Mayor Giuliani's proposed City Charter
revision, overwhelmingly rejecting a hodgepodge of changes that he had trumpeted as
a steppingstone to a safer city and a capstone for his mayoralty. It was a crushing
defeat for the Republican mayor as he positions himself for a U.S. Senate race next
year against likely Democratic candidate, Hillary Rodham Clinton.
NEW YORK TIMES
In New York [voters] defeated Mayor Rudolph Giuliani's misguided attempts to revise
the City Charter, to leave what he called a "shadow" of his strong personality
behind in the structure of city government ... Composed of his supporters, the
commission hastily created a package of items that camouflaged other changes that
would have hampered the city's budget-making process and disrupted the balance of
power between mayor and City Council ... While the ballot proposal might have
looked reasonable to voters who had not studied its details, those who made it to
the polls apparently recognized it for the chicanery that it was.
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CITY'S LUCKIEST TENANTS RENT AND RAVE
New York Post
By David Seifman and Tom Topousis
Dozens of lucky tenants living in one of New York's priciest neighborhoods haven't
had a rent increase in more than 20 years, thanks to their generous landlord - the
city.
The mind-boggling monthly rents at 166 and 168-170 Mulberry St. - including $33,
$43, $48, $50 and $52 - are less than the dinner check at most of the restaurants
that dot the historic Little Italy block.
And it's all legal!
The city seized the 94-year-old buildings from a slumlord in 1976 and, under a
little-known policy, froze the rents until it could get around to disposing of the
properties.
"I said, 'You should charge more rent,' and they told me, 'We can't,'" said
Elizabeth Battista, who has lived at 166 Mulberry for 48 years.
In one of the hottest areas in the city, where renovated lofts fetch $3,500 a
month, the total monthly rent paid for the 29 apartments in the three city-owned
buildings is $2,582.
That's about $10,750 a month less than the break-even point, according to city
officials.
Only six of the one-bedroom walkups rent for more than $100 - with the highest at
$312.
That's standard city policy for 13,477 occupied apartments grabbed from landlords
and run by the city - down sharply from 30,358 at the start of the Giuliani
administration.
"Some time ago, decisions were made not to pursue rent restructuring in these
particular buildings," said Housing Commissioner Richard Roberts.
The reason: "The city of New York has never had the ability to maintain the
properties for financial reasons in a manner that would stand up" in court.
Most of the city Department of Housing, Preservation and Development stock is in
poorer neighborhoods, where the average rent is $259.
The Mulberry Street buildings are an anomaly. Limited turnover and the 23-year rent
freeze have resulted in the kind of double-digit rents that disappeared in most
neighborhoods in the 1950s.
Tenants defended the ultra-low rents.
"We've been taking care of this building as if it's our own," said Lillian Tozzi,
54, who pays $117 a month.
"We don't wait for the city to do repairs," agreed Angelina Martello, who says she
has invested $10,000 to upgrade the two apartments her family rents.
The apartments are small, but spotless.
Some have been fixed up by the tenants, who've installed everything from new
appliances to parquet floors. Others appear to be unchanged since the building's
last renovation in 1940.
But in a city where some people never utter more than a casual word to their
next-door neighbors, the 72 residents of the three Mulberry Street buildings form
an extended family.
"There are no strangers here and everyone looks out for one another," said
Antoinette Cucinotta, who moved in 25 years ago - crossing the street from her
childhood home. She pays $312 a month.
Doors are routinely left open for drop-in visits. The smell of fresh pasta and
simmering sauces waft through the hallways.
"Tourists walk down the street and say, 'Wow, real Italians,'" joked Anthony
Eliseo. "We're the last holdouts."
But tenants claim that a hasty deal between the city and the restaurant next door
threatens their mini-paradise.
The restaurant, Da Nico, at 164 Mulberry St., serves meals in a backyard garden on
a month-to-month lease with the city and is now seeking a $680-a-month long-term
lease for the 2,000-square-foot space.
The backyard happens to belong to 166 and 168-170 Mulberry St., and the tenants say
they'll need it to generate income if the city allows them to take over the
buildings under the Tenant Interim Lease program.
Becoming apartment owners would cost them just $250 each.
Everyone involved concedes the three buildings are worth hundreds of thousands of
dollars on the open market.
"Without the backyard, there's no way the building could survive," said tenant
leader Tozzi, who pays $117 a month rent.
The dispute might end there if Mayor Giuliani weren't a regular patron of Da Nico
and the city weren't building a fire exit from the backyard to the street - through
a vacant apartment at 166 Mulberry.
"This was a Pearl Harbor attack," griped Tozzi. "No one told us anything."
Roberts, the housing chief, called the restaurant expansion a "legitimate
economic-development project."
Privately, city officials say they can't believe that tenants so heavily subsidized
by taxpayers are screaming "sweetheart deal."
"They're paying these rents and they're complaining?" asked one fuming city
official.
"That's not the issue," John Fratta, the Democratic district leader, told tenants
at a meeting last week. "You could be paying $1 a month or $10,000 a month. That
doesn't give the city the right to do this."
Arnold Kriss, a lawyer for Da Nico, insists the restaurant is trying to be a "good
neighbor."
He said the tenants' greatest fear - that Da Nico would buy the backyard and then
go after their buildings - is unfounded.
"They're not buying the backyard. They're not buying the buildings," Kriss
declared.
He also said leases are "not etched in stone" and the restaurant's owners might be
willing to discuss an "accommodation" with the tenants.
A compromise would be sweet news to Tozzi, who says her mother was the "first
tenant" when 168 Mulberry St. was renovated in 1940 and separate bathrooms were
installed in all the apartments.
"The rent was $29 a month, the highest in Little Italy," Tozzi said. "It was the
cream of the crop of buildings."
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NEW YORK LAW JOURNAL
RECENT DECISIONS OF INTEREST
LANDLORD/TENANT
Co-Op Renters Get Martin Act Protections, But Lease Renewal Was Not Unconscionable
LANDLORDS, THE sponsors of a cooperative conversion, commenced a holdover
proceeding to recover possession of an apartment rented by tenants after the
conversion. The petition alleged that they were not "non-purchasing tenants" within
the meaning of the Martin Act. The Housing Court had disagreed and granted tenants
summary judgment, saying the petition was fatally defective because it alleged
tenants were not "non-purchasing tenants." Landlords now appealed. The court
granted summary judgment to the landlords. Although it agreed with the Housing
Court's conclusion that tenants were "non-purchasing tenants," it said the
misstatement in the petition provided no basis for dismissal. Furthermore, it ruled
that the lease renewal offered to the tenants did not contain an unconscionable
rent, as it was at market rate for the area. Paikoff v. Harris, 2d & 11th
Districts, Appellate Term, Scholnick, J.P., Aronin and Patterson, JJ.
LANDLORD/TENANT
Elderly Tenant Is to Be Evicted for Nuisance After Failing to Cure Home's
Horrendous Odor
LANDLORD BROUGHT a holdover proceeding on the ground that the elderly, long-term,
rent-controlled tenant, who had a history of mental illness, was permitting a
nuisance in the premises that endangered the life, health and safety of others. It
was alleged that horrendous odors, akin to rotten flesh, came from the apartment.
