Dep’t of Housing Preservation & Development v. Carone OATH Index Nos. 1302/08, 1303/08 & 1304/08 (June 30, 2008)

Petitioner proved harassment of single room occupancy tenants at 241, 243, and 245 Bowery, collectively known as the Sunshine Hotel, during the relevant inquiry period. Accordingly, respondent’s applications for certificates of no harassment should be denied. ______

NEW YORK CITY OFFICE OF ADMINISTRATIVE TRIALS AND HEARINGS

In the Matter of DEPARTMENT OF HOUSING PRESERVATION AND DEVELOPMENT Petitioner - against - ROSEANN CARONE Respondent ______

REPORT AND RECOMMENDATION JULIO RODRIGUEZ III, Administrative Law Judge The petitioner, Department of Housing Preservation and Development (“the Department” or “HPD”), commenced this proceeding pursuant to Local Law 19 of 1983, the Single Room Occupancy (“SRO”) anti-harassment statute. Admin. Code § 27-2093 (Lexis 2008). The Department referred this matter pursuant to title 28, section 10-06 of the Rules of the City of New York (RCNY) (Lexis 2008). Respondent, Roseann Carone, is the owner of Harlen Sales Inc., which is the deed owner of three premises located at 241, 243, and 245 Bowery in Manhattan, collectively known as the “Sunshine Hotel.” Petitioner alleges that respondent committed acts of harassment against the buildings’ tenants and seeks denial of respondent’s application for a certificate of no harassment (“CONH”) for each of the three buildings pursuant to section 27-198 of the Administrative Code. Trial was held before me on April 9, 10, 11, 14, and May 5, 2008. Petitioner offered numerous documents and photographs, and presented the testimony of Susan Cohen, staff 2 attorney with Manhattan Legal Services; Reggie Baxter, William Nieves, and Wilson Tang, HPD housing inspectors; Abimael Sequinot, HPD associate investigator; James Yee, Andre Gonzalez, Roland Albert Moultan Jr., John Piro, Victor Chiclana, and Frank Calzarano, tenants of the Sunshine Hotel; Julio Castro, Jr., brother of tenant Nelson Castro; and Raven Maldonado, case worker for Mr. Moultan at University Settlement. Respondent similarly offered numerous documents and photographs and presented the testimony of Daniel Chiodo, an exterminator; Michael Horan, tenant and handyman; Rudolph Richardson, tenant and porter; Valentine Moretti, HPD attorney; Milton Montalvo, tenant and manager of the hotel; and Anton Mayer, managing agent for the hotel. The record closed on May 16, 2008, upon the submission of post- hearing memorandums. For the reasons stated below, I find petitioner’s evidence sufficient to conclude that acts of harassment occurred at the three buildings of the Sunshine Hotel, and I therefore recommend that all three applications for certificates of no harassment be denied.

INTRODUCTION The subject of this proceeding is a three building complex known as the Sunshine Hotel. The complex consists of three contiguous buildings: the “Sunshine Hotel,” located at 241 Bowery; the “Lakewood Hotel,” located at 243 Bowery; and the “Annex,” located at 245 Bowery. Respondent and her husband, Frank Carone, are the officer and president of Harlen Sales Co., Inc., respectively, the corporate entity that has owned the complex since 1985 (Pet. Exs. 3 & 3a). On or about January 24, 2007, respondent filed three separate applications, one for each building, for a Certificate of No Harassment. Each application named the particular building as the Sunshine Hotel (Pet. Exs. 1, 1a & 1b). The three buildings are interconnected, contiguous, and have openings designed to allow the flow of occupants from one part to another. The buildings share a common boiler and hot water tank and have common ownership and management. However, each building has a separate lot and block designation and certificate of occupancy. Each certificate of occupancy provides for use as a Class B lodging house (Pet. Exs. 4, 4A & 4B). The building located at 241 Bowery is a three-story structure. The ground floor is used by the owner for storage in connection with Bari Restaurant Equipment and Supply, a business owned by Frank Carone. The business actually occupies the ground floor on each of the three 3 buildings. The second story of 241 Bowery housed the original office for the Sunshine Hotel, a sitting room, and a dormitory. The third floor was used as a dormitory before its use was discontinued (Pet. Ex. 4). The Sunshine Hotel’s main entrance, which served all three buildings, was originally located in this building. Currently, the main entrance is located at 243 Bowery and serves 243 Bowery and 245 Bowery. The building located at 243 Bowery is a five-story structure. The ground floor is occupied by the restaurant supply business. The second floor contains occupied cubicles and the current sitting room and hotel office. The third floor contains unoccupied cubicles. The fourth and fifth floors are dormitories which have not been occupied since prior to the inquiry period. The building located at 245 Bowery is a two-story structure. Again, the ground floor is occupied by the restaurant supply business. The second floor contains occupied cubicles. The dormitories in the hotel consisted of an open areas with rows of beds. The cubicles consisted of four walls and a door. The walls do not extend to the building’s ceiling. The tops of the cubicles as covered with “chicken wire.” It is undisputed that all the tenants that testified at the proceeding are lawful tenants of the Sunshine Hotel. Respondent intends to demolish the three buildings to make way for luxury condominiums.

ANALYSIS In order to issue a certificate of no harassment, the Department 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 2008). On November 30, 2007, HPD issued an “initial determination” finding that there was “reasonable cause” to believe that harassment of the lawful occupants of the premises occurred at the premises during the inquiry period, which was defined as January 24, 2003, to the present. HPD then filed three petitions, one for each building, on or about December 18, 2007 (ALJ Exs. 1-3). On April 11, 2008, HPD filed an amended petition for 245 Bowery and 243 Bowery pursuant to leave from this tribunal (ALJ Ex. 4). 1

1 The additional charges were: verbally abusing tenants by calling them derogatory names, and causing the tenants to suffer loud noises and verbal tirades, disturbing their comfort, repose, peace and quiet. 4

The petition for 241 Bowery alleges various acts and omissions constituting harassment during the inquiry period, including: Failure to provide adequate supply of heat and hot water; Failure to provide adequate supply of electricity; Failure to abate infestation of vermin and roaches at public hall; Illegally installing a timer switch, causing the boiler to stop operating at a set time; Failure to provide a buzzer or bell by the main entrance to the building complex; Eliminating the main sitting room and front desk which served the building complex; Illegally causing rent stabilized tenants to vacate their dwelling units; Illegally raising and overcharging rents in access of the legal allowable amount; Pressuring tenants to consolidate into 245 Bowery; and Generally interrupting and/or discontinuing and decreasing essential services and repairs. (ALJ Ex. 3). The amended petition for 245 and 243 Bowery alleges various acts and omissions constituting harassment during the inquiry period, including: Verbally abusing tenants by calling them derogatory names; Causing the tenants to suffer loud noises and verbal tirades, and disturbing their comfort, repose, peace and quiet; Failure to provide adequate supply of heat and hot water; Failure to provide an adequate supply of electricity; Failure to correct broken and defective windows at public hall; Failure to correct defective counter balances at public hall windows; Failure to plaster and paint the defective ceiling and walls at public hall; Illegally causing rent stabilized tenants to vacate their dwelling units; Failure to abate infestation of vermin and roaches at public hall; Failure to provide a building manager responsible for the maintenance of the building; Failure to provide adequate janitorial services; Failure to abate water leaks; Illegally installing a timer switch, causing the boiler to stop operating at a set time; 5

