Introduction

In these consolidated Article 7-A and HP actions, petitioners, a group of 15 tenants living at 446 - 452 Ft. Washington Avenue, a/k/a 725 West 180th Street, New York, NY 10033 (the "premises"), consisting of Gladys L. Salva, Vickie Varnuska, Zenaida Roque, Rosalba Almanzar, Yolanda Kaminsky, Andrew Massa, Lilian Del Rio, Aida Wenzell, Enrique Triana, Jesus Bustamante, John T. Gallagher, Ana Morales, Digna Wenzell, Peggy Ruesga and Meghan Gettingstrasser (the "petitioners"), seek an order appointing an administrator pursuant to Real Property Actions and Proceedings Law ("RPAPL") § 769 et seq., and RPAPL § 778 and an order to correct pursuant to Civil Court Act § 203 and Housing Maintenance Code §27-2115.

At trial, petitioners called, Rosalba Almanzar, Dorothea Levine, Gregory Healy, Gladys Salva, Ana Morales, Jan Freedman, Aida Wenzell, Zenaida Roque, John Gallagher and Glenda Swanson-Massa. Respondents called Dorothea Levine, Gregory Healy, Charles Marino, Alex Volyand, Antonio Mendez, Adam Jakubowicz, Bekram Persavo and Matthew McGuire.

Procedural History

The 7-A action was initially commenced by the Department of Housing Preservation and Development of the City of New York (the "DHPD") by the filing of a notice of petition and verified petition on September 23, 2008 (index No. 22068/2008, (the "7-A action")). Issue was joined by submission of an answer by 446-452 Fort Washington Avenue, a/k/a 725 West 180 Street, New York, NY 10033 (the "7-A action respondent") on October 29, 2008.

On October 30, 2008, Gladys L. Salva, Rosalba Almanzar and Aida Wenzell commenced a separate HP action by order to show cause (index # 6399/2008, (the "HP action")) seeking an

order that Tyvan Hill Company, Dorothea Levine and Gregory Healy (the "HP respondents" together with the 7-A action respondent, the "respondents") correct violations of the housing maintenance code.

On November 5, 2008, in the 7-A action, the 7-A action respondent moved to implead twenty tenants of the premises, including many of the petitioners, claiming that the twenty tenants were necessary and indispensable parties to that action. DHPD opposed the motion and, on November 14, 2008, the motion was denied.

On November 17, 2008, petitioners moved by order to show cause to substitute for DHPD as petitioners in the 7-A action pursuant to RPAPL § 770 (2). Petitioners asserted that they met the prima facie requirement of consisting of 1/3 of the then occupying tenants of the building, as they were fifteen of the thirty-two then occupying tenants. By stipulation dated November 17, 2008, respondents consented to the substitution and DHPD became a co-respondent in the 7-A action.

On November 20, 2008, the HP action respondents moved to consolidate the two actions and on consent of the petitioners, on December 22, 2008, the two cases were consolidated for trial.

Extensive court supervised settlement negotiations ensued, during which time, the parties filed several motions. In order to facilitate the temporary shoring and other work that needed to take place throughout the premises, there were a number of "so ordered" stipulations and court orders directing respondents to perform necessary repairs and setting access dates for petitioners. On July [*2]9, 2009, trial commenced.

The tenants have complained about poor conditions and lack of repairs. There was testimony by many of the petitioners of leaks, mold, rodents and general complaints of things not working and not being repaired. The record shows that at the time of commencement of the trial, the premises had 393 violations, including 67 class C violations. Petitioners testified to broken, leaky windows that did not get repaired for months, rooms not in usable condition, such as a kitchen or bedrooms, and an assortment of repairs not completed. In some apartments walls are missing, in other apartments cabinets were ripped out and not replaced, and in still others the windows are broken. Conditions in some apartments had deteriorated to such an extent that some tenants testified that the ceilings fell down in their apartments. One of the premises' fire stairs was allowed to fall into such disrepair that some tenants in two different apartment lines were ordered by the Department of Buildings (the "DOB") to vacate their apartments for a period of time from January 2006 through December 2008 due to the fire hazard until the necessary repairs were made. Jan Freedman, a construction project manager employed by the DHPD, testified that in nearly all of the apartments he inspected around May 2008, repairs were required and multiple violations existed. In addition to the complaints in tenant apartments, there are repairs needed to the common areas, frequent elevator service disruptions and the intercom system needs repair or replacement. Jan Freedman also testified that for a period of time the roof was not in compliance with the buildings code.

In addition to the conditions described above, nearly all of the petitioners whose apartments are on the two-line have been living without a full bathroom for two years. The two-line apartments consist of apartment numbers 10 (a commercial space), 22, 32, 42, 52 and 62. In December of 2007, respondents were notified of serious water damage in apartment 32. Upon investigation in apartment 32, respondents' engineers advised that they would need to view the bathrooms above in the two-line. After obtaining access to apartment 52, the engineers advised respondents Levine and Healy that there was a tremendous amount of water damage to the walls, floor and structure of the bathroom in apartment 52 which was the cause of the problems in apartment 32. After further inspection of the walls and joists of the bathroom in apartment 32, the engineers advised that the bathrooms be completely removed and restored in both apartments. The engineers later advised respondents Levine and Healy that all of the main bathrooms in the two-line should undergo similar renovations.

