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)
Topic(s): 1. Loft Law - diminution of services application - scope of relevance and relief available - particular claims allowed and disallowed before trial 2. Procedural matters - amended petition, counsel as trial witness, discovery sanctions, post-trial motion to add new evidence; severance of claim for further proceedings. 3. On the merits, six of the seven claims tried were sustained.
Judge: CF
Include in: 29 RCNY §§ 1-06, 2-01, 2-04; 48 RCNY §§ 1-25, 1-33, 1-42, 1-52
Recommended disposition: Grant application in part
Discussion of Listed Topics:
1. ALJ concluded that the procedures and remedies described in section 2-04(e) of the Loft Board’s rules apply only to Loft Board-initiated enforcement proceedings, and not to tenant-initiated diminution of services cases. Referring to numerous Loft Board precedents in diminution of services cases, ALJ concluded that the only relief available in tenant-initiated diminution of services cases is a Loft Board order requiring the IMD owner to restore the services found to be diminished. Such an order operates prospectively only, and therefore past problems that have been remedied do not constitute viable diminution of services claims. Instead, the focus is on the present state of services - although past events may be probative of the present state of services. Also based on a review of Loft Board precedents, ALJ concluded that the owner’s willfulness or good faith regarding provision of services is not relevant to a diminution of services claim.
Although procedurally distinct, a Loft Board-initiated enforcement claim and a tenant-initiated diminution of services claim are substantively identical. That is, failure to provide either the services enumerated in section 2-04(b) or the services provided for in the general provisions of section 2-04(c) constitutes both a violation in a Loft Board initiated enforcement action and a diminution of services in a tenant-initiated case. Citing precedent from enforcement cases, ALJ held that section 2-04(c) requires provision of services specified in leases, services previously provided even if not specified in leases, and services necessary to the statutory warranty of habitability.
Based on this analysis, ALJ disallowed the following claims: a claim that the owner had failed to give notice to tenants of the owner’s need for access to their units as required by section 2-01(g)(1) of the Loft Board rules; a claim that the owner had failed to display its IMD registration as required by section 2-05(b)(13); a claim that the owner had failed to provide tenants with a 24-hour telephone number; a claim that the owner had taken longer to cure Department of Buildings objections to its alteration application than permitted by section 2-01(d)(2)(v) of the Loft Board rules; and a claim that the owner allowed a commercial tenant to operate without required public assembly permits. ALJ allowed the following claims to go to trial under section 2-04(b): inadequate heat, inadequate water pressure, discontinuation of freight elevator service, and inadequate building security. ALJ allowed the following claims to go to trial under section 2-04(c): inadequate maintenance and repair services, excessive noise from a commercial tenant’s premises, and danger posed by hazardous materials in the building.
2. ALJ allowed amendment of the petition to add petitioners and to convert the claim from one alleging harassment to one alleging diminution of services (citing rules and decision).
ALJ disallowed petitioners’ request to call respondent’s trial counsel as a witness. Although counsel had knowledge of relevant facts, ALJ concluded upon detailed pre-trial review of petitioners’ and respondent’s cases that petitioners had other sources for the testimony they sought from counsel. Therefore, ALJ declined to require counsel to testify, which would have raised questions about the disqualification of counsel and of his firm. In the end, respondent was represented at trial by an associate of the originally preferred counsel, and ALJ allowed petitioners to re-argue their request to call counsel as a witness, but petitioners declined to do so.
ALJ found that respondent’s counsel (the law firm as a whole) had been negligent in failing to respond timely to a discovery request. However, ALJ held that section 1-33(e) provides for discovery sanctions in such circumstances only if a party has failed to comply with an order to compel discovery. Here, as soon as the petitioners moved for an order to compel, the respondent provided the discovery. Therefore, petitioners’ motion for imposition of discovery sanctions was denied.
In their post-trial memorandum, petitioners submitted a large volume of new evidence, and respondent objected. Allowing the new evidence from petitioners would require allowing rebuttal from the respondent, undoubtedly requiring additional trial time. During that time, due to the fast-changing circumstances in the IMD, new evidence would develop and be submitted by the parties. Instead, with one exception, ALJ prohibited the new evidence.
The one exception was the new evidence concerning the presence of dangerous asbestos in the building. ALJ characterized the petitioners’ trial evidence of a hazardous condition as a “mirage,” but found the post-trial evidence to be more substantial. Based on four factors, ALJ held that the new evidence warranted further proceedings on this claim: the evidence created a substantial prospect that the petitioners could prevail; the claim involved a serious and even potentially life-threatening condition; the petitioners proceeded pro se; and the finality achieved by denying further proceedings would prove illusory, in that tenants who had not joined as petitioners would not likely be bound by a finding against the petitioners on their asbestos claim.
Having concluded the case on all of the claims except the asbestos claim, ALJ found no reason to delay disposition of the non-asbestos claims pending further proceedings on the asbestos claim. In particular, the claim of inadequate heat carried some urgency. Therefore, ALJ severed the asbestos claim from the rest of the case and issued the report and recommendation for the rest of the case. ALJ directed that the asbestos claim be deemed to be docketed as of the date of the report and recommendation, and given a new index number.
3. ALJ sustained claims of inadequate heat*, inadequate water pressure, failure to perform necessary maintenance and repairs, discontinuation of freight elevator service**, failure to provide necessary building security, and failure to control the noise level. ALJ stated that the trial evidence did not sustain the claim that hazardous asbestos was present in the building, but, as noted above, ALJ severed that claim and retained jurisdiction over it for further proceedings.
* The Loft Board adopted findings of all violations as recommended except for the heat violation - it found that in the absence of temperature readings there was insufficient evidence to establish a violation.
**On remand to the Board to set a schedule for restoring elevator service the Board ordered the owner to take all reasonable and necessary steps to restore freight elevator service by October 17, 1997. Loft Bd. Order No. 2107 (May 22, 1997). THE CITY OF NEW YORK OFFICE OF ADMINISTRATIVE TRIALS AND HEARINGS
In the Matter of
REPORT AND JEAN ROMAN SEYFRIED, PETER DAVIES, RECOMMENDATION CHARLES L. MARBURG, JR., LOUISE WHITE,
CHARLES W. FURER, JR., LINDA BURGESS
and WILLIAM DUNLAP, Index No. 127/97
(TH-0135) Petitioners. 548 Broadway,
New York, New York
P R E S E N T: CHARLES R. FRASER Administrative Law Judge
T O: DAVID KLASFELD Chairman
A P P E A R A N C E S : JEAN ROMAN SEYFRIED 548 Broadway, #5F/G New York, New York 10012 - and - PETER DAVIES 548 Broadway, #5A New York, New York 10012 Pro se and representatives for petitioners Marburg, White, Furer, Burgess and Dunlap
BELKIN BURDEN WENIG & GOLDMAN, LLP By: Mary F. Donovan, Esq. Attorneys for the Respondent 342 Madison Avenue - 3rd Floor New York, New York 10173 2
This is a diminution of services application, brought by seven residential tenants of the interim multiple dwelling at 548 Broadway, New York, New York, against the owner of that
IMD, Salva Realty Corp., pursuant to section 2-04(c) of the Loft Board’s rules (title 29, Rules of the City of New York).
The application was referred by the Loft Board to this tribunal for adjudication, and was docketed on July 8, 1996. Following extensive pre-trial proceedings, trial was convened before me on September 24 to 27, 1996, and post-trial briefing was concluded on October 30, 1996. As detailed below, I conclude that Salva improperly diminished services to the petitioners in several respects, and therefore I recommend that the petition, as amended, be granted in part.
PROCEDURAL HISTORY
A. Pre-Trial Proceedings
The original application in the case was filed by Jean Roman Seyfried, one of the tenants at 548 Broadway, on February 14, 1996. Ms. Seyfried’s application, pleaded pro se, alleged harassment by the owner of 548 Broadway, Salva Realty Corp. Salva filed an answer denying the allegations of the application, six residential tenants filed answers supporting the application, and one commercial tenant filed an answer denying the factual allegations underlying a portion of the application. Following referral of the case to this tribunal on July 8, 1996, I scheduled a pre-trial conference for August 8, 1996. I denied two motions by Salva seeking adjournments of the conference, and convened the conference as scheduled.
At the conference, I scheduled trial for September 24 to 27, 1996, and I fixed various pre-trial deadlines. After discussion at the conference, I ruled that, although residential and commercial tenants may file harassment applications, they lack standing to file answers to 3 harassment applications. Therefore, I stated that the tenants who had answered Ms. Seyfried’s application must either move to join the application as petitioners, or be treated as non-parties who had requested to be kept informed as the case is processed. Also at the conference, Ms.
Seyfried and some of the residential tenant-respondents indicated that they were considering moving to amend the application to allege a diminution of services claim instead of a harassment claim. Finally, I scheduled a telephone conference call with the parties to resolve the numerous pre-trial issues to be developed following the conference.
On August 16, 1996, Ms. Seyfried, still proceeding pro se, moved to amend her application in two respects. First, she proposed to add as petitioners six other residential tenants, some of whom had filed answers to her original application, and some of whom were new to the case. Second, Ms. Seyfried proposed to substitute a diminution of services claim for the harassment claim she had originally pleaded.
Extensive pre-trial proceedings continued, including the exchange of voluminous discovery requests. The conference call I had scheduled for September 9 was actually convened on September 10, and I resolved most of the many pre-trial issues outstanding between the parties. My rulings were outlined in my letter to the parties of September 12, 1996. Four of those rulings warrant additional discussion here.
4
B. Pre-Trial Rulings
1. The proposed amended application.
The Loft Board’s rules provide that pleadings may be amended as of right until the first conference in a case. 29 RCNY § 1-06(h) (July 31, 1996). Thereafter, amendment of pleadings requires leave of the presiding hearing officer, although the rule does not state the standard to be applied in granting such leave. Id. Our rules similarly provide for amendment of pleadings as of right up to a point, with leave to amend required thereafter. 48 RCNY § 1-25 (July 31, 1996).
We have often construed our rule to require that leave to amend be freely granted absent irremediable prejudice to some party. E.g., Department of Correction v. Rebecca, OATH Index
No. 151/94 (Sept. 17, 1993).
Here, the substance of the original application was quite similar to that of the proposed amended application, although the original harassment claims were recast as diminution of services claims. The proposed amended petition was served on Salva more than a month before trial, and outlines of the possible amendment had been discussed at the pre-trial conference more than a week earlier. Moreover, the Loft Board has just held, in litigation involving substantially the same parties as those involved here, that a tenant-initiated application alleging non-compliance with legalization deadlines may be amended to assert diminution of services.
Matter of Davies, Loft Bd. Order No. 2023 (Nov. 21, 1996).
Therefore, I granted Ms. Seyfried’s motion to amend the application. However, upon my own motion, I dismissed three of the 13 diminution of services claims asserted in the amended application. Some background discussion is useful to an understanding of that ruling. 5
Of all the many types of applications contemplated by the Loft Board’s rules, diminution of services applications are perhaps the most cursorily described in those rules. Explicit reference to diminution of services is limited to a single sentence in section 2-04(c) of those rules, pertaining to claims against building owners and others standing in the shoes of those owners, and a single sentence in section 2-09(c)(3)(i), pertaining to claims against prime lessees.
The proper scope of a diminution of services application, the elements of proof required to sustain the application, the defenses by which a respondent might defeat the application, and the relief available upon the grant of the application are among the important issues left by the rules to textual inference and precedent. Similarly indistinct are the differences, if any, between a
Loft Board-initiated proceeding alleging non-compliance with minimum housing standards and a tenant-initiated application alleging diminution of services.
The provision for diminution of services claims against IMD owners appears in the
Board’s rule regulating the minimum housing maintenance standards for IMDs. 29 RCNY §
2-04 (July 31, 1996). Section 2-04(b) governs the provision of ten enumerated services.
