Matter of Tenants of 13 E

Matter of Tenants of 13 E. 17th Street OATH Index Nos. 1343/03, 1354/03, and 1357/03 (Aug. 17, 2005), aff'd in part, rev'd in part, Loft Bd. Order No. 3041 (Apr. 20, 2006) [Loft Bd. Dkt. Nos. TH-0171, TM-0056 and BP-0046; 13 E. 17th Street, N.Y., N.Y.]

ALJ recommended that leaks pervasive throughout building shown to cause damage to roof, parapet wall, and east exterior wall of the building, combined with proof of the owner's ineffectual efforts to address them, support a finding that the owner's failure to maintain or repair the roof and exterior walls constituted a deliberate effort to force the tenants to vacate that comprised harassment. Separate finding of harassment was sustained on basis of leaks into the elevator shaft that caused repeated breakdowns of elevator, some of which imperiled tenants. Remaining allegations of harassment were dismissed. Diminution of services claim dismissed where damage to windows alleged a claim based upon the diminished quality of the service in question, rather than a total deprivation of it, and Loft Board rules show no intent to establish a cause of action for the former.

The Loft Board disagreed with ALJ's finding that the count of harassment relating to damaged windows was time barred, finding although the date that the windows were damaged was outside the 180 time frame, the failure to repair the window was a “continuing violation” and thus the claim was not time barred. The Board nonetheless dismissed that count of harassment, finding it was a mere annoyance that did not rise to the level or harassment. The Board also found that the tenants failed to timely amend the diminution charge to include the damaged window allegation and therefore ALJ should not have ruled on it. Nevertheless, the Board noted that it disagreed with ALJ’s finding that the damaged window did not rise to the level of a diminution of service, noting that it "has never stated that a diminution of services claim must be based on a violation of a lease, building code provision, or Loft Board housing maintenance rule." Loft Board Order 3041, at 4.

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NEW YORK CITY OFFICE OF ADMINISTRATIVE TRIALS AND HEARINGS

In the Matter of TENANTS OF 13 EAST 17TH STREET Petitioner -2-

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REPORT AND RECOMMENDATION TYNIA RICHARD, Administrative Law Judge This case involves harassment, diminution of services, and unreasonable interference applications filed by the tenants of 13 East 17th Street. The original application, filed on November 26, 2002 (“original application”), alleged that various conduct of the owner related to legalization and to building maintenance constituted harassment and further resulted in both diminution of services and unreasonable interference with the tenants' occupancy. The application was indexed by the Loft Board under three numbers, one each for harassment (TH- 0171), diminution of services (TM-0056), and unreasonable interference (BP-0046). On February 19, 2003, the owner, 13 East 17th Street LLC, filed an answer generally denying liability as to all the allegations. Following the referral of the applications to OATH, a number of conferences were held which ultimately were unsuccessful in settling all of the outstanding disputes. At the direction of this tribunal, petitioners' attorney filed an amended application as to the harassment claims on August 6, 2003 (hereinafter “amended complaint”), and August 20, 2003 (“August 20 amendment”). This amended application alleged 21 discrete acts of harassment by the owner. Pursuant to a stipulation of settlement executed on September 9, 2003, the unreasonable interference claim involving the installation of a sprinkler system was fully settled. In addition, petitioners withdrew their harassment and diminution of services claims related to sprinklering. See original application & Pet. Post-Hearing Memorandum, at 1, n.1. The subsequent hearings thus focused on the 21 allegations in the amended harassment application, most of which concerned a failure to maintain the building or address ongoing problems regarding leaks, elevator breakdowns and security. Hearings were conducted on the following dates: September 4, 9, 12, October 15, 27, November 7, December 23, 2003; January 14, March 23, 24, 29, April 6, May 19, 21, June 3, and July 16, 2004. The parties' post-hearing briefs were ultimately filed on December 1 and 30, 2004, and January 21, 2005. -3- PRELIMINARY ISSUE In its post-hearing memorandum, respondent seeks dismissal of some five of the allegations as barred by the 180-day limitation in the Loft Board rules. See 29 RCNY § 2-02 (c) (2)(i) (“[T]he [harassment] complaint shall be filed within 180 days of the conduct complained of”).1 The allegations that respondent asserts are time-barred include the failure to supply heat (see August 20 amendment); failure to maintain security at entrance door and on vacant floors (amended complaint, ¶¶ 4(b) and 4(j)); failure to comply with obligations under stipulations with tenants Dorfman and Jawitz (amended complaint, ¶¶ 4(l), 4(m), and 4(n)); damage caused by cleaning of windows (amended complaint, ¶ 4(o)); and failure to maintain the elevator (amended complaint, ¶ 4(c)). The 180-day deadline for the heat, security, prior stipulation, and window damage allegations, all of which were contained in the original application filed on November 26, 2002, is June 29, 2002. The 180-day deadline for the elevator allegation, which was not raised in the original application but was raised in the part of the amended application filed on August 6, 2003, is February 7, 2003. As to the heat issue, respondent correctly points out that Loft Board precedent precludes petitioners from seeking harassment findings prior to the beginning of the 2002-2003 heat season. In Matter of DeLaney, OATH Index No. 2122/99, mem. dec. (July 27, 1999), adopted, Loft Bd. Order No. 2520 (Apr. 27, 2000), the Loft Board approved this tribunal's conclusion that a failure to supply heat was “an ongoing course of conduct” within the meaning of the Loft Board rules, and therefore subject to the exception permitting harassment to extend back beyond the 180-day limit. However, the Board further upheld the determination that the period of failure to provide heat could go no further back than the commencement of the heating season, since a failure to supply heat for each heating season constituted a separate act of harassment. See Matter of Gala, OATH Index No. 582/97 (Dec. 9, 1996), adopted, Loft Bd. Order No. 2054, 17 Loft Bd. Rptr. 30 (Jan. 9, 1997). In this case, findings of harassment as to a failure to supply heat or to maintain the boiler are limited to October 1, 2002, the commencement of the heat