Failure to provide a buzzer or bell by the main entrance to the building complex; Failure to provide adequate lighting throughout the building; Eliminating the main sitting room and front desk which served the building; Failure to maintain adequate shower facilities; Failure to respond to tenants’ requests for repairs in a timely fashion; Illegally raising and overcharging rents in access of the legal allowable amount; Pressuring tenants in other parts of the hotel complex to consolidate into 245 Bowery; and Generally interrupting and/or discontinuing and decreasing essential services and repairs. (ALJ. Ex. 3-4). Under the Administrative Code, “harassment” is defined as any conduct by or on behalf of an owner of a single room occupancy multiple dwelling that includes: (1) the use or threatened use of force which causes or is intended to cause any person lawfully entitled to occupancy of a dwelling unit in such multiple dwelling to vacate such unit or to surrender or waive any rights in relation to such occupancy;

(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 any person lawfully entitled to occupancy of a dwelling unit in the use or occupancy of such dwelling unit and (ii) causes or is intended to cause such person lawfully entitled to occupancy of such dwelling unit 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 subdivision c of section 27-2140 of article seven of subchapter five of this code which causes or is intended to cause such person lawfully entitled to occupancy of such dwelling unit to vacate such unit or to 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 such person lawfully entitled to occupancy of such dwelling unit to vacate such unit or to surrender or waive any rights in relation to such occupancy including but not limited to removing the possessions of any occupant from the dwelling unit; removing the door at the 6

entrance to the dwelling unit; removing, plugging or otherwise rendering the lock on such entrance door inoperable; or changing the lock on such entrance door without supplying the occupant with a key. Admin. Code § 27-2093(a) (Lexis 2008). Additionally, Section 27-2093(b) of the Administrative Code creates a presumption that any statutory act defined in 27-2093(a) was committed with the intent to cause a legal tenant to vacate the unit. An owner may rebut the presumption by a preponderance of the credible evidence. Dep’t of Housing Preservation & Development v. McClarty, OATH Index No. 1602/00, at 2-3 (Dec. 7, 2000). The petitioner relied primarily on tenant testimony to prove its case. I note at the outset that most of the tenants that testified were elderly, poor, and appeared to suffer from a variety of infirmities. It was obvious that these individuals resided at the Sunshine Hotel out of necessity rather than by choice. Most of the tenants were classic examples of the individuals that the SRO Anti-Harassment Statute intended to protect. As Judge Zorgniotti explained in Department of Housing Preservation & Development v. Tauber, OATH Index No. 675/07, mem. dec., at 5 (Dec. 18, 2006), the statute’s declaration of findings and intent state that SRO occupants “are generally poor and elderly, and often suffer from physical and mental infirmities and social problems which make them particularly vulnerable to . . . harassment,” and that “it is the policy of the city to encourage the preservation of these dwellings as housing resources for such occupants and to protect these occupants against such harassment.” See New York City Local Law 19, at § 1, Act of May 31, 1983, no. 19, 1983 N.Y. City Local Laws. Courts have recognized that the general thrust of the statute “is to set up a scheme under which the presence of tenant harassment will be investigated before plan approval or permits will issue for the renovation or demolition of any SRO, and under which harassment will be penalized where it is found to have occurred.” Sadowsky v. City of New York, 732 F.2d 312, 315 (2d Cir. 1984); see also Page v. Donovan, 7 Misc. 3d 1030A, 801 N.Y.S.2d 238 (Sup. Ct. N.Y. Co. 2005) (statute enacted for the protection of occupants in SRO buildings from harassment and unlawful activity by landlords). Petitioner presented credible evidence that hotel management repeatedly offered buyouts, verbally and physically threatened, interrupted essential services, and engaged in other conduct 7 against tenants of the Sunshine Hotel to force them to either move from one building into another or out of the hotel all together.

Use or Threatened Use of Force Threats Against Nelson Castro Mr. Julio Castro (“Mr. Castro”) testified that his brother, Nelson Castro (“Nelson”), has resided at the Sunshine Hotel for over 16 years.2 Nelson Castro lived at 243 Bowery until he was pressured to leave his cubicle and relocate to 245 Bowery. Based on telephone conversations with his brother, Julio Castro testified that Michael Horan and Anton Mayer would bang on the door to Nelson’s cubicle practically every day for at least a month during the summer of 2005. They would tell Nelson that the building was closing down and threatened that he would be out on the street if he did not move. Mr. Castro testified that his brother was very afraid for his safety and well being if he did not comply with management’s demands to move (Tr. 463-465). Mr. Castro called Anton Mayer, the hotel’s managing agent, in an effort to get management to stop harassing his brother (Tr. 463-64). During the telephone conversation, Mr. Mayer threatened him saying, “You gotta [sic] be careful when you go to that place to visit your brother because, you know, you could get hurt” (Tr. 465). Mr. Castro recalled having to call the police in early 2005 because he was not allowed to enter the hotel after his brother called him and said that he had been assaulted. When the police arrived, Anton Mayer told the police officers that Mr. Castro was a trouble-maker and should not be allowed in because he did not live there (Tr. 461-62). Mr. Horan denied ever threatening Nelson. Mr. Mayer did not recall the incident described by Mr. Castro. I credit Mr. Castro’s account. His testimony was vivid and persuasive. Mr. Horan’s general denial was insufficient to cast doubt on Mr. Castro’s testimony. Mr. Mayer’s inability to recall the incident appeared conveniently self-serving. It is entirely plausible that Mr. Horan and

2 Mr. Julio Castro testified that Nelson Castro has permanent brain damage and has an IQ less than 60. Mr. Nelson Castro did not testify because he has a fear of formal proceedings based on his belief that said proceedings will result in him being institutionalized. 8

Mr. Mayer harassed Nelson so that he would move either to another cubicle or out of the hotel, particularly in light of Mr. Chiclana’s testimony, discussed below, regarding management’s conduct aimed at getting tenants to vacate.

