[NYtenants-online] NY Tenants Online 12/29/01
Tenant
tenant@tenant.net
Sat, 29 Dec 2001 15:31:54 -0500
NYtenants Online/TenantNet 12/29/01
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HOW LONG UNTIL RUDY LEAVES?
See the Rudy Countdown Clock at www.tenant.net
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IN THIS ISSUE ...
1. No Heat? Here's the info
2. Rev. Billy -- Where's the Oscar Buzz?
3. NYC Budget Update: Tenant Groups Mostly Spared (City Limits)
4. City Rent Control Statute Upheld (Law Journal)
5. Court Nixes Higher Rents for Rent-Controlled Apartments (Newsday)
6. Lead Paint: A Ruling For Tenants (NY Times)
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REMINDER: It's Heat Season (info from HPD)
The City Housing Maintenance Code and Multiple Dwelling Law requires
building owners to provide heat and hot water to all tenants. Building
owners are required to provide hot water 365 days per year at a constant
minimum temperature of 120 degrees Fahrenheit. Between October 1st and May
31st, a period designated as "Heat Season," building owners are also
required to provide tenants with heat under the following conditions:
· Between the hours of 6:00 AM and 10:00 PM, if the outside temperature
falls below 55 degrees, the inside temperature is required to be at least
68 degrees Fahrenheit; and,
· Between the hours of 10:00 PM and 6:00 AM, if the temperature outside
falls below 40 degrees, the inside temperature is required to be at least
55 degrees Fahrenheit.
Tenants who are cold in their apartments should first attempt to notify the
building owner, managing agent or superintendent. If heat is not restored,
the tenant should call HPD's citywide Central Complaint Bureau (CCB) at
(212) 824-HEAT, 24-hours a day, seven-days a week all year round. HPD can
also receive complaints from hearing-impaired tenants via a Touchtone
Device for the Deaf TDD at (212) 863-5504.
When a CCB operator receives a complaint, HPD staff will attempt to contact
the building's owner or managing agent to get heat or hot water service
restored. Before an HPD code inspector is dispatched to the building, HPD
will call the tenant back to determine whether service has been restored.
If service has not been restored, an HPD inspector is sent to the building
usually within 48 hours under normal conditions to verify the complaint and
issue a violation.
In cases where private owners fail to restore heat and hot water, or when
HPD is unable to reach owners, HPD's Emergency Repair Program (ERP) uses
in-house staff and private contractors to make the necessary repairs to
restore essential services.
If a building owner fails to provide heat and hot water during the winter
or has a serious history of flagrantly disregarding obligations to provide
service to tenants, HPD’s Housing Litigation Bureau (HLB) may sue the
building owner in Housing Court. HLB regularly reviews all heat and hot
water violations.
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REVEREND BILLY HITS THE SILVER SCREEN
Reverend Billy & The Church of Stop Shopping
Documentary, USA/Germany 2001, digital video
directed by Dietmar Post, produced by Lucia Palacios
Reverend Billy, a.k.a. Bill Talen, is an actor/performance artist and a
leading figure within the anti-globalization movement. His work combines
the ideas of social and political change with the means of theater arts to
counteract our media-laden culture.
The film follows the Reverend’s "shopping interventions/actions" into
cultural dead zones such as Starbucks, Disney and the New York University
construction site at Poe House.
Filmmakers Dietmar Post and Lucía Palacios were invited by Bill Talen to
follow his artistic and political work over the period of one year (Summer
2000 Summer 2001). http://www.playloud.org/revbilly.html. Filmmakers
Dietmar Post and Lucia Palacios and Reverend Billy will attend the screening.
January 16, 2002
At: Anthology Film Archives
32 Second Ave @ 2nd Street
NY 10003
Tel 212-505-5181
Program
6 PM New Filmmakers Early Short Program
7 PM New Filmmakers Regular Short Program
8 PM New Filmmakers Feature Presentation
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BUDGET UPDATE: TENANT GROUPS MOSTLY SPARED
Final City Budget Offers Bittersweet Holiday Gifts
City Limits, by Matt Pacenza
More than a few nonprofit organizations breathed a sigh of relief last
Wednesday after the City Council convinced the Giuliani administration to
restore more than $55 million in proposed budget cuts that would have
slashed everything from housing court advisors to Little League uniforms.
The negotiators put back nearly all of the housing cuts, including $1.25
million for legal services for tenant litigation and eviction battles. "We
were frightened up until [Wednesday]," said a giddy Adele Bartlett,
supervising attorney for the East Side SRO Law Project at MFY Legal
Services. Also spared were the West Side SRO Law Project, $175,000 for the
City Wide Task Force on Housing Court and a $397,000 cut in the Community
Consultant Contract, which funds the tenant advocacy and organizing work of
about 50 organizations citywide.