1 Respondent’s post-hearing brief also seeks dismissal of general allegations of failure to maintain the hallways which were mentioned in the original application but not repeated in the amended application. Insofar as petitioners’ amended application is purported to “substitute” (see amended complaint) for the harassment allegations in the original application, these allegations have been effectively withdrawn and need not be considered in my statute of limitations discussion. -4- season falling within the cutoff of June 29, 2002, and respondent's motion to dismiss should be granted as to any heating or boiler allegations which precede this date. The allegations and proof concerning security at the front door and on the vacant floors indicates that a number of different failures by the owner are being asserted, including a failure to maintain the front door lock, a failure to maintain the intercom system, and a failure to provide adequate lobby lighting. None of these maintenance failures were shown to be ongoing or continuous, since all were not only repairable but were actually repaired after they were brought to the landlord's attention. While each service breakdown might be actionable as harassment, and would be ongoing so long as the condition persisted, the limitations provision bars any breakdowns that were repaired more than 180 days prior to the filing of the application, or June 29, 2002. Therefore the tenants' allegations of harassment as to these failures must be dismissed. The allegations about the Jawitz and Dorfman stipulations are clearly time-barred. These allegations are based upon two proceedings commenced by Louis Jawitz, the eighth and ninth floor tenant, and Gary Dorfman, the fifth floor tenant, respectively. In 1999, Mr. Jawitz initiated an action in Housing Court to compel the owner to complete various repairs. In a stipulation dated November 3, 1999 (Pet. Ex. 45), the landlord agreed to repair leaks in the elevator shaft by tarring the skylight, to plaster and paint the 8th and 9th floor stairwells and the loft, and to provide an effective 14-hour telephone number. In addition, Mr. Jawitz was to be provided with 48 hours notice of any work to be done under the stipulation. The deadline for completion of the owner's obligation was 61 days after the execution of the stipulation, approximately January 3, 2000. Although Mr. Jawitz insisted that some of the work on the skylight was not done to his satisfaction and that other work was not done at all, he conceded that he did not seek to go back to court even though he did not believe the landlord had abided by the stipulation (Tr. IX, 160). Thus, since the owner's failure to comply with this stipulation occurred on January 3, 2000, it is beyond the 180-day limit, and the allegations set forth in paragraphs 4(l) and 4(m) of the amended complaint must be dismissed. Similarly, in 2000, Mr. Dorfman initiated a proceeding in Housing Court to force the landlord to remedy various problems in his unit and in the building generally. In the stipulation of settlement entered into between the parties on February 1, 2000 (Pet. Ex. 28), the owner agreed to repair various conditions by February 18, 2000, and Mr. Dorfman agreed to pay his monthly rent of $253.30. The stipulation provided that a violation of the agreement would -5- permit either party to restore the case to the calendar and enforce the terms of the agreement. Mr. Dorfman identified portions of the stipulation that the owner had not complied with, including an agreement to repair and plaster the water-damaged plaster in Mr. Dorfman’s loft, to fix the ceiling, and to paint the loft. While the bathroom was repaired, Mr. Dorfman insisted that the repairs were faulty and resulted in leaks and flooding (Tr. IV, 14). Although Mr. Dorfman's attorney served a five-day notice to cure on the landlord in January 2002 (Pet. Ex. 30), Mr. Dorfman admitted that he did not return to court in order to enforce the stipulation (Tr. IV, 150). The owner's obligations under the Dorfman stipulation, like those under the Jawitz stipulation, had a specific deadline for completion. Insofar as the tenants allege that the owner's failure to do the work as promised by February 18, 2000, constituted harassment, the allegation set forth in paragraph 4(n) of the amended complaint is also beyond the 180-day time limit and must be dismissed. The tenants allege that, in November 2000, a company contracted by the owner to pressure wash the front façade of the building damaged the windows in the Dorfman unit, which subsequently developed a cloudy film over them. Petitioners allege this as an act of harassment as well as a diminution of services. Since only the single act of the 2000 cleaning is alleged, petitioners cannot show an ongoing course of conduct; therefore the allegation set forth in paragraph 4(o) of the amended complaint must be dismissed. The diminution of services claim with respect to the windows is addressed separately, below. The allegation concerning the elevator is, in part, “an ongoing course of conduct.” Even though the deadline for this allegation would normally be February 7, 2003, 180 days before the filing of the amended application, it is appropriate to consider earlier periods, so long as there is "continuity" between the incidents. See Matter of DeLaney, supra. Here, the facts at the hearing indicated that, while many of the elevator problems were due to a variety of causes, many elevator disruptions were the result of leaks from the skylight above the elevator into the elevator shaft that caused disruption to the motor and electrical system. These disruptions continued, despite the owner’s efforts to repair the skylight to attempt to remedy this problem and constituted an ongoing course of conduct. I also conclude that the elevator breakdowns that were unrelated to the leaky skylight, which had different causes and were addressed by repairs that restored the service, cannot be considered continuing or ongoing and therefore constitute separate acts of harassment. See Matter of Baker, OATH Index No. 1819/96, mem. dec., at 5 -6- (July 12, 1996) (rejecting the argument that disparate acts can be lumped together to circumvent the 180-day statute of limitations). Accordingly, the motion to dismiss should be granted as to the elevator breakdowns prior to February 7, 2003, that were caused by factors other than the leaky skylight. Thus, the elevator breakdowns alleged to have been caused by leaks in the skylight, including those occurring on September 16, 1999, November 3-5, 1999, July 28, 2000, May 28- 30, 2001, August 13-20, 2001, and July 21, 2003 (see Pet. Ex. 40), were shown to be "ongoing" and should be excluded from the 180-day limitation. -7- ANALYSIS Harassment The Loft Board rules define harassment as "any course of conduct engaged in by the landlord or any other person acting on its behalf that interferes with or disturbs the comfort, repose, peace or quiet of an occupant." 29 RCNY § 2-02(b). Such conduct must be "intended to cause the occupant to vacate the building or unit, or to surrender or waive any rights of such occupant under the occupant's written lease or other rental agreement or pursuant to Article 7-C." The rules specifically exclude from the definition of harassment any "acts performed in good faith and in a reasonable manner for the purposes of operating, maintaining or repairing any building or part thereof." In some cases, landlords have made the fact-finder's task easier by making remarks which demonstrated a desire to force tenants to vacate their units. See, e.g., Matter of Kalmanowicz, OATH Index No. 1333/97 (Aug. 25, 1997), adopted, Loft Bd. Order No. 2162 (Oct. 10, 1997). In other cases such as the instant one, the landlord's intent must be derived solely from what they have done or not done. For example, landlords who have deprived tenants of essential services for extended periods of time have been found guilty of harassment. See, e.g., Matter of Rebo, OATH Index Nos. 924/03 & 926/03 (Dec. 18, 2003), adopted, Loft Bd. Order No. 2840 (Jan. 15, 2003) (harassment claim alleging denial of elevator services granted). In other cases, harassment based upon deprivation of services has been dismissed as unproven. See, e.g., Matter of Wilson, OATH Index No. 1573/97 (Mar. 20, 1998), adopted, Loft Bd. Order No. 2280 (Sept. 24, 1998) (harassment claim alleging denial of elevator services denied). In this case, as in many harassment cases, the tenants complain far more about their landlord's inaction than about his actions. Their proof rests upon a variety of building conditions, starting around 1999 and ending July 2003,2 which the tenants assert have adversely affected them. The critical issue is whether the proof, taken as a whole, establishes by a preponderance of the evidence an intent to force the tenants to vacate or waive rights and whether the proof, taken in pieces, supports an individual finding of harassment.

No Prima Facie Harassment 2 This tribunal held that petitioners could not present proof at trial of any incidents that took place after July 30, 2003. -8- As to eight of the harassment allegations, the tenants' proof failed to establish facts sufficient to support a finding of harassment in that the tenants' complaints failed to show a significant interference with the tenants' occupancy and, in most cases, illustrated relatively commonplace inconvenience. Indeed, tenants' attorney apparently agreed that the proof on eight of the allegations was less than persuasive, since, in her post-hearing memorandum, she did not seek determinations of harassment on them. The eight dropped allegations include: (1) the failure to provide an adequate emergency contact (amended complaint, ¶ 4(d)); (2) the failure to provide water on July 11, 2003 (amended complaint, ¶ 4(f)); (3) the failure to adequately light the elevator motor room (amended complaint, ¶ 4(g)); (4) the failure to repair the ninth floor lock (amended complaint, ¶ 4(h) (1)); (5) the repeated request for Mr. Jawitz's keys (amended complaint, ¶ 4(h) (2)); (6) the failure to repair the elevator fan (amended complaint, ¶ 4(i)); (7) the failure to provide advance notice for routine maintenance work (amended complaint, ¶ 4(p)); and (8) interference with tenants' businesses (amended complaint, ¶ 4(q)). None of these allegations could sustain a finding of harassment. Two other allegations are also deficient in demonstrating interference with the tenants' occupancy so as to rise to the level of harassment. First, the tenants' proof as to the alleged failure to supervise work consisted of the alleged lack of attention by the two building managers, John Lentini and, beginning in January 2003, Hank Widmaier (amended complaint, ¶ 4e). Mr. Dorfman and Mr. Jawitz both complained that there were many occasions when repairmen came to the building while the building manager was not there, and the tenants were forced to give the workmen access and direction. They also testified to various service disruptions (most well beyond the 180-day limitation period) which they theorized were caused or partially caused by the non-presence of the building manager. The tenants also complained about the quality of the repair done by handyman Mr. Zehri Meta (known as “Ziggy”) and noted that many repairs had to be redone. Though the proof chronicled inconveniences to the tenants both large and small, it was inadequate to support a finding of harassment. Second, the alleged adverse impact of the owner's failure to lock the three vacant floors (amended complaint, ¶ 4(j)) consisted principally of Mr. Jawitz's testimony that, in June 2003, the police apprehended on one of the vacant floors a burglar who had attempted to break into his apartment. The tenants also theorized that isolated discoveries in the building hallways of needles associated with drug use and of clothing and human excrement might be associated with -9- strangers sleeping on the empty floors. Since the tenants have a separate allegation concerning inadequate security at the front door, this allegation is redundant and does not support an independent finding of harassment. In short, none of these ten tenant complaints above, as pleaded or as amplified by the trial evidence, support a finding of significant deprivation sufficient to establish an independent finding of harassment, and all must be dismissed. Despite the dismissal of the allegations themselves, the underlying proof must, however, be considered in determining whether the tenants met their burden of proving illegal intent as to the other more egregious building conditions.