Section 2-04(c) requires IMD owners to continue to provide services specified in leases, even if those services are not required by section 2-04(b). Section 2-04(d) provides that section 2-04(b) and (c) may be used by the courts in determining whether “parties” are meeting their obligations to tenants under the statutory warranty of habitability. Finally, section 2-04(e) provides for enforcement and remedies, setting out in detail a procedure for Loft Board inspections of IMDs and Loft Board-initiated proceedings.
6
The rules clearly provide that, when the Loft Board proves an owner’s non-compliance with minimum housing maintenance standards, the willfulness of the violation is at issue, and fines may be levied. The text of the rules does not imply in any way that willfulness is at issue in a diminution of services claim, or that fines are among the available remedies. I have recently held, and the Loft Board appears to have agreed, that enforcement proceedings may only be brought by the Loft Board; tenant-initiated claims concerning housing maintenance standards are limited to diminution of services claims. Matter of Davies, OATH Index No. 126/97, report and recommendation at 8 - 10 (Aug. 12, 1996), aff’d in part, rev’d in part and remanded, Loft Bd.
Order No. 2023 (Nov. 21, 1996).
Although the remedies available in Loft Board-initiated enforcement proceedings may differ from the remedies available in tenant-initiated diminution of services applications, there appears no reason that the permissible scope of the two types of proceedings should differ. Any item that would constitute a violation in a Loft Board-initiated enforcement proceeding should also constitute a tenant-actionable diminution of services. That is, if an IMD owner fails to provide any of the services enumerated in section 2-04(b), or if an IMD owner fails to provide any of the additional services required by 2-04(c), then a diminution of services application lies.
Moreover, the Loft Board’s constructions of section 2-04(c) indicate that that provision is not limited to services explicitly provided for in leases. Landlords are also obligated to continue to provide services that were previously provided, even if those services were not required by any lease. E.g., Matter of Moskowitz, Loft Bd. Order No. 357, 3 Loft Bd. Rptr. 118 (Jan. 29, 1986). 7
Also, the statutory warranty of habitability, which is deemed to be incorporated into any residential lease or rental
agreement (Real Property Law § 235-b(1) (McKinney 1989)), is implicitly applicable to the residential occupants of IMDs. E.g., Loft Board v. Difar Realty Corp., OATH Index No.
1970/96, memorandum decision at 4 - 5 (Aug. 14, 1996). Services required as part of the warranty of habitability are therefore part of the minimum housing maintenance standards, and the failure to provide such services, even where they have never been provided before, constitutes a diminution of services under section 2-04(c).
The amended application stated 13 claims for diminution of services. Several concerned the required services enumerated in section 2-04(b) of the Board’s rules. The first claim alleged inadequate delivery of heat to residential units; the second claim alleged inadequate water supply; the fourth claim alleged that freight elevator service had been discontinued; and the fifth claim alleged inadequate building security. 29 RCNY § 2-04(b)(1), (2), (8), (9) (July 31, 1996).
Other claims concerned matters within the scope of section 2-04(c). The third claim asserted that maintenance and repair services were inadequate in various respects; the sixth and seventh claims alleged that Salva improperly allowed the second floor to be used as a place of public assembly, disturbing the peaceful habitation of the residential units; and the tenth claim asserted that hazardous materials had been improperly removed from the building. (Also, the eighth and ninth claims substantially restated other claims and alleged that those matters constituted violations of stipulations of settlement of other litigation.) 8
However, three of the claims did not state viable diminution of services claims. The eleventh claim asserted that Salva had not given notice to tenants, when seeking access to their units during November 1995, in compliance with section 2-01(g)(1) of the Loft Board rules.
The twelfth claim was that Salva had failed to display its IMD registration as required by section 2-05(b)(13), and had failed until August 1996 to present tenants with a telephone number they could call 24 hours a day. The thirteenth claim stated that Salva had failed until June 1995 to cure the Department of Buildings objections to Salva’s application for an alteration permit, in violation of section
2-01(d)(2)(v) of the Loft Board rules. These matters are governed by provisions other than section 2-04, and are not properly addressed in a diminution of services claim. In addition, other than the alleged failure to post the IMD registration, the claims all concerned past matters, rather than matters that are continuing and can be cured. Therefore, I dismissed these claims, without prejudice, for failure to state diminution of services claims. (As discussed below, the absence of a 24-hour telephone number for the tenants may have contributed to other diminutions of services, most importantly heat and routine maintenance and repair, but the 24-hour telephone number is not itself a service that Salva is required to provide. In any event, the evidence indicated that a 24-hour telephone number was recently provided to the tenants.)
2. The scope of relevance.
An additional pre-trial ruling substantially shaped the evidence received at trial. In reviewing the Loft Board’s numerous diminution of services precedents, I determined that remedies upon grant of such applications have been limited to orders requiring that the 9 diminished services be restored. Neither damages nor rent abatements have been awarded, fines have not been levied, and willfulness findings have not been made.
In short, the only remedy available, an order that the IMD owner provide the missing service or services, is purely prospective. Although the Loft Board decisions refer to one retrospective remedy, the remedy of rent abatement, those decisions expressly disavow jurisdiction to grant that remedy, deferring instead to the courts. E.g., Matter of Meyers, Loft
Bd. Order No. 1336, 13 Loft Bd. Rptr. 369, 376 (June 25, 1992); see also Matter of Chodosh,
Loft Bd. Order No. 1576, 14 Loft Bd. Rptr. 377 (June 15, 1994) (rejecting the contention that rent increases otherwise due should be withheld or offset because of diminution of services).
Because the remedy for a diminution of services is prospective only - an order to cease the diminution - then the focus of a diminution of services application is necessarily limited to the present state of services. It makes no sense to order the restoration of a service that has already been restored. This is not to say that an IMD owner can evade a diminution of services claim by a temporary restoration of a service; if the tenants prove that a problem, although intermittent, is ongoing, then it is appropriate to order cessation of the problem. Also, evidence of failure to provide services in the past may be probative of whether those services are presently provided, but the probative value lessens as the length of time into the past increases. Literally scores of my pre-trial and trial rulings were based on the distinction between evidence tending to show present diminution of services, which was admissible, and evidence tending to show only past diminution of services, which was inadmissible.
Also, because the Board has not issued willfulness or good faith findings in diminution of services claims, the state of mind of the IMD owner and the reasons for not providing required 10 services are largely irrelevant. If section 2-04 requires that a service be provided, the tenants need not prove that the landlord intentionally or maliciously failed to provide it. Therefore, I excluded
a great deal of evidence because it was offered by the petitioners to show why, not whether, various services were not provided.
3. Salva’s counsel as a trial witness.
Initially after referral of this case to this tribunal, Salva asserted its strong preference to be represented at trial by one particular member of the law firm it had retained, Joseph Burden, Esq.
The petitioners expressed an intention to call Mr. Burden as a trial witness. The calling of an attorney as a trial witness presents difficult questions concerning not only the disqualification of the particular attorney from serving as trial advocate, but also the disqualification of his entire firm. See Code of Professional Responsibility, disciplinary rule 5-101(B)(4), appended to
Judiciary Law (McKinney 1992); see generally Matter of Salva Realty Corp., OATH Index No.
743/96, report and recommendation at 4 - 8 (Mar. 8, 1996), aff’d, Loft Bd. Order No. 1935, 16
Loft Bd. Rptr. 127 (Mar. 28, 1996).
In our legal system, a party’s right to be represented by counsel of her choice is a fundamental right, not to be interfered with or overridden lightly. Therefore, during our
September 10 conference call, I reviewed with the parties in considerable detail the proof they intended to adduce at trial, and the witnesses and other sources from which they expected to adduce it. In the end, I determined that, although Mr. Burden unquestionably had knowledge of 11 facts relevant to the application, other witnesses were available to the petitioners whose knowledge was equal, if not superior, to Mr. Burden’s. For instance, one of the important areas of testimony the petitioners wanted to elicit from Mr. Burden concerned correspondence and conversations between the petitioners and Mr. Burden. As to all such correspondence and conversations, the petitioners conceded that they had witnesses other than Mr. Burden available - primarily, the petitioners themselves. Therefore, although his testimony would be relevant, it did not appear that it would be essential. I therefore disallowed the petitioners’ request to call Mr. Burden as a trial witness.
As it turned out, Salva was represented at trial not by Mr. Burden, but by an associate of
Mr. Burden’s. I advised the petitioners that I would reconsider my ruling should they so request after presentation of their case in chief (Tr. 13, 375), but the petitioners ultimately indicated that they did not wish to seek such reconsideration (Tr. 376; see also Petitioners’ Closing
Memorandum, Oct. 28, 1996, p. 5).
4. Salva’s failure to answer discovery requests.
During pre-trial proceedings, the attorney handling the pre-trial representation of Salva received a document request from the petitioners just before she went on vacation. She placed the document request in the file before she left, but the request was not seen, and therefore not attended to, by the attorney who substituted for her while she was gone. Therefore, Salva did not timely respond to the discovery request. The petitioners alleged that the failure was intentional, and moved for imposition of sanctions against Salva, counsel, or both. I reviewed the matter at length with both sides during our September 10 conference call, and I determined 12 that the failure was one of negligence, caused by a failure of communication between the two attorneys, not one of intent. I reserved decision on the question of sanctions.
Timely response to discovery requests is always important. Timely response was especially important here, where both sides had sought, and I had permitted, quite extensive pre-trial proceedings, resulting in a complex of deadlines. In many cases, including the response to the petitioners’ request for discovery, compliance with one deadline was essential to the parties’ ability to comply with subsequent deadlines. Salva’s late response to the petitioners’ discovery request unnecessarily complicated the conclusion of pre-trial proceedings here.
Our rule providing for imposition of sanctions for discovery violations requires a two-step process: upon one party’s failure to make discovery, the requesting party must move for and obtain an order compelling a response; only upon failure to comply with an order to compel may sanctions be imposed. 48 RCNY § 1-33(e) (July 31, 1996). The petitioners moved to compel discovery, but the non-compliance was remedied before that motion could be decided. The parties apparently discussed the matter with the conference judge during a settlement conference, but discovery matters were within my jurisdiction, not his, and therefore he issued no order compelling discovery compliance.
The petitioners’ motion for imposition of discovery sanctions is denied.
C. Remaining Proceedings
Trial proceeded as scheduled on September 24 to 27, 1996. On the last day of trial, I received a letter from petitioners Linda Burgess and William Dunlap, stating that they had reached an unspecified “agreement” with Salva, and that they therefore “withdraw as petitioners”
(letter, September 27, 1996). 13
At the conclusion of trial, I scheduled post-trial submissions in lieu of oral closing statements. The petitioners’ submission was filed on October 29, 1996. Unfortunately, the petitioners’ papers included a large volume of evidence not adduced at trial, largely evidence concerning events after the conclusion of trial. The new evidence was not accompanied by a motion to re-open the record (see 48 RCNY § 1-52 (July 31, 1996)), and the respondent objected to consideration of the new evidence (letter, October 30, 1996).
Had the petitioners properly moved to re-open the record, I would be strongly disinclined to grant the motion. Given the situation of the building, it is to be expected that changes will occur during the time that the application is sub judice after trial. The owner of the building obtained an alteration permit last June, he retained a property manager shortly thereafter, and the property manager hired an assistant to the building superintendent to help with maintenance and repairs. Even the petitioners conceded, however begrudgingly, that changes were underway in the building as this case went to trial.
Of course, if I were to allow the petitioners to add new evidence, I would have to allow the respondent to answer the new evidence. Given the nature of the issues, additional trial days would be required. Then, no doubt, during the time that the additional evidence was under consideration, the parties would develop or discover even more evidence. In short, there is no principled basis upon which I can re-open the record at this point without in effect holding the record open indefinitely, and indefinitely deferring disposition of the case. It warrants restatement in this context that the petitioners objected quite vigorously before trial to any delay in bringing this case to a close. Having moved a difficult and complicated case through extensive pre-trial proceedings and a lengthy trial 14 in order to accommodate the scheduling concerns and other matters underlying that objection, I could hardly respond differently simply because the shoe is now on the other foot. Therefore, with one exception, I have not considered the new evidence contained in the petitioners’ post-trial submission. The one exception is the new evidence offered by the petitioners in support of their tenth claim, to show that friable asbestos is present in the building. As discussed below (pp. 52 - 54), I conclude that the new evidence warrants further proceedings as to the tenth claim.