The proceeding was originally commenced in 1997. A guardian ad litem had been
appointed to represent tenant, and Protective Services for Adults provided
additional assistance. A stipulation had been entered requiring tenant to keep the
premises free of debris and in a sanitary condition. This was allegedly not
complied with. The court, after its own inspection and after hearing testimony,
found it could not allow tenant to keep the apartment. A judgment and warrant were
issued, but execution was stayed until the end of the year. Fort Holding Corp. v.
Supple, New York, Civil Court, Housing Part Q, Judge Elsner.
LANDLORD/TENANT
Psychiatric Condition Not Allowed as Defense For Tenant's Own Drug Dealing in
Apartment
LANDLORD SOUGHT to evict respondent tenant for her drug dealing in her apartment.
At issue was whether psychiatric testimony was admissible. Tenant argued that it
was relevant to her defense of mental illness. The court ruled that the proposed
testimony was not admissible for purposes of establishing a defense, as a
psychiatric condition is not a defense to a drug holdover proceeding where there is
no claim that tenant did not have the capacity to know of or acquiesce to drug
dealing by others. However, such testimony could be relevant in terms of the
court's fashioning a conditional stay, rather than summary removal, if a judgment
of possession was rendered. The court found that landlord was entitled to a
judgment of possession. A warrant was issued, but execution was stayed for two
months, and tenant could seek a further stay for good cause shown. Future Tenth
Assoc. LP v. Roche, New York, Civil Court, Judge Ling-Cohan.
LANDLORD/TENANT
Section 8 Holdover Proceeding Proceeds Despite Landlord's Failure to Make Repairs
PETITIONER COMMENCED a holdover proceeding on the ground that tenant failed to
renew her lease. She occupied the premises under a New York City Housing Authority
Section 8 rental agreement that NYCHA had not renewed and for which the subsidies
had been terminated because landlord did not maintain the premises up to Section 8
quality standards. NYCHA moved to dismiss, arguing that since the failure to renew
the lease was due to landlord's failure to correct hazardous conditions, landlord
did not have "good cause" to maintain the proceeding. The court said this would
lead to the unconscionable conclusion that tenant could remain virtually rent-free
and landlord would have no recourse. While the court did not condone landlord's
failure to make repairs, it said it would be punitive to prevent it from bringing a
holdover proceeding. 1801 Weeks Avenue Inc. v. Crawford, Bronx, Civil Court,
Housing Part 1, Judge Heymann.
LANDLORD/TENANT
Tenants Entitled to Fees for Fighting Eviction Although They Had Made Alterations
IN A SUMMARY holdover proceeding, landlord alleged that respondent rent-stabilized
tenants breached their lease by making alterations without landlord's prior
consent. The court dismissed the petition, finding that although tenants made
alterations to the apartment, landlord waived its right to object and, anyway, the
apartment could be restored to its original condition when the tenants moved.
Tenants now moved for attorney's fees, arguing that they were the prevailing party.
The court noted that the determination of which party prevailed was not
straightforward where, as here, the court finds that although a tenant may have
breached the lease, the law nevertheless did not provide for eviction. Saying it
must use its discretion, the court concluded that tenants were the prevailing party
and were entitled to reasonable attorney's fees. 350 East 62nd Street Associates v.
Vecilla, New York, Civil Court, Part P, Judge Lau.
LANDLORD/TENANT
Tenant Is Entitled to Rent Protection In Former Horizontal Multiple Dwelling
IN 1993, tenant entered into occupancy of an apartment in a five-unit building,
which admittedly was part of a horizontal multiple dwelling in 1974 when the
Emergency Tenant Protection Act was adopted. In this Article 78 proceeding brought
by the building owner, at issue was whether the tenant was entitled to the
protection of the New York City Rent Stabilization Law when it was clear that
before her occupancy the building could no longer be considered part of a
horizontal multiple dwelling. The Division of Housing and Community Renewal had
ruled that if premises were part of a multiple dwelling on the base date of June
30, 1974, it was subject to the Rent Stabilization Law and did not lose its
regulated status if it was separated from the horizontal multiple dwelling so that
it contained fewer than six units. The court sustained the ruling as rational.
Buhagiar v. State Of New York Division Of Housing And Community Renewal , New York,
Supreme Court, IA Part 19, Justice Lehner.
TORTS
Housing Authority Is Not Liable to Tenant Alleging Lead Poisoning in Section
8 Housing
PLAINTIFF SUED for injuries allegedly sustained from exposure to lead-based paint
while residing in two Section 8 apartments. The New York City Housing Authority was
named as a defendant, although it did not own the apartments. The court held that
NYCHA was not liable under the Section 8 statute, the Lead-Based Paint Poisoning
Prevention Act or their implementing regulations for failing to detect lead paint
in its pre-occupancy inspections of the apartments. It also rejected plaintiff's
argument that NYCHA had a common-law duty. Plaintiff failed to show that there was
a special relationship between plaintiff and NYCHA so as to create a duty on
NYCHA's part to protect plaintiffs from lead poisoning. NYCHA was granted summary
judgment. One of the landlords was also granted summary judgment, given
insufficient proof of lead in the premises. Sanchez v. Cheung, Queens, Supreme
Court, IA Part 17, Justice Kitzes.
LANDLORD/TENANT
Absence of Name on Recertification Forms Not Dispositive, Given Project-Based
Subsidy
LANDLORD COMMENCED a holdover proceeding, alleging that respondent moved in to the
premises after the death of the tenant of record, respondent's mother, and had no
right to continued occupancy. Respondent argued that he had succession rights
because he lived with his mother before her death, and because he was disabled. The
apartment received a "project-based" Section 8 federal subsidy in a building
designed to house elderly and disabled residents. Landlord argued that the absence
of respondent's name from the 1997 mandatory recertification form was dispositive
on the issue of residence, relying on a recent Court of Appeals decision, Evans v.
Franco. Court declined to follow such argument, instead agreeing with respondent
that Evans construed regulations limited to tenant-based subsidies, while the
instant dispute involved a project-based subsidy. Greene Avenue Associates v.
Reape, Kings, Civil Court, Judge Baily-Schiffman QDS:46701734.
LANDLORD/TENANT
No Constructive Notice of Dog Is Found In Building With No On-Site Employees
LANDLORD SOUGHT possession of an apartment on the ground that tenant breached a
substantial obligation of her tenancy by harboring a dog without landlord's
permission. Tenant, citing the "Pet Law," claimed that landlord waived its right to
object to the dog. The dog had allegedly been "openly and notoriously" kept as a
pet since February, six months before the predicate notice was served. The building
was a five-story "walk-up" with no on-site employees. Landlord argued that the
proceeding was commenced within the applicable window period, as the managing agent
said it first learned of the dog in June, after another tenant complained. The
court found no proof that landlord or his off-site employees had knowledge that the
tenant was harboring a pet until June. As there was a breach and no waiver,
landlord was awarded a final judgment of possession. 166 E. 82 Street LLC v. Hara,
New York, Civil Court, Housing Part O, Judge Malatzky.