Discussion of Remaining Harassment Claims The seven remaining harassment allegations are discussed below: (1) failure to repair the fire escape (amended complaint, ¶ 4(a)); (2) failure to maintain adequate security (amended complaint, ¶ 4(b)); (3) failure to maintain the elevator (amended complaint, ¶ 4(c)); (4) failure to repair the exterior east wall, the roof and parapet wall, and failure to remedy the resulting leaks (amended complaint, ¶¶ 4(k) (1), (2), and (3)); and (5) failure to provide heat or to maintain the boiler (August 20 amendment).

1. Failure to Repair Fire Escape The building has an exterior fire escape running from the second floor to the ninth floor. A problem with the fire escape was discovered by accident on July 22, 2003, when Mr. Dorfman used the fire escape to go to the second floor and let an elevator repairman in. As he climbed down from the fifth to the second floor, one of the fire escape steps between the fourth and fifth floors gave way when he stepped on it, nearly causing him to fall (Tr. IV, 38-39; Pet. Ex. 33). Mr. Peachy stated that when he observed the fire escape on September 8, 2003, the stairs between the 4th and 5th floors had one step missing and another step damaged (Tr. II, 32-33). Mr. Peachy stated that the space created by the missing step is about 16" in height and 2' x 2' in area, and asserted that it was a large enough space for a person to fall through the fire escape stair. Mr. Peachy stated that the gap is about 4 ½ stories, or 50 feet, above the ground. He recommended that the escape be checked for broken rails. -10- According to Mr. Peachy, the step was evidently repaired on or about September 11, 2003, because, after inspecting the fire escape on September 8, Mr. Peachy visited again on September 11, and observed that the broken step had been fixed (Tr. II, 80). Mr. Peachy stated that he stood on the steps, which supported his weight, and walked up and down the rest of the fire escape and found no more broken steps.3 The evidence of when the owner was notified about the broken step was somewhat equivocal. I could find no testimony or documents from petitioners on the issue of notice. Mr. Widmaier testified that he was informed at some point that a step on the fire escape between the fourth and fifth floors was broken and ordered it to be repaired right away (Tr. VIII, 73-74). As to this issue, the proof therefore establishes that the defective fire escape step was discovered by Mr. Dorfman on July 22, 2003, and then repaired approximately a month and a half later. In the absence of proof as to when the owner was placed on notice of the problem, the delay in completing the repair cannot be found to be unreasonable or negligent. Nor did petitioners adduce convincing proof that, either before or after July 22, the fire escape was otherwise defective or in need of repair. The tenants' harassment claim as to this issue must be dismissed.

2. Failure to Provide Adequate Security Petitioners allege that the front door of the building frequently malfunctions by opening without a key, and by failing to open even with a key, sometimes locking the tenants inside the building. As indicated above, the instances of the lock not working would appear to be separate, not ongoing incidents, insofar as the lock was repaired each time. Petitioners allege that the front door broke frequently during the period 2002-2003, resulting in the door either failing to lock or failing to unlock. Mr. Jawitz's daily log lists five instances from June 29, 2002, to July 30, 2003, in which the front door was malfunctioning: August 13, 21, and 22, 2002, and July 26 and 28, 2003 (Pet. Ex. 40). The entries largely indicate