Threats and the Use or Threatened Use of Force against Albert Moultan Mr. Chiclana, a 65-year old tenant at 245 Bowery, offered testimony regarding an incident between Mr. Rudolph Richardson, a tenant employed by the hotel as a porter, and Albert Moultan, a tenant. According to Mr. Chiclana, he and Mr. Moultan attended a meeting with their lawyers in early April 2008, a week prior to his in-court testimony. After the meeting, Mr. Chiclana went to his room. He testified that while in his room he heard Mr. Richardson ask Mr. Moultan what he said during the meeting. When Mr. Moultan responded that he wanted to go to trial, Mr. Richardson became upset, called Mr. Moultan a “stupid mother-fucker,” and stated, “I told you to get the money and to settle” (Tr. 387-89 & 409). Mr. Chiclana testified that he heard Mr. Richardson push Mr. Moultan against the wall, although he was unable to describe what he heard that lead him to believe that Mr. Moultan was pushed against the wall (Tr. 389). It should be noted that Mr. Chiclana testified on April 11, 2008, the day after Mr. Moultan testified. During his testimony, Mr. Moultan did not testify nor was he questioned about any confrontations with Mr. Richardson. Petitioner’s counsel’s attempts to secure another appearance by Mr. Moultan before this tribunal were unsuccessful. Alternatively, petitioner called Raven Maldonado, Mr. Moultan’s case manager at the University Settlement. Ms. Maldonado has been Mr. Moultan’s case manager since January 2008 and has met with him approximately 20 times. She recalled a meeting in March in which Mr. Moultan expressed concerns regarding an eviction action brought against him in October 2007 (Tr. 799). Mr. Moultan told Ms. Maldonado that Mr. Richardson threatened to come to court and tell the judge about the condition of his room so that Mr. Moultan would be evicted (Tr. 792). During a meeting on April 1, 2008, Mr. Moultan explained that he had a lot of paperwork in his room and that Mr. Richardson would tell him to put everything back whenever he attempted to clean his room (Tr. 793). During their April 7, 2008 meeting, Mr. Moultan told her that Mr. Richardson, who he referred to as Rudy, punched him and called him stupid (Tr. 795, 803 & 805). He again stated 9 that Mr. Richardson threatened to go to court and disclose the condition of his room ensuring his eviction. Ms. Maldonado testified that she made at least three failed attempts to get Mr. Moultan to re-appear before this tribunal. Mr. Moultan refused to come to court or to write an affidavit because “he would face the danger of getting hurt by [Mr. Richardson] if he were to come testify” (Tr. 796). Mr. Richardson denied ever threatening or striking another tenant, and specifically denied threatening or striking Mr. Moultan (Tr. 579). Mr. Richardson testified that he was represented by Legal Services of New York and usually attended their meetings with the tenants until about a week or two before he testified on April 14, 2008, because Rosalind Black, an attorney with Legal Services, refused to permit him to attend because he “couldn’t be on both sides” (Tr. 578). I found Mr. Chiclana’s and Ms. Maldonado’s testimony to be credible and reliable. Mr. Richardson’s testimony, on the other hand, was not. As discussed further below, I found Mr. Richardson’s testimony to be wholly contrived. He denied facts that were repeatedly attested to by almost every tenant witness, including those employed by the hotel. For instance, he was the only witness to utterly deny that the hotel ever had a heat problem. Additionally, Mr. Richardson’s testimony regarding Ms. Black’s refusal to allow him to attend the meeting, partially corroborated and provided substance to Mr. Chiclana’s testimony. Ms. Maldonado’s testimony, although fraught with hearsay, was credible. I found her testimony that Mr. Moultan told her on April 7, 2008, that Mr. Richardson punched him in the face to be credible and to coincide with the time frame described by Mr. Chiclana regarding the use of force against Mr. Moultan, as well as Mr. Richardson’s testimony about when he was excluded from the meeting with the lawyers. To put it another way, the evidence adds up and supports a finding that Mr. Richardson called Mr. Moultan stupid and used physical force against him. The use of derogatory verbal comments has been found to constitute harassment. See Dep’t of Housing Preservation & Development v. Tauber, OATH Index No. 675/07, at 21 (May 16, 2007) (citing Matter of Mauro v. New York State Division of Housing & Community Renewal, 309 A.D.2d 678, 765 N.Y.S.2d 868 (1st Dep't 2003) (harassment includes verbal abuse)). Therefore, I find that Mr. Moultan was verbally and physically harassed by Mr. Richardson, respondent’s employee. 10

Interruption or Discontinuance of Essential Services It is undisputed that the hotel’s main entrance, front desk, and sitting room were originally located at 241 Bowery and were subsequently relocated: the main entrance to 245 Bowery, and the office and lobby to 243 Bowery. Each party presented evidence regarding when those changes took place. Petitioner argued that after the main entrance was relocated, respondent stopped staffing the front desk 24 hours a day as it did when the entrance was at 241 Bowery. The lack of staffing coupled with respondent’s failure to install a bell and buzzer system resulted in the tenants not being able to have guests. Respondent maintained that the front desk was adequately staffed and that a bell and buzzer system was installed soon after the entrance was moved. Petitioner called Ms. Susan Cohen, a senior staff attorney at Manhattan Legal Services. Ms. Cohen has represented and continues to represent several tenants in matters regarding the Sunshine Hotel (Tr. 46).3 Over the years she has interviewed several of the tenants and visited the hotel on numerous occasions to observe its condition. She recalled visiting the hotel twice in 2004, after several tenants approached her requesting assistance in getting repairs made (Tr. 95). In October 2004, she attempted to visit her tenant-clients at the hotel. She testified that the hotel’s main entrance was then located at 241 Bowery. She walked up a set of stairs to the front desk area where the lobby and sitting room were located but was not able to go any further. Ms. Cohen testified that a “desk clerk” refused to allow her in, stating that the tenants could not have visitors (Tr. 47). In December 2004, she visited the hotel again and observed that the entrance at 241 was closed and had been moved to 245 Bowery. The door was locked and did not have a bell and buzzer system. Ms. Cohen waited until someone came down the stairs and opened the door. Once inside, she walked up a couple of steps and found another locked door. Again, there was no bell or buzzer system and she had to wait until someone opened the door. When she entered, Mr. Milton Montalvo, the hotel manager, immediately came out and told her that she could not go into the building. Mr. Montalvo called Mr. Anton Mayer, the managing agent for the hotel, who similarly refused to let Ms. Cohen see her tenant-clients and told her she should call the police if she wanted to enter the building. Mr. Mayer called the police himself after Ms. Cohen

