Dep't of Housing Preservation

Dep't of Housing Preservation and Development v. Pascal OATH Index No. 626/06 (Apr. 5, 2006)

Petitioner failed to prove that respondent or previous owner engaged in harassment of lawful tenants during the three-year inquiry period. Thus, the application for a certificate of no harassment should be granted. ______

NEW YORK CITY OFFICE OF ADMINISTRATIVE TRIALS AND HEARINGS

In the Matter of DEPARTMENT OF HOUSING PRESERVATION AND DEVELOPMENT Petitioner - against - GREGORY PASCAL Respondent ______

REPORT AND RECOMMENDATION KEVIN F. CASEY, Administrative Law Judge On June 25, 2004, respondent Gregory Pascal (now deceased) applied for a certificate of no harassment. Petitioner, the Department of Housing Preservation and Development, commenced this proceeding pursuant to section 27-2093 of the Administrative Code and seeks a finding that harassment occurred at the premises, 131 West 122nd Street, New York County during the three-year inquiry period that commenced on June 25, 2001. At a hearing held on February 23, 2006, the Department relied solely upon documentary evidence and called no witnesses. The executor of respondent’s estate relied upon documentary evidence and the testimony of one witness. I find the evidence failed to prove that lawful tenants were harassed and I recommend granting of the application for a certificate of no harassment. ANALYSIS -2-

The building at 131 West 122nd Street is a three-story structure with 13 single- room occupancy (SRO) units (Pet. Ex. 1). In 1995, a housing court judge appointed an administrator of the building pursuant to Article 7A of the Real Property Actions and Proceedings Law. The 7A administrator was authorized to collect rents, remedy unsafe conditions, remove pending violations, and make necessary repairs. Gregory Pascal purchased the building on January 23, 2002. On April 29, 2002, the housing court granted Mr. Pascal’s application to discharge the 7A administrator and on June 25, 2004, he filed an application for a certificate of no harassment. Before issuing a certificate of no harassment, the commissioner must certify that there has been no harassment of the lawful occupants of the premises within the 36 months preceding respondent’s application. Admin. Code § 27-2093(c) (Lexis 2006). Under section 27-2093(a) of the Administrative Code, harassment is defined as: (1) the use or threatened use of force which causes or is intended to cause [a lawful occupant] to vacate his or her unit or surrender or waive any rights therein; (2) the interruption or discontinuance of essential services which (i) interferes with or disturbs or is intended to interfere with or disturb the comfort, repose, peace or quiet of a [lawful occupant] in the use or occupancy of such dwelling unit and (ii) causes or is intended to cause [a lawful occupant] to vacate such unit or to surrender or waive any rights in relation to such occupancy; (3) the failure to comply with the provisions of [a vacate order] which causes or is intended to cause [a lawful occupant] to vacate such unit or waive any rights in relation to such occupancy; or (4) any other conduct which prevents or is intended to prevent any person from the lawful occupancy of such dwelling unit or causes or is intended to cause [a lawful occupant] to vacate such unit or to surrender or waive any rights in relation to such occupancy . . . .