At the commencement of trial, I stated that I had reconsidered sua sponte the sufficiency of one of the claims in the amended application. The seventh claim, one of three claims concerning the commercial tenancy of Exit Art on the second floor of 548 Broadway, alleged that
Salva allows Exit Art to use the second floor for public assembly purposes without a public assembly permit. The other two claims concerning Exit Art are the fifth, which alleged the existence of security problems in the building, largely due to the manner of Exit Art’s use of the second floor; and the sixth, which alleged that Exit Art’s use of the second floor creates an unacceptable noise level for the residential tenants.
The petitioners’ theory was that the allegedly illegal use of the second floor is the causal factor for the security and noise problems, and therefore constitutes a diminution of services.
Nonetheless, the legality of Exit Art’s use of its space is not relevant here: if Exit Art creates a security and noise problem, there is a diminution of services even if Exit Art has all required permits; conversely, if there is no security or noise problem, then there is no diminution of services even if Exit Art is holding public assemblies without a permit. The service that is due 15 from Salva to its residential tenants is a secure and quiet premises, not a premises on which commercial tenants have obtained required regulatory approvals. The lack of any required regulatory approvals, or the violation of any other law, may well be actionable elsewhere, and may even be actionable by the petitioners, but it does not constitute a diminution of services required of Salva, within the jurisdiction of the Loft Law.
Therefore, I ruled that evidence concerning the seventh claim would be inadmissible, except to the extent that such evidence was relevant to some other claim, including the noise and security claims.
Having precluded evidence as to the seventh, eleventh, twelfth, and thirteenth claims, I heard evidence on the remaining claims. I noted, and the petitioners agreed (see Petitioners’
Closing Memorandum, pp. 35 - 36), that the eighth and ninth claims were duplicative of other claims and did not warrant separate proof. The eighth claim alleged Salva’s failure to comply with a court-ordered stipulation. The ninth claim alleged Salva’s failure to comply with a 1991 agreement between Salva and the residential tenants of 548 Broadway. Both of these stipulations concerned matters covered by other claims that were tried here. (Non-compliance with stipulations, whether court-ordered or not, does not constitute a separate diminution of services. The conduct complained of, which allegedly violates those stipulations, may well constitute a diminution of services, but, as noted, those issues were covered by the petitioners’ other claims.)
The seven claims that were tried here can be roughly summarized as follows:
First - Inadequate supply of heat Second - Inadequate water pressure 16
Third - Failure to perform necessary maintenance and repairs Fourth - Discontinuation of required freight elevator service Fifth - Failure to provide necessary building security Sixth - Failure to control noise level Tenth - Failure to remedy hazardous asbestos condition
As discussed below, I find for the petitioners on the first six claims, and I direct that further proceedings be held on the tenth claim.
ANALYSIS
A. Background
The building known in this litigation as 548 Broadway has addresses at 546 Broadway,
548 Broadway and 88 Crosby Street. Currently, the first three floors of the building are used commercially, and the top two floors are used residentially. It is not contested here that all 14 units (see Pet. Ex. 6, pp. 3, 8 - 10, ¶¶ 2, 12 - 17) on the fourth and fifth floors of 548 Broadway are covered by, and the tenants of those units are protected by, the Loft Law.
Until September 1981, the building was owned by Rengu Inc. In 1978, Rengu entered into separate leases with Stephen Woodburst for the fourth and fifth floors of the building. The lease for the fourth floor was to expire on August 31, 1990, and the lease for the fifth floor was to expire on April 30, 1994 (Pet. Ex. 2, p. 1; but see Pet Ex. 6, p. 1 - fifth floor lease was to expire
August 31, 1994). Mr. Woodburst sublet the fourth and fifth floors in portions. For instance, he sublet loft 5A to petitioner Peter Davies by lease expiring April 30, 1994; he sublet loft 4D to petitioner Charles L. Marburg, Jr., by lease expiring September 30, 1986.
On January 1, 1981, with Rengu’s agreement, Mr. Woodburst assigned his lease for the fourth floor to Byell Corp. At some point, Mr. Woodburst assigned his lease for the fifth floor to 17
548 Broadway Tenants, Inc., apparently an incorporated group consisting of subtenants of Mr.
Woodburst’s.
During September 1981, Rengu sold the building to the present owner, Salva Realty
Corp. Salva is, and apparently was then, a family-run business that owns a number of buildings in New York. The owner of Salva is Abraham Chetrit, although different family members have taken part in Salva’s management of 548 Broadway. Eli Chetrit, Abraham Chetrit’s son, took over the management of 548 Broadway from his father and from his cousin, Joseph Chetrit, apparently in the late 1980s, and possibly as late as 1990. Since about the same time, Eli Chetrit has run a women’s sportswear business in the building, at the 88 Crosby Street address.
According to the tenants, the building quickly began to go downhill after Salva bought it in 1981. Maintenance and repairs - not only within the residential units, but also in the common areas - either were not done at all, or were done by the tenants at their own expense. By October
1, 1986, all of the residential tenants had stopped paying rent, and no residential tenant paid any rent again until at least May 2, 1991 (Pet. Ex. 6, p. 1).
The building was first registered by Salva as an interim multiple dwelling on February 5,
1986. Other than periodic IMD registrations thereafter, it appears that management of 548
Broadway remained quite inactive until after that management was taken over by Eli Chetrit.
Mr. Chetrit retained counsel experienced in Loft Law legalizations, retained architects for purposes of pursuing legalization, and filed an application for an alteration permit. Most importantly here, Mr. Chetrit and the residential tenants entered into a broad agreement, dated
May 2, 1991, which included a provision converting the subtenancies to statutory tenancies in 18 direct privity with Salva. After receiving three extensions of its time to obtain an approved work permit, Salva finally received the permit in June 1996. (Some of the background facts in this paragraph are taken from my prior decisions in Matter of Salva Realty Corp. OATH Index
No. 743/96 (Mar. 8, 1996), aff’d, Loft Bd. Order No. 1935, 16 Loft Bd. Rptr. 127 (Mar. 28,
1996); Matter of Davies, OATH Index No. 126/97 (Aug. 12, 1996), aff’d in part, rev’d in part and remanded, Loft Bd. Order No. 2023 (Nov. 21, 19
1996).) As can quickly be seen from my prior decisions in applications concerning this building, Mr. Chetrit’s renewal of management activity and of legalization efforts has not at least yet yielded a respite from what has been a very contentious and not very rewarding landlord-tenant relationship. On the contrary, disputes about both sides’ compliance with the
1991 agreement quickly arose, leading to nearly constant litigation among the parties, both in court and before the Loft Board.
Much of the litigation has centered on the sufficiency of Salva’s legalization efforts.
Here at issue, however, are the tenants’ contentions that Salva has failed to satisfy its housing maintenance obligations.
B. Heat
The first claim of the amended application is that Salva’s provision of heat to the residential tenants is not in compliance with section 2-04(b)(2) of the Loft Board’s rules.
The Loft Board’s rules require an IMD owner to provide heat to specified standards, from either a central system, individual unit systems, or both types of systems in combination. In any case, the owner must maintain heat as follows:
During the period from October 1 through May 31, . . . heat shall be provided so as to maintain every portion of the dwelling used or occupied for living purposes, between the hours of 6:00 AM and 10:00 PM at a temperature of at least 68 degrees Fahrenheit whenever the outside temperature falls below 55 degrees Fahrenheit, and between the hours of 10:00 PM and 6:00 AM at a temperature of at least 55 degrees Fahrenheit whenever the outside temperature falls below 40 degrees Fahrenheit.
29 RCNY § 2-04(b)(2)(i) (July 31, 1996); see id., § 2-04(b)(2)(ii). 20
Although at least some of the petitioners have gas-operated space heaters in their lofts, relatively little attention was given to that fact at trial. The tenants have paid for gas usage, at least 21 in recent years, and the petitioners presented no argument that Salva is responsible for such payments. Little maintenance has apparently been done on the gas units that were mentioned at trial, but neither side presented argument concerning who has the responsibility for upkeep of the space heaters. Two facts clearly appeared: first, the space heaters do not meet standards for residential use, and second, at least to the extent that they remain operable, the space heaters are inadequate to heat the entire residentially used portions of the lofts they are in.
Given these circumstances, and because no party argued the contrary, it is appropriate for present purposes to assess the sufficiency of Salva’s delivery of heat by reference only to the building’s central heating system (29 RCNY § 2-04(b)(2)(i)).
Four of the petitioners testified at trial, and all described the heat in their lofts as inadequate. As a general matter, I found their testimony to be quite credible. Although none of these witnesses were able to give temperature readings for their apartments, they convincingly described the consequences of a lack of heat. For instance, one petitioner testified to occasions when her floor was so cold that she had to wear multiple pairs of socks in order to walk in her loft. She testified to one occasion on which she wore a ski suit to sleep.
Also, the petitioners testified convincingly to reasons for such extreme cold. For instance, one witness graphically described gaps in the aging windows in his loft - gaps wide enough, he testified, that on windy days the draft was strong enough to blow out a lighted match.
Two of the petitioners offered excerpts from their diaries, in which they recorded instances of insufficient delivery of heat. Mr. Davies’s diary was especially persuasive in this regard, because of the care and detail with which he recorded his observations, and with which he 22 described his notations at trial. Less persuasive were the diary notations of Ms. Seyfried. Her notations tended to be cast in sweeping terms, without Mr. Davies’s attention to detail.
Salva relied on the testimony of James F. Connor, who owns the mechanical contracting company retained by Salva to maintain the building’s steam boiler. Mr. Connor testified that the boiler is in good condition. He testified that he maintains “five pounds of steam” on the boiler, which is “enough to heat a 20-story building” (Connor: Tr. 435). From the fact that the return water is 160 degrees, Mr. Connor inferred that the loft risers and radiators are adequately heated when the system is on. According to Mr. Connor, the system is on actually more often than required, because the system is set to turn on when the outside temperature falls below 58 degrees during the day, rather than the required 55 degrees, and 50 degrees at night, rather than the required 40 degrees.
I found Mr. Connor to be a highly credible witness, and an entirely competent professional. Nonetheless, Mr. Connor’s testimony did not wholly contradict the petitioners’ evidence.
Mr. Connor’s company was retained by Salva in January 1996. Upon being retained,
Mr. Connor was told that the boiler’s burner constantly needed to be “reset . . . to make it come on” (Tr. 428 - 29). Mr. Connor determined that the problem had been misdiagnosed by the previous maintenance contractor, and he did work on January 22, 1996, to remedy the problem.
In fact, the petitioners’ own evidence shows that heat problems after January 22 were considerably less than they had been before January 22. Mr. Davies’s diary includes notations about inadequate heat on four days during October 1995, nine days during November, one day during December, and five days during January before January 22. After January 22, the diary 23 includes heat complaints on only two days during February and three days during one week in
May. This drastic drop in the frequency of heat problems strongly corroborates Mr. Connor’s description of the nature and effect of the work he did during January 1996.
Notwithstanding this fact, the heat problems have not been fully solved. Moreover, I conclude that the heat problems since January 22 are more than incidental. The problems are not merely the occasional breakdowns and shutdowns that are inevitable in the operation of complicated mechanical systems.
Perhaps the most obvious remaining problem concerns heat retention. The petitioners acknowledged that the heat is adequate when the system is on, but there were several reasons that the heat quickly becomes inadequate when the system goes off. Many of these matters are related to the fact that the building was not built for residential use. For instance, the lofts have very high ceilings, many large, single-paned windows, and uninsulated tin ceilings. Some of the fifth floor units have uninsulated skylights, and the tenants testified that the roof and exterior walls are not well insulated. Other heat retention problems are related to the state of repair in the building. Most prominently, the windows in some of the units are in desperate need of repair, and probably replacement. Regardless of the cause, if heat retention is bad, there will no doubt be times that the lofts will be inadequately heated even if the central boiler system is working to specification.