3 The actions include an HP action for repairs, ten non-payment actions brought against the tenants, a complaint made to the New York State Division of Housing and Community Renewal regarding rent overcharges, and the instant hearing (Tr. 76). 11 refused to call. The police arrived and, ultimately, Ms. Cohen was permitted to visit her clients (Tr. 48-49). Ms. Cohen visited the second floor at 245 Bowery and the second and third floors at 243 Bowery. Each of these floors was occupied by tenants. Ms. Cohen recounted her observations of the public areas of 245 Bowery. She testified that the walls were dirty and had water stains coming down from the ceiling. The floors were dirty, worn, uneven, and had protruding nails that were trip hazards. She described dirt caked in the corners; holes in the walls; the need for painting; crumbling plaster around the windows; windows that did not open, were very difficult to open or slammed shut when opened; a lot of mold, broken tiles, and dirt in the shower facilities; and two toilets next to each other with “no stalls” or divider between them (Tr. 50 & 60-74). Ms. Cohen made similar observations on the second floor at 243 Bowery. There she noticed exposed wiring; a lot of dirt; cobwebs; peeling paint; holes in the ceiling; nails sticking out of the floor where cubicles were removed; broken faucets in the bathroom - the water could not be turned off; rusted sinks in the bathroom; holes in the walls underneath the sinks and by the toilets; and toilets that were next to each other, separated only by a couple of feet of space. The third floor had no electricity and contained many empty cubicles that were covered in mold and debris. Ms. Cohen testified that “it looked like no one lived there, but, in fact, people did. My clients did. Allan Black lived there [as well as] Darryl McGrue” (Tr. 51-52, 60-74). In 2005, respondent commenced several non-payment actions (Tr. 97). Ms. Cohen did not visit the hotel in 2005. Ms. Cohen went to the hotel again in August 2006, and several times thereafter, to photograph conditions in preparation for a lawsuit that she commenced in June 2006, seeking repairs and the restoration of the lobby (Tr. 53 & 60; Pet. Exs. 21 & 22). She explained that the lobby or “sitting room” was important to the tenants because it is the functional equivalent of a living room. She explained that the cubicles the tenants lived in were small and could only accommodate a bed and a small locker leaving two feet or so of leg room. The cubicles could not accommodate guests (Tr. 53). Ms. Cohen photographed the conditions at 243 and 245 Bowery (Pet. Exs. 21-22). She was unable to photograph the third floor at 243 Bowery during her December 2006 visit because it had been locked and the tenants who once lived there were gone (Tr. 56). 12

Ms. Cohen testified that the HP case commenced, but after several days of trial was marked off calendar in November 2006 for settlement discussions. The parties continued to negotiate for several months but a settlement was never reached. Ms. Cohen explained that the matter was not pursued further after they failed to reach a settlement because by that time respondent had completed virtually all of the needed repairs (Tr. 76, 103 & 105). Ms. Cohen’s testimony was corroborated in large part by tenant testimony.

Tenant Testimony James Moon Yee, eighty years old, has lived at the Sunshine Hotel for twenty years. He currently lives in room 26A at 245 Bowery, but still uses 241 Bowery as his mailing address (Tr. 294). Mr. Yee testified that in the second half of 2005 a water leak developed in his cubicle, causing the walls and his bed to get wet. He complained to Mr. Montalvo, who remedied the situation by placing a large plastic barrel on top of his cubicle to catch the water. The barrel, which was subsequently replaced with a smaller one, remained there, catching water for over a year (Tr. 297-298). Mr. Yee recalled being awakened in February 2007 by leaking water that spread across the ceiling, away from the barrel, and dripped through the chicken wire onto him. After complaining to Mr. Montalvo and Mr. Mayer and getting no resolution, Mr. Yee, on his own initiative, moved to a dry vacant cubicle that same night (Tr. 298). The next morning Mr. Mayer, accompanied by a man unknown to Mr. Yee, knocked on his door and told him that he had to return to his cubicle. Mr. Yee refused to move unless the leak was repaired. Mr. Yee moved back into his cubicle two weeks later, after the leak was repaired by Michael Horan, the hotel’s handyman (Tr. 299 & 305). Mr. Yee testified that two rooms near his cubicle had leaks that he described as “pouring rain.” These leaks were also repaired (Tr. 299). According to Mr. Yee, the heat in the building is currently very good. However, that was not always the case. He described the heat during the winter of 2004/2005 as insufficient and stressed that the condition of the windows worsened matters. The windows let in cold air, causing it to be cold and drafty in the hotel. Mr. Yee assumed, thus he did not complain, that the hotel manager knew the condition the windows were in because it was “obvious” (Tr. 300). He recalled the windows being replaced in April 2006 (Tr. 305). Mr. Yee stated that the building usually has adequate hot water. There were times when the water was not sufficiently hot because of high usage. He recalled at least two occasions in 13

2007 when the furnace was broken and there was no hot water. On those occasions the situation was remedied within 24 hours and management posted notices in the lobby regarding the problem (Tr. 306). Mr. Yee testified that he did not make any complaints to 311 because he did not like to complain and reasoned that nothing would be done. Mr. Yee described the sitting room in 241 Bowery as a large room that had a soda machine and snack machines. By contrast, the new lobby at 245 Bowery is very small and does not have vending machines. Mr. Yee explained that the new lobby is so small that it is impossible to have a private conversation (Tr. 303). Additionally, Mr. Yee testified that he had a friend who visited him at the hotel quite often. They would sit in the lobby and talk. The friend stopped visiting him after the main entrance was moved to 245 Bowery because the entrance was then locked and did not have a bell and buzzer system to permit access into the building (Tr. 302-03). Andre Gonzalez, a parking attendant, is another tenant at the hotel. He has lived in cubicle 9A at 245 Bowery for twelve years. He testified that there were times in 2004 and 2005 when the lights went out on the entire floor when tenants connected anything strong like a heater or a microwave oven. The electricity was usually restored within fifteen minutes to one hour. Mr. Gonzalez recalled one Sunday, about three years ago when the lights went off six times as he tried to watch a sports program. Mr. Montalvo, the hotel manager, had to leave work at his second job at the Prince Hotel to come to the hotel and re-start the lights. He did so the first five times the electricity went out but warned that the lights would remain off the entire night if it happened again. The lights went off again and remained off until the morning (Tr. 315 & 324). According to Mr. Gonzalez, the wiring was “changed” in 2006, and now only rows of cubicles are affected by power outages, instead of the entire floor (Tr. 327). Mr. Gonzalez testified that the lobby at 243 Bowery is staffed by Mr. Montalvo in the mornings, and by Messrs. Horan or Richardson at other times. He added that the lobby is never staffed at night, unlike when the lobby was at 241 Bowery and staffed 24 hours a day. Mr. Gonzalez further explained that prior to the lobby being moved, he received telephone messages from the front desk. Now, because the desk is not staffed, telephone calls, including calls from his employer, have gone unanswered (Tr. 317-18 & 325). 14

Mr. Gonzalez corroborated that there was insufficient or no heat during the winter months in 2004 and 2005. He explained that it got so cold at night in the hotel that he could see his breath (Tr. 319). He was forced to wear a sweat suit and cover himself with a blanket in order to keep warm. He complained to Mr. Montalvo, but nothing was done (Tr. 318). He described the heat as “low” in 2006 and adequate since (Tr. 319). Mr. Gonzalez testified that in 2004 and 2005 the glass on the windows were dirty and the windows themselves were difficult to open or close (Tr. 319). Mr. Gonzalez stated that he never made a complaint to 311 because he does not like conflict (Tr. 326). Albert Roland Moulton resides in cubicle 21A at the Sunshine Hotel. He has lived at the hotel for 9 years. He testified that there was no heat at the hotel in 2004 and 2005 and that it was especially cold in 2004. Mr. Moultan had to wear clothes and wrap himself in a blanket to keep warm. He stated that the windows were old and did not prevent the wind from coming through. He thought, but was not sure, that the windows were replaced in 2006 (Tr. 332). He further testified that there was no hot water at the hotel in 2004 and that he was forced to bath with cold water. The combination of lack of heat and hot water to bath caused him to develop pneumonia. He was hospitalized at Beth Israel Hospital for three weeks, from the last two weeks in January through the first week in February 2004 (Tr. 331). Mr. Moultan testified that the building at 241 Bowery was closed down and that a lot of people had to move into 245 Bowery, while others left altogether. Ultimately, everyone who stayed at the hotel moved into 245 Bowery. He could not recall when 241 Bowery shut down (Tr. 332-33). Mr. Moultan testified that when the lobby was moved from 241 to 243 Bowery, management told the tenants, and posted signs, that they were not allowed to have guests (Tr. 334 & 341). He identified Mr. Montalvo as the person in management who told him he could not have visitors. Mr. Moultan has not had any visitors since, other than his social worker (Tr. 341-42). He described the new lobby as one-fifth the size and lacking the amenities of the original lobby. He testified that he started using the new lobby in 2006, but was not certain of the date (Tr. 334). 15