3 Mr. Meta insisted that an invoice with a partially handwritten date of April 8, 2003 (Resp. Ex. JJJ), reflects the welding done to repair the fire escape. Since it is undisputed that the step was repaired in September 2003, it is fair to assume that the month on this invoice is mistaken and that the repair was actually done on September 8, 2003, after Mr. Peachy’s inspection. -11- that the tenants were being locked out of the building by the malfunction. Mr. Jawitz testified about the instances cited in his daily log where he noted that the front door was not working properly (Tr. VI, 163-64 (August 13, 2002), 193-95 (July 26 and 28, 2003)). He said that the door was broken more times than he reported in his log, and that he would not report it in the log if the door was fixed the same day (Tr. X, 116). Petitioners complained to counsel for respondent about the broken front door lock in letters dated August 30, 2002, April 21, 2003, and July 2, 2003 (Pet. Ex. 44), all within 180 days from the filing of the original application. Those complaints reported that the front door malfunction made it “impossible to get out of the building,” “the front door does not close properly and strangers are getting into the building,” and the “front door is . . . still broken.” Mr. Jawitz testified that the front door would break again a week or two after Mr. Meta would come to fix it (Tr. VI, 151). The problems with the door lock were evident as early as 2000. Mr. Katz testified that he wrote to Mr. Lentini repeatedly to complain about the front door, including on March 21, 2000, August 9, 2000, and March 27, 2001 (Pet. Exs. 9-11; Tr. I, 60-67). Mr. Katz testified that at the time of the August 9, 2000 complaint, the door was broken for nine weeks. Mr. Dorfman said that he was unable to exit the building due to door malfunction two or three times since February 2000 (Tr. V, 14). In addition, the tenants notified Mr. Lentini about the front door lock in a meeting at the building on January 3, 2002 (Pet. Ex. 76). Mr. Jawitz testified that on January 24, 2002, the front door lock was worn out and could be pulled open (Tr. VI, 151; Pet. Ex. 40). Although, as analyzed above, none of these older breakdowns can support an independent finding of harassment, they are nonetheless relevant in determining whether the owner's more recent failures to repair the front door constitute harassment. Respondent acknowledged that the front door has broken repeatedly, but asserted that it was promptly repaired. Mr. Widmaier testified that in his experience the frequency with which the front door lock breaks was not unusual in comparison to other buildings he has managed (Tr. IX, 71-72). Mr. Widmaier testified that he went to the building a couple of times a week and did not find the front door broken very often, but often did find the front door left open either through neglect or design (Tr. VIII, 107). While Mr. Jawitz testified that the door was last replaced in 1976 or 1977 (Tr. VII, 119- 20), Mr. Lentini testified that the front door was replaced at some time during his 1999-2002 -12- tenure as managing agent (Tr. XIV, 144-45). Mr. Meta submitted an invoice, dated October 2000, for installing a "new electric door lock" and for rewiring the intercom system for the fifth, seventh, eighth, and ninth floors (Resp. Ex. UU). Mr. Widmaier testified that he did not replace the door when he was managing agent because there were unresolved "landmarks issues" (Tr. IX, 63-64). Respondent also noted that the Police Department's Residential Security Report for the building dated June 25, 2003, apparently found no defects in the door or the lock and indicated that the front door was of "adequate construction," though the same report noted that the doors "should be protected with an edge guard" to prevent the door from being pried open (Pet. Ex. 5; Resp. Post-Hearing Memorandum, at 29). The report was critical, however, of other aspects of the building's security, including the absence of gates on the fire escape windows, inadequate exterior lighting, and the absence of an alarm system. Petitioners presented proof as to other security problems that they associated with the intermittently functioning front door lock. They testified that there was evidence that "bums" sometimes slept in the building's common areas and argued that such individuals got into the building because of the front door malfunction. Mr. Jawitz testified that he discovered clothes containing human feces outside his unit one day, an event recounted by the other tenants as well (Tr. I, 60; Tr. V, 16-17; Tr. V, 84-86). Mr. Jawitz's log does not mention the door being broken on July 11, 2003, the date on which he reported in his log that there was a "bum" in the hall, however (Pet. Ex. 40). Petitioners offered additional evidence that unauthorized individuals entered the building by their testimony about clothing, graffiti and drug paraphernalia discovered in the building's common areas (Pet. Post-Hearing Memorandum, at 17), though, admittedly, none of the tenants ever saw such persons entering the building. Mr. Jawitz claimed that the police helped the tenants determine that “bums” were forcing their way into the building, which he believed they accomplished by pulling the door forcefully against the weak door lock (Tr. VI, 193-95), but the police security report did not evidence such a finding. The tenants also complained that the building's intercom system frequently malfunctions. Mr. Katz testified that the building's intercom system was installed about 18 years ago (Tr. I, 115-17). He said that at the time of his August 9, 2000 letter to Mr. Lentini, the intercom had been malfunctioning for two years, and that it continued to malfunction until Mr. Widmaier fixed it in July 2003. Mr. Jawitz's log stated that the intercom system was not working on July 11, 2003 (Pet. Ex. 40; Tr. VI, 108). Mr. Meta testified that he repairs the intercom system two or -13- three times a month, and that such a frequency is not unusual for an intercom system (Tr. XII, 80). According to Mr. Meta's invoice (Resp. Ex. UU), a new electric lock was installed in 2000, at the same time the intercom was rewired. Petitioners also criticized the building's security in that the vacant apartments on the second, fourth and sixth floors are often left unlocked, noting that someone attempted to break into the building on September 21, 2001 and June 6, 2003. In the latter instance, someone who had attempted to break into the Jawitz unit was discovered by the police hiding on the vacant second floor, in possession of burglary tools (Tr. VII, 13-16, 120; Pet. Ex. 54). There was no proof that these burglary attempts were directly, or circumstantially, related to a condition created by the owner. The record does not make the nature of the front door lock malfunctions completely clear. The tenants explained that the front door lock can be operated by an electronic control in each unit. Therefore, the problem could have been mechanical or electrical; neither was clearly established. The testimony recounted instances when tenants were locked in or out, and when the lock was stuck in the locked position and could be forced open by yanking it forcefully, but the record did not prove that the instances of lock failure remained unrepaired for periods of time that created a breach of building security. The tenants’ testimony that homeless and other unauthorized individuals gained access to the building as a result of a broken lock was circumstantial and insufficient on its own to prove that a security breach existed. I therefore find that the instances of lock malfunctions as indicated in the Jawitz log and in letters to respondent, even combined with the past history of lock problems and other issues raised, did not support a finding of harassment where the proof failed to establish that the malfunctions constituted security breaches, and where there were only relatively minor security problems during the relevant time period. 3. Failure to Maintain Elevator As noted above, the tenants' complaints concerning the elevator were raised for the first time in their amended complaint of August 6, 2003. Thus, with the exception of ongoing problems related to the leaky skylight, only incidents after February 7, 2003, may be considered for a harassment determination. After that date, there are only a few elevator breakdowns recorded in the Jawitz log that were unrelated to the leaks (Pet. Ex. 40), and the evidence relating to them was insufficient to establish harassment. -14- As to the “ongoing course of conduct” established by the elevator breakdowns relating to water infiltration, three incidents were detailed on the record – the breakdowns of December 6, 1999, November 24, 2002, and July 21, 2003. Mr. Katz testified that, he was in the elevator on December 6, 1999, when rain was leaking into it to the point that sparks were shooting out, the light fixture in the elevator filled with water, and the lights were going on and off; he said it appeared to be short-circuiting (Tr. I, 56). Mr. Katz said the elevator was out for seven to 10 days after that. Again, on November 24, 2002, the elevator went out of service. On November 25, Jamie Smith, the occupant of the sixth floor unit, who was very ill, required the elevator to go to the hospital, but because the elevator was still not functioning, he had to be carried down the stairs in a wheelchair by EMS workers (Tr. IV, 28-31). That day, Mr. Dorfman received a distress call from Mr. Smith’s girlfriend who was unable to get him downstairs without the elevator. Mr. Dorfman called a repairman and then had to transport a heavy, wooden ladder from the sixth floor to the basement so the repairman could make the repair. The repairman told him the malfunction was due to water damage to the elevator and repair would take a while. Though the repair was started that day, it was not completed “for some time” (Tr. IV, 32). Petitioners’ counsel notified respondent’s counsel of the leaks in connection with this incident in letters dated November 25 and 27, 2002 (Pet. Exs. 31 & 41). At around 7:00 p.m., on July 21, 2003, the elevator broke down with Mr. Dorfman and three clients who were coming to use his recording space as the elevator was between the first and second floors (Tr. IV, 41-42). The elevator started making grinding noises and then stopped; it then continued making a grinding noise and the occupants smelled smoke. One of the clients called the emergency number posted on the elevator but, according to Mr. Dorfman, the number did not work. Mr. Dorfman called Markato Elevator, a company that used to work on the elevator and was told that Markato no longer serviced the building's elevator, but that they would send a repair person because it was an emergency. Mr. Dorfman was aware that Unitec was the building's current elevator maintenance company, but called Markato because he knew Markato's phone number and did not know Unitec's phone number (Tr. IV, 43). Mr. Dorfman acknowledged that, in the days preceding the July 21 incident, he had heard the elevator make noises similar to the ones it made when it malfunctioned, but he did not notify the landlord or managing agent about the condition (Tr. IV, 105-07). -15- Mrs. Dorfman heard the noises from the lobby, and heard those inside the elevator calling out that it was stuck (Tr. I, 140-41). Mrs. Dorfman buzzed the third floor tenant, Christine Keller, and asked her to call Mr. Widmaier, the managing agent at the time, and ask him to contact the elevator company. She said Mr. Widmaier never came to the building. Mr. Dorfman and his clients called the Police Department and the Fire Department 15 to 30 minutes after the elevator stopped (Pet. Ex. 34; Tr. IV, 47-48). When the Fire Department arrived, firefighters went to the second floor, broke down the locked door to the second floor apartment, and extracted Mr. Dorfman and his clients from the elevator (Tr. IV, 51-52). By then, it was 8:15 p.m. and an elevator company had also arrived (Pet. Ex. 34; Tr. I, 141, 145). Repairs on the elevator were started immediately (Tr. IV, 109-10). Mr. Dorfman, who accompanied the repairman during part of the repair, was told that the breakdown was the result of a broken part, which might have been damaged by water (Tr. IV, 110-11). He and the repairman also discovered that water had collected at the bottom of the elevator shaft and that a sump pump, which was no longer working, had been placed there to remove excess water. Mr. Dorfman advised respondent of this incident shortly after it happened (Pet. Ex. 34). According to the Jawitz log, the water condition continued and service was not restored until sometime after August 5, 2003 (Pet. Ex. 40). The Jawitz daily log documents a number of other elevator outages caused by leaks in the elevator shaft, including those occurring on September 16, 1999, November 3-5, 1999, July 28, 2000, May 28-30, 2001, and August 13-20, 2001. These log entries note "no elevator" and include other descriptive statements (e.g., repairman “says elevator wet in basement” on July 28, 2000, and repairman “says water on breakers” on May 29, 2001). In total, the record indicates that from 1999 to 2003 the elevator at 13 East 17th Street was not functioning on numerous occasions, either due to breakdowns or maintenance shut downs. Respondent points out that Unitec had serviced the elevator as recently as July 3, 2003 (Pet. Ex. 35), and on multiple dates over the three preceding years. Respondent presented proof that it had a continuing maintenance contract for the elevator, and submitted as evidence copies of monthly billing invoices from Alliance and Unitec4 for the years 2000, 2001 and 2002 (Resp.