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RENT DEPOSIT LAW RARELY USED, BUT STILL HELPFUL
Crains Insider, October 29, 1999
The deposit of rent law enacted two years ago amid much controversy is rarely being
used in city Housing Court, but landlords say it is helping them get fairer
treatment.
Since the court began keeping track of the law in March, only 68 tenants have been
required to put their rent in a court escrow account. This is out of 316,000 cases
filed annually in Housing Court. The law requires tenants to pay rent to the court
if their case is postponed twice or if they seek to block an eviction. The aim was
to stop tenants from using the court system to avoid paying rent.
Landlord attorneys say judges are reluctant to impose the deposit law; court
officials say attorneys rarely ask for it. Nonetheless, landlords say the law has
had a positive impact because it has become an effective weapon to force tenants in
contested cases to agree to quick trials or out-of-court settlements.
"The threat of a deposit is allowing owners to get speedier resolution of their
cases,'' says Dan Margulies, executive director of the Community Housing
Improvement Program, a landlord group. ``People think owners want rent deposits.
They don't. They want their cases resolved quickly."
-----------------------------------------------------------------
TOXIC VALLONE TO BE CROONED BY TONY BENNET AND LANDLORDS
Peter Vallone (Toxic Vallone) is at it again. After forcing the landlord dictated
Lead Paint Bill through City Council last June, after forcing the Real Estate
dictated Theater Rezoning last year, Vallone will be reaping Real Estate/Landlord
rewards. Steven Spinola of the Real Estate Board of New York (REBNY) has sent a
letter to landlords citywide asking them to support Vallone.
Crains reported "City Council Speaker Peter Vallone expects to raise more than $1
million for his mayoral campaign at a Dec. 8 fund-raiser at the Sheraton New York
Hotel. Headlining the $1,000-per-person event will be singer Tony Bennett, a
boyhood friend of Mr. Vallone's from Astoria, Queens. The fund-raiser-which will
also celebrate the speaker's 65th birthday-will likely push Mr. Vallone's war chest
close to the top among major mayoral candidates. As of July 1, Mr. Vallone was
fourth with $778,000, behind city Comptroller Alan Hevesi ($2.8 million), Bronx
Borough President Fernando Ferrer ($1.2 million) and Public Advocate Mark Green
($851,000)."
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In this issue...
1. Errata and Update
2. Deposit of Rent to be Privatized (Crain's)
3. Slumlord Gets Pol Pal's Help (Post)
4. Pol Does Quick U-turn to Kill Slumlord's Bill (Post)
5. Realty Bites (Manhattan Spirit)
-----------------------------------------------------------------
ERRATA
Thanks to the careful reader who corrected our misspellings from the last issue. We
said "Tony Bennet would croone Peter Vallone," but it's "Bennett and croon." But
Vallone is still dirty either way!
-----------------------------------------------------------------
UPDATE ON TENANTNET
The old servers are still chugging away as of Sunday, but with our ISP's
reconfiguring, we've temporarily lost the search function and the ability to post
to the TenantNet Forum. We're hoping to get the new server installed sometime next
week if our Unix Guru can break away from his day job.
-----------------------------------------------------------------
DEPOSIT OF RENT TO BE PRIVATIZED
Crains Insider, November 12, 1999
The state is about to privatize the handling of rent deposits in Housing Court,
which could lead to greater use of a law that requires tenants to pay rent to the
courts in tenant-landlord disputes. The rent deposit contract was won by a joint
application from HSBC Bank USA, formerly Marine Midland Bank, and Greystone
Servicing Corp.
State officials are promising that rent held in escrow will be returned to tenants
and landlords no more than 48 hours after a judge orders the money released. It now
can take more than six weeks for the money to be released by the city, which
handles the funds. That delay has discouraged landlords from asking judges to
require deposits of rent.
"Most owners made a business decision that it was better come to settlement than
deposit money into a vast bureaucracy," says Joseph Strasberg, president of the
Rent Stabilization Association, a landlord group. "More owners will make
applications for deposit of rent if they know money will go in quickly and get out
quicker."
Privatizing escrow accounts was required by the 1997 deposit of rent law. But Its
implementation was delayed because state Comptroller H. Carl McCall wanted some of
the interest on the deposits to be returned to tenants and landlords. The law said
the banks could keep the interest to finance the program. In the end, Mr. McCall
relented and the contract was put out to bid last summer.
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SLUMLORD GETS POL PALS' HELP
New York Post, November 10, 1999
By Jack Newfield
A special bill would enable him to regain control of the Harlem building he lost
for not paying taxes. The bill, intended to benefit only Singer, was sponsored by
Assembly Speaker Sheldon Silver. A major Manhattan tenement owner - considered by
one elected official the "worst slumlord" in Harlem - is trying to use political
muscle to get the state Legislature and City Council to do him a huge favor.
Baruch Singer, who acknowledges owning 40 buildings with 1,000 apartments north of
96th Street, wants the city to sell back a building it seized from him seven years
ago for nonpayment of taxes. He wants it now because the neighborhood is undergoing
an economic renaissance - and he's eager to profit from it.
Virtually every elected official who has had contact with Singer or his
long-suffering, low-income Harlem tenants has a low opinion of him and his pattern
of reneging on promised improvements. His critics include Assemblyman Ed Sullivan
and council members Bill Perkins, Ronnie Eldridge and Phil Reed.
"Baruch Singer is the worst slumlord I have ever seen in Harlem," Perkins said.
Perkins holds Singer "partially responsible" for the deaths of three tenants who
perished when a Singer slum at 142 West 140 St. collapsed in March 1995.
At the time, Singer was the building's manager and held its mortgage. He bought the
rubbled remains six months later. When the building collapsed from structural
decay, it had 337 city housing-code violations.
Shortly after the collapse, The New York Times identified Singer as the building
manager. It quoted the landlord, Marcus Lehmann, who named Singer's company -
Triangle Management, at 95 Delancey St. - as being in charge. Lehmann said he had
never even visited the site. In an interview with The Post this week, Lehmann
claimed the Times never interviewed him. Later, during a 90-minute interview,
Singer tried to blur reality with double talk.
"I was not the official managing agent," he said. "I was the unofficial manager. I
was never paid. I just owned the mortgage when the building fell down."
Singer's role in the West 140th St. tragedy is on the table again because the state
Assembly has reported out a special bill that would enable him to regain control of
the Harlem building he lost for not paying taxes.
The bill - intended to benefit only Singer - was sponsored by Assembly Speaker
Sheldon Silver. This now-boarded-up building, at 246 Manhattan Ave., near West
113th Street, is located in the midst of a rebounding area flooded with
speculators. When Singer defaulted on the property in 1992, it had 283
building-code violations. Because he failed to redeem it within two years, the
special law has to be passed.
Singer presents himself as "a great landlord, loved by my tenants. The only
problems I have are caused by crackheads, dope addicts, and where the city owns the
adjacent buildings." City, federal and court records paint a different picture.
Six buildings Singer owns in central Harlem have more than 400 violations. Singer
was recently fined $1,200 for the dehumanizing conditions at 400 West 128th St..
