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HPD took no action following Inspector Visit

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HPD took no action following Inspector Visit

Postby ItsColdOverHere » Sat Jan 29, 2022 10:32 am

Hi,

I live in a non-rent stabilized apartment in Brooklyn, NYC. That apartment is on the second floor of a private building that only has two units, with the landlord living downstairs.

I have had persistent issues with lack of heating ever since I moved in, in Nov 2021, but because the last two months of the previous year were relatively work, I didn't raise the issue with the city, but notified the landlord who brought a specialist to check the boiler who found everything to be working OK.

The problem is that the temperature in the apartment is consistently below 68 degrees throughout the day. Because of that, I made multiple complaints against the landlord on 311, and an HPD housing inspector visited my apartment and confirmed that the temp is below 68 degrees. However, all complaints were closed and HPD complaint status says:

Code: Select all
The Department of Housing Preservation and Development contacted an occupant of the apartment and verified that the following conditions were corrected. The complaint has been closed. If the condition still exists, please file a new complaint.


That is not factual. The issue was not corrected (indoor temperature monitor shows 65.8 right now) and HPD did not issue a violation to the owner. I called 311 today and made a complaint against HPD. What other options do I have?

Thank you in advance.
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Re: HPD took no action following Inspector Visit

Postby TenantNet » Sat Jan 29, 2022 1:01 pm

If not, become familiar with the NYC heat laws, posted on this forum and also in the reference section. Because of the cold snap, there are many people calling to complain this weekend.

Seems you're recording the inside and outside temperatures, which is good for documentation.

Yes, HPD does that. I've seen it happen in my building as well. I thought it was only with anonymous complaints where the entire building had heat issues. Because such complaints are anonymous, HPD can't go to a specific apartment. Makes sense, but in our opinion, they should still come to the premises and investigate. They don't, claiming they contacted some unnamed tenant. Pretty obvious that's a lie.

Now you've confirmed that even when a complaint is non-anonymous, and when they actually have come to your apartment and verified the low temperature, they still play that game. Did you record or take video of the inspector's visit? Do you know if the inspector went to speak to the LL or super after visiting your apartment? It's not unknown that some inspectors ask for some palm grease to make violations go away. That happened to me many years ago. So I went to HPD central offices in Manhattan to get a copy of the violation. They scurried very quickly to write up the violation they were trying to forget. Your documentation or witness is the best was to expose this sort of thing.

Or, even if there's no payoff (no matter who originated it, and near impossible to prove), maybe they are just lazy. Still, same solution. Press the issue.

Options? You can sue them, either in Supreme Court (expensive) or in an HP Action where you sue the LL and HPD together for the relief (a fixed boiler? drafty windows? other?) That's where your documentation comes in handy, especially video. You can set up a cell phone to record the inspection, but make sure the inspector doesn't see it - they freak out. You have every right to record or take photos even if they say you don't, but if they know about it, strange things might happen.

You can go to your local elected officials. Many of them don't want to do much, but if you persist, they might actually do some work. Some are better than others. Most have a constituent person and usually have contacts within HPD or DOB to expedite things.

If it's a building-wide thing and you have many neighbors also freezing, call the media. (yes, you said it's only you and the LL, but this is for others reading this post). However, be careful as you don't want to turn LL cooperation into a bad relationship. That doesn't mean you should freeze, but the more you escalate, the LL will likely not be appreciative. And in your case, you don't have RS lease protections.

Finally - here's a potential problem - all apartment buildings must be registered with HPD if there are 3 or more units. They must also be registered if there are less than 3 units if the LL does not reside there. You said there were 2 units and one is the LL, making you the only tenants. https://www1.nyc.gov/site/hpd/services- ... perty.page

If there is a registration, it should be posted in the lobby; otherwise check the HPD info page.

I've seen cases where HPD will not even inspect unless the building is registered. I don't know if a tenant can bring a case against a building that is not registered. Obviously, above, you copied what HPD posted, so something happened. But be aware that might be an issue.

Did you check the HPD info page? That might have different results than what 311 reports. This should work: https://hpdonline.hpdnyc.org/HPDonline/ ... dress.aspx
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Re: HPD took no action following Inspector Visit

Postby ItsColdOverHere » Sat Jan 29, 2022 3:53 pm

Thanks a lot for the detailed response!

Yes, I am aware of the NYC heat law, and I am trying to make the landlord comply to those regulations...