4In years prior to 2003, the elevator repair invoices reflected the name “United Elevator,” apparently the predecessor to “Unitec.” -16- Ex. AAAA), and for a few months in 2003 (Resp. Ex. V). Additional repair invoices from 1999, 2000 and 2001 show respondent’s attempts to make repairs, but also confirm that problems caused by water damage were ongoing (Resp. Ex. BBBB): on November 2, 1999 (“traced and found elevator shaftway and car top equipment damaged by water”), July 28, 2000 (“passenger trapped” “traced and located water damage to top of car and also found water damage in motor room”), May 28, 2001 (“traced and located water leaking in through the roof. Notified building to make necessary repairs. Followed-up after building repaired roof”), and August 16, 2001 (“located water in the motor room”) (Resp. Ex. BBBB). Mr. Meta also conducted repairs including replacement of the skylight atop the elevator shaft on November 15, 2002 (Resp. Ex. III), and repair of “broken glass and frame of elevator shaft at the roof” on July 11, 2003 (Resp. Ex. X). Though Mr. Lentini acknowledged observing leakage into the elevator from the roof and/or skylight during the period 1999 to 2001, he sought to lay some blame on petitioners by citing a couple of instances where he believed water got into the building because they left a bulkhead door open on the roof (Tr. XV, 40-41). He also described efforts, apparently by the building handyman, to fix the leaks by placing putty around windows in the bulkhead. The Jawitz log indicated that, on May 8, 2003, Mr. Widmaier told him that “Ziggy” would be repairing the skylight in the elevator shaft (Pet. Ex. 40). The tenants all testified that Mr. Meta was a handyman whose repair responsibilities greatly outstripped his technical skill. His best efforts, according to them, were usually a temporary fix. Respondent contends that it has since repaired the skylight to prevent leaking, and that this problem had not recurred within a year prior to petitioner’s original application (Resp. Post- Hearing Memorandum, at 41), but both contentions are unproven on this record. First, the Jamie Smith incident occurred in November 2002, days before petitioners filed the original application. Second, though Mr. Meta replaced the skylight in July 2003, this repair could not possibly resolve the “poor flashing and roofing conditions . . . at the top of the elevator bulkhead” that were found by an engineering company on June 13, 2003 (Pet. Ex. 68). That company recommended the area be re-roofed and re-flashed. Petitioners did not dispute that the elevator was serviced or that repairs were sometimes made; rather, they contend that the repairs that were made were not sufficient to stop these leaks. Indeed, proof that the elevator was regularly serviced does not rebut the evidence that water continued to infiltrate the elevator shaft from the skylight and roof, particularly when the -17- elevator repairmen were not equipped to stop leaks. Note the Unitec repair invoice from May 28, 2001, which indicates that the company postponed its work until the owner could resolve the water leakage (Resp. Ex. BBBB). Indeed, the breakdown on July 21, 2003, occurred despite a service visit by Unitec on July 3, and a repair of “broken glass and frame of elevator shaft” by Mr. Meta on July 11 (Resp. Ex. X). Further, I credited the testimony of Mr. Dorfman that the elevator repairmen identified water damage to elevator mechanisms as the basis for the 2002 and 2003 breakdowns (Tr. IV, 31, 111). There is clear evidence on this record of water leaks that continued unabated over years, slowed only by periodic stopgap measures, that caused the repeated elevator breakdowns. In short, petitioners’ proof established that, from 1999 through July 2003, despite regular servicing and repair visits, the evidence demonstrated repeated elevator breakdowns owing to the same water condition that over many years was never properly remedied and was ongoing even during and after the time that petitioners filed their harassment application. I find the owner’s failure to stop the leaks over those years, and his repeated use of stopgap measures that were either unsuccessful at stopping the leaks or that did so only for brief periods constituted harassment, as it was a deliberate effort to force the tenants to vacate the premises.