This property had 637 violations in 58 units.
The computerized records of the city Department of Housing Preservation and
Development disclosed court fines on three other Singer buildings, including 75 St.
Nicholas Place, where there are 416 violations in 60 units. When confronted with
this record of neglect, Singer asserted, "These are all mistakes. HPD's computer is
years out of date. I corrected all these violations. They will show up in the HPD
records in three months."
Yesterday, HPD spokeswoman Carol Abrams told The Post there is no evidence of
recently corrected violations.
Singer also insists he is "apolitical ... I don't know politicians." But later,
under prodding, he admitted contributing $1,000 - the maximum allowed - to Mayor
Giuliani in 1997.
Singer also has a 25 percent ownership in three Mitchell-Lama buildings on
middle-class Upper West Side streets: 70 West 93rd St., 50 West 93rd St. and 5 West
91st St. These sites have HUD-subsidized mortgages.
Singer's partner in these properties is his former lawyer, Leslie Westreich, who
was disbarred in 1991. "Leslie was disbarred for something totally unrelated to
real estate," Singer told me.
Bill DeBlasio of HUD - U.S. Housing Secretary Andrew Cuomo's New York
representative - confirmed that Westreich's disbarment "definitely was related to
his conduct in real estate." DeBlasio said Singer does not have a favorable record,
even on the flourishing West Side. "HUD has been displeased by his failure to make
repairs," DeBlasio said. "Numerous tenants have complained to HUD. Only after we
applied pressure were most of the repairs made."
The effort to help Singer regain control of 246 Manhattan Ave. began in Albany in
August - when the Legislature was not even in session. Silver acknowledges he asked
Sullivan, an upper Manhattan assemblyman, to sponsor a special bill that would let
Singer buy back the building - for $80,000 in back taxes, plus seven years of
interest. "Sullivan declined," Silver said. "He had a problem with Singer."
As a result, Silver reported the law out of the rules committee, making himself the
sponsor. There is no sponsor in the state Senate. Asked why he lent his office to
this special bill, Silver explained, "Baruch Singer's father [Yitzhak Singer] is
the rabbi of my synagogue. When your rabbi's son asks you for assistance, you try
to help." Silver admitted he has never seen any of Singer's Harlem buildings.
The special bill for Singer - known as a reconveyance of property - requires a
"home-rule message" from the council before the state Legislature can enact it into
law. Each year, the council approves about 15 such home-rule messages.
In September, Perkins was asked to sponsor the home-rule message. After meeting
with Singer, he refused.
Perkins then told Gary Altman, the legislative counsel to Council Speaker Peter
Vallone, "This conveyance is an insult to the people of Harlem. Three people died
in a Singer building. This can't happen."
Altman is a member of the same Lower East Side synagogue as Singer and Silver, and
comes out of Silver's political club. Altman assigned the home-rule message to the
council's committee on state legislation, listing its chairman, Jose Rivera of The
Bronx, as the sponsor.
It is unprecedented for a property reconveyance in Harlem to be sponsored by an
Assemblyman from the Lower East Side and by a Bronx councilman. "Somebody is trying
to reward Singer for his slumlord history in Harlem," Perkins says. "The area
between 112th and 119th streets is suddenly valuable now. Speculators are moving
in.
"And here comes Mr. Singer, who stiffed the city on taxes and abandoned this same
building, who mistreated so many tenants, whose building collapsed and killed three
people. Here he comes trying to get a special law to help him profit from the
upturn in the Harlem real-estate market."
I have been working on this story for a week, collecting documents and interviewing
all the relevant players. The sunlight of reporting seems to be having a hygienic
affect. Council sources say that because of my nudging phone calls, the home-rule
message "is no longer an automatic sure thing."
And Silver says the reconveyance won't happen "unless Assemblyman Sullivan is
comfortable and satisfied." For his part, Sullivan said, "I can't imagine any
circumstance where I would give my approval. Singer has given my constituents too
much grief." Let's hope this apparent triumph doesn't collapse like Singer's slum
building on West 140th Street.
-----------------------------------------------------------------
POL DOES QUICK U-TURN TO KILL SLUMLORD'S BILL
New York Post, November 11, 1999
By JOHN O'MAHONY
A state Assembly bill that would have let a notorious landlord regain a Harlem
building he lost for not paying taxes has been killed. Assembly Speaker Sheldon
Silver (D-Manhattan) was the sponsor of the bill, which was designed to benefit
landlord Baruch Singer, owner of some 40 buildings with 1,000 apartments north of
96th Street.
After yesterday's Post expos of conditions in Singer's buildings - many of them
with hundreds of building-code violations - Silver's office told The Post, "The
bill is dead." "We have no intention of moving the bill," said Silver's
spokeswoman, Pat Lynch. "The bill will not be resurrected this year. It will not be
resurrected next year. The bill is dead."
If passed, Silver's bill would have enabled Singer to buy back the building at 246
Manhattan Ave., on which he defaulted seven years ago. The building is near West
113th Street, in an area that is undergoing an economic upturn.
When Singer defaulted on the property, it had 283 building-code violations. He owed
$80,000 in back taxes. Singer failed to redeem it within two years, so a special
law would have to be passed to allow him to buy it back. Singer said the Assembly
bill should have been "passed on its merits" because the city made a mistake in
taking the building from him.
He added that he "was shocked" to find himself labeled a "slumlord" in The Post,
and protested being associated with a building that collapsed five years ago at 142
West 140th St., killing three. "I was shocked to see an article that made it appear
I was responsible for that building," he said.
"I want people to know I have a wonderful relationship with my tenants. As to the
violations against any of my properties, the majority have all been corrected."
Tenants, as well as city, federal and court records, dispute his claims.
-----------------------------------------------------------------
REALTY BITES
Manhattan Spirit, November 18, 1999
By David Colby
Tenants dig in while greedy landlords evict for profit. There's no place like home.
There's no place like home." Those are the familiar words spoken by Dorothy in "The
Wizard of Oz" after a powerful, malicious tornado blew her Kansas home off its
hinges and sent Dorothy into the netherworld. Actually, Dorothy's journey was a
dream sequence in a movie classic. For New Yorkers, though, life is not cinematic
fiction.
Reality is their fate hanging in the balance inside their rent-controlled
apartments. Their mantra might as well be, "There's no place like a home, any
home," because like an army of Flying Monkeys, numerous landlords have swooped down
upon their tenants in an attempt to evict them from their homes.
Their tornado has swept this vulnerable mix of young and old, diseased and
disabled, into a constant state of panic and costly litigation. Landlords are
stooping to unimaginable depths of dirty deeds to make their current tenants
disappear forever so that they can seize on Manhattan's real estate bonanza.
The victims are the many displaced tenants who lack the resources and funds to ward
off these urban land barons. But there are those who hold their ground and fight,
organizing coalitions to take on these owners who smugly think that they'll triumph
in their insidious game of real estate Darwinism. That an ugly situation has come
to this is abominable. But that's how it goes. Realty bites.