Some additional info based on the points you've made:
- Unfortunately, I did not record the visit that the HPD made. The only thing that I captured digitally, was the reading from the two indoor temperature monitors that I am using, which, at the time of the inspector's visit, were both showing less than 66 degrees
- I didn't ask for the inspector's name or badge number. I have no proof of his visit besides the call he made just before entering my apartment.
- The inspector did not talk with Landlord after inspecting my apartment. I escorted him to the entrance of the building to lock the door after he left
- The inspector mentioned that he would submit his findings to his supervisor and that it would be up to the supervisor whether to issue a violation or not, but during our discussion, the inspector did confirm that the temperature that he measured was below 68 degrees, and that at least one of the radiators was not working.
- The building does not appear to be registered on HPDonline. The registration section for the building I live in mentions:
Code: Select all
One and two family properties are not required to register with HPD unless neither the property owner nor family members of the owner live on the premises. Owners of these properties can register after obtaining a Registration Number. For more information on how to obtain a Registration Number and register, please return to the HPD home page and search for Property Registration.
. However, there are other violations, unrelated to my issue.

Suing the landlord is my intent, but I am trying to collect supporting evidence (that's why I have involved HPD) before moving forward with that. I don't see myself staying here after the end of the term, so the negative implications resulting from worsening my relationship with the landlord is a price I am willing to pay.

Thank you for your assistance!
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Re: HPD took no action following Inspector Visit

Postby TenantNet » Sat Jan 29, 2022 4:51 pm

I don't recall where, but somewhere I've seen discussion as to what sort of thermometers can be used to be evidence in a court proceeding. Your average thermometer might not be accurate and a LL will seek to discredit the readings. I'd look at digital ones and make sure it's properly calibrated. Some tenant attorneys expressed skepticism at smart phone temperature reading apps. The problem is the smart phone hardware, not the app itself.

One suggested this: https://www.amazon.com/MINGER-Temperatu ... B07FBCTQ3L (but I'd check before buying this or similar devices).

One tenant attorney stated:

Code: Select all
As far as I know, where only an approximate temperature needs to be
proved (e.g. that the indoor temperature was 61 or 59 or 63 F when 68
was required), evidence based on a layperson reading an ordinary
thermometer isn't excluded merely because there is no proof the
thermometer was accurately calibrated. I've never heard of an HP judge
refusing to admit a tenant's temperature log because the thermometer
used was not proved to be professionally calibrated and periodically
retested.

If I had to rely on my client to provide the foundation for the
temperature log, I would want him to testify that he (1) checked
several temperature readings from the data logger against one or two
other thermometers and found them to be consistent; (2) that he tested
the system setting it to record temperatures at specific times over a
given period, and then at those time manually recorded temperatures
from the display on the device, and confirmed that the temperatures
recorded by the logger corresponded to the manually recorded readings;
and (3) that the data recorded by the logger was not altered or
deleted. You could also have the tenant demonstrate the entire test in
the courtroom.

If the stakes were higher you would certainly prefer to have an expert
testify to all of this, but it really isn't any more challenging to
accept that this technology is reliable than it is to accept that
meter readings on a Con Ed bill reflect actual electric or gas usage.


Another tenant attorney stated:
Code: Select all
At an upcoming trial regarding whether the landlord provided heat as required by law, I will not have the benefit of there being an HPD violation.  (The heat problem happens tof the most part late at night and it is hard to get an inspector there during that time). 

To prove my case, I will need to get my client's heat records, text messages to and from the landlord, and audio recordings into evidence.

If you have sample foundations (or can point me to resources that have them) for the following, it would be much appreciated:

1.  Establishing that the thermometer that the tenant used to measure the temperature was reliable.

2.  Getting text messages to and from the landlord into evidence.

3.  Getting audio tapes into evidence.


And a third tenant attorney suggested using this publication (I don't know if it's available online)
http://paralegalstudy247.com/help/help/ ... _facts.htm

Always get the inspector's name and badge number. Always. And these days demand proof of vaccination and they they are wearing a mask.

You can record phone calls and audio on a cell phone. It is legal in NY state. (used as evidence is a different issue).

Good idea to escort him to the door.

Submit findings to a supervisor? That's bullshit. The temp is either legal or it's not. This is not a grey area or complicated legal question.

I have seen instances where HPD will not inspect on buildings without registrations. I'm not sure what's different in your case.

A lawsuit should be a last resort. The best and easiest way is a HP Action. The court would send it's own inspector, but perhaps on a day where the heat is working. That's the chance you take.
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Re: HPD took no action following Inspector Visit

Postby ItsColdOverHere » Thu Feb 03, 2022 12:24 pm

Thanks again for the response!