Any harassment occurring during the 36-month inquiry period, even if committed by a former owner, is attributable to the current owner. See Dep't of Housing Preservation & Development v. Freid, OATH Index No. 1567/04 (Feb. 3, 2005); Dep't of Housing Preservation & Development v. Fenelon, OATH Index No. 1525/04 (Oct. 6, 2004). Pursuant to section 27-2093(b) of the Administrative Code, there is a rebuttable presumption that, if an act of harassment is proven, “such acts or omissions were -3- committed with the intent to cause a [lawful occupant] to vacate such unit or to surrender or waive a right” to lawful occupancy. On September 6, 2005, the Department issued a finding that there was reasonable cause to believe that harassment occurred at the premises during the inquiry period. The Department alleged that, from June 25, 2001 to date, the current and former owners or their agents harassed lawful occupants by: failing to make necessary repairs; breaching an agreement reached in housing court on April 29, 2002; failing to provide adequate heat and hot water; failing to provide electricity and gas; and generally interrupting, discontinuing, or decreasing essential services and repairs (Petition at ¶¶ 9, 12). Although the Department had the burden of proof, it did not call any witnesses. Instead of testimony from investigators, tenants, or others who were familiar with the building, the Department elected to rely upon the following documents: a summary of building code violations; complaint reports; a list of emergency repairs; and settlement agreements entered into by Mr. Pascal. The six-page summary of building code violations dated back to 1982 (Pet. Ex. 6). None of the violations were issued during the inquiry period and all but one had been resolved long before the inquiry period began. The only open violation was issued on June 1, 2005, for an overdue annual sprinkler test report. That class B violation, lodged nearly a year after the application for a certificate of no harassment was filed, hardly showed that lawful occupants were harassed during the inquiry period. Cf. Dep’t of Housing Preservation & Development v. Mamudoski, OATH Index No. 771/01 (Feb. 21, 2002) (subsequent conduct may, in some situations, reflect an intent to harass during the inquiry period). Similarly, the building’s complaint history failed to reveal a pattern of harassment. Only eleven complaints were made during the inquiry period. None of them resulted in the issuance of a violation. The majority of the complaints were made by one tenant who said that there was no heat, but all of those complaints were listed on the report as “closed” in a relatively short time frame, usually a few days. Respondent introduced a letter from the tenant, confirming that every heat complaint was resolved (Resp. Ex. A). -4-

According to a list of charges incurred by the Department’s Emergency Repair Program, utility companies delivered gas, electric, and fuel to the premises from mid- 2001 until April and May 2002 (Pet. Ex. 8). Although the deliveries were labeled “emergency repairs,” it is unclear whether they were requested by the 7A administrator or the Department. It appears that deliveries were made on a regular monthly basis. Indeed, some of the fuel charges were for deliveries in August and September, well before the start of the heating season. It does not appear that those fuel deliveries had anything to do with the hot water heater, which was covered by separate gas bills. Thus, without more information about the reason for the specific deliveries, this list had limited probative value. The Department also relied upon housing court documents. On February 22, 2002, Mr. Pascal moved to relieve the 7A administrator. See Real Prop. Acts. § 777. In support of his motion to take control over the building, Mr. Pascal noted that: he owned 32 buildings and managed approximately 500 apartments; he was a former 7A administrator; he had achieved recognition for renovating abandoned buildings and turning them into “jewels” (Pet. Ex. 11, at ¶¶ 7-9). He further stated that he intended to make other units available to the remaining occupants and return this building to its original status as a single family dwelling, to be used as his primary residence (Id. at ¶¶ 4, 10). On April 29, 2002, Mr. Pascal signed a settlement agreement in housing court and the 7A administrator was discharged. As a settlement condition, Mr. Pascal agreed to: (1) install an intercom system and mail boxes; (2) repair wood windows; (3) repair and cover public halls and stairs, including 20 balusters, or banister railings, that were broken or missing; and (4) make repairs to paint, plaster, and tiles in communal bathrooms. Mr. Pascal also agreed not to seek possession of any tenant’s apartment for his own use or change the number of existing units. If Mr. Pascal failed to honor any settlement term, the Department could seek reappointment of a 7A administrator (Pet. Ex. 12). On June 4, 2003, the settlement agreement was modified. Mr. Pascal agreed to: repair the bell and buzzer system to good working order for apartments 1B and 3D; repair the hallway steps and balusters, as described in the earlier settlement; install government- approved mailboxes that were large enough to hold magazines; replace the building’s -5- entrance door; clean the hallway carpet regularly; repair exterior steps; repair a water- damaged floor; perform sprinkler tests; and move a parrot from the front of the first floor to the back of the second floor. The other terms of the April 29, 2002, settlement remained in effect (Pet. Ex. 14). According to petitioner, the modified agreement demonstrated that Mr. Pascal failed to honor the original settlement terms. Specifically, petitioner maintained that Mr. Pascal failed to replace the intercom and did not repair the hallway steps or balusters. As a preliminary matter, a subsequent agreement to repair a buzzer system does not prove that Mr. Pascal failed to install an intercom. Rather, it merely shows that the intercom was installed and later needed repair. Moreover, comparison of the settlement agreements, without more, did not establish the importance of any omitted repairs. This evidence was too vague to prove harassment. Petitioner also argued that Mr. Pascal engaged in harassment and violated the settlement agreement when he relocated the remaining tenants. However, Pamela Nurse, an employee of P & M Management, the property manager, testified that the relocations were strictly voluntary. She recalled that, after Mr. Pascal purchased the premises, one tenant moved to an unknown location and the remaining tenants willingly relocated to properties owned or managed by Mr. Pascal (Tr. 49). Although Ms. Nurse conceded that Mr. Pascal intended to restore the building to a one-family residence, she credibly testified that all of the relocated tenants were happy to move from SRO units to full apartments which had greater privacy (Tr. 51-52). Unsolicited and unwanted buyout offers, or other invitations to relocate, can constitute harassment. See Vaughan v. Michetti, 176 A.D.2d 144, 574 N.Y.S.2d 30 (1st Dep’t 1991) (repeated buyout offers, coupled with deplorable living conditions, sufficient to constitute harassment); Dep’t of Housing Preservation and Development v. Nyameke, OATH Index No. 1796/04, at 8 (May 2, 2005) (repeated inquiries about relocation, combined with terrible condition of the premises, amounted to harassment). It does not follow, however, that relocation of a tenant always equals harassment. Where the unrefuted evidence established that tenants were perfectly happy to receive upgrades from SRO units to apartments, it is difficult to conclude that those tenants were harassed. -6-