In addition to heat retention problems, the evidence indicated that Salva has problems with processing heat complaints. It appears that Salva has not yet established a mechanism by which residential tenants can get reliably prompt response to a heat complaint. Salva recently retained a property manager, Norbert Soussan. Mr. Soussan works full-time for Salva, 24 managing several buildings, including 548 Broadway. A 24-hour telephone number is available, and, after hours, calls 25 to that number are taken by a telephone answering machine. The evidence here did not indicate whether or to what extent the machine is checked for messages that require response before the next business day.
Even assuming that tenants are able to make a complaint that is promptly received by someone in authority, there remains the problem of obtaining access to the boiler in the event of problems. The boiler is in the basement, and is accessible through the store run by Mr. Chetrit on the 88 Crosby Street side of the building. Mr. Chetrit quite understandably does not care to take telephone calls at home from tenants, especially on Saturdays, which he observes as the
Sabbath. An employee of Mr. Chetrit’s in one of the stores in the building has a key to Mr.
Chetrit’s store, but that employee lives in Brooklyn, and, of course, he may or may not be available at any given time that the boiler might require attention.
Mr. Soussan was retained last summer, and trial was held before this year’s heat season began. Therefore, the trial evidence necessarily contained no evidence of the actual handling of heat complaints since Mr. Soussan came on the job. However, the evidence convincingly showed that Salva’s handling of heat complaints was not reliably prompt before Mr. Soussan was retained, and the evidence did not show that the matter has been entirely cleared up since Mr.
Soussan was hired.
It is unlikely that any heating system is so reliable as never to break down, and certainly the system in 548 Broadway has yet to prove so reliable. Therefore, an essential component of
Salva’s obligation to provide heat is the obligation to establish procedures by which heat deficiencies, when reported by residential tenants, may be promptly verified, diagnosed and repaired. 26
In addition to heat retention and emergency repair problems, the evidence indicated a strong possibility of a third problem with the heat system. Mr. Connor acknowledged that, if the flow of steam and water were blocked somewhere along its route, then it would be possible for the heat system to be delivering inadequate heat and still returning water that is 160 degrees. In that event, however, “the building would shake and rock and roll. You’d have banging all over the place” (Connor: Tr. 436). In fact, there was evidence that there has been banging in the pipes and radiators (e.g., Seyfried: Tr. 337 - banging is “awful. I can’t sleep at night. It’s awful. It’s just unbearable”). It cannot be definitively determined on the present record whether that banging is due to any obstructions that would prevent or limit the delivery of heat to any residential areas of the building, but Salva ought to investigate that possibility. I note that
Mr. Connor testified that he has received no complaints about banging noises in the system since the repairs his company did in January 1996. If the tenants have made complaints about this since January 1996, but those complaints have not been passed on to Mr. Connor, then Mr.
Connor could hardly remedy them. This may be another example of inadequate management of information by Salva.
Mr. Connor testified briefly about some work his company was doing at the time of trial.
In particular, he was in the process of “installing a condensate return tank and revamping the feeding supply of the same” (Connor: Tr. 429). That measure was intended to reduce water consumption by the heating system, according to Mr. Connor. However, Mr. Connor testified that the change will “stop any noise in the radiators and give a lot better heat” (Tr. 429). It was not clear whether the change would stop the sort of banging that might indicate an obstruction in the system somewhere. 27
The foregoing discussion indicates that there are or may be a number of contributing factors to the insufficiency of heat in the residential units. As discussed above, the petitioners need not show that Salva deliberately or willfully failed to provide heat, and therefore, as a general matter at trial, I disallowed evidence of intent as irrelevant. Still, the evidence so clearly indicated that the heat problems at 548 Broadway were not due to intentional or willful wrongdoing that I am impelled to address the matter briefly. The petitioner’s theory was that the inadequacy of heat was due to an intentional refusal by Mr. Chetrit to provide heat to the building during the hours and days that his business was not in operation. The petitioners alleged that
Mr. Chetrit deliberately arranged to have the heat turned on while he was there, and turned off when he left.
Such an allegation of unmitigated malice should not be made without a fairly substantial basis, yet no such basis was shown here. Indeed, it has been one of the hallmarks of the long-standing contentiousness in this building that some of the tenants have tended to attribute each deficiency, each failure, and each lapse to deliberate misconduct motivated by evil character.
Mr. Chetrit testified that he is ordinarily in the building six days a week - all days except
Saturday - and I credited that testimony. Mr. Davies’s diaries indicate inadequate heat on 24 days during the 1995 - 96 heat season, and 44 days during the 1994 - 95 heat season. Mr.
Davies could only record the lack of heat on days and times when he was home, and therefore his accounting may be incomplete. Still, his diary reflected inadequate heat on only three Saturdays during the 1995 - 96 heat season, actually slightly fewer than would be expected if the heat problem occurred randomly. Indeed, upon plotting Mr. Davies’s heat complaints for 1995 - 96 28 by day of the week, perhaps the most striking thing is how very nearly evenly the complaints fell on the various days. 29
During the 1994 - 95 heat season, Mr. Davies’s heat complaints fell on Saturdays only marginally more often than would occur at random: eight out of 44 complaints were noted on Saturdays, whereas random variation would yield about six complaints for each day of the week.1
On Mr. Chetrit’s work days, applying the petitioners’ theory of deliberate heat deprivation, the heat should come on about the time that Mr. Chetrit opens his business. Mr.
Chetrit testified without controversion that his ordinary work day runs from 8:00 a.m. to 7:00 p.m. Yet Mr. Davies’s diary contains a number of references to heat problems during those hours.
There is an explanation that is much more likely than the petitioners’ theory of unvarnished vindictiveness on the part of Mr. Chetrit. As noted above, there was until January
1996 a problem with the boiler that caused it to shut down frequently, requiring that it be reset before it could be re-started. Also as noted above, Salva had not established adequate procedures for receiving and acting on emergency complaints. In this context, I think it likely that heat problems occurred frequently, but randomly. What was not random was that, while
Mr. Chetrit was in the building, the information flow was ideal: he knew personally that the heat was off, and he could make prompt arrangements for restoration of heat. When he was not in the building, restoration of heat was much more a hit-and-miss proposition. This in no way excuses Salva’s failure to provide sufficient heat, but failure to provide heat due to inattention or poor management is a very far cry indeed from failure to provide heat out of spite.
1. I checked my reasoning by applying the basic statistical evaluation known as a “z score.” The differences between the proportions of actual Saturday complaints versus the proportion one would expect based on random variation (one out of seven) were not statistically significant, or even close, for the 1994 - 95 heat season, for the 1995 - 96 heat season, or for both combined. In other words, statistically speaking, the frequency of Saturday complaints was random. 30
In any event, the petitioners showed that heat in their units remained insufficient after
January 1996, and the evidence did not indicate that, as of the time of trial, the insufficiency had been fully remedied. Therefore, on the first claim in the amended petition, I find for the petitioners.
C. Water pressure
The second claim in the amended petition alleged that Salva provides inadequate water pressure, in violation of section 2-04(b)(1) of the Loft Board’s rules.
The amended petition further alleged, and the evidence to some extent substantiated, that the water pump in place until late 1992 was “faulty” (Amended Petition, p. 4). Salva replaced the pump in 1992, but, until November 1995, either the pump was improperly operated or some other problem made the delivery of adequate water pressure sporadic. Due to unspecified work done in November 1995, the water pressure improved considerably, but, according to the petitioners, was not adequate “at all times” (29 RCNY § 2-04(b)(1) (July 31, 1996)). Further adjustments were made in the weeks before trial here.
The primary focus of the trial evidence on this claim concerned the sufficiency of the water pressure during the early morning hours. However, there was a passing claim in the testimony that water pressure is inadequate at other times. Because the petitioners conceded, both in their pleadings and in their evidence, that the water pressure had substantially improved in November 1995, I largely limited the evidence to the state of the water pressure since then.
Salva’s plumbing contractor is DeMar Plumbing Corporation, a company formed several years ago by former employees of Salva’s former plumbing contractor, Pronto Plumbing. Trial testimony was given on DeMar’s behalf by Alex deMarinis, a licensed master plumber. I found 31
Mr. deMarinis to have solid credentials and long experience, and I found his testimony to be professional and highly credible.
Mr. deMarinis testified that the street-level water pressure, unaided by the water pump, is about 65 or 70 pounds per square inch. When boosted by the water pump, the pressure is almost
105 pounds per square inch. According to Mr. deMarinis, the applicable rule of thumb is that a building requires about 15 to 20 pounds of pressure per floor, excepting the basement.
Therefore, the five-story building at 548 Broadway should require between 75 and 100 pounds per square inch - less than what is provided by the water pump.
Mr. deMarinis acknowledged that a number of factors will vary a particular building’s water pressure requirements. He specified several factors: the height of the building, the number of water-consuming fixtures (and, presumably, the quantity of water consumption), and the type and condition of the water pipes in the building. Mr. deMarinis testified that he believes the rule of thumb is based on an assumption that a building’s floors are between ten and
15 feet high, and there was no evidence that 548 Broadway is higher than that. Mr. deMarinis suggested that water usage may be lower in 548 Broadway than is assumed in the rule of thumb, because the commercial tenants - Mr. deMarinis particularly mentioned the second and third floors - use relatively little water. Mr. deMarinis did not mention the size of the residential units, but it would appear that the very large size of the residential units would yield a relatively low density of water-consuming fixtures and therefore a relatively low total water consumption by the residential tenants. Mr. deMarinis testified that he believed the plumbing in 548
Broadway to consist of copper pipes, which, he implied, are relatively efficient and therefore within the range of conditions assumed by the rule of thumb. 32
The petitioners produced no evidence about the water system itself to contradict Mr. deMarinis’s testimony that the system is adequate when the pump is on. However, there was passing mention in the testimony that the water pressure is, at least on occasion, inadequate during the day.
Ms. Seyfried testified that she had tested the water system just before trial, by turning on her shower during the day. The shower functioned, according to Ms. Seyfried, but the pressure was “very low” (Seyfried: Tr. 339). In their post-trial brief, the petitioners asserted that
“insufficient water pressure has effected [sic] the use of toilets, showers and other ordinary cleaning processes, such as dishwashing” (Pet. Closing Mem., p. 17). If that assertion pertained to events after the adjustments made during November 1995, it was not supported by evidence in the record; if that assertion pertained to events before those adjustments were made, it did not demonstrate a diminution of services that remains unremedied. (Similarly, a testimonial comment by Mr. Davies about inadequate day-time water pressure appeared to me to be directed to pre-November 1995 conditions (see Davies: Tr. 96, lines 2 - 8).
Absent evidence substantially contradicting Mr. deMarinis’s description of the water system or his conclusion that the system delivers adequate water pressure when it is on, I cannot find that Mr. deMarinis’s conclusion was inaccurate.
However, the primary focus of the trial evidence concerning water pressure did not relate to the adequacy of the pressure when the pump was on, but when the pump was off. The pump that was installed late in 1992 runs on a timer, because the pump’s motor cannot operate 24 hours per day without burning out. Until about two or three weeks before trial, the timer was set to turn the 33 pump off, and rest the motor, from 12:30 to 4:30 a.m. each morning. As of the time of trial, the timer had been adjusted to reduce the rest time to two hours: from 2:30 to 4:30 a.m.
The petitioners’ testimony convincingly demonstrated that the four-hour break resulted in
a substantial reduction in water pressure before the pump came back on. The water pressure was not even enough to hold in place the mechanism that diverted the bathtub flow from the faucet to the shower, making it impossible to shower during the pump’s off hours. (At least some of the tenants maintain irregular work schedules, requiring that they shower from time to time during the early morning hours.) The petitioners who testified on this subject acknowledged that they had not had the opportunity to test their showers during the pump’s off hours in the two or three weeks after the off time was shortened from four to two hours each morning.