Slumlords come and go, but when they go (most likely handcuffed, in police custody,
bound for a holding cell at Rikers), they leave the building and tenants against
whom they waged their reign of terror in flux. Such is the case in an otherwise
nondescript trio of buildings located in Chelsea. On the cusp of the '80s, ex-NYPD
detective Thomas Lydon bought three tenements (446, 448 and 450 W. 19th St.). What
followed was an egregious assault to the tenants who lived there.
A six-year campaign of chaos ensued. Heat and hot water were routinely shut off.
Suspicious fires were set ablaze inside each of the buildings. "The landlord bought
off these 14 goons," recalled Jane Wood of the Chelsea Coalition on Housing. "They
were placed in apartments throughout the buildings. They blasted music. From there
they went on to deal drugs, vandalize the hallways, tinker with the piping to cause
floods, harass, burglarize and even stab helpless tenants."
Some tenants were intimidated to the point of fleeing their homes, while others
remained in their rent-regulated apartments. They organized and banded together to
expose the abuses that had been inflicted on them. The Manhattan District
Attorney's office eventually brought charges against Lydon. He pleaded guilty to 54
felony counts and was forced to pay the tenants $80,000 in reparations. The tenants
were vindicated, and validated as role models to all New York City tenants. The
outcome also acted as a catalyst in establishing tenant advocacy groups as
influential entities in tenant/landlord disputes.
In the aftermath, the buildings, which had been left in absolutely horrendous
condition, were sold. The buyer agreed to move the remaining tenants into 446, the
least damaged of the buildings. Repairs were made and several tenants were moved
into the building in '87. However, the buyer incurred financial default and,
furthermore, was responsible for faulty construction, poor maintenance and rent
overcharges. The properties were subsequently sold to the contractor who had been
hired to renovate the buildings into affordable, livable housing. The tenants got
more than they had bargained for, unfortunately.
Gary Pascua, a native American Indian, moved into the 448 address as the scandal
heated up. "I was 21 years old then, and I had just moved here to New York to start
a new life and to take on responsibility, get an apartment and pay rent like
everybody else. To do all that, [it] was necessary to start over," said Pascua, a
professional landscaper also known as Poco. "I never thought that I had to do it in
the judicial system for most of my life."
But that's just what happened. No sooner than the new management was in place, the
landlord began scheming to squeeze the carry-over tenants through loopholes and out
of the apartments where they were situated.
One would assume that following the previous landlord's demise, the successor would
be especially circumspect about conducting their business ethically. "Not a
chance," said Poco."The building management declared, 'I'm getting you out of this
apartment if it takes the rest of my life to do it.'" The threats came after Poco
cited damages done to the walls and flooding to the apartment to which he had been
relocated after the court settlement. The new owners were sanctioned to cover such
costs, and protest they did.
The two sides went back and forth making claims and counter-claims. The legal
wrangling, though, paled by comparison to what was to become Poco's personal
tragedy. Poco was diagnosed HIV-positive. At the advice of his doctor, Poco's
declining health dictated that he get away from New York for a while. "So I went to
Colorado," explained Poco. "I knew that I would die here. I knew I was dying. I was
getting sicker by the minute. I wouldn't have survived had I stayed. I had to leave
in order to come back as a human being." Funds were scarce, so to cover his
expenses, Poco arranged for a couple to stay at his apartment and pay for their
circumstances. There was no dealing with his landlord, considering the acrimony
between the two sides. The landlord by then had completely cut off all dialogue.
Poco left for Colorado.
When he returned after six months and three days, he was issued an eviction notice.
The landlord claimed that Poco was guilty of a non-primary residency statute which
means that if a tenant lives in their rent-stabilized apartment less than 180 days
in a calendar year, they forfeit rent-regulation protection. "When I returned, my
blood count was in order," said Poco, "but my T-cell count fell below 100 because
of the stress and having to go to court. The lawyer for the landlord actually said,
"When's the guy going to die? He could live forever. He should go to Florida and
live with the homeless." Poco missed the cut-off point by three days and his
landlord, Jeffrey Levine, pounced on the legal opening, leaving Poco's tenuous
status in the hands of a Housing Court judge. Yet, Poco asserted, "I'm not going to
be habeas-corpused out of my home."
Levine has taken action against two other sets of tenants living at No. 446. Janet
Higpie, Victoria Shaw-Williamson and her husband, James Williamson, are Levine's
latest targets. Levine claims that because the building was substantially
rehabilitated after the debacle of the '80s, the building was exempt from
rent-regulation. Using that rationale in conjunction with the enormous rise in real
estate market value, Levine levied a $1,000 rent increase on the Williamsons in
1998, and a 16 percent increase to Higpie's monthly rent soon after. Each consulted
with the State Division of Housing and Community Renewal (DHCR) and an attorney.
The consensus was that Levine overstepped his authority. Did the second landlord
sufficiently rehabilitate the building? The proof (invoices, checks, general
itemization of services rendered) is scant, but the landlord persists in dragging
it out. Can Levine profit at the expense of tenants because of the illegality of
his predecessor?
These potentially precedent-setting cases plod along. Meanwhile, the Williamsons
and Higpie aren't paying rent. Levine has refused their checks. He is committed to
evicting them. He even sent the initial eviction notice to the Williamsons to be
received when they returned from their honeymoon. "All I want is the landlord to
live up to the requirement of the rent-stabilization laws," sighed Higpie. When
asked to comment on the case of 446 W. 19th St., Levine replied, "I know about the
case. It's a court proceeding that will be resolved through the system." The battle
continues.
Meanwhile, a citywide laundry list of landlord abuses piles up into a filthy mess,
akin to the Chelsea fiasco. They're bizarre acts perpetrated by rogue landlords,
and nightmares for their tenants. The roll call, which reads like National Enquirer
headlines, goes something like this: "Sub-tenant of loft on the East Side charges
tenant with harassment on grounds of inflicting emotional distress, and causing her
to miscarry"; "East 84th Street tenant, a stewardess, offered buyout of lease, as
fiancee is African-American"; "Upper East Side landlord evicts tenant on pesky non-
primary residency hitch because tenant summers in the Hamptons"; "Uptown building's
air shaft is half-repaired, ventilation cut off and toxic fumes infiltrate homes of
tenants"; "86th Street rent-stabilized building is privatized to house a Senior
Citizens Care Facility, elderly tenants given their residential walking papers";
and "Landlord paid by city to house the terminally ill, tenants subjected to
crack-dealing, heat and water turned off and snakes slithering from apartment to
apartment."
The chronology of events is a familiar and vicious cycle. Rent out an apartment,
ruin the quality of life for the tenant, coerce the tenant out, raze the remnants
of a scam and extract every penny from the next dupe. The crisis gets worse as the
March 31, 2000 date nears, when New York's already restrictive rent regulation laws
expire. The Urstadt Law states: "The city cannot pass more stringent laws." The
best that can be hoped for, unless the Urstadt Law is miraculously repealed, is a
status quo. Well, the status quo translates into a slight of hand like the
following.