The mayor also pulled back on his proposed $4.8 million cut in youth
programs that provide thousands of small grants to groups ranging from
community centers to ballet troupes. "For local groups, it's their bread
and butter," said Michelle Yanche, director of the Neighborhood Family
Services Coalition. "To pull out this funding halfway through their fiscal
year would have been very problematic. Much of these programs had spent
their money already, under the assumption they would be reimbursed."
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CITY RENT CONTROL STATUTE UPHELD
New York Law Journal, December 21, 2001
by John Caher
A divided Court of Appeals on Thursday dealt a financial blow to New York
City's landlords in upholding a local law that effectively reduces rent
increases for rent-controlled housing.
The 5-1 Court said that the 1997 New York City statute does not violate the
so-called "Urstadt Law," a state statute prohibiting localities from
imposing more restrictive economic regulations on rent-controlled units
without state approval. Rather, in an opinion by Chief Judge Judith S. Kaye
the majority found that the Urstadt Law is not violated solely because a
local statute "tends to reduce profits for rent-controlled property owners."
The rent-control matter, New York City v. New York State Division of
Housing and Community Renewal, 164, represents the Court's latest foray
into an arena former Chief Judge Charles Breitel once described as an
"impenetrable thicket, confusing not only to laymen but to lawyers" (Matter
of 89 Christopher v. Joy, 35, NY2d 213, 1974). Here, Chief Judge Kaye wrote
an 18-page tutorial-like opinion that seeks to make intelligible a
half-century of befuddling law, public policy, tradition and precedent.
At the root of the case is the Urstadt Law, a 1971 statute was named for
then Division of Housing and Community Renewal Commissioner Charles J.
Urstadt. The law was designed to prevent the City from extending or
expanding rent regulation. It specifically bars local imposition of "more
stringent or restrictive provisions of regulation and control than those
presently in effect" without state approval.
Here, the issue was whether the Urstadt Law prohibited the City from
adopting a new method for calculating capital value. The majority concluded
that it does not.
Initially, the formula for computing biennial rent increases was based on
capital value, or an aggregation of the assessed value of all properties in
New York City. A 1970 City law allowed landlords an 8.5 percent return on
capital value. It based the capital value of a rent-controlled structure on
its equalized assessed valuation pursuant to Article 12A of the Real
Property Tax Law. Regardless, since 1986 the State has relied on Article
12, not Article 12A, which resulted in a lower permissible rent increase.
For example, for the 1996-97 rent cycle reliance on Article 12 resulted in
a maximum base rent increase of 3 percent. When landlords fought that
calculation and obtained a court order requiring recalculation under
Article 12A, the maximum base rent increase was more than 32 percent.
The City responded with Local Law 73, which set Article 12 as the standard
for determining capital value. That led to a challenge by the Rent
Stabilization Association and other landlord advocacy groups, and
ultimately to this appeal.
Chief Judge Kaye distilled the question to one of statutory interpretation
that turns on whether the assurances of the Urstadt Law were violated by
Local Law 73. The majority found that nothing in the Urstadt Law or its
legislative history suggests that the Legislature intended to lock in
Article 12A as the means for measuring capital value.
"We cannot accept the landlords' argument that the Urstadt Law was intended
to give them a vested interest in overvaluation," Chief Judge Kaye wrote.
"We cannot accept ... that the State Legislature intended to prohibit the
City Council from later adopting another, more accurate, equalization scheme."
The majority, which also included Judges George Bundy Smith, Howard A.
Levine, Carmen Beauchamp Ciparick and Richard C. Wesley, stressed that the
holding "in no sense diminishes the protections of the Urstadt Law against
... changes in rent control. It merely recognizes that Local Law 73
preserves that regulatory scheme while restoring congruence between the
statutory measure of capital value and the actual value of rent-controlled
buildings that the State Legislature took for granted when it passed the
Urstadt Law."
In a lone dissent, Judge Albert M. Rosenblatt cited three insurmountable
problems with the majority's position. He found no statutory or decisional
basis for applying the new standard, suggested that the Court had neglected
to provide a workable rule for deciding when rent control changes are
impermissible and argued that under any interpretation Local Law 73
expanded the City's regulatory control, and therefore violated the Urstadt Law.
"The Urstadt Law removes rent control decisionmaking from the level of
local government and requires rent control advocates to make their case
before the State Legislature," Judge Rosenblatt said in dissent. "The
reason is obvious: The State made the Urstadt promise, and only the State
can break or weaken it."