The building superintendent, Edgar deOliveira, testified that the water pressure would be sufficient for showering during the time the pump was off, because water usage would be low at those hours. As a general matter, I found Mr. deOliveira to be a competent professional and a credible witness. In this case, however, he may not have had all of the facts. For example, Mr. deOliveira testified that only one of the tenants had complained about the water pressure when the pump was off for four hours per day. In fact, at least two of the tenants had complained to
Salva, and it appears that others were dissatisfied, whether they complained directly or allowed the other two to speak for them. Also, it may be that Mr. deOliveira underestimated the water consumption at 548 Broadway during the middle of the night, since it was clear that the pressure was inadequate to run a shower during four hours down time. Finally, Mr. deOliveira may have 34 overestimated the margin of acceptable water pressure that the pump provides when working.
That is, it may take very 35 little water use to reduce the water pressure from the 105 pounds per square inch when the pump shuts off to whatever number of pounds is inadequate to supply the upper floors. In this context, it is noteworthy that Mr. deMarinis’s rule of thumb indicates that the top floor of 548 Broadway may require as much as 100 pounds per square inch, very close to the 105 pounds that exists at the beginning of the pump’s two-hour shut-down.
In any event, I am convinced that, even with the water pump off for only two hours per day, water pressure is inadequate during those hours. I note that Mr. Davies testified that Salva installed a new nozzle on his shower about a week before trial, but there was no evidence that the new nozzle was designed to increase water pressure or would have that effect.
The inability, or limited ability, of residential tenants to shower between 2:30 and 4:30 a.m. is certainly one of the lesser inconveniences that fall within the purview of section 2-04 - although, as noted above, at least some of the tenants here work on schedules that require that convenience, at least on occasion. Regardless, the Loft Board’s rule does not distinguish between high water consumption times and low consumption times:
Water supply and drainage. The landlord of an interim multiple dwelling
(I.M.D.) shall provide and maintain a supply of pure and wholesome water at all
times sufficient in quantity and pressure to provide for sanitary maintenance. . . .
29 RCNY § 2-04(b)(1) (July 31, 1996). By contrast, where the Loft Board intended that minimum services may vary by time of day or time of year, the Board has so specified. See 29
RCNY §§ 2-04(b)(2), (3) (heat, hot water). 36
Mr. deOliveira testified that a larger pump, or perhaps a second one, could be installed to maintain appropriate pressure 24 hours a day. Mr. deMarinis testified that newly available pumps 37 are pressure driven, rather than time driven, such that they turn on when the pressure drops below a specified minimum, and turn off to rest the motors when the pressure is high. It may also be possible to adjust the existing pump to improve the water pressure. By whatever means, Salva must maintain acceptable water pressure at all times.
D. Maintenance and repair
The third claim of the amended petition alleged that Salva has failed to perform certain maintenance and repair items inside the residential units and in the common areas, in violation of section 2-04(c) of the Loft Board’s rules. The particulars alleged were as follows:
“All petitioners” have radiators with “leaking valves, pipes and air vents” (Amended Petition, p. 6).
In loft 4D (Mr. Marburg and Louise White), the window frames and sills are “rotting, damaged, [and] inoperable” (id.).
In loft 5A (Mr. Davies), ceiling damage from old roof leaks remains unrepaired, and a plant is growing from a hole in the roof membrane.
In loft 5F/G (Ms. Seyfried), the floors are damaged from old roof and radiator leaks and the fire door to the southeast staircase is damaged. (The amended petition alleges that other repair and maintenance items were handled by Ms. Seyfried, “at her own expense” (id., p. 7). Liability for past repairs is a matter for another forum, and therefore conditions that have been repaired are not reviewed here.)
The fifth floor lobby door is “often in a state of disrepair,” including a five-day period during August 1996 when it was without a lock (id., p. 7).
Three of the petitioners testified that radiators in their units have not worked properly:
Mr. Davies, Mr. Marburg and Ms. Seyfried. The primary complaints concerned leaking from the radiators, and banging in the radiators and surrounding pipes. Mr. Soussan testified that repair of the radiators was on the repair and maintenance items Salva had given to Mr. Soussan 38 shortly after he was retained. Mr. deOliveira testified that Mr. Soussan had given him a copy of that list. Both testified that they were in the process of working their way through the list. In particular, Mr. Soussan testified that the radiators had been repaired “in most of the apartments”
(Soussan: Tr. 258). Mr. deOliveira testified in particular that he had repaired radiators for Mr.
Davies and Ms. Seyfried.
Mr. Davies and Mr. Marburg acknowledged that Mr. deOliveira had done work on their radiators during the week or two before trial. However, because trial was held before the heat system was turned on, neither could say whether the leaks had been repaired. Ms. Seyfried did not deny that Mr. deOliveira had worked on her radiators, but she testified that the condition of the radiators had not changed since September 4, 1996, when she wrote to Mr. Soussan about the radiators and other matters (Pet. Ex. 74, p. 2).
Because the radiators had been allowed to leak for so long, the floor boards under them, in at least some of the apartments, were badly damaged. In Ms. Seyfried’s case, she testified, the boards had rotted sufficiently that the radiator had sunk, altering the pitch of the pipes. She testified that blocks have been placed under the radiators in an effort to restore their proper pitch, but the blocks look “hideous” (Seyfried: Tr. 337).
To the extent that floor boards have been ruined by long-term water leaks, they must be replaced, and is does not matter whether the floors were installed by the tenants or by the landlord. In either case, Salva’s failure to fix the radiator leaks caused the damage, and Salva must repair it. Although repair of the floor boards should of course be done only after it is verified that the leaks have been fixed, any remaining leaks must be fixed promptly. 39
Mr. Marburg testified that his windows and window frames are badly deteriorated, especially one window sill that is so badly rotted that rainwater has seeped into the wall, damaging the interior plaster and paint. Mr. deOliveira testified that he had fixed the problem the week before trial, and Mr. Marburg acknowledged that Mr. deOliveira had done some repairs.
In particular, Mr. deOliveira had done some patching with silicone, and he had attached a metal fixture onto the sash of one window. However, according to Mr. Marburg, the metal fixture prevents him from completely closing the window - a substantial problem given the building’s heating condition, discussed above.
Mr. Marburg’s were the only windows alleged in the amended petition to have been inadequately maintained and repaired. However, testimony was given about the condition of windows in other units, especially in connection with the claim about inadequate heat in the building. The evidence quite convincingly showed that many of the residential tenants’ windows are in serious need of major repair - well beyond a little silicone, plaster and paint - and it is quite possible that the windows are beyond all repair and require replacement. Salva’s counsel implied in some of her questioning that the windows may be slated for replacement during the upcoming legalization work.
The condition of the windows is sufficiently severe that it will not be appropriate for
Salva to defer repair or replacement for very long, regardless of the legalization work that may be planned. The photographs in evidence of Mr. Marburg’s windows graphically show their disgraceful condition (Pet. Ex. 118 - 19, 121-23). The windows must be repaired promptly, whether that requires replacement or not. After such repair, and prompt verification that the repairs have ended the leaks, the damage caused by the leaks must be repaired. As discussed 40 above, complete repair of the windows, which may require replacement of them, will almost certainly substantially improve the retention of heat in the residential units.
Mr. Davies testified that the ceilings in two of his rooms have been damaged by long-term roof leaks. He testified that Mr. deOliveira had done some roof repairs during the previous weeks. Mr. Davies testified that the plant growing out of a hole in the roof membrane had recently been removed.
Mr. deOliveira testified that he had fixed the roof, but that he had not yet been able to get access to Mr. Davies’s apartment to fix the ceilings. (Mr. deOliveira attributed the bathroom ceiling damage to steam from the shower, but Mr. Davies, who was in a better position to know, testified that the damage appeared during work on the roof last summer, presumably because the roof work somehow created a temporary leak.)
Salva’s counsel suggested during her questioning that Salva may be planning substantial ceiling work in the residential units in connection with some duct work required as part of the legalization renovations. Even if this is so, some relatively inexpensive temporary repairs are warranted in the meantime, unless the duct work is planned for the very near future. Mr.
Davies’s ceilings, although not horrendous, are quite unattractive (Pet. Ex. 106, 107), and a couple of hours of plaster and paint work would yield a substantial improvement.
Salva must promptly verify that Mr. deOliveira’s roof repairs successfully stopped the roof leaks affecting Mr. Davies’s ceilings. Then, if the ceilings have not already been repaired, the repairs should be done quickly. 41
Ms. Seyfried testified that, in addition to the deteriorated floor boards under her radiator, her floors have been damaged in other areas due to long standing roof leaks. The matter is apparently not yet serious - the finish on the wood has been damaged or removed, but the wood itself is intact. Even though the floors in that unit were installed by the tenants, the damage was caused by Salva’s extended failure to repair roof leaks, and therefore the obligation to repair the damage is Salva’s. Mr. Soussan acknowledged that responsibility, and testified that he plans to arrange for the necessary repairs. Salva should promptly verify that the leaks affecting Ms.
Seyfried’s unit have been fixed, and then should make appropriate arrangements to remedy the damage to Ms. Seyfried’s floors.
Concerning Ms. Seyfried’s fire door - the door from her unit to the southeast staircase, which leads past Exit Art’s second floor entrance to the 88 Crosby Street entrance to the building
- Ms. Seyfried testified that the door and its frame should be replaced, and that the door in its present condition does not adequately secure her apartment. The exterior side of the door is unattractive (Pet. Ex. 113), and shows some minor damage which Ms. Seyfried attributed to past break-in attempts. The door frame is somewhat more damaged.
Mr. deOliveira testified that Fire Department inspectors have approved the door from a fire safety perspective, and he testified that he will be fixing a metal plate to the door and frame to make it adequately secure. He testified that he will put on the metal plate as soon as Ms.
Seyfried “gives me permission” (deOliveira: Tr. 298). Other than that, Mr. deOliveira testified, the door is satisfactory, although he acknowledged that the door’s exterior side is dirty and could use a coat of paint. 42
Ms. Seyfried testified that Salva’s legalization plans call for replacement of the door and the door frame.
Other than Ms. Seyfried’s conclusory disagreement with Mr. deOliveira’s assessment that the addition of a metal plate will secure the door, there was simply no evidence that, with the metal plate, the door will not provide appropriate security to Ms. Seyfried’s unit. It certainly was not self-evident, or evident from the photograph of the exterior side of the door, that Mr. deOliveira’s plan is inadequate. Therefore, if it has not already been done, Salva must see to the security of the door as soon as possible, by installation of the metal plate described by Mr. deOliveira, or by any other appropriate means.
As noted above, the appearance of the exterior side of the door is poor. However, the exterior faces a staircase that is largely if not entirely unused above the second floor, and is not visible to Ms. Seyfried and the other residents in the ordinary use of their units and the attendant common areas. Therefore, although I do not wish to discourage Mr. deOliveira from applying some cleaner and a coat of paint should he see fit to do so, such improvements are not required, and the Loft Board’s housing maintenance standards do not require that the door be replaced.
Ms. Seyfried testified, as was alleged in the amended petition, that the lock on the door to the fifth floor lobby has been fixed. However, she said that the buzzer remains broken. She acknowledged that Salva had been working on the problem for about three weeks. She added that every time one adjustment is made, something else goes wrong.
Mr. Soussan testified that the lock was broken for five days because he had problems with the “technicians” he retained - “we have changed technicians, I think, three times, because we were 43 not satisfied and you [the petitioners] were not satisfied” (Soussan: Tr. 260). Mr. Soussan added that all three technicians had offered the opinion that the problems with the buzzer were due to attempts by tenants to repair the buzzer by themselves.
Salva must resolve the problems with the fifth floor lobby door as quickly as practicable.
The importance of security at the entrances to the residential floors is especially important as long as security at the building’s entrance doors is compromised by Exit Art’s conduct, discussed below.
All of these maintenance and repair items are well within the very broad scope of New
York’s statutory warranty of habitability. Therefore, these matters constitute violations of section 2-04(c) of the Loft Board’s rules.