Provisions to decontrol apartments exist where rents rise above $2,000/month. The
landlord applies for major capital improvement (MCI), re-bricks the building facade
with shoddy material, tacking onto the rent checks the cost difference of the
repairs, swinging the rent above the $2000/month level, and it's "deregulation
evict the tenant and win the lottery time" for the landlord.
It's unclear now whether the rogue landlords are becoming the norm or abberations.
Efforts to reach Joseph Strasburg, president of the Rent Stabilization Association,
the city's largest trade organization for landlords and property owners, were
unavailing.
Tenant advocates and local politicians are generally pessimistic, but urge citizens
to get involved. "Once the phone is cut off," said Dawn Sullivan of the East Side
Tenants Coalition, "you never hear from them again. To the tenants who fight and
win, the landlord will say, "You may have won, but we'll keep after you until you
run out of money." The landlords cheat because they can get away with it. There's
not enough enforcement." Sen. Roy Goodman and Sen. Tom Duane vow to remain
steadfast in their advocacy of tenants' rights. Goodman said, "I am concerned about
the weakening of tenants' rights. It's important to keep rent-regulations intact.
Luxury decontrol and harassment committed by illegitimate landlords must be dealt
with. We must rally people to crusade for fair rent for all citizens."
Duane declared, "I, along with many housing advocates, am concerned that the laws
will be weakened by City Councilmembers who do not have to face elections when
their terms expire in 2001. There is little time to lobby City Councilmembers that
we suspect may not be 100 percent pro-tenant, and the time to organize is now."
"Soon, rent controls will be abolished and times will change, but for now my very
existence is threatened," said Paco. "My work and 30 years in my home might soon be
on the streets with nowhere to go. Everything that I have fought for and live for
are here. I don't have the resources that landlords do. I only have myself, the
hope and the love, and now I haven't much time. A judge will soon make a decision.
I can only hope he/she may realize what is to be gained here, and make a just
decision."
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Tenants Online 11/23/99
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In this issue...
1. Tenants must get complete landlord MCI application (Law Journal)
2. Sweet Rents May Be Over At a Former Candy Factory (Times)
3. Brooklyn Community to Landlords: No Evictions! (Voice)
4. Group Declares Evict-Free Zone for Aged (News)
5. Disabled Man Battles for Harlem Apt. (News)
6. Mentally Ill Tenant Entitled to New Lease (Law Journal)
7. Lawsuit Challenges Vallone-landlord Lead Bill
-----------------------------------------------------------------
JUDGE TO DHCR: TENANTS MUST GET COMPLETE LANDLORD MCI APPLICATION
New York Law Journal
Wednesday, November 3, 1999
Calling for a change in procedures in the State Division of Housing and Community
Renewal, a Queens Supreme Court justice has ruled that tenants must get from the
DHCR the entirety of a landlord's application for a rental increase based on major
capital improvements, not just a standard form summarizing the application. In
Horowitz v. State of New York, Justice Luther V. Dye said that leaseholders
protected under the rent stabilization statute must get a "copy" of the landlord's
application for a rent increase. Under DHCR's customary "mailing practice," Justice
Dye wrote, affected tenants were served only with a form summarizing the capital
improvement rent increase application. This type of notice, he said, was "clearly
insufficient" to give potential challengers to a possible rent hike information
they are entitled to under rent stabilization law.
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SWEET RENTS MAY BE OVER AT A FORMER CANDY FACTORY
New York Times, November 7, 1999
by Sharon McDonnell
The tenants of a converted candy factory at 20 Henry Street are panicked because
their landlord has decided to buy its way out of the state's Mitchell-Lama housing
program, which they say has kept rents there affordable since 1975. The landlord
could then charge market rate rents in a building where tenants pay $600 to $1,300
for loft-style apartments with exposed beams and views.
"We had no idea this would happen at a time when the market was so high," said
Dorothy Barnhouse, a writer who pays $700 for her apartment in the building, the
former Peaks Mason Mints factory. "We feel like this will be a mass eviction."
The tenants — social workers, teachers, poets, textile designers and others not
noted for excessive incomes — are hiring a lawyer. In larger Mitchell-Lama
buildings, tenants have fought similar buyouts.
The 42 units in the building, which is known as the Middagh Street Studio
Apartments, are among 400,000 units in the Mitchell-Lama program statewide, about
half of them in New York City. In exchange for tax benefits and favorable
mortgages, the owners agreed to keep rents low for 20 years, after which they could
leave the program.
The 20-year mark for 20 Henry Street passed in 1995, and nothing happened. "We
breathed a sigh of relief," said Tom Kandanian, a tenant who pays about $600 a
month. Then in August, the Penson Corporation, the managing agent, said the owners
planned to pay back the $1.3 million mortgage to the city's Department of Housing
Preservation and Development by the end of this year. The new rents have not been
set, but many one-bedroom apartments nearby fetch $2,000 and up.
Carol Abrams, a spokesman for the housing agency, said the city was considering
offering a subsidy to the building's low-income tenants. In the meantime, leases
that expire before the mortgage buyout will be extended for a year, said Edward
Penson, president of the management company.
"We've gone out of our way not to surprise anyone — it's not like something came up
and bit them," Mr. Penson said. "The building has lost money for most of its
20-plus years."
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SIGN LANGUAGE: BROOKLYN COMMUNITY TO LANDLORDS: NO EVICTIONS!
Towers & Tenements, Village Voice, November 17, 1999
BY J. A. Lobbia
'Landlords, Supers, People of Brooklyn!!' screams a flyer on a streetlight just a
few blocks west of Prospect Park. It sounds like the author might launch into some
high-minded civic appeal, but that possibility is deflated by the next line: 'Know
of a snazzy apartment for rent nearby?' The author, a 'quality-minded residential
contractor,' was hoping to snag a deal: an apartment for under $1200 a month in
this fast-changing outer Park Slope neighborhood of brownstones and three-family
buildings.
Just across the street from the contractor's sign, about 90 community residents
gathered in a school auditorium to plot a neighborhood advertising blitz of their
own, one infused with a bit more social purpose and arguably directed against the
quest for $1200 apartments. They call it the Campaign of Conscience.
Spurred by what local politicians and community groups call an "epidemic" of
evictions by landlords who are descending on the neighborhood, and the lack of
legal protections for tenants who live in the small buildings that are being
snapped up, Brooklyn's Fifth Avenue Committee designed the campaign. On November
16, community members designated a 36-block area as the "Lower Park Slope
Displacement-Free Zone." From Sixth to Third avenues and from Bergen to Second
streets, signs will be posted warning prospective landlords that evictions will not
be tolerated. Buyers who do jack up rents can expect pounds of protest mail, calls
from local clergy, and perhaps even a busload of demonstrators delivered to their
front lawns.
"This strategy developed over the past months," says Benjamin Dulchin, lead
organizer for the Committee. "In the spring, we had a 78-year-old blind lady who
was evicted from Seventh Street when her new landlord jumped her rent from $500 to
$1200; then, a few weeks later, we had the Soto sisters," two 80-plus-year-old
women whose new landlord planned to triple their $500-a-month Baltic Street rent.