Judge Victoria A. Graffeo did not take part.
Appearing were: Jeffrey R. Metz of Borah, Goldstein, Altschuler & Schwartz
in Manhattan for the RSA; Assistant Corporation Counsel Dona B. Morris for
the City; and Stephen Dobkin of Collins Dobkin & Miller LLP in Manhattan
for the leading tenant intervenor, Met Council on Housing.
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HIGH STATE COURT DECLINES TO GRANT HIGHER INCREASES TO
LANDLORDS OF NYC RENT-CONTROLLED APARTMENTS
Newsday, (A.P.), December 20, 2001
by Joe; Stashenko
ALBANY -- The state's highest court Thursday rejected an attempt by New
York City landlords to argue that a 1997 city law unfairly limits what they
can charge for rent-controlled apartments.
By a 5-1 margin, the Court of Appeals said the law institutes a valid tool
for use by housing regulators when determining assessed values of rental
properties and the increases on rent-controlled units that landlords deserved.
The Rent Stabilization Association and other landlords' groups in the city
had challenged the city law, contending that it violates the state
Legislature's prohibition against local laws being "more stringent or
restrictive" than the state-established standards for the rent-control system.
The Court of Appeals said the city was free to adopt a "more accurate,
equalization scheme" in 1997 than a procedure also on the books to
determine property value, Chief Judge Judith Kaye wrote for the court's
majority. She said the change in standards was done to address inequities
in the way rental properties were being valued in the city.
Under the old standard, landlords would have been in line for an 8.5
percent maximum increase on rent-control units in 1997. But using the other
standard, administrators of the rent-control system granted a 3 percent
increase.
The sole dissenting judge Thursday, Albert Rosenblatt, said the effect of
the city's mandate to use the alternative standard which yielded a smaller
rent increase for landlords shows that they were unfairly treated.
"By restricting landlords' economic return in the form of rent, the city is
engaging in `more stringent and restrictive' rent control," Rosenblatt
wrote. "It cannot be otherwise. As Yogi Berra might have put it, the bottom
line is, after all, the bottom line."
Mitch Posilin, the Rent Stabilization Association's general counsel, said
landlords were disappointed with Thursday's ruling.
But he said the decision makes it clear the Court of Appeals believes the
City Council cannot "expand the universe of rent-controlled apartments in
the city of New York." That is up to the state Legislature, Posilin said.
A lawyer for a tenants' group which argued against higher rents, Stephen
Dobkin of the Met Council on Housing, called the ruling a "terrific" one
for occupants of rent-controlled apartments.
"Had the landlords prevailed, rates would have increased by 7.5 percent
every year for future years as well as going back," Dobkin said. "This does
put a limit on future increases as well."
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LEAD PAINT: A RULING FOR TENANTS
New York Times, December 9, 2001
By JAY ROMANO
The New York State Court of Appeals issued a ruling last month that lawyers
say will make it easier for renters whose children are victims of lead
poisoning to sue their landlords for damages.
In a unanimous decision, the state's highest court reversed a trend
established in New York courts outside New York City in which landlords
could be held liable only if a tenant proved that the landlord had actual
knowledge of the existence of lead-based paint in the tenant's apartment.
(New York City's rules do not require the owner of a multiple dwelling to
have actual knowledge of the existence of lead-based paint to be liable for
damages.)
But while the ruling makes it easier for tenants across the state —
including New York City tenants in one- and two-family homes, which are not
covered by the city's lead-paint laws — to hold landlords accountable for
injuries to their children, it stops short of requiring landlords to test
their properties for the presence of lead-based paint.
Nonetheless, Matthew Chachere, a staff lawyer with the Northern Manhattan
Improvement Corporation, a not-for-profit legal services agency in
Manhattan, said he believed "that the impact of this case will be
enormous." Mr. Chachere, who filed a friend of the court brief in the case
on behalf of the New York City Coalition to End Lead Poisoning and 25
medical professionals and advocacy organizations, said that the ruling
"represents a major step in requiring landlords to take an active role in
preventing lead poisoning."
He said that before the court's Nov. 15 ruling in the case of Chapman vs.
Silber, a tenant's ability to sue a landlord for damages resulting from a
child's ingestion of lead- based paint differed significantly depending on
where in New York State the tenant lived.