Evidence was offered by both sides concerning numerous other maintenance and repair items - items that were not included in the amended petition. I allowed much of this evidence because, on the whole, neither side objected to it, and because the evidence about items beyond the pleadings helped illustrate a problem that is suggested by the evidence about the maintenance and repair items that were pleaded. In particular, although I have addressed the specifics of the petitioners’ claim concerning maintenance and repair items, I am convinced that there remains a more fundamental, underlying problem with maintenance and repairs.
Last March, I noted my skepticism “that Mr. Chetrit will be able adequately to oversee the day-to-day operation of 548 Broadway, apparently assisted only by a superintendent and a secretary, as long as he devotes the bulk of his time and attention to his wholesale business.”
Matter of Salva Realty Corp., rep. and rec. at 38. I suggested that Mr. Chetrit “consider other 44 options, such as the retention of a part-time property manager.” Id. Whether at my suggestion or for some other reason, 45
Mr. Soussan was retained, and he began work during July. It was evident, not only from Mr.
Soussan’s testimony, but from the petitioners’ testimony as well, that Mr. Soussan has devoted a great deal of time to maintenance and repair issues and to other issues of concern to the petitioners. It was also evident that the quality of day-to-day communication between Salva and the tenants has been considerably improved by the retainer of Mr. Soussan.
This improvement in communications seems to me to be very important here, because in my view the real problem underlying the various maintenance and repair issues, and many of the other issues raised by the amended petition, is one of information management. Handling maintenance and repair on a day-to-day basis requires more than the services of a handyman or superintendent, such as Mr. deOliveira. I have every reason to believe that Mr. deOliveira is good at what he does, conscientious and diligent. But, however skilled, he is a tradesman, not a manager.
The proper handling of maintenance and repair requires that procedures be in place by which tenants may report emergency complaints at any time, and non-emergency complaints at least during regular business hours. Those reports must be reviewed promptly, and must be promptly given priority and verified. The repairs must be planned and done, and then the success of the repairs must be tested or verified.
The evidence was that, since Mr. Soussan’s retainer, tenants now have a 24-hour telephone number they can use. There was no evidence directly indicating that the complaints are promptly reviewed, given priority and verified, but the flurry of maintenance and repair activity in the 11 weeks between Mr. Soussan’s retainer and the trial here is strong indication that complaints are now generally attended to in a time that is reasonable in light of the volume of 46 work being done and the relative urgency of the various items requiring attention.
Furthermore, Mr. Soussan’s hiring of a assistant for Mr. deOliveira has no doubt reduced the response time as well.
What remained to be seen as of the time of trial was the quality of the follow-up to repairs. After a repair is made, the adequacy of the repair must be verified. For instance, if the roof is patched to stop a leak, investigation is necessary after the next hard rain to determine whether the remedy was complete. Other follow-up is also necessary: after it is determined that the roof leak has been repaired, the damage caused by the leak must be repaired. In some circumstances, determining the sufficiency of a repair, or locating the damage caused by a problem that has been repaired, will be beyond the expertise of Mr. deOliveira and Mr. Soussan.
On occasion, an engineer or other professional may be necessary to diagnose a problem and determine what repairs are needed. Finally, a third type of follow-up is essential. Although a stop-gap repair is perfectly acceptable as a temporary measure to avert a serious problem, a fuller permanent repair may also be needed. For example, the repairs to the damaged external window sills may have reduced or eliminated water seepage into the building walls, but more permanent, albeit lower urgency repairs must eventually be done.
Given the level and history of contentiousness among the parties involved here, and given the uncompromising approach to problems that has been taken by some of the tenants, Salva may find it difficult to regard the residential tenants as a source of assistance. But the fact is that the residential tenants spend more time in the building than anyone else, and they are in a position to know of many types of problems sooner and more clearly than Salva and its employees and 47 contractors. Looked at in that light, the tenants are a source of information which Salva may put to good use in maintaining the building and protecting its value as a major asset.
One final maintenance-related matter warrants attention. The petitioners have repeatedly contended that Salva has failed to provide notice of its need for access to the tenants’ units as required by section 2-01(g)(1) of the Loft Board rules. However, that rule governs notice required in connection with legalization work, not maintenance and repairs. The notion that a landlord must give as much as ten days’ notice of maintenance and repair work - especially emergency work - is unsupportable. On the contrary, it is entirely desirable, if he unexpectedly finds himself with an hour free, for Mr. deOliveira to try to fit some small extra job into his schedule. It may well be that the tenants will not often be able to accommodate Mr. deOliveira on such short notice, but he violates no rule in his commendable pursuit of the attempt.
E. Freight elevator
The petitioners’ uncontradicted evidence showed that a freight elevator served all floors of 548 Broadway until 1986. Some time after Salva bought the building in 1981, the elevator fell into disrepair, and, in 1986, the elevator was shut down and ultimately removed from the elevator shaft. The comprehensive agreement between Salva and the residential tenants provided that Salva would restore freight elevator service. Although it was undisputed at trial that such service has not yet been restored, Mr. Chetrit testified that work to install a new freight elevator in the existing shaft has begun.
In addition to the fact that freight elevator service was actually provided in the past, the petitioners argued that their leases called for freight elevator service. Salva argued that those leases were superseded by the 1991 agreement, which Salva characterizes as a lease. The 1991 48 agreement, according to Salva, states no deadline by which freight elevator service shall be restored. Therefore, Salva concludes, the 1991 agreement has not been violated.
Salva’s reasoning is faulty in at least two respects. First, the 1991 agreement was not really a lease. Although it contained a number of provisions characteristic of leases, and it governs various aspects of the landlord-tenant relationship, the agreement expressly provided that the signatory tenants became statutory tenants, and that the prime lease that remained in effect for the fifth floor was terminated (Pet. Ex. 6, p. 5, ¶ 4). The services that are required under section
2-04(c) of the Loft Board rules are therefore derived not from the 1991 agreement, but from the leases that preceded that agreement.
Secondly, even if the 1991 agreement was a lease, the petitioners would still be entitled to freight elevator service. The tenants were entitled to continued freight elevator service because such service was actually provided, and because such service was called for in at least some of the leases, at the time the Loft Law became effective. The tenants could of course waive their right to freight elevator service, either in whole or, presumably, in part. Matter of 42 North
Moore Street, Loft Bd. Order No. 1411, 14 Loft Bd. Rptr. 79, 89 (Mar. 3, 1993). However, nothing in the 1991 agreement constituted such a waiver.
The only clause expressly relating to freight elevator service provided:
28. The landlord agrees that the building’s freight elevator shall be repaired and the owner shall not include the cost of the same as part of any application for adjustments of rent under Article 7-C of the Multiple Dwelling Law nor shall such costs be permitted to be taken from the 30 % factor [i.e., escrow fund] as set forth in paragraph 9 nor the fund in paragraph 7 which is earmarked for the Code Compliance Work. When such freight elevator service shall be restored, the tenants shall be provided reasonable access to use the freight elevator, upon reasonable request, subject to the prior use by the commercial occupants of the building.
49
(Pet. Ex. 6, p. 13.) Other clauses of the 1991 agreement recognize the applicability of the Loft
Law: in general (e.g., id., pp. 5, 14, ¶¶ 4, 32), or in various particulars (e.g., id.. pp. 11 - 12, ¶ 25
-minimum housing maintenance standards).
Plainly, paragraph 28 of the 1991 agreement did not constitute a complete waiver of entitlement to freight elevator service. On the contrary, that paragraph expressly required Salva to restore such service. Salva’s argument is in substance that the absence of a deadline constituted a waiver of elevator service until restoration of such service.
Ironically, Salva’s argument would be stronger had a deadline for restoration of service been provided. Given a date by which the landlord must restore elevator service, it would be reasonable and logical to infer that the tenants had agreed to do without such service until then.
But absent such a deadline, Salva’s argument amounts to the claim that the 1991 agreement does not require that Salva ever restore freight elevator service. That is, if Salva’s failure to restore freight elevator service five years after the 1991 agreement does not constitute a violation of that agreement, then there is no principled basis upon which it could be concluded that a failure 10 years after the agreement, 20 years after, or 100 years after, would constitute such a violation.
Manifestly, the mandatory language of paragraph 28 was not intended by the contract signatories as an entirely open-ended, non-binding commitment by Salva.
The party asserting waiver bears the burden of proving waiver. E.g., James G. Kennedy
& Co., Inc. v. Chu, 125 A.D.2d 773, 774, 509 N.Y.S.2d 199, 201 (3d Dep’t 1986) (citation omitted). Salva’s proof that the tenants have partially waived their right to freight elevator service consists entirely of a contract provision that expressly provides for the restoration of such service. That proof is insufficient. 50
Elevator service, including freight elevator service, is not a service mandated by the Loft
Board’s rules. Instead, the rules require only the retention and maintenance of elevator service.
Even that requirement contains “one important proviso.” Matter of 42 North Moore Street, Loft
Bd. Order No. 1411, 14 Loft Bd. Rptr. 79, 84 (Mar. 3, 1993). An IMD owner need retain elevator service only to the extent that such service is “legal.” 29 RCNY § 2-04(b)(9) (July 31,
1996). Furthermore, language in the Board’s decision in Matter of 42 North Moore Street indicates that the tenants bear the burden of proving that the prior elevator service was legal. 14
Loft Bd. Rptr. at 84.
Here, neither side addressed the question of the legality of the freight elevator service that was provided to the tenants until 1986. Moreover, although the safety regulations applicable to passenger elevators are more stringent than those applicable to freight elevators, there is at least one obvious issue concerning the legality of the freight elevator at 548 Broadway. It was clear that the tenants had access to the freight elevator at all times, by means of two keys left with tenants on the two residential floors. Therefore, apparently, the freight elevator was not dependent upon a elevator operator. Without an elevator operator on duty, the tenants’ use of the freight elevator was illegal unless the elevator was an “automatic operation [or] continuous pressure elevator[ ].” Admin. Code § 27-1005 (N.Y. Legal Publ. Corp. 1993); Admin. Code §
C26-1804.1 (Williams Press 1978); see Matter of Greenfield, Loft Bd. Order No. 1228, 13 Loft
Bd. Rptr. 50, 68 (July 25, 1991).
I conclude that the legality of prior elevator service is not relevant in this case, notwithstanding the Board’s holdings in Matter of 42 North Moore Street and Matter of
Greenfield. 51
In both of those cases, there were no lease provisions requiring the IMD owner to provide the contested elevator service. In both cases, the tenant-petitioners relied on the actual existence of elevator service as their basis for contending that such service was required. Under the express terms of section 2-04(b)(9), the owner was required to maintain only legal elevator service, and was entitled to diminish (or eliminate) illegal elevator service.
Here, however, the leases from the prior owner required the provision of freight elevator service, and the 1991 agreement also requires such service. When a lease or contract clause requires the provision of a service, it is fair to presume that the clause implicitly requires that the service be provided legally. That is to say, regardless whether elevator service was actually provided in compliance with the law, both the petitioners’ leases and the 1991 agreement contemplated that such service would be provided in compliance with the law. Whether past elevator service was legal is therefore not relevant, because Salva has contracted to make it legal.
The petitioners are entitled to freight elevator service, and the owner’s present failure to provide such service constitutes a diminution of services under section 2-04(c) of the Loft
Board’s rules.
F. Security and noise
The fifth claim of the amended petition alleged that Salva has allowed a commercial tenant at 548 Broadway, Exit Art, to conduct its business in such a way that allows for unrestricted public access into the building, including the residential common areas. The sixth claim alleged that Salva has allowed Exit Art to operate its business in a manner that creates impermissible noise in some of the residential units. 52
On September 24, 1992, Salva entered into a ten-year lease with Exit Art for the entire second floor. Exit Art was permitted to use the premises “for an art gallery, art shop, performance space, and related uses” (Pet. Ex. 62, rider at p. 16, ¶ 79). Among the “rules and regulations attached to and made a part of this lease” was a requirement that Exit Art “shall not use the demised premises in a manner which disturbs or interferes with other Tenants in the beneficial use of their premises” (id., p. 6, ¶ 13).