On or about January 18, 2008, without DOB permits, workers from Messina went into apartments 32 and 52 and demolished the full bathrooms in those apartments removing the toilet, [*3]sink, fixtures, plumbing, as well as the ceilings and walls, including the wall to the adjoining master bedroom. Later that same night, the DOB issued a stop work order preventing the removal of any other bathrooms. To date, the bathrooms in apartments 32 and 52 have not been replaced.

Gladys L. Salva, the tenant in apartment 22 testified that she has not had use of her full bathroom since December 2007, due to the leaks coming from 32. In place of these bathrooms, respondents provided the two-line tenants with keys to other vacant apartments on their respective floors. The tenants on the two-line have had to go to another apartment to take a bath or shower and in some cases to use the toilet. The tenants have testified that the vacant apartments lack proper electricity and hot water, are in a state of disrepair and since they do not have exclusive access, personal bath items have disappeared.

After the DOB issued the stop work order in January 2008, respondents testified that they informed the DOB that they would file plans for the renovations of the bathrooms. At that time, respondents' engineer was Rand Engineering ("Rand") and respondents' general contractor was still Messina. In March 2008, Rand received approval of its shoring work plans on the two-line. Despite Messina's familiarity with the premises, in April 2008, respondents engaged Cardrona Inc. ("Cardrona") as the general contractor who hired McKenna Renovations LLC ("McKenna") as subcontractor. Permits were obtained and shoring commenced in the basement soon thereafter with the intention of moving upwards in the two-line. On May 6, 2008, the DOB sent a letter of intent to revoke respondents' shoring permits because Rand had submitted an incomplete application with respect to the licensing information of Cardrona. Sometime in late Spring 2008, respondents hired Charlie Marino ("Marino") of Braxton Engineering to take over

the engineering duties and address any DOB issues. Because Respondents did not sufficiently address the concerns in the May 6, 2008 DOB letter, on June 25, 2008, the DOB revoked their shoring permits. At the time of revocation, the shoring work had been completed in the basement and on the ground floor. It took respondents' engineer until September 2008 to finally resolve the issues which caused the DOB to revoke the permits and have the revocation rescinded. Still, respondents did not get the contractor, Cardrona, back on the job until some time in November 2008.

Around December 2008, respondents sought access to apartment 22 for the purpose of demolishing the full bathroom and installing the shoring beams and columns. Gladys L. Salva refused to permit work in the apartment unless respondents first corrected the then existing C class violation which required restoration her half-bathroom to use. By stipulation dated December 15, 2008, respondents were provided with access to apartment 22 on January 5, 2009 and, over several days, the half-bathroom was restored, the full bathroom was removed and the shoring beams and columns were installed. The shoring work proceeded swiftly and by mid-January 2009, had been completed in apartments 22, 32 and 42. By stipulation dated January 26, 2009 the parties agreed to access dates in apartment 52 on January 29, 30 and February 1, 2009; the tenant, Aida Wenzell, failed to provide access on those dates. By order dated February 4, 2009, this Court ordered Ms. Wenzell to provide access or face contempt. Access was granted and the shoring work progressed and was completed by the end of February 2009. When the shoring was completed, the two-line full bathrooms simply did not exist. All fixtures and plumbing had been removed and there were no ceilings and floors, so that one could see into the apartments below or above, and no wall between the full bathroom and adjacent master bedroom.^[FN1] Such conditions persisted through the close of [*4]trial.

From February 2009 until June 2009, no work was done on the two-line bathrooms. Despite several court orders to expedite the process, respondents took nearly four months to obtain proper approvals and permits for the necessary structural work. In June 2009, McKenna commenced structural work, however, sometime in July 2009 Jan Freedman and his partner alerted respondents to the fact that the materials used by McKenna were not in compliance with DOB regulations in that McKenna had installed structural support joists and beams of inadequate dimensions to comply with code. Specifically, DOB regulations require that in a multiple dwelling building, the joists must be 3 x 8 or 3 x 10. Respondents' workers had been installing joists that were 2 x 8. Disputes immediately ensued between respondent Levine and her structural sub-contractor and engineer, McKenna and Marino. Respondent Levine was unable to get her contractor to correct these errors and, in July 2009, McKenna withdrew from the job and ceased all work. Mr. Marino also ceased work on the project and in September 2009, respondent Levine engaged another engineer, Howard Zimmerman. Mr. Zimmerman's tenure working for respondent Levine was also short-lived and, in January 2010, respondents replaced Mr. Zimmerman with William Loftus as engineer. From July 2009 until early 2010, no work was performed on the two-line bathrooms.

Conclusions of Law

An Article 7-A action to appoint an administrator to manage a building may be brought where a landlord has failed to correct violations and has permitted poor conditions to persist (RPAPL § 769 et seq.). One third of the tenants or the Commissioner of HPD can bring a special proceeding against an owner of a multi-dwelling apartment building alleging the existence of a condition that is hazardous and detrimental to life, health and safety and which has existed for a period of five days (RPAPL §§ 769, 770 [1]; Rosenbaum v. City of New York, 96 NY2d 468 [2001]). If an action is commenced by the DHPD, 1/3 