In New York City, Mr. Chachere said, Local Law 1 of 1982 basically requires
owners of multiple dwellings in the city to remove or safely and
permanently cover any lead- based paint in any apartment in which a child
under age 7 resides. Local Law 38 of 1999, which is currently being
challenged in court, reduces the age to children under 6 and requires the
landlord to remove or cover only lead paint that is visibly deteriorating.
In 1996, he said, the Court of Appeals, applying the law, ruled that the
mere presence of peeling paint in apartments with young children provided
"constructive notice" that the children could be at risk for lead
poisoning, and therefore exposed the landlords to liability for negligence
if poisoning happened and imposed a duty on the landlords to eliminate
lead-based paint hazards in their properties.
In other words, Mr. Chachere said, in multiple dwellings in New York City,
tenants did not have to prove that a landlord actually knew there was
lead-based paint to be able to hold the landlord responsible for injuries
sustained by their children.
Elsewhere in New York State, however, the situation was quite different.
Since there is no statewide law similar to New York City's Local Law 1 of
1982, courts throughout the state applied a different standard for
determining a landlord's liability. Mr. Chachere said that in cases outside
the city, as well as cases in the city in which the tenant was renting in a
one- or two-family building, negligence cases brought against landlords
were routinely dismissed if the tenant could not prove that the landlord
had actual notice that there was lead- based paint in the apartment.
"Basically, the cases were encouraging landlords to avoid finding out if
there was lead-based paint in their buildings," Mr. Chachere said. "If the
landlord tested, and discovered that the building contained lead- based
paint, he could be held liable if a child ended up with lead poisoning. But
if the landlord didn't test for lead, and therefore didn't actually know it
was present, he couldn't be held liable."
To address this problem, the Court of Appeals established a five-part test
in last month's decision. The court concluded that an injured tenant can
proceed with a lawsuit against a landlord when the tenant shows that the
landlord retained a right of entry to the premises and assumed a duty to
make repairs, knew that the apartment was built before lead-based interior
paint was banned (generally, in buildings built before 1978), was aware
that paint was peeling on the premises, knew of the hazards of lead-based
paint to young children and knew that a young child lived in the apartment.
Peter Danziger, the Albany lawyer who represented the plaintiffs in the
case, said that it involved James and Sallie Chapman, who rented an
apartment in Albany in 1994. After the couple moved into the apartment with
their three children — including a year-old son, Jaquan — they complained
to the landlord about chipping and peeling paint on the front porch and in
the window tracks. About two months after they moved in, a routine blood
test revealed moderately high lead levels in Jaquan's blood.
Subsequent tests indicated blood- lead levels so high they resulted in the
boy's hospitalization. The Chapmans then filed a $10 million suit against
the landlord. Their son, Mr. Danziger said, sustained permanent brain
damage that resulted in problems with speech and motor skills.
After a State Supreme Court justice declined to dismiss the case, an
appeals court granted the landlord's motion to dismiss on the grounds that
there was no proof that the landlord actually knew there was lead- based
paint in the apartment. It was that decision that the Court of Appeals
reversed.
"Basically, the court ruled that we presented enough facts to get the case
before a jury," Mr. Danziger said, adding that in addition to making it
possible for tenants whose children have been poisoned by lead- based paint
to bring negligence lawsuits against landlords, the court's ruling would
likely go a long way toward protecting other children from lead poisoning
in the future.
"In the past, some landlords didn't test their buildings for lead because
they didn't really want to know whether it was there," he said. "But now
I'm sure that landlords will do more testing, and that could help save
thousands of children."
Mark Cheffo, a Manhattan lawyer who helped write a friend of the court
brief on behalf of organizations that represent property owners, said that
while the court clearly stated that it was not imposing a duty on landlords
to inspect their buildings for lead, it is not nearly so clear what
landlords are expected to do to minimize their exposure to liability.
"This is a very serious issue for landlords," Mr. Cheffo said. "There have
been verdicts in these cases in the millions of dollars."
Kathleen Burr, a Buffalo lawyer who also worked on the brief filed on
behalf of the property owners' organizations and who represents upstate
landlords in lead-paint cases, said that it is clear that landlords will
have to be much more cognizant of the potential for problems associated
with lead-based paint.
"To be absolutely liability-proof, landlords who have young children in
their buildings probably should consider hiring a reputable contractor to
inspect for lead-based paint," Ms. Burr said, adding, however, that if a
problem is found, some landlords may be faced with a difficult choice,
"given the significant cost associated with lead remediation work." The
cost, she said, can range from thousands to tens of thousands of dollars,
depending on the scope of the work.
"Given the depressed value of many upstate inner-city rental properties,"
she said, "some upstate landlords may find that it makes more sense to get
out of the landlord business altogether."
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