The four petitioners who testified at trial described horrendous noise and security problems that began during December 1992, shortly after Exit Art moved in. The petitioners convincingly demonstrated that Exit Art is open to the public not only during business hours, but frequently late into the night. Exit Art hosts evening musical events, featuring amplified music, often with prominent bass and percussion. These events attract large crowds, for whom the main entrance doors at 88 Crosby Street and 548 Broadway are propped open.
All four of the testifying petitioners described severe security problems resulting from uncontrolled public access to Exit Art’s events. For instance, the property has been subjected to vandalism, and homeless people have taken refuge or even residence on the larger landings in the stairwells. On occasion, residents have had to force their way through crowds to reach their homes.
Exit Art maintains its stage and amplifiers in the portion of the second floor space that is directly underneath the fourth floor loft occupied by petitioner Charles W. Furer, Jr., and the fifth floor loft occupied by Ms. Seyfried. Those two described in compelling and graphic terms a level and frequency of noise that is utterly unacceptable in a residential premises. Mr. Furer contended that the music can be heard literally blocks away. Ms. Seyfried testified that, even 53 when the music on the second floor is “relatively ambient” (Seyfried: Tr. 366), as she characterized a Brian Eno performance, the noise is loud enough to interfere with her ability to watch television in her home.
Probably the most disturbing evidence in the entire trial record was the testimony of
Jeanette Ingberman, a principal of Exit Art. She began her testimony by implying that only Ms.
Seyfried had ever complained about Exit Art’s conduct. She quickly amended that suggestion by asserting that one other tenant, apparently meaning Mr. Furer, had registered a complaint on one occasion. She asserted that she had “resolved” his complaint and had never heard from him again (Ingberman: Tr. 312). Ms. Ingberman claimed to have no recollection of the substance of Ms. Seyfried’s complaints, or even whether Ms. Seyfried had complained directly to Ms.
Ingberman or to Salva. Although she acknowledged seeing Ms. Seyfried several times on the second floor, she maintained that Ms. Seyfried had spoken to her only one time.
Persistent questioning enabled Ms. Ingberman to recall that Ms. Seyfried had complained about “some people smoking in the hallway . . . right outside our door ” (Ingberman: Tr. 313).
Upon further questioning, Ms. Ingberman acknowledged that she had received a copy of a letter from Mr. Furer to Mr. Chetrit, complaining about the noise from Exit Art, and stating that Mr.
Furer had recently left a complaint on Exit Art’s telephone answering machine (Pet. Ex. 81).
Ms. Ingberman then testified that she telephoned Mr. Furer upon receiving his letter, and that he
“came down to Exit Art and we spoke,” after which she has not heard from Mr. Furer (Tr. 317).
Upon still further questioning, Ms. Ingberman acknowledged receiving a letter of complaint from
Fred Hersch, a tenant who is not a petitioner here, complaining about the security problems 54 created by Exit Art (Pet. Ex. 93). That letter stated that Mr. Hersch had called Exit Art and lodged a complaint about the 55 security, that the person with whom he spoke promised to take care of the problem, but that the security problem persisted. Upon yet further questioning, Ms. Ingberman allowed that she might also remember receiving a letter to her from petitioner Linda Burgess, complaining about the security in the building (Pet. Ex. 96).
Ms. Ingberman testified that Exit Art does not prop open the building’s entrance doors, or otherwise compromise building security. However, it was apparent that Ms. Ingberman lacked close knowledge of actual events. Her own denials were cast in terms that disclaimed personal knowledge of the facts: “I understand we do not tie the doors open, no” (Tr. 326). Having testified that building security is not Exit Art’s responsibility, Ms. Ingberman asserted that Exit
Art stations people at the entrance doors. Ms. Ingberman proved to be similarly ignorant of Exit
Art’s hours of operation. For instance, presented with an Exit Art flier announcing a musical event to run from 8:00 p.m. to midnight, Ms. Ingberman testified that the flier was incorrect, and that the performance had ended before midnight.
Ms. Ingberman acknowledged Exit Art’s answer to Ms. Seyfried’s original application in this case (Pet. Ex. 92). The narrative portion of that answer consisted of a statement referring to
Ms. Ingberman in the first person, and the answer was signed by Ms. Ingberman. In that narrative, Ms. Ingberman asserted in part:
The doors to the street are never tied open by us and we do not post signs directing people off the street to enter the building. . . . We do not play electronically-amplified music at high volumes late into the night. We have attempted to be respectful of other tenants and to respond to their concerns as we have been made aware of them. We have an open dialogue with the other tenants in the building and have made every effort to rectify any concerns brought to our attention.
(Pet. Ex. 92.) 56
Standing against the petitioners’ strongly persuasive evidence of gross security and noise problems, Ms. Ingberman’s testimony was quite incredible. In fact, her testimony evidenced an unconcern that amounted in my judgment to callous disregard for the residential tenants.
An IMD owner’s security obligations are stated in section 2-04(b)(8):
Entrance door security. The landlord shall properly maintain all existing entrance door security and at a minimum at least one door at each entrance must have a lock. All tenants must be provided with keys to all entrance door locks.
I take it as self-evident that the obligation to maintain locks on entrance doors implies an obligation to keep the doors closed, in order that the locks may function. Obviously, the doors must be opened often enough and long enough to provide reasonable ingress and egress.
Furthermore, it can be assumed for present purposes that reasonable ingress and egress in a mixed-use building such as 548 Broadway will be different than reasonable ingress and egress in a solely residential building.
It may be inevitable that conflict will exist between the interests of the commercial tenants and the residential tenants of a mixed-use building. Exit Art runs a business that places great importance on attracting large audiences for its exhibit and events, and therefore Exit Art’s business success requires minimization of obstacles to public access to its premises. On the other hand, the security of residential tenants requires the existence of substantial obstacles to public access.
Although I am skeptical, it is possible that Exit Art’s need for public access and the residential tenants’ need for security can be reconciled. But if those needs cannot be reconciled, the bottom line is that the residential tenants’ rights are primary here. If a decent minimum of 57 residential security cannot be maintained with Exit Art in the building, then it is Exit Art, not the residential tenants, that must go.
As to the noise levels, I reject Salva’s argument that the disruptions are de minimis. The petitioners amply proved that the musical events that cause the disturbances are frequent and prolonged. For instance, just before trial here, Exit Art held the opening of a show called the
Shape of Sound, for which musical performances were scheduled every Friday and Saturday, at
9:00 p.m., from September 21 to October 19.
A de minimis noise disturbance is the neighbor’s annual birthday party, or an occasional temper tantrum thrown by the child who lives next door. Exit Art’s musical events, which are held regularly, frequently, and late at night, are an integral part of Exit Art’s business, and are in no respect de minimis. It warrants mention that Salva incorrectly argues that “[t]here was no testimony elicited which indicated that the noise was ‘disturbing and prevented sleep,’ or subjected the tenants to conditions which were detrimental to their life or health, nor testimony indicating a constant deprivation of sleep and/or resulting nervousness and malaise”
(Respondent’s Post-Trial Mem., p. 22, citation omitted). In fact, Mr. Furer and Ms. Seyfried testified to considerable disturbance of their sleep and other aspects of the habitation of their lofts. Both also testified that the noise drove them almost to irrationality - in Mr. Furer’s case, a state of mind that manifested itself in his visit to Exit Art accompanied by a baseball bat.
I also reject Salva’s argument that the petitioners failed to prove a violation of the noise regulations contained in the city’s Administrative Code. First, compliance with the
Administrative Code is not dispositive of compliance with the warranty of habitability. That is, although a finding that noise is greater than that permitted by the Administrative Code supports a 58 finding of a violation of the warranty of habitability, a finding that noise is within the levels permitted by the 59
Administrative Code does not by itself preclude a finding of violation of the warranty of habitability. Even if the noise levels comply with the Administrative Code, the noise levels must still be consistent with the residential “uses reasonably intended by the parties.” Real
Property Law § 235-b(1) (McKinney 1989). Therefore, it is sufficient that petitioners proved that Exit Art created noise levels great enough to disturb the ordinary and reasonable uses of a residential tenancy; they need not prove that the noise exceeded the decibel levels permitted by the Administrative Code.
Even if the petitioners were obligated to prove decibel levels in excess of those permitted by the Administrative Code, their proof in this case was more than sufficient. The most obviously applicable decibel level, for commercial music, is 45 decibels “as measured inside any residential unit.” Admin. Code § 24-241.1 (N.Y. Legal Publ. Co. 1992). Here, the petitioners proved that the Exit Art’s music can be heard blocks away; the bass and percussion reverberate so loudly that the music can be felt, let alone heard, three floors up in Ms. Seyfried’s loft. The music disturbs Ms. Furer’s sleep, although he testified that he is a sound sleeper, and, even the quieter performances are loud enough that Ms. Seyfried cannot watch her television undisturbed.
The building’s metal columns and uninsulated tin ceilings no doubt facilitate the travel of noise, but, regardless of these contributory factors, the relevant fact is that Exit Art’s music is loud in
Mr. Furer’s and Ms. Seyfried’s apartments. I have no difficulty whatever concluding that the noise levels they credibly described easily exceed the permissible levels, notwithstanding the lack of any decibel meter readings in the trial record here. 60
As demonstrated by the cases cited by Salva (Respondent’s Post-Trial Mem., pp. 22 - 23), the noise and security problems created by Exit Art are legally attributable to Salva. I conclude that 61 both the security problems and the noise levels created by Exit Art constitute diminutions of the services to which the petitioners are entitled, pursuant to section 2-04(c) of the Loft Board rules and the warranty of habitability.
G. Asbestos
The petitioners’ tenth claim asserted that, during March 1994, Salva removed pipe insulation material, allegedly asbestos, from the fourth floor in a manner that was actually or potentially harmful to residents. Stated as such, the claim did not allege a diminution of services. The claim alleged a past event, and did not allege any continuing effect of that event that remains to be remedied. During pre-trial proceedings, the petitioners asserted that pipe insulation on the fifth floor still contains asbestos, and I allowed the claim to go to trial, in effect deeming the claim to be amended to relate to the allegedly current asbestos condition on the fifth floor, rather than the allegedly past condition on the fourth floor.
At trial, the petitioners’ evidence that asbestos existed on the fifth floor was strikingly thin. The petitioners offered lay evidence, mostly hearsay, supporting their contention that the fourth floor pipe insulation had included asbestos. They testified that the fifth floor pipe insulation looks similar to the insulation that used to be on the fourth floor. Ms. Seyfried testified that her mother is a neuroanatomist specializing in hazardous material remediation, and that “from what I can see and my knowledge of what my mother has explained to me about hazardous materials,” the insulation material “possibly could be” asbestos (Seyfried: Tr. 382).
The trial evidence made quite clear that the petitioners had not brought this claim in the knowledge that the fifth floor pipe insulation contained asbestos; instead, they brought the claim 62 because they were concerned that the insulation might contain asbestos, and they wanted to find out for sure.
Although the presence of hazardous materials no doubt constitutes a breach of the warranty of habitability, and therefore a violation of section 2-04(c) of the Loft Board rules, neither the warranty of habitability nor the Board’s minimum housing maintenance standards require landlords to provide their tenants with the peace of mind of certain knowledge that asbestos is not present. Stated differently, the petitioners bear the burden of proving not merely that the presence of dangerous asbestos is possible, but that the presence of dangerous asbestos is more probable than not. The trial evidence did not approach a preponderance of evidence in support of the petitioners’ claim.
As noted above, the petitioners’ post-trial memorandum included a great deal of evidence that had not been submitted at trial. For the reasons stated above, I declined to consider most of that new evidence. The one exception was the new evidence concerning asbestos.