As for Mr. Pascal’s apparent violation of the housing court settlement, the Department retains the option of seeking an appropriate remedy in that forum. Citing Lawrence v. Martin, 131 Misc.2d 256, 499 N.Y.S.2d 835 (Civ. Ct. N.Y. Co. 1986), petitioner argued that Mr. Pascal was responsible for the “dire” condition of the building while it was under 7A administration (Tr. 58). Although Lawrence makes clear that an owner is responsible for a building managed by a 7A administrator, it does not prove that this building was in “dire” condition during the inquiry period. There is no dispute that the building was in terrible condition in 1995, when the 7A administrator was appointed. Gradually, repairs were made and violations were lifted. Based upon the evidence presented, it appears that by June 2, 2001, the beginning of the inquiry period, all pending violations had been removed and the building was still under the control of a court-approved administrator. After Mr. Pascal purchased the building in 2002 and successfully moved to discharge the 7A administrator, there were no new substantial violations or unresolved complaints. Tellingly, the housing court settlement and its modification invited the Department to seek reinstatement of the 7A administrator if Mr. Pascal violated any terms of the agreement. There was no evidence that the Department ever sought that relief. Article 7A administration is a powerful tool for remedying dangerous conditions in multiple dwellings and appointment of an administrator during the inquiry period would be persuasive evidence of harassment. But here, where the 7A administrator was appointed more than a decade ago and there was a paucity of evidence concerning the actual conditions in the building during the inquiry period, harassment cannot be so readily inferred. Under these circumstances, additional evidence – such as testimony or reliable statements from a knowledgeable witness – was necessary. In short, it was petitioner’s burden to prove that one or more tenants of 131 West 122nd Street were harassed during the inquiry period. The evidence presented failed to satisfy that burden.

FINDINGS AND CONCLUSIONS 1. Because harassment, as defined by Administrative Code, did not occur during the 36-month inquiry -7- period, the application for a certificate of no harassment should be granted. -8-

RECOMMENDATION I recommend that the application for a certificate of no harassment be granted.

Kevin F. Casey Administrative Law Judge

April 5, 2006

SUBMITTED TO:

SHAUN DONOVAN Commissioner

APPEARANCES:

ANYEKACHE HERCULES, ESQ. Attorney for the Petitioner

BORAH, GOLDSTEIN, ALSCHULER, SCHWARTZ & NAHINS, P.C. Attorneys for the Respondent BY: ROBERT H. BERMAN, ESQ.