4. Leaks and Failure to Repair Roof, Parapet Wall and Exterior East Wall The most extensive complaints made by the tenants concern the history of water damage due to leaks at the premises. The leaks, typically occurring after a heavy rainfall, were testified to by tenants Katz and Jawitz, occupants of the seventh, eighth and ninth floors. Besides the elevator, the leaks underlie three other allegations of harassment: the failure to repair the roof, the east parapet wall, and the east exterior wall and, thus, to remedy leaks into the units on the seventh, eighth and ninth floors. It was not disputed that the roof and the two skylights were old and had been repeatedly and extensively patched. Mr. Katz has lived on the seventh floor of the building for 30 years. Mr. Katz stated that the east wall in his unit has been leaking for 20 of those years (Tr. I, 102). This leaking has resulted in fungus and mold (Tr. I, 37). Mr. Katz stated that the south and north sections of his apartment have deteriorated and his flooring has rotted due to water damage (Tr. I, 38-39). In December 1999, January 2001, and September 2002, violations were issued for various leaks (Pet. Ex. 4). These violations show moisture penetration causing defective and eroded plaster, -18- peeling paint, and water stains at various places in the eighth and ninth floor unit, defective flashing around the skylight and parapet wall, and loosened wall panels in the fifth floor bathroom. Many of these conditions continued over the course of all three inspections. Mr. Jawitz occupies the eighth and ninth floors as a residence and photography studio. He stated that, since he began occupying the unit in 1969, the ceiling and walls on the ninth floor have exhibited moisture damage. There are also leaks around the skylight on his upper ceiling. He described the damage on the east wall of his unit as "phosphorescence, for lack of terms, where the brick gets all white and flaky” (Tr. V, 89) and constantly falls around his work area (Tr. V, 87-91; Pet. Exs. 48, 49, 50). His attempts to stanch the flow of dust by covering it with shellac proved to be temporary fixes. On days when it is windy, the brick mortar can be seen falling from the wall in the form of “little droppings of debris” (Tr. V, 91). The tenants admitted that some effort has been made by the owner to remedy the leaks, but they also criticized those efforts as inadequate. On one occasion in 2001, Mr. Meta patched the east wall, but the damage, mold and fungus in the Katz unit returned months later (Tr. I, 44). On June 19, 2002, Mr. Katz wrote a letter to the management complaining about the water damage and asking that the wall be waterproofed on the sixth and seventh floors, as it was on the eighth and ninth floors (Pet. Ex. 13). In the winter of 2003, Mr. Katz had a leak opposite the elevator on the east wall in his apartment (Tr. I, 81-82). Mr. Katz stated that the leak covered an area of about 3 feet by 1 ½ feet, and leaked for 1-1 ½ days. Mr. Katz stated that he called Mr. Lentini after noticing that the leaking was occurring again (Tr. I, 102). Mr. Katz stated that, after the leaks began, the owner would send someone to patch the wall every few months in response to his complaints, but that no repairs have been completed since 2001 (Tr. I, 102). Mr. Katz stated that Mr. Widmaier and Mr. Meta visited his apartment on July 10, 2003, to survey the alleged violations. Several days later, Mr. Meta returned but left without completing any work (Tr. I, 45). The owner's proof showed that, in 1999, Nathan Silverstein, the principal owner of 13 East 17th Street LLC, made efforts to stop the leaking from the roof. He retained a roofing company named Valor General Contracting to repair the roof. According to the contract, the company was committed to fill a crack in the north wall, install new flashing, apply a "roofing membrane,” repair the skylight, and seal all cracks (see Resp. Ex. U). This company completed the work in December 1999 and was paid $10,825. The records also showed that, in September -19- 2001, Mr. Meta was paid $514 for replacing the flashing on the parapet wall and skylight (Resp. Ex. AAA). In November 2002, Mr. Meta billed the owner $405 for replacing a skylight on top of the elevator shaft (Resp. Ex. III). Mr. Jawitz said that Valor used a white sandy substance to waterproof the outside wall and that the material went on very thin because of how cold it was outside. Mr. Jawitz saw that, according to the writing on the can, it should not have been used at such a low temperature (Tr. IX, 146). Mr. Jawitz said that, when one looks up from the street, one can see dark spots where the material went on well and light spots where it went on poorly (Tr. IX, 146). Mr. Jawitz said that after Valor's work in 1999, some of the leaks were temporarily cured but have since returned, while some other leaks returned immediately; some were even worse than before the work was done (Tr. XI, 54). After the leaking returned, he contacted his attorney, notified Mr. Lentini and notified Valor, who told him that they would not come back until they were paid (Tr. XI, 54). According to Mr. Jawitz, repeated repairs to the roof, most recently on May 12, 2003, failed to prevent the leaks from recurring (Tr. IX, 117-18). On at least two occasions, Mr. Jawitz admitted that he did not let roofers have access to the roof to work (Tr. X, 102). Although associated with the leakage caused by the poor condition of the roof, the condition of the east parapet wall is, in the tenants' view, an even more serious and hazardous condition. Several years ago, the parapet at the top of the building began to lean away from the building. The tenants began complaining about this condition in 1999. Architect John Peachy was retained by the tenants in 2003 to analyze the conditions at the premises. He stated that the three-foot high parapet on the east wall leans out three inches, and that the more it leans the greater the likelihood of eventual failure of the wall (Tr. II, 23). Mr. Peachy stated that, if the wall fails, the masonry will fall onto the roof of the building next door and will probably pull down masonry to the top of the windows on the eighth floor (Tr. II, 23). In 2003, the owner retained two experts to examine and report on the condition of the roof and the associated roof structures. Both offered similar views as to the current condition of the roof and the parapet wall. First, Murray Engineering evaluated the condition of the roof and the parapet and, in a report dated June 13, 2003, the company recommended that "the entire roof system be removed and replaced" and that “all flashing and counter flashing around the -20- perimeter parapet walls and skylights be replaced” (Pet. Ex. 68). They further found that trapped moisture inside the east parapet wall had "parged" the masonry, not allowing it to breathe. They further explained in a subsequent report on June 30, 2003, that flashing on the interior side of the parapet wall, which is not recommended, had trapped water that had caused movement and leaning during freeze and thaw cycles (Pet. Ex. 57). They recommended that the leaning parapet be removed and rebuilt. They also recommended that cracked glass and deficient caulking in the skylights be replaced and that flashing above the elevator bulkhead be replaced. James P. Quinn of Murray Engineering said that his opinion after examining the roof was that if repair work was not done to the roof, it would continue to leak into the apartments below, possibly begin to rot roof materials, and if the parapet was not repaired, the parapet could continue to deteriorate and possibly fail (Tr. XII, 17). The owner retained a second expert, Alfred Karman, who pointed out various places in photographs he had taken of the roof and other building structures where there is water infiltration (Tr. XVI, 16-21; Resp. Ex. FFFF). He determined that the roof itself was sound, but that the flashing on the parapet wall and around the skylights was in poor condition and in need of repair (Tr. XVI, 24-25). He regarded the parapet wall as safe, although its condition should be monitored (Tr. XVI, 27). Even though he believed that the flashing could be repaired, he recommended that the most cost effective solution would be to replace the roof and the parapets because, he observed, the flashings constitute some 80 per cent of the roof (Tr. XVI, 31, 43). Inside the Jawitz apartment, he noted evidence of moisture penetration in the peeling plaster and water staining in the area of the skylights below the roof (Tr. XVI, 26). He also noted a “façade leak” on the east wall of the building below the roof; this caused “moisture penetration” into the apartment that left “a white, like a mildew, or a white stain” on the interior walls (Tr. XVI, 25- 26). Mr. Karman made his initial inspections of the building in June 2003, a follow-up visit in July or August 2003, and a final visit in April of 2004, and despite recommendations made after -21- his initial visits,5 no work had been done during the intervening period (Tr. XVI, 28, 40). On the other hand, Mr. Widmaier, who at the time of his testimony was no longer functioning as the building manager, has visited the roof seven or eight times during his tenure as building manager (Tr. VIII, 90). He observed the eighth floor roof membrane in tact, and said it had maintained its watertight integrity. Mr. Widmaier thought Mr. Murray’s opinion was “alarmist” and “not reasonable” (Tr. VIII, 29). The cumulative effect of the roof and wall leaks upon the tenants has been substantial. The leaks have resulted in stains and mold on the walls and contributed to plaster deterioration in the ceiling and walls in the seventh and eighth and ninth floor units. The crumbling plaster has resulted in dust accumulated in the eighth and ninth floor unit. Secondarily, the leaks have interfered with essential services throughout the building, since the evidence demonstrated that the leaks have contributed to malfunctions in the elevator and in the boiler. Other than a $10,000 resurfacing project in 1999, the only action taken by the owner, despite repeated tenant complaints, has been repatching of the roof by Mr. Meta. The owner's repeated repair efforts have been more stopgap than effective, resulting in, at most, a temporary lessening of the water penetration. The only serious analysis of the roof problem by the owner was evidently undertaken during the hearings on this case, in 2003, when the owner hired two experts to examine the roof and recommend solutions. Both indicated that extensive work was needed and suggested that the intermittent patching had been of marginal value. Both agreed that the preferred and probably the only effective solution would be the replacement of the roof and parapet wall. Despite the years and years of tenant complaints, repeated violations issued, and overwhelming evidence of pervasive leaks throughout the building, by the close of the hearing, respondent still had not commenced repairs recommended by its own experts. I find that the evidence regarding the seriousness and pervasiveness of this condition, combined with proof of the owner's meager efforts to address it, supports a finding that the owner's failure to maintain or repair the roof and exterior walls, despite compelling evidence that -22- moisture was permeating the building for many years, constituted a deliberate effort to -23- force the tenants to vacate and warrants a finding of harassment.6