In their post-trial submission, the petitioners alleged that, after trial, they took a sample of the insulation material from the heat risers in the fifth floor hallway and submitted the sample to a testing firm for analysis. They contended that the analysis revealed that the insulation material contained friable asbestos. (As with virtually all of their claims, the petitioners infused their argument on this claim with accusatory rhetoric. Their post-trial submission implies, without any evident basis, that Salva has intentionally concealed the presence of dangerous asbestos from the tenants.) 63
Contrary to the suggestions by the petitioners, their post-trial submission did not constitute open-and-shut proof that dangerous asbestos exists in the fifth floor pipe insulation.
Important elements of proof were lacking from the petitioners’ post-trial submission. For instance, there was no chain-of-custody evidence sufficient to prove that the test results reported by the testing firm pertain to the sample that the petitioners said they took from the fifth floor pipes. There was no evidence from which it can be concluded that the testing firm was competent to perform the tests they performed, or that they performed the tests correctly in this instance. Indeed, the testing firm is located in Memphis, where Ms. Seyfried testified her mother resides, raising some possibility of a connection, such that the firm may have sufficient interest in the case to justify doubts about the objectivity of its work here. There was no expert interpretation of the test results, and therefore, ultimately there was no proof that the friable asbestos purportedly found in the sample is dangerous to the residents of 548 Broadway.
All of that having been said, it must nonetheless be said that the post-trial evidence created a substantial concern that dangerous asbestos may be present in the building. A substantial concern is not a preponderance of the evidence, but neither is it the mirage that the petitioners presented at trial.
As discussed above, there are important reasons not to allow the submission of post-trial evidence, especially in a circumstance where, as in this case, there appears to be no reason that the evidence could not have been created earlier and submitted at trial. One of the oldest and best-honored rules of trial procedure is that the parties do not get to put on a certain amount of evidence, and, if that proves insufficient, try again. “No rule for the conduct of trials is more familiar than that 64 the party holding the affirmative is bound to introduce all the evidence on his side before he closes.” Marshal v. Davies, 78 N.Y. 414, 420 (1879); see Kerfein v. Bruno, 23 A.D.2d 961, 261
N.Y.S.2d 240 (4th Dep’t 1965). Stated differently, our legal system places a great deal of value on finality: with only limited exceptions, after a litigant takes its turn, the case is finished and the disposition is binding.
Nonetheless, four factors here lead me to conclude that further proceedings are warranted.
First is my assessment that the new evidence is solid, and creates a substantial prospect that the petitioners can prevail on their claim. Second, the claim at issue is not a minor matter: if dangerous asbestos is present, the threat posed to the health of the residents, and others, may be considerable and even potentially life-threatening. Third, the petitioners proceeded without benefit of counsel. Although it was their choice to so proceed, and to some extent the petitioners must accept the consequences of their choice, still, it is traditional in our legal system to afford greater procedural leeway to litigants who are unrepresented by attorneys. Fourth, even should I decline to proceed further in this case, the finality that theoretically would attach might prove to be illusory. For example, it is unlikely that the tenants who did not join as petitioners in this case would be bound by a result in favor of Salva here, and they would likely be allowed to pursue a new claim concerning asbestos in any event. Moreover, neither the Department of
Buildings, the Loft Board, nor any other enforcement agency would be bound by a disposition in
Salva’s favor here.
For these reasons, I conclude that additional proceedings should be held on the petitioners’ tenth claim. However, I also conclude that it would be improvident to delay 65 issuance of my report and recommendation as to the other claims in the amended petition.
Especially pressing is the 66 petitioners’ claim concerning lack of heat, which I have sustained. Being now in the middle of a winter season, there is good reason not to delay disposition of that claim pending further litigation on the asbestos claim.
Therefore, I hereby direct that the tenth claim in the amended petition be severed from the
the other claims, pursuant to section 1-41 of our rules of practice (title 48, Rules of the City of
New York). This report and recommendation will be submitted to the Loft Board as to all but the tenth claim. The tenth claim will be deemed to be docketed at this tribunal as of the date of this report and recommendation, and will be assigned a new index number. An appropriate notice of further proceedings will be issued to the parties shortly.
FINDINGS AND CONCLUSIONS
1. The petitioners proved by a preponderance of the evidence that Salva’s delivery of heat to the residential units at 548 Broadway is inadequate, in violation of section 2-04(b)(2) of the Loft Board’s rules.
2. The maintenance of water pressure for the residential units is not adequate at all times, in violation of section 2-04(b)(1) of the Loft Board’s rules.
3. Salva’s provision for routine maintenance and repair of the residential units and the attendant common areas is inadequate, in violation of section 2-04(c) of the Loft Board’s rules, as set forth in particular on pages 31 - 39, above.
4. Salva’s failure to provide freight elevator service to the fourth and fifth floors at 548 Broadway constitutes a diminution of services in violation of section 2-04(b)(9) of the Loft Board rules.
5. The failure by Salva to maintain secure premises by providing appropriate controls on public access to the building, and to the residential portions of the building, violates section 2-04(b)(8) of the Board’s rules.
67
6. The noise levels in Mr. Furer’s and Ms. Seyfried’s lofts, created by Exit Art, constitute breaches of Salva’s warranty of habitability to those tenants, in violation of section 2-04(c) of the Loft Board’s rules.
7. The allegation that Exit Art operates without a required public assembly permit does not state a claim for diminution of services under section 2-04(b) and (c) of the Loft Board rules.
8. The allegation that Salva violated a court-ordered stipulation does not state a claim for diminution of services under section 2-04(b) and (c). That allegation duplicates allegations made in the other claims here at issue.
9. The allegation that Salva failed to comply with an agreement with the tenants does not state a claim for diminution of services under section 2-04(b) and (c). That allegation duplicates allegations made in the other claims here at issue.
10. The allegation that a hazardous asbestos condition formerly existed on the fourth floor of 548 Broadway does not state a claim for diminution of services under section 2-04(b) and (c). The petitioners failed to prove at trial that a hazardous asbestos condition currently exists on the fifth floor. However, the petitioners’ post-trial submission of new evidence on this claim warrants further proceedings, and that claim is therefore severed from the remainder of the case, and is to be processed as a separate case.
11. Salva’s alleged failure during November 1995 to provide proper notice to obtain access to residential units does not state a claim for diminution of services pursuant to section 2-04(b) and (c) of the Loft Board rules.
12. Salva’s alleged failure to display its IMD registration, and Salva’s alleged failure until August 8, 1996, to provide the tenants with a 24-hour telephone number, would not, if proved, constitute diminutions of services under section 2-04(b) and (c).
13. The claim that Salva failed until June 1995 to cure the Department of Buildings objections to its alteration application does not state a claim for diminution of services under section 2-04(b) and (c).
68
Therefore, I recommend that the first through sixth claims of the amended petition be granted and that the seventh through ninth and eleventh through thirteenth claims be denied.
The tenth claim 69 is severed from the remaining claims, and will be forwarded to the Loft Board upon conclusion of additional proceedings. I further recommend that the diminution of services claims by petitioners Linda Burgess and William Dunlap be marked withdrawn, pursuant to their request.
RECOMMENDATION
As discussed above, Loft Board precedents reveal the existence of only one remedy upon proof of a diminution of services: an order that the diminished service be restored. I therefore recommend that the Loft Board issue an order requiring Salva to restore the services found above to be inadequate.
In Loft Board-initiated enforcement cases, it is customary for the administrative law judge to place an effective deadline for compliance on an offending IMD owner. The deadline takes the form of a time after which the Board’s inspectors may visit the premises and issue new violations for any unremedied conditions. Loft Board v. Difar Realty Corp., OATH Index Nos.
1970 - 71/96, memorandum decision at 7 - 8 (Aug. 14, 1996) (citation omitted). I think such a deadline could prove to be quite constructive here.
Having presided over three separate cases involving 548 Broadway, and having conducted extensive proceedings, including two multi-day trials, I do not share the view of Salva and Mr. Chetrit that is held by some of the tenants. Although I by no means suggest that Mr.
Chetrit’s management of the building has been flawless, either in his pursuit of legalization or in his attention to more day-to-day matters, I wholeheartedly reject the suggestion from some tenants that he has conducted a vendetta of meaningless spite against the tenants. The plain fact is that the overall condition of the building has improved dramatically since Mr. Chetrit assumed management about six years ago, or perhaps somewhat longer, and essentially all of the 70 movement toward legalization of 548 Broadway has occurred under Mr. Chetrit’s control. Mr.
Chetrit has assembled a roster of highly professional and competent advisors and assistants, including his counsel, legalization architect, property manager, superintendent, plumbing contractor, and boiler maintenance contractor. A variety of problems remain, and, to some extent, I have commented on them in my analysis of the claims at issue in this case. Based on
Mr. Chetrit’s reaction to my decision after the first trial I conducted relating to this building, in which I suggested the retention of a property manager, I have every reason to expect that Mr.
Chetrit and his various advisors will carefully consider my remarks, and, whether or not they accept all of my suggestions, will continue their efforts to complete the rehabilitation and legalization of 548 Broadway.
That having been said, it cannot escape comment that I have found the delivery of several basic residential services to be inadequate at 548 Broadway, more than 14 years after enactment of the Loft Law. It is time - indeed, long past time - to bring this inadequacy to an end. Salva, having bought this building before enactment of the Loft Law, was obligated from day one to maintain the required minimum housing standards. Setting aside Mr. Chetrit’s personal responsibility, Salva as the owner of 548 Broadway should long ago have mastered such basics as heat and water pressure.
It also bears mention that the Loft Board is not only an adjudicatory body; it is also an enforcement body. When tenants within the Board’s jurisdiction are without adequate heat, the
Loft Board’s interests, not merely the tenants’, are centrally affected. I therefore repeat my previous recommendations that the Loft Board take an active role concerning 548 Broadway.
Matter of Davies, rep. and rec. at 11; Matter of Salva Realty Corp., rep. and rec. at 39. 71
These concerns are the source of my conclusion that deadlines should be imposed for
Salva’s restoration of the services I have found to be diminished. In the understanding that the
Loft Board meets monthly, and therefore will not pass on this report and recommendation before the end of this month, I recommend that a Loft Board inspection of 548 Broadway be scheduled for approximately 60 days after issuance of the Loft Board’s final order in this case (see 29
RCNY § 2-04(e)(2)). With sufficient notice to both Salva and the tenants, it should be possible for the inspector to have access to all areas of the building and to be able to conduct a comprehensive inspection. Violations revealed by such an inspection should be prosecuted pursuant to section 2-04(e) of the Board’s rules.
I further recommend that processing of any further diminution of services application or applications by the tenants of 548 Broadway be deferred pending completion of a Loft Board inspection of the premises, unless such application pleads matters of dire urgency. In the event that the Loft Board inspection results in a Loft Board-initiated enforcement case to be referred to this tribunal, I recommend that it be consolidated with any tenant-initiated diminution of services applications. I realize that it has not been the Board’s practice to consolidate Loft
Board-initiated proceedings with tenant-initiated proceedings, but I see no reason that such consolidation should not be permitted.
Such consolidation would have an important advantage in addition to the advantages of economy and efficiency that apply to consolidation of cases generally. Here, the petitioners contended that some of the service deficiencies occurred irregularly and unpredictably, and in particular during off-hours, such that government inspectors would not ordinarily detect such violations. For example, if the late night insufficiency of water pressure were to continue, a Loft 72
Board inspector might not be able to issue a violation for that condition, but the tenants could bring a new diminution of services petition to fill that gap.
The legislature, by extending IMD owners’ deadlines to meet legalization milestones, has substantially if temporarily reduced the Loft Board’s enforcement role in that area. But nothing should constrain the Board from vigorous enforcement of the minimum requirements of decent housing, especially, as noted above, some 14 years after the Loft Law came into effect.
My emphasis on the immediacy of Salva’s need to meet the housing maintenance requirements should not be taken to imply in any respect that it may or should lessen its legalization efforts. The legalization deadlines, although extended, remain in effect. Given the contentious history of 548 Broadway, there is no reason to expect that legalization work will proceed without complication, and therefore, legalization must be diligently pursued.
Charles R. Fraser Administrative Law Judge
January 3, 1997