I have a similar digital temperature reader from you which you can also extract time series data. I ultimately reached out to HPD Commissioner by mail and by using their online form, but I got no response.

Seems that the HP Action is my last resort. I have two questions with regards the HP Action:

1. If the case goes to court, will I end up in the "Tenant Blacklist"? I understand there is no formal list, but data about HP Actions are being collected and landlords and management companies go through that data when evaluating prospective tenants.

2. If I proceed with the HP Action but the case doesn't go to the court and we settle before that (simply use it as a way to make the landlord comply with the law), will the case be recorded and be available when future landlords / management companies pull the latest data from that database?

Thank you in advance!
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Re: HPD took no action following Inspector Visit

Postby TenantNet » Thu Feb 03, 2022 1:02 pm

The blacklist was supposedly outlawed, but not really from what I hear. However, a HP Action should probably not get you there ... it's usually on eviction cases. (but I can't guarantee that). AFAIK landlords do not "go through" the housing court data, but there are third party companies that grab public terminals in housing court, sit there all day and type in case data ... and then sell it to landlords.

Another way to avoid the blacklist is to commence a case in Supreme Court, but that can be expensive and is overkill for a HP Action.

Anyone can physically go to the courthouse and look up case data. But housing court cases usually drop off the Ecourts list within a month or two after they have concluded. I suspect they will still be visible on the court house terminals. See:https://iapps.courts.state.ny.us/webcivil/ecourtsMain
Once I was looking up as case from 20 years ago. They had archived the file in a warehouse (I think it was Queens). I eventually got the file, but it took about 4-6 months and I had to remind them several times.
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Re: HPD took no action following Inspector Visit

Postby ItsColdOverHere » Thu Feb 03, 2022 1:49 pm

That's very good to know, thanks!
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Re: HPD took no action following Inspector Visit

Postby TenantNet » Thu Feb 03, 2022 3:57 pm

Here's some background. The HSTPA of 2019 did address blacklist issues. In his coverage of the new law, Judge Lebovits stated on how the new law dealt with the blacklist:

• A rental application may not be refused on the basis of a past or present landlord-tenant action or summary proceeding under RPAPL Art. 7.
• A rebuttable presumption is created against a landlord that denies rental after having requested information from a tenant screening bureau or otherwise inspected court records.
• Landlord has the burden to provide an alternate reason that tenancy was rejected.
• Attorney General has enforcement power; no private cause of action.
• Civil penalties between $500 and $1,000 for each violation.
• The Unified Court System may not sell residential-tenancy or eviction data.
• Effective 6/14/19.

In October 2019, now former NYC Councilman Ben Kallos (not the worst, but that's not saying a whole lot) put this out:

Protecting Tenants from Building Blacklists

In 2016, The New York Times covered bills I introduced aimed at preventing landlords from blacklisting tenants who have been to housing court. The bills were introduced as a result of the hundreds of thousands of New Yorkers named in housing court cases every year that get reported to companies along with credit reports and are often used to deny applications to renters. I reintroduced the legislation last year, and it got a hearing in the City Council this past month. AM New York wrote about how the bill would make discrimination based on the tenant blacklist a human rights violation punishable by fines and enforceable by New York City's Human Rights Commission. For more information, read past coverage in The New York Times and the new reporting from amNY.


So I asked a tenant attorney,

It seems the state law gives enforcement to the AG, while Kallos' bill gives it to the HRC. But aren't blacklists now illegal? Are the companies still compiling the lists at the computer terminal in Housing Court? Does the Kallos bill really add anything?


who replied:

1. There is not, and never was, such thing as a “Blacklist”. There’s no list somewhere. It’s about information in the databases of tenant screening bureaus (TSB) that they get from Lexis who gets it from the Housing Court public access computer;

2. Obtaining Housing Court data by Lexis and selling it to TSB’s who sell it to LL’s is not illegal and the new state law (and the proposed NYC law) doesn’t change that.

3. The only thing the new state law does is to make a LL’s sole reliance on a TSB report about a prior housing court case as a basis to deny an apartment a form of housing discrimination, only enforceable by the AG.

4. The NYC law adds a similar provision to the NYC Human Rights Law making it illegal housing discrimination under that law. The NYC bill doesn’t include the rebuttable presumption that the NYS law has.

5. Yes, Lexis is still collecting NYC housing court data from the public access computers.


See the testimony before the NYC Council Civil and Human Rights Committee on the bill: http://fishmanlaw.nyc/james-fishman-tes ... cklisting/

Also see viewtopic.php?f=15&t=12131&p=58623
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