"We were just sick of it, saying, 'Why can't we do anything?' " Legal options are
few because rent laws don't apply to buildings with six or fewer units, and the
most tenants can hope for is a six-month extension from a housing court judge.
With no law on their side, the community turned to old-fashioned tactics: They
hired a bus and showed up at the Woodmere, Long Island, home of the Sotos'
landlord. Dulchin says the 70-person protest-plus coverage in both The New York
Times and the Daily News-"shamed" the landlord into making a deal. The Sotos, who
each had their own apartment, were allowed to stay by moving into one unit at a
slightly higher rent.
Now the Committee hopes to prevent the need for such tactics by making the
community's resistance to evictions known to local brokers and their clients alike.
"We'll let buyers know that if they want to kick people out just to raise the
rents, they're not welcome here," says Dulchin. "We will go after them, we will
make their lives really unpleasant, and hope that any other landlord who is
contemplating this same thing will think twice. We will put public moral pressure
on landlords to not evict tenants."
Moral pressure on landlords? The prospect brought snickers from local brokers, and
even one tenant defender doubts the logic of a "campaign of conscience" aimed at
property owners. "What conscience?" he asked. "Landlords as a group have the
smallest conscience I've ever seen. I mean, there's conscience and there's money,
and money is a very powerful thing." Broker Pat Hoffman, who has been selling
Brooklyn real estate since 1983, says, "These buyers are paying exorbitant prices
for these buildings, and have to pay the bills. You can't appeal to their
conscience when they're paying $550,000. This is a business thing. This is
capitalism at work."
Dulchin is not naive about the economic imperatives the campaign faces. "We're
aware that it's not an easy fight; we're simply trying to get people to weigh their
individual economic benefit versus that of the community. Right now, the logic of
the market is making decent people do mediocre things. We want to interfere with
the market and make it difficult enough for people who know that if that's what
they intend to do, stay away."
And he's realistic about what can be accomplished: "We expect we will take 30 cases
over a year, and we expect to lose half," he says, noting that South Brooklyn Legal
Services will help tenants in court. "We figure we'll see a 10 percent reduction in
the amount of displacement."
Especially hard hit by evictions are seniors, who typically live for years in small
buildings and pay below-market rents. In many cases, they shared the buildings with
their landlords, who were likely their peers. When the landlords die or sell, new
owners boost the rent. Marc Garstein, a longtime Brooklyn broker, says the dilemma
"is something that's bound to happen, and something I don't like hearing about."
But he doubts the campaign will keep buyers away. "Developers don't read posters;
they read bottom lines."
Dulchin makes the distinction between newcomers who want to live in the
neighborhood and will let longtime tenants stay at reasonable rents, and those who
are simply investing in real estate for profit with no regard for the community.
"It's not like there is a pattern of any single villain, no corporation or evil
landlord with fangs dripping blood buying up the neighborhood," says Dulchin. "In
many cases, it's decent people making their own best decisions for themselves, and
the fact is, it's an inexorable and cold decision. It's not like having the Village
Voice's 10 Worst Landlords coming in. But we hope we can keep the worst away."
In June, the Voice reported that octogenarians Tony and Liz Colacino were being
evicted by their new landlord, Eugene Kaleniak, who had tripled their $400 rent.
The Colacinos have won extensions in court, but must move by January 22. A reader
who is trying to help them relocate is asking anyone with a large first or second
floor, one-bedroom apartment in Brooklyn that rents for under $850 to call
212-501-1946.
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GROUP DECLARES EVICT-FREE ZONE FOR AGED
Daily News, November 17, 1999
By ROBERTO SANTIAGO
Community activists organized by the Fifth Ave. Committee began putting up
"displacement-free zone" signs on lampposts in lower Park Slope yesterday, warning
landlords not to evict longtime, elderly tenants.
Just before the first sign was put up on Sterling Place, a news conference on the
move attracted 37 supporters, including state Sen. Marty Markowitz (D-Brooklyn),
Assemblymen James Brennan (D-Park Slope) and Felix Ortiz (D-Sunset Park), City
Councilman Angel Rodriguez (D-Sunset Park) and the Rev. Robert Whelan of St.
Augustine Catholic Church.
The displacement-free zone calls for a 36-block area, from Bergen to Second Sts.
and from Sixth to Third Aves., to be a safe zone for senior citizens.
Seniors, according to the Fifth Ave. Committee, often receive whopping rent hikes
by new landlords who purchase buildings with less than four rental units.
Buildings with four apartments or less are not subject to rent stabilization or
rent control laws.
"We want new landlords who are buying apartment buildings in Park Slope to know
that, while we honor your right to make a profit, it should not be at the expense
of longtime, elderly tenants," said Fifth Ave. Committee's Benjamin Dulchin at a
Nov. 4 meeting.
Dulchin warned that landlords who try to evict elderly tenants will endure
community protests at their homes and businesses.
"We know that landlords have the legal right, so we are appealing to their
consciences," he said at the meeting.
The idea for a displacement-free zone came after the Fifth Ave. Committee prevented
two elderly sisters from being evicted from their Cobble Hill apartment last summer
after a so-called conscience protest at the landlord's home.
The campaign has even attracted the support of one area landlord. Allison Williams,
who for 20 years has owned the four-unit apartment building at 23 Lincoln Place,
said landlords should put long-term gains ahead of short-term profits.
-----------------------------------------------------------------
DISABLED MAN BATTLES FOR HARLEM APT.
Daily News, November 17, 1999
by Michael Daly
From out of the gentrification of Harlem and through the doors of Manhattan Housing
Court rolled the wheelchair bearing a legless tenant who chose to risk eviction
rather than accept the best rental deal in the city by every measure but his pride.
Greg Baker needed only to quit the eight crumbling rooms at 207 W. 110th St. he has
called home for half his 51 years. Landlord Maurice Mann would then present him
with a newly renovated one-bedroom apartment in the same building, complete with
handicapped-accessible kitchen and bathroom. The monthly rent was every tenant's
dream.
"One dollar for the rest of his life," Mann promised. Baker said he intended to
stay where he was. "I don't want them pushing me out of my home," he declared.
"They're going to have to drag my dead body out."
On Monday, Baker rolled into Housing Court for the fifth time in four months for a
case both sides say they are sure to win. He was so self-assured in every regard
that nobody saw need to assist him as he boarded the crowded elevator. He paused
before wheeling out at the fifth floor.
"Ladies first," he said. Baker parked himself outside Part A and swiveled to unhook
four plastic bags of papers from the back of his wheelchair. Some of the documents
went back to the long pre-Mann years of no heat or hot water.
He produced a 1985 letter from the Manhattan district attorney thanking him for
helping to jail a previous landlord named Thelma Nelson for assault, robbery,
burglary and illegal eviction.
"Your efforts were very important to the successful prosecution of this case," the
letter read. Other papers were from the dozen ensuing years when there often seemed
to be no owner at all. The elevator was on the blink for months at a time, and
Baker had only one way to descend from his fifth-floor apartment.
"On my butt," he recalled. In 1997, Maurice Mann bought the building. He repaired
the oil burner and steam-cleaned the lobby and painted the doors and installed new
mailboxes and replaced the wheelchair ramp Baker had built.