5. Failure to Provide Heat or to Maintain Boiler The tenants allege that the owner failed to supply adequate heat on a total of 31 days between 1999 and 2002. As discussed above, only the 2002-2003 heat season falls within the 180-day limitations period. In addition, petitioners allege that respondent failed to adequately "prepare" the boiler at the beginning of the heat season. The boiler preparation allegation was based upon the observations of Mr. Peachy, who indicated that it was good management practice for an owner to take certain actions prior to the beginning of the heat season, including test firing the boiler, cleaning the oil tank, and cleaning the inside of the boiler (Tr. II, 11-14). On the other hand, building manager John Lentini testified that the owner had the boiler inspected annually but nevertheless contemplated that some problems with the boiler might need to be addressed during the heating season. When the tenants complained about insufficient heat, the building staff responded and turned up the heat if necessary (Tr. XIV, 87). There were no violations issued for either the boiler or a failure to supply heat. The evidence as to heat problems during this 2002-2003 period included notations from Mr. Jawitz's log indicating that, after June 29, 2002, there was no heat on four dates and inadequate heat in his unit on seven dates. According to the evidence, Mr. Jawitz experienced problems receiving heat intermittently from October 15 to December 1, 2002. The evidence shows that Mr. Jawitz received heat, but the heat did not reach the rear of his unit on October 16, 24, 25, 28, 29, and 30, and November 4, 2002 (Pet. Ex. 40; Tr. VI, 169, 175-77). Mr. Jawitz said that on such occasions he would ask the superintendent to turn up the heat (Tr. VI, 170). Sometimes, he would go down to the boiler room and turn up the heat himself (Tr. X, 153). On October 15, and over the Thanksgiving holiday, November 29 and 30, and December 1, there was no heat at all (Tr. VI, 168-69, 180-81). Mr. Jawitz said that when there was no heat, he called Atlas to repair the boiler; he complained that the boiler would not heat the back of his unit until it had been running consistently for approximately three weeks (Tr. VI, 170-72, 177). Mr. Jawitz traced his problem receiving heat to a malfunction in the radiator pipe in Mr. Katz’s unit that obstructed the flow of heat into his unit, above. -24- The owner contends that he was legally required to provide heat only when the outdoor temperature dipped below certain minimums: 40 degrees at night -- between 10:00 p.m. and 6:00 a.m. -- and 55 degrees during daytime hours (Tr. VI, 173). Data submitted by petitioners from the U.S. Department of Commerce showing temperatures in the New York City area for the month of October indicate that the high and low temperatures on October 15 were 57 and 41 degrees, respectively (Pet. Ex. 43). The data also shows that the temperature dropped below 55 degrees from 7:00 a.m. to 10:00 a.m., and perhaps later, but that, by 1:00 p.m., the temperature had climbed above 55 degrees (Pet. Ex. 43; Tr. VI, 173). Heat was restored at 9:00 p.m. Temperature data was not submitted for the month of November, in which petitioners allege being without heat for three days. The data indicates that heat was required during some part of the daytime hours on all six dates in October that Mr. Jawitz claimed to have inadequate heat in the rear of his unit (Pet. Ex. 43). Although harassment findings as to pre-2002 heat problems are foreclosed under the 180- day statute of limitations, some proof as to these older problems was permitted at trial in that it was relevant to a finding of owner's intent. Hence, Mr. Jawitz and other tenants indicated that there had been no heat for several days during the three heat seasons preceding 2002-2003. Past cases concerning harassment due to failure to provide heat have been based upon proof that the tenants were without heat for a significant amount of time. See Matter of Kalmanowicz, supra, OATH Index 1333/97 (harassment found where owner failed to provide heat for three months of heat season). Isolated instances of heat failures of a few days have not been held sufficient to establish harassment. See Matter of Kasher v. BLF Realty Holding Corp., OATH Index No. 262/99 (Oct. 26, 2001), adopted in part, rejected in part, Loft Bd. Order No. 2704 (Feb. 7, 2002) (four heat violations during two heating seasons were insufficient to prove harassment). Petitioners’ heat complaints fail to support a claim of harassment. The tenants proved that they were without heat for several hours on October 15 and, even accepting their assertion that they were without heat for three days over the Thanksgiving holiday and assuming that heat was required on those dates, I was unpersuaded that three days and several hours without heat gave rise to harassment. Even when added to the claims of inadequate heat in a portion of the Jawitz unit on seven additional dates that season, I was unconvinced that these facts gave rise to harassment, considering that the problem was restricted to a discrete area of the unit which -25- otherwise remained habitable, and the problem was repaired with no further complaints being lodged the rest of the heat season. These incidents show at most some minor boiler malfunctions, not an intent to displace the tenants. I therefore conclude that the four days of no heat, and seven days of inadequate heat to a portion of the Jawitz unit, even when considered in combination with the history of heating and boiler problems, does not suffice to support a finding of intentional neglect that constitutes harassment.

Diminution of Services In November 2000, the owner retained a contractor to pressure wash the façade and repair the windows at the premises for a fee of $27,600. According to fifth floor tenant Gary Dorfman, the washing of the building damaged the two windows in his unit facing the street by clouding them such that it was difficult to see through them. Although Mr. Dorfman and other tenant witnesses theorized that the damage was consistent with an acid being used on the windows (Tr. II, 15; Tr. IV, 61; Tr. X, 72-73), respondent's witnesses insisted that only steam was used to clean the windows (Tr. XIV, 109). Mr. Jawitz also testified that his windows were "similar" to those of Mr. Katz, but generally focused his statement on multiple photographs of the dust and dirt allegedly blown into his space during the work (Tr. V, 197-99; Pet. Ex. 46). Mr. Katz did not testify at all about damage to his windows. It was undisputed that the current condition of the fifth floor windows is poor, as shown by numerous photographs presented by Mr. Dorfman (see Pet. Exs. 17, 27-A, 27-B, & 38). I myself conducted an onsite inspection of the premises, at the request of the parties, and observed that the glass of the fifth floor windows appeared cloudy, as if covered by a film of soap. However, without having seen the windows prior to November 2000, it is difficult to assess whether the work done at that time caused their current defects. The strongest corroborative evidence that the windows were damaged by the cleaning was a letter allegedly sent on November 12, 2000, by petitioner's attorney Margaret Sandercock to the owner's attorney (Pet. Ex. 39). In this letter, Ms. Sandercock described the "recent" cleaning of the building exterior as having damaged the window panes by making them "look permanently filthy." The copy of the letter presented into evidence was dated April 2, 2003, but Ms. Sandercock indicated that this date was produced by an automatic date function on her -26- computer and that the original letter was, in fact, sent to the owner on November 12, 2000, an understanding shared by Mr. Dorfman (Tr. IV, 69-70). Ultimately, the issue of causation is moot, since I have determined that, whether the condition of the windows was caused solely by the 2000 cleaning or by a combination of age and the cleaning, the current condition of the windows does not establish a claim for diminution of services. In general, the requirement that a landlord may not diminish services, found in 29 RCNY § 2-04(c), has been interpreted to refer to services supplied either as a result of a lease or as required by the Board housing maintenance provisions or other residential building requirements. Even petitioners' architect conceded that the windows in their present state were in compliance with the Building Code, insofar as he was aware of no violation that had or could be written for the condition of the windows (Tr. III, 55-59). Loft Board cases granting diminution of services applications have generally concerned either elevator service (see, e.g., Loft Board v. Ando (7 Dutch St.), OATH Index No. 1829/96 (Sept. 17, 1996), adopted, Loft Bd. Order No. 2036 (Nov. 21, 1996), Matter of 24 Harrison Street, OATH Index No. 1120/96 (Feb. 12, 1999), adopted, Loft Bd. Order No. 2380 (Mar. 23, 1999)), or heat (see Matter of 29 John Street Tenants' Association, OATH Index No. 1982/96 (Nov. 20, 1996), adopted in part, rejected in part, Loft Bd. Order No. 2058 (Jan. 30, 1997)). Other cases upholding diminution claims have involved access to a roof, Matter of McGehee, OATH Index No. 1306/00 (Dec. 1, 2000), adopted, Loft Bd. Order No. 2599 (Dec. 19, 2000), a decrease in security, Matter of Bernstein, OATH Index No. 1710/02 (Aug. 1, 2003), adopted, Loft Bd. Order No. 2823 (Oct. 6, 2003), inadequate water pressure, Matter of Seyfried, OATH Index No. 127/97 (Jan. 3, 1997), adopted in part, Loft Bd. Order No. 2083 (Mar. 20, 1997), on remand, Loft Bd. Order No. 2107 (May 22, 1997), failure to clean and maintain common areas, Matter of Brooks, Loft Bd. Order No. 1313, 13 Loft Bd. Rptr. 283 (Feb. 27, 1992), and failure to repair leaks, Matter of Reginato, OATH Index No. 750/03 (May 29, 2003), adopted, Loft Bd. Order No. 2806 (June 19, 2003). All of these cases seem to rely upon the principal that a service provided to a tenant as of June 21, 1982, cannot be taken away. Although I have no doubt that the windows in this case constitute a service within the meaning of the Loft Board rules, I am not convinced that the diminution language was intended to guarantee to all tenants the identical appurtenances, such as windows, ceilings, doors, or floors, that they had in June 1982. The passage of time, the requirements of legalization, and a landlord's goal of repairing or improving a building all create -27- legitimate reasons to make modifications to buildings. As pointed out by respondent's former building manager, the mandated review by the Landmarks Preservation Commission would greatly increase the cost of replacing the windows in this building (Tr. VIII, 85). Such review might or might not result in the Commission approving windows identical to the old ones. The tenants' opinion that the clouded glass of the current windows is unpleasant and in need of replacement is entirely justified. However, the unpleasing aspect of the windows does not lead me to conclude that the owner is legally obliged to replace them under the guise of not diminishing a service. Certainly, there is no indication that if these windows were in an apartment building, the owner would be legally obliged to replace them. If the Loft Board rules are interpreted to mandate replacing windows wherever they become clouded on the theory that the loft tenants are entitled to restoration of all building features to the state they were in in 1982, it would impose a significant financial burden upon and remove a significant degree of control from owners of many loft buildings. The translucency of windows, the speed of elevators, the color of a building façade all change over time. There are tenants who prefer brick walls to plaster ones and tenants who prefer plaster walls to brick; there are tenants who prefer exposed beam ceilings to sheetrock, and tenants who prefer sheetrock to exposed beams. The possibility that the tenants will be permitted to prevent or mandate building modifications by means of diminution of services applications based upon the condition of the building in 1982 is unsettling and beyond the scope of what the drafters of the diminution of services rule intended. One case suggests that the Loft Board did not intend to recognize diminution of services where the primary consideration is the diminished quality of the service in question rather than a total deprivation. In Matter of Vander Heyden, OATH Index No. 438/03 (Apr. 22, 2003), adopted, Loft Bd. Order No. 2799 (May 15, 2003), app. for reconsid. denied, Loft Bd. Order No. 2919 (Apr. 21, 2005), the Board denied a diminution of services application based upon an owner's legalization proposal to create an elevator vestibule and thereby limit a tenant's ability to transport oversized artworks. In this case, the tenant asserted that the open and unwalled space near the elevator, part of which was being leased by another tenant, constituted a service from the landlord which could not be altered after 1982, despite the fact that the owner's proposed vestibule was fully code compliant. In somewhat the same way, the tenants in this building assert that the landlord must replace the windows because they have been altered, even though their alteration has not resulted in any violations of either the Building Code or the Loft Law. -28- The evidence here supported a finding that the street windows at the premises have been altered for the worse since 1982. However, so long as this alteration is not illegal, either under the tenants' original leases, or under the Building Code or the Loft Board's housing maintenance rules, I do not find that the modification constitutes an unlawful diminution of services, in violation of 29 RCNY § 2-04(c).