Mr. Moultan complained of the showers being inoperable. The handles on the faucets would turn but no water came out. He reported the problem to Mr. Montalvo whom he said usually resolved the issue within a week (Tr. 336-74). Mr. Moultan admitted never calling 311 because it never occurred to him (Tr. 338). John W. Piro, a security guard, lives in cubicle 7A at 245 Bowery and has been there since February 1999. He testified that in 2004 and 2005 there was very little, if any, heat at the hotel. He specifically recalled that most of the radiators did not work; and thus, the heat was scant to non-existent during January, February and March 2004. He stated that it was really chilly during the day, but that he did not know much about the temperature in the hotel at night because he was usually at work (Tr. 352-53). He complained to Mr. Montalvo about the lack of heat. After looking into the problem, Mr. Montalvo told Mr. Piro that he found a timer attached to the boiler. Mr. Piro did not personally see the timer on the boiler (Tr. 354-55). Mr. Piro testified that in 2004 a number of tenants got space heaters to make up for the lack of heat. Some of the tenants got heaters “with a little too much wattage, and it kept blowing out the breakers” (Tr. 356). Mr. Piro stated that the windows were in bad condition in 2004. The windows were fitted poorly and in some cases, the frames were so skewed that the windows either would not open, or if they did open, they would not stay open. A block of wood was usually used to keep the sash from falling (Tr. 358). The windows frames were crooked, causing gaps between the window sash and frame and allowing air to leak. Mr. Piro did not recall any work being done on the windows in 2006 and thought that they were replaced in 2007 (Tr. 358-59). According to Mr. Piro, the heat was a little better in 2005 and pretty good in 2006 (Tr. 360). Mr. Piro did not witness or experience any leaks, although he recalled hearing other tenants talk about leaks. However, he did recall seeing big plastic trash barrels placed on the tops of cubicles (Tr. 360-361). Mr. Piro testified that the lobby was relocated in 2005. Prior to the move, the front desk had been manned 24 hours a day. Since the move there is usually no one at the front desk, particularly when Mr. Montalvo was not around. Mr. Piro testified that Mr. Montalvo had part- time jobs as a desk clerk at the Prince Hotel, which is across the street, and the White House Hotel, which is a couple of blocks up Bowery (Tr. 362-64). 16

Mr. Piro testified that before 241 Bowery was closed down, the tenants were able to drop off their sheets to be washed in big canvas bins that were located in the lobby. Tenants were also able to get new mattresses as needed. After the move, these services were no longer available (Tr. 365). Victor Chiclana, tenant at 245 Bowery, cubicle 19A, has been at the hotel for over twenty years. He testified that there was little to no heat at the hotel from 2004 to 2005 and that the windows were in bad shape. Mr. Chiclana expressed particular concern regarding a window by the fire escape that could not be opened (Tr. 381-82). He complained to Mr. Montalvo about the conditions, but nothing was done. Mr. Chiclana described a water leak he had in his cubicle in 2004. He discovered the leak one morning when he awoke to a wet blanket. He complained to Mr. Montalvo, but nothing was done and water continued to leak whenever it rained. The leak grew in size and eventually extended from one side of the cubicle to the other. The water damaged his bed, television, and some clothing. The leak was fixed in 2005 (Tr. 383-84). Mr. Chiclana testified that he would see Mr. Montalvo at the hotel desk usually in the mornings. The rest of the time the desk was not staffed (Tr. 390). When asked if he knew what this trial was about, Mr. Chiclana said, “To expose what was going on in the hotel” (Tr. 397). Frank Calzarano is a 65-year old retiree who has resided in cubicle 30A at 245 Bowery for eight years. He testified that there was no heat in the hotel at all in 2004. Mr. Calzarano did not complain initially about the lack of heat but eventually called 311 after hearing other tenants complain (Tr. 416). He recalled hearing tenants, including Mr. Horan and Mr. Richardson, talk about a timer that was on the boiler (Tr. 418). The heat in 2006 was sporadic due to defective radiators, which often felt ice cold to the touch (Tr. 418). Mr. Calzarano testified that in 2004 his cubicle was flooded by large amounts of water that leaked from the ceiling. He complained to Mr. Montalvo, who placed a large trash container on top of Mr. Calzarano’s cubicle to catch the rain. The trashcan remained there for several months (Tr. 437). Mr. Montalvo would empty the container with a mug into a smaller container when it filled near the top (Tr. 420-21; Pet. Ex. 25). 17

Mr. Calzarano similarly testified that after the main entrance was relocated there was no bell and buzzer system for at least a year commencing in 2004 and including most of 2005 (Tr. 425-27). Julio Castro, Jr., brother of tenant Nelson Castro, testified that he visited his brother almost weekly in 2004. His visits remained fairly consistent and increased in 2006. Nelson Castro currently resides in cubicle 3B at 243 Bowery and has been there approximately three years. Prior to moving into his present cubicle, he lived in cubicle 11L for approximately one and a half years, and in cubicle 9L between eleven and twelve years, at 243 Bowery. He moved from 9L to 11L in 2004 because of a leak that caused mold and mildew to overtake his cubicle and personal belongings. Mr. Castro recalled visiting his brother and finding his mattress still wet from the previous leak. He complained to Mr. Montalvo. After several weeks went by and nothing was done, he complained to Mr. Mayer, placed complaints with 311, and called MFY Legal Services. On March 12, 2004, an attorney with MFY Legal Services sent a letter to Mr. Mayer demanding that all the damage caused by the leak be repaired and that the mold and mildew be abated (Pet. Ex. 27). A couple of months elapsed before management moved Nelson Castro to cubicle 11L, where he remained until he moved to cubicle 3B in 2005. Mr. Castro testified that 241 Bowery was closed down in the beginning of 2005. He had a difficult time visiting his brother after the main entrance was relocated because the new entrance was locked; he did not have a key; there was no bell and buzzer system; and often no one was at the front desk. Mr. Castro complained to Mr. Montalvo and filed additional complaints with 311. Mr. Castro testified that the public areas of the second floor at 243 Bowery, where his brother lived, were dirty; had insufficient lighting; had nails and screws sticking out of the wooden floor; and had windows that were falling apart. Petitioner offered photographs taken by Mr. Castro in 2004 that depict some of the conditions he described (Pet. Ex. 28). Petitioner’s documentary and photographic evidence, as well as the testimony of Reggie Baxter, William Nieves, and Wilson Tang, HPD housing inspectors, and Abimael Sequinot, associate investigator with HPD, corroborated much of the tenants’ testimony. Reggie Baxter, director of the Targeted Cyclical Enforcement Program at HPD, testified regarding the hazardous nature of some of the violations issued against the Sunshine Hotel, and explained respondent’s statutory requirement to correct violations within prescribed time limits. 18

He testified that an owner is allowed 30 days to correct class “B” hazardous conditions, and 24 hours to correct class “C” conditions, which are classified as immediately hazardous. Mr. Baxter testified that some of the violations issued against the hotel were not corrected within the prescribed time. For example, a class C violation for lack of heat issued on January 10, 2004, was not closed until July 14, 2004, six months beyond the 24 hours prescribed by law (Pet. Ex. 8). Mr. Baxter pointed to conditions which respondent certified had been corrected but were observed to exist during re-inspection (Pet. Ex. 7; Tr. 134 & 138-41). HPD inspectors William Nieves and Wilson Tang testified that they visited the Sunshine Hotel on numerous occasions from May 2006 through October 2007, and observed multiple conditions for which they issued violations. Their testimony also corroborated that there was no bell and buzzer system at the main entrance in 2006. As a result, Inspector Nieves was unable to gain access to the building during his visit on May 13, 2006. Inspector Nieves surveyed 245 Bowery on May 14, 2006, and issued four violations for refitting the door at the entrance to cubicle 21A; defective ceiling and walls in public halls; defective counter balances, lower sash on windows located in the public halls; and vermin and roach infestation in the public halls. The inspector recalled observing peeling paint and windows that were being held up by pieces of wood (Pet. Exs. 6 & 21; Tr. 164-67). Inspector Tang surveyed 243 Bowery on June 17, 2006, and October 7, 2006. He issued violations for several conditions he observed throughout the public halls, including violations for lack of fire retardant walls; inadequate paint; defective counter balances on windows; defective wood floor; vermin and roach infestation; and exposed electrical wiring (Pet. Exs. 7; Tr. 190-94). Inspector Tang similarly recalled observing peeling paint, broken plaster, crumbling window frames, and gaps between the wood flooring (Pet. Ex. 22; Tr. 189-90). Inspector Tang inspected 245 Bowery on May 16, 2006, and issued violations for defective wood flooring; defective plastered surfaces; and refit entry door to the cubicle (Pet. Exs. 6 & 21; Tr. 196). Associate Investigator Sequinot testified that he visited the buildings in March 2007 and October 2007. During his March 2007 to 245 Bowery, he observed that the second floor was dirty and dimly lit; the walls needed painting; and the bathrooms were moldy (Tr. 217-18). On the second floor of 243 Bowery he observed that the walls had peeling paint and the bathrooms were dirty and moldy (Tr. 218). Investigator Sequinot testified that the third floor of 243 Bowery 19 was vacant, dirty, and that the floors were covered with animal feces (Tr. 219). He entered 241 Bowery and noticed that this space was also entirely covered with animal feces and had a very foul odor. He did not continue to inspect the building because it reeked and was vacant (Tr. 216- 20). Inspector Sequinot spoke with several tenants, including Mr. Montalvo, who stated that the hotel had many heat and hot water problems in the past, and Mr. Calzarano, who complained about the heat and the hot water supply (Tr. 221). The other tenants did not report any complaints. Mr. Montalvo was present when the interviews conducted (Tr. 217, 220). During the October 2007 visit, Investigator Sequinot was accompanied by three other investigators who spoke to several tenants in the hotel (Tr. 222). Mr. Montalvo was similarly present during the second visit to the hotel (Tr. 225). Investigator Sequinot took several photographs during the visit on October 2007 (Pet. Ex. 24 & 42a; Tr. 220-28). Investigator Sequinot explained that in November 2007, a meeting was held with HPD’s attorneys and some of the tenants and their attorneys. The purpose of the meeting was to clarify differences between the limited nature of what the tenants complained of in their interviews at the hotel compared with the more expansive nature of their allegations in their affidavits in opposition to the issuance of certificates of no harassment (Tr. 234-37). Petitioner argued that Mr. Montalvo’s presence during the interviews had a chilling effect on the tenants. The evidence did not support petitioner’s argument. The tenants who failed to complain about conditions to investigators at the hotel all unequivocally testified that they were not intimidated by Mr. Montalvo. Instead it appears that there was miscommunication between the tenants and the investigators during the interviews. Mr. Yee testified that he did not complain to the investigators because he thought that they were there regarding the leaks in the ceiling, all of which had been fixed (Tr. 304). Mr. Moultan testified that he did not complain to the investigators about the condition of the showers because he considered that to be an issue that only affected him. Additionally, he thought that all the issues were known to the lawyers and did not need repeating. Mr. Gonzalez testified that he did not complain about the electricity because the investigator did not ask. Petitioner offered Closed Violation Report Summaries which listed violations that existed at the three buildings during the inquiry period, including violations for no manager present at building; broken upper and lower window sashes; defective ceiling and walls at public hall; 20 defective counter balance all windows at public hall; vermin and roach infestation at public hall; defective fire retardant walls at public hall; inadequate paint at walls in public hall; defective wood flooring at public hall; exposed electrical wires at public hall; and inadequate supply of heat (Pet. Exs. 6-8). Under section 328.3 of the Multiple Dwelling Law, the violation summary reports are sufficient to establish that the conditions listed therein existed. Respondent denied that any conditions described by the tenants were caused by hotel management or that the conditions were caused with the intent of making the tenants vacate their units. Respondent submitted documentary and photographic evidence, and presented the testimony of several tenants, all of whom are employed by the hotel in various positions. Respondent’s witnesses denied harassing the tenants.

Tenant/Hotel Employee Testimony Michael Horan lives in cubicle 24A at 245 Bowery. He has lived at the hotel for nine years and has been employed as the hotel’s handyman for the last two and a half years (Tr. 541). Mr. Horan testified that one of the first jobs he completed for the hotel was to change all the windows in the hallway, lobby, and bathroom on the second floors of 243 and 245 Bowery. He did a lot of roof work on all three buildings and testified that he patched up leaks “right away” (Tr. 543). He specifically recalled fixing the leak in Mr. Yee’s cubicle the very next day. He explained that the leak in Mr. Chiclana’s cubicle could not be immediately repaired because he was busy at the time. Mr. Horan denied that a garbage can was ever placed above Mr. Calzarano’s cubicle to catch leaking water. He insisted that all leaks were fixed right away and that currently there are no leaks (Tr. 543). Mr. Horan acknowledged that he stopped paying rent in 2005 and that he was represented by Legal Services on a non-payment proceeding brought against him by respondent. Mr. Horan stated that the matter was ultimately resolved, and that “We got some money. They got us some money. We paid the rent” (Tr. 544). Mr. Horan acknowledged signing an affidavit that read in part that respondent subjected the tenants of the hotel to numerous dangerous and unhealthy conditions to get them to vacate the hotel (Pet. Ex. 5). However, he explained that he did not prepare the document and stated that he does not “really agree” with that part of the affidavit (Tr. 545-46). 21

He acknowledged that in 2004 the heat was “pretty bad” but added that eventually the boiler was replaced and that the heat has been good since (Tr. 547). Mr. Horan admitted seeing a timer attached to the boiler about a year ago, but explained that the timer was inoperable (Tr. 560-61). He denied having problems with the hot water. Mr. Horan acknowledged telling his attorney on the HP case that for about a year and a half, starting in 2005, the main entrance to the building was locked and did not have a bell and buzzer system (Tr. 562-63; Pet. Ex. 5). He recalled guests of various tenants yelling in front of his window attempting to gain access into the building (Tr. 569). Despite his acknowledgement, he insisted that a bell and buzzer system was installed “quickly” (Tr. 563). Rudolph Richardson lives in cubicle 28A at 245 Bowery. Prior to moving into cubicle 28A four years ago, he lived in the dormitory at 241 Bowery. He has been employed as the hotel’s porter for the last five years and works at the front desk two days a week. Mr. Richardson testified that he mops, sweeps, and cleans every day, including the bathrooms (Tr. 575). He denied observing management trying to rid the hotel of tenants or that management ever threatened anyone. Mr. Richardson testified that Mr. Calzarano’s cubicle is filthy, smells of dead flesh, and resembles a horse stall. He added that “a mouse jumped out of it the other day” (Tr. 580). Mr. Richardson attributed any rodent infestations at the hotel to the unsanitary condition in which several tenants maintained their cubicles. Mr. Richardson denied there ever being a lack of heat or hot water. He described both as always being “great” (Tr. 581). Milton Montalvo resides in cubicle 18A at 245 Bowery and originally resided in cubicle 1B at 243 Bowery. Mr. Montalvo has been employed as the hotel’s manager and fire safety director for approximately four years. He began working at the hotel as a desk clerk in 1997, prior to moving into the hotel. Mr. Montalvo stated that he works approximately 60 hours a week at the Sunshine Hotel Mr. Montalvo testified that in 2001, approximately six tenants resided at 241 Bowery and that the last tenant moved out in 2001. He explained that the tenants moved when Matthew Griffin, then manager of the hotel, offered the tenants cubicles in 243 and 245 Bowery. He 22 explained that the entrance at 241 Bowery remained open for approximately two and a half years after the building became vacant. The entrance was moved to 245 Bowery when a new office was constructed at 243 Bowery. Mr. Montalvo testified, and Mr. Donald Chiodo, the hotel’s exterminator, confirmed, that extermination services are provided weekly. Respondent offered several photographs taken between May 31, 2006 and April 17, 2007, that generally depicted unkempt conditions inside cubicles belonging to various tenants, including Mr. Moultan, Mr. Calzarano, and Mr. Nelson Castro (Resp. Exs. D1-D8). Mr. Montalvo testified that he received a few heat and hot water complaints from tenants but addressed them immediately. The boiler was replaced in October 2007. He denied there being a timer on the boiler at any time. He also denied telling Investigator Sequinot that the “facility has had many problems throughout the years with heat and hot water” (Pet. Ex. 18). He testified that the original lobby at 241 had vending machines, including a coffee machine and two candy machines. The new lobby at 243 Bowery has a microwave, toaster oven, a ceiling fan, chairs, and a 19 inch television, but no vending machines. Mr. Montalvo explained that 243 and 245 Bowery have circuit breakers on each floor. He stated that the electricity was restored as quickly as possible whenever it went out. He added that the tenants are not supposed to have any appliances in their rooms, although some do. Use of the appliances by the tenants causes the circuit breakers to trip, cutting of the lights. Mr. Montalvo acknowledged that between 5:00 p.m. and 6:00 a.m., there are no clerks on duty at the front desk. He testified that he works at two other hotels in the area: 40 hours a week at the White House Hotel, and 32 hours a week at the Prince Hotel. Mr. Montalvo denied placing trash bins on the tops of cubicles for extended periods of time. He recalled placing a bin on top of Mr. Calzarano’s cubicle. He explained that the leak occurred at nighttime and that the bin remained on top of the cubicle only a day or so until the leak was repaired. He also recalled placing a bin on top of Mr. Yee’s cubicle to catch leaking water. Mr. Montalvo stated that Mr. Horan was busy at the time and could not fix the leak immediately. He could not recall when the leak over Mr. Yee’s cubicle was fixed but insisted that it was no longer than a couple of days. The overwhelming evidence established that respondent harassed the tenants at the Sunshine Hotel during the relevant inquiry period. I found the testimony of the tenants who 23 testified for petitioner to be credible and more reliable than the testimony of Messrs. Horan, Richardson, and Montalvo. The violation history reports, inspectors’ testimony, and photographs produced at trial corroborated their testimony and establish that respondent committed various acts of harassment as defined by section 27-2093(a) of the Administrative Code. I find that the credible evidence established that the main lobby, desk and entrance of the hotel originally located at 241 Bowery were closed in late 2004 or early 2005. Once 241 Bowery was closed, there was no bell and buzzer system provided at the new entrance door for a substantial amount of time. This prevented the tenants from receiving visitors. The petitioner’s witnesses’ testimony on this point was consistent and was corroborated by Mr. Horan’s statement in his affidavit that, for about a year and a half starting in 2005, the only entrance to the building was locked and did not have a bell and buzzer system (Pet. Ex. 5). I reject Mr. Horan’s attempt at trial to say otherwise. The testimony of every witness, with the exception of Mr. Richardson, was consistent and established that there was little to no heat provided in 2004. Most of the witnesses testified that the problems with the heat extended into 2005, although it got better. Mr. Richardson’s denial of any heat problems in the hotel is patently false and I therefore reject his testimony. The evidence clearly established and I find that there was a lack of sufficient heat at the hotel in 2004 and that the lack of heat continued through 2005. The testimony and documentary and photographic evidence adduced at trial clearly established that the appalling conditions in the bathrooms and public areas at the hotel did not appear overnight. Instead they existed because of respondent’s protracted failure to undertake necessary repairs and maintain sanitary conditions, despite repeated tenant complaints. The hotel’s management had or should have had constructive notice of the tenant complaints made to their tenant/employees. Furthermore, the hotel had actual notice of several of the conditions through violations issued against the hotel. Respondent’s failure to repair was evident by the serious state of disrepair of the windows; the substantial lack of heat for a year, if not more; the multiple water leaks into tenant cubicles, at least one of which went unfixed for several months; and the filthy condition of the walls and bathrooms. The owner's neglect is sufficient to support a finding that the deprivation of services was intended to harass the tenants to vacate. 24

I reject respondent’s argument that any vermin or rodent infestation at the hotel was caused by the unsanitary conditions in which several tenants maintained their cubicles. While this may have been a contributing factor, I find that the infestation was more likely caused by respondent’s utter failure to maintain the uninhabited areas of the hotel. The testimony of Investigator Sequinot revealed that at least two areas of the hotel reeked and were completely covered with animal feces when inspected. I reject respondent’s argument that she remedied the violations quickly, demonstrating that she lacked intent to cause the legal tenants to vacate their units. The evidence proves otherwise: all of 2004 with little to no heat and continuing problems in 2005; a new boiler not installed until October 2007 (Resp. Ex. R); windows not repaired until June 2006 (Resp. Ex. T); several months to repair the leak in Mr. Calzarano’s cubicle; and over a year to install a bell and buzzer system at the main entrance. Furthermore, the evidence strongly suggests that respondent undertook most if not all of the repairs after the tenants commenced a court action for repairs. The substantial delays in making the repairs support a finding of harassment, even if a substantial amount of repairs were completed. See Tauber, OATH 675/07, at 19-20.

Other Conduct Buyouts Mr. Chiclana testified that in early 2004, hotel management went around telling tenants to move because the hotel was closing. He recounted how “Nefty,” a former clerk at the hotel, and Milton Montalvo, the hotel manager, repeatedly offered him and other tenants up to $800 to leave the hotel immediately. The offers were often coupled with the warning that the hotel was closing down (Tr. 390-91). Mr. Chiclana testified that about the time the offers were being made, fliers were placed in the lobby of the hotel advising the tenants of a shelter at Bellevue Hospital (Tr. 391-93). Although he did not take the money he was offered to move out of the hotel, he knew of people who did. Mr. Chiclana did not provide the names of those individuals. I credit Mr. Chiclana’s testimony. The evidence demonstrates that the number of tenants living at the hotel considerably dwindled over recent years, to the point where 241 Bowery was shut down. Respondent’s applications list twenty-two occupants who have left during the inquiry period for various reasons. Sixteen of those residents were listed as leaving for new residences (Pet. Ex. 1). The 25 application for 241 Bowery states that the building has been vacant since October 2002 (Pet. Ex. 1b). However, respondent’s own witness and employee, Mr. Richardson, contradicts this statement. Mr. Richardson testified that he moved from 241 Bowery to 245 Bowery in 2004 (Tr. 573-74). He further testified that the dormitory at 241 Bowery was occupied by approximately sixty tenants (Tr. 574). Mr. Montalvo testified that the hotel once had approximately two hundred and fifty tenants. Respondent’s application for certificates of no harassment reveal that there were only thirty-one tenants living at the hotel at the time the applications for 245 Bowery and 243 Bowery were filed (Pet. Exs. 1 & 1a). This evidence, in conjunction with Mr. Chiclana’s testimony regarding the repeated buy-out offers and the deplorable conditions that respondent failed to remedy for extended periods, supports a finding that respondent was undertaking steps to reduce the number of tenants who occupied the hotel to facilitate its plan to demolish the hotel to make way for luxury condominiums (Pet. Exs. 1 & 1a). See Vaughan v. Michetti, 176 A.D.2d 144, 144, 574 N.Y.S.2d 30, 31 (1st Dep’t 1991) (repeated buy-out offers, coupled with a units “deplorable condition over a lengthy period of time” can constitute harassment); Dep’t of Housing Preservation & Development v. Avid, OATH Index No. 801/08, at 21 (Apr. 4, 2008)(citing Dep’t of Housing Preservation & Development v. Serradilla, OATH 1802/01, at 16 (July 18, 2001) (corporate owner demonstrated intent to harass when it failed to remedy condition for which vacate order was issued during its ownership, and shortly after the vacate order sold the building)). This constitutes harassment.

Disturbances by Rudolph Richardson and Kerry Glover Mr. Chiclana testified that Rudy Richardson, the building’s porter, would constantly and purposefully make noise by banging on the walls when sweeping or mopping. He explained how Mr. Richardson and a tenant known as Tyrone, whose real name is Kerry Glover, would get together and create substantial disturbances at the hotel. These disturbances occurred almost daily starting at two or three o’clock in the afternoon and continuing until one or two o’clock in the morning. The two would speak loudly and yell profanities in the hallways. Tyrone in particular would run up and down the hallways, bumping into walls and yelling. Mr. Chiclana blamed Mr. Richardson for not doing anything when he complained and for instigating Tyrone to continue his bizarre conduct after he had quieted down. Other tenants called the police during some of these episodes. The police responded after the first couple of calls, but eventually 26 ignored the repeated calls (Tr. 380-81, 400 & 404-07). Mr. Chiclana testified that as a result of the frequent disturbances caused by Mr. Richardson and Tyrone he could not sleep, watch television, or live in peace at the hotel. According to Mr. Chiclana, Tyrone is a drunk who has engaged in this sort of behavior since moving into the hotel. He testified that Tyrone engaged in this behavior the day before he testified. Mr. Richardson did nothing to abate the conduct (Tr. 407). Mr. Richardson’s testimony corroborated Mr. Chiclana’s account. He testified that Tyrone was a drunk and described him as “crazy” and a “wild man.” Tyrone “flips out” and is “all over the hotel,” cursing at the tenants, making noise, and wanting to fight. Mr. Richardson said that this did not happen every day, only when Tyrone drank beer, but went on to say that Tyrone drank beer four times during the week prior to his testimony (Tr. 594-95). Mr. Richardson corroborated that the police no longer respond to complaints about Tyrone. He denied hanging out and drinking with Tyrone, and insisted that he drinks beer in his room without Tyrone (Tr. 596). Mr. Milton Montalvo, the hotel manager, testified that Tyrone caused a commotion in the hotel three days a week on average. He explained that he would tell Tyrone to calm down but generally they had “to put up with it because Tyrone is an alcoholic” (Tr. 715). Management’s failure to abate Tyrone’s threatening and disturbing behavior is additional evidence of its intent to reduce the number of tenants who occupied the hotel to facilitate its plan to demolish the hotel to make way for luxury condominiums. Lastly, I find the evidence sufficient to establish that the tenants received credit for overcharges of rent, and rent abatements based on conditions in the premises, pursuant to settlements of the non-payment actions brought against the tenants by the owner (Pet. Ex. 2).

FINDINGS AND CONCLUSIONS 1. The evidence established that respondent harassed lawful SRO occupants of 241, 243, and 245 Bowery, collectively known as the Sunshine Hotel, during the inquiry period.

2. Respondent failed to rebut the presumption that she acted with the intent to force lawful tenants to vacate the building. 27

RECOMMENDATION I find that harassment occurred at 241, 243, and 245 Bowery, collectively known as the Sunshine Hotel, during the relevant inquiry period. Accordingly, respondent’s applications for the issuance of certificates of no harassment should be denied.

Julio Rodriguez III Administrative Law Judge June 30, 2008 SUBMITTED TO:

SHAUN DONOVAN Commissioner

APPEARANCES:

RONIT JOSEPH, ESQ. Attorney for Petitioner

RIZPAH A. MORROW, ESQ. Attorney for Respondent