"I've yet to hear one person say, 'Wow, thanks, Mr. Mann,'" Mann noted. The tenants
decided that the improvements were part of an effort to replace them with the rich,
that the building was finally being made livable just so they could be forced out.
They saw proof in a real estate leaflet for their building that Baker now eyed. He
apparently no longer lived in Harlem.
"In the heart of the upper West Side," the leaflet announced. The leaflet reported
that "wonderfully renovated" apartments in the building would be renting for up to
$3,200 a month. The sum explained to Baker the dozen copies of an eviction notice
he found affixed to his apartment door last summer.
"They paste it all over my door," Baker says. "People can see that. That embarrass
me." Baker now tucked the notices under his right stump along with a "Report and
Certification to Alter or Demolish Occupied Housing Accommodations" that had come
with Saturday's mail.
From under his left stump, Baker produced photographs of the $109-a-month place he
calls home. There was a hole in his bedroom ceiling, but any chance he would
forsake the apartment for Mann's rent-free place probably vanished a few weeks ago,
when he was selling roses outside the Motown Cafe. One of the landlord's lawyers
happened by with a second man.
"The lawyer say to the other man, 'Mr. Baker live at 207, but he doesn't belong
there,'" Baker recalled. "If I never lose my legs, I would have knock him out."
Another of Mann's lawyers now arrived at Part A and entered with Baker's Legal Aid
attorney, Kenny Schaeffer. Baker removed his black baseball cap as he wheeled in
behind them.
"If he doesn't have a lease, he doesn't have a right to be there," Mann's lawyer
said. "I've been there 25 years," Baker said. The case was put off until Dec. 9,
and Baker rolled back to the elevator. He told a Jamaican tale of five brothers who
fought over a piece of land. "One morning, they looked and it had turned to a salt
lake," Baker said. "Oh, the hand of God."
From the courthouse, Baker rolled to the Chevrolet his former employer bought him
after a 1989 car accident cost him his legs and ended his 18-year career as a
deliveryman. "I'll show you how I get in by myself with no help," he said.
He scooted in from the passenger side, collapsing the wheelchair and pulling it in
after him. A pull of the accelerator handle, and he drove away, smiling, to the
apartment he has decided should stay in Harlem.
-----------------------------------------------------------------
MENTALLY ILL TENANT ENTITLED TO NEW LEASE
New York Law Journal, November 10, 1999
BY MICHAEL A. RICCARDI
A MENTALLY-ILL tenant is entitled to renew his lease with a stipulation that he
continue to undergo treatment as an accommodation under the Fair Housing Act, a
federal Eastern District judge has ruled.
The judge halted state court eviction proceedings against the man who, while
untreated, had vandalized his dwelling.
Judge Denis R. Hurley agreed to enter the preliminary injunction to prevent Glen
Blalock and his father, Glenwood Blalock, from being evicted from their home in
Amityville.
Lawyers for the Blalocks said that the decision extends protection under fair
housing law to those seeking renewals of leases, as well as those residing in a
dwelling under a current lease. They also said that the case demonstrated clearly
that successful treatment of mental illness can constitute a reasonable
accommodation under federal housing laws.
The landlord, the Amityville Senior Development Corp., had begun proceedings to
oust the Blalocks because Glen committed acts of vandalism on the property when he
failed to take medication for his schizophrenia, according to the opinion.
A commitment to continued treatment as a condition of lease renewal is an
accommodation of disability under federal housing law, Judge Hurley ruled in his
decision to stop the eviction proceedings in state court.
In Blalock v. Amityville Senior Development Corp., No. 99-CV-5447, Judge Hurley
said that the Fair Housing Amendment Act requires reasonable accommodation of a
handicap such as Glen Blalock's schizophrenia.
Moreover, the landlord's refusal to renew the Blalocks' lease was attributable to
Glen Blalock's handicap.
While the vandalism episodes cited by the landlord are "not insignificant," the
court said, the young man's treatment history "strongly suggests that a recurrence
of such conduct is unlikely should defendant ... permit plaintiffs to remain as
tenants."
After the two vandalism incidents, which were not detailed in the opinion, Glen
Blalock was hospitalized for a month. Since May, when he left the hospital, Glen
Blalock has lived at the apartment peaceably, the court said.
Protection Allowed
Judge Hurley turned aside the landlord's argument that it would not have renewed
the lease of a non-handicapped person who was responsible for the same sort of
vandalism.
"While that argument may have a superficial appeal, recognizing that the required
accommodations under FHAA must merely provide a handicapped individual with an
equal — not a preferential — opportunity to enjoy a dwelling, it is, nonetheless,
flawed," Judge Hurley wrote. "It fails to acknowledge that certain protections are
afforded to handicapped individuals under the statute which are not applicable to
their non-handicapped counterparts."
Judge Hurley concluded that it is an accommodation for a landlord to accept a
promise of continued treatment of a tenant's mental illness.
In Blalock, he said, no such accommodation had been offered and no reason set forth
as to why an accommodation is impossible.
The Blalocks were represented by Beth Wickey, Robert Briglio and Phil Siegel, of
Nassau/Suffolk Law Services Committee Inc. The landlord was represented by Stanley
Somer, of Somer & Heller in Commack.
-----------------------------------------------------------------
LAWSUIT CHALLENGES VALLONE-LANDLORD LEAD BILL
New York Public Interest Research Group ("NYPIRG"), City Project and Common
Cause/NY filed a lawsuit (NYPIRG v. Vallone) October 29th challenging the City
Council's passage of Local Law 38.
The NYPIRG v. Vallone pleadings and supporting affidavit are available on line in
PDF format at NYCCELP's WEB PAGE (http://www.nmic.org/nyccelp/nyccelp.htm), as
well as all the pleadings and supporting affidavits in the first lawsuit (NYCCELP
v. Vallone)
The lawsuit is based on the N.Y. Municipal Home Rule Law, the City Charter and the
Rules of the City Council. Under these laws, a proposed local law must be
introduced at a City Council stated meeting and then must be in its "final form"
and on the desks of Council members at least seven days (excluding Sunday) prior to
its adoption. When there is a need to adopt a local law more rapidly, the Mayor
must issue a "message of necessity" and the Council must adopt the proposed law by
a two-thirds majority vote. The plaintiffs seek to have Local Law 38 invalidated
because it was both introduced and adopted at the same meeting, and without the
Mayor issuing a "message of necessity."
The plaintiffs believe that the rushed enactment of Local Law 38 violates the law
and constitutes an unsound procedure for passing any local law -- in particular an
important public health law. At the time it was widely understood that lead
poisoning prevention experts were in agreement in their opposition to Local Law 38,
because it did not reflect current scientific research and understanding of
childhood lead poisoning. Had Local Law 38 not been fast tracked through the
Council in violation of applicable law, it is possible that the entire Council
would have addressed some of the law's most glaring flaws.
If you wish more information about the lawsuit, please contact Cathleen Breen
(cbreen@nypirg.org) or Andrew Goldberg (agoldberg@nypirg.org) at NYPIRG.
(212-349-6460)
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