Penalty Loft Board regulations authorize imposition of civil penalties up to $1,000 "for each occurrence that is found to constitute harassment" 29 RCNY § 2-02(d)(1)(ii), and the Board generally imposes a separate fine for each finding. See Matter of Kalmanowicz, OATH Index 1333/97; Matter of Jones, Loft Bd. Order No. 1822, 16 Loft Bd. Rptr. 4, 13-14 (July 27, 1995); Matter of Abbott, Loft Bd. Order No. 914, 9 Loft Bd. Rptr. 84, 87 (June 29, 1989). In the instant case, two of petitioners' claims of harassment have been sustained.

Petitioners contend that each of the two acts of harassment upheld today should be held to constitute separate courses of conduct as against each of the three tenants and, consequently, that penalties should be imposed in multiples of three. Petitioners cite no legal authority for their request, though it is likely rooted in the language of the Loft Board regulations which provide a penalty “for each occurrence” of harassment. At least one prior ruling has held in favor of multiple fines (see Matter of Sotolongo, Loft Bd. Order 816, 8 Loft Bd. Rptr. 7B (Aug. 18, 1988) (owner was fined $1,000 per unit for not restoring gas service to four units over course of a year), and another has contemplated it (see Matter of Kalmanowicz, OATH Index 1333/97, at 23, n.5). Though I do not dispute the existence of situations in which it is appropriate, I find no precedent that compels such a result. Even in Sotolongo, the decision provided no rationale for imposing fines for each tenant in one instance while not doing so in other instances. Though the acts of harassment sustained here are particularly egregious because of the length of time they continued, the only ability the Loft Board regulations give me to address the magnitude of the harassment through the penalty is as to the amount and, having awarded the highest amount allowable, I find my authority to “punish” the owner to be otherwise constrained. Accordingly, I recommend that respondent be fined $2,000, $1,000 for each act of harassment. -29- I further recommend that respondent be barred for three years from the date of the Loft Board Order affirming this recommendation from filing an application seeking a termination of these findings of harassment. See 29 RCNY § 2-02(d)(2)(i) (an order containing a finding of harassment "shall specify the period of time, within a range of one to three years from the date of the order of harassment, during which the landlord shall be barred from applying for an order of termination."). Pursuant to section 2-02(d)(2)(ii), an owner found guilty of harassment shall be barred from decontrolling an interim multiple dwelling unit based upon a sale of improvements until the finding of harassment has been terminated.

FINDINGS AND CONCLUSIONS

1. Tenants’ allegation that elevator breakdowns caused by leaks into the elevator shaft that continued over many years constituted an ongoing course of conduct that was not subject to the 180-day limitation applied to claims of harassment.

2. Tenants’ allegations that the owner failed to supply heat; failed to maintain security at the entrance door and on vacant floors; failed to comply with obligations under expired stipulations with tenants Dorfman and Jawitz; and caused damage by cleaning of windows did not show an ongoing course of conduct and, therefore, were barred by the 180-day limitation in the Loft Board rules.

3. Evidence that fire escape step was left unrepaired for a period of time that was neither unreasonable nor negligent failed to support claim of harassment; accordingly, the allegation should be dismissed.

4. Evidence of front door malfunction, and other evidence regarding security of the building, did not establish the existence of a security breach that would support a claim of harassment; accordingly, these allegations should be dismissed.

5. Repeated elevator breakdowns demonstrated by the evidence to be caused by leaks unremedied by owner’s inadequate repairs over several years constituted harassment of tenants. Accordingly, a $1,000 fine should be imposed against owner.

6. Leaks that permeated the building from the roof, infiltrating the parapet wall and the east exterior wall, which persisted over many -30- years unabated by owner’s inadequate repairs, constituted harassment of tenants. Accordingly, a $1,000 fine should be imposed against owner.

7. Evidence that there was no heat on four days of the 2002-2003 heat season, and inadequate heat to a portion of one unit on seven days, did not support a claim of harassment; accordingly, these allegations should be dismissed.

8. Diminution of services claim should be dismissed where damage to windows alleged a claim based upon the diminished quality of the service in question, rather than a total deprivation of it, and Loft Board rules show no intent to establish a cause of action for the former. 9. As a result of proven harassment, owner should be barred for three years from the date of the Loft Board Order affirming this recommendation from filing an application seeking a termination of these findings of harassment.

Tynia D. Richard Administrative Law Judge

August 17, 2005

SUBMITTED TO:

MARC RAUCH Chairperson

APPEARANCES:

MARGARET B. SANDERCOCK, ESQ. Attorney for Petitioners

BORAH, GOLDSTEIN, ALTSCHULER, SCHWARTZ & NAHINS, P.C. Attorneys for Respondent BY: DAVID R. BRODY, ESQ.

5 Having failed to produce them during discovery, respondent produced after the close of the hearing, written recommendations made by Mr. Karman that he provided to respondent in October 2003. 66Petitioners appear to assert the water infiltration claims as separate acts of harassment, having separately asserted the parapet, east wall, and roof allegations in the amended complaint (see paragraphs 4 (k) (1), (2), and (3)) and in their Post- Hearing Memorandum (see page 1). Nevertheless, I find these allegations to constitute a single claim of harassment inasmuch as they all stem from the owner’s failure to repair the water penetration on the roof. Therefore, petitioners are entitled to a single finding of harassment, and a single fine should be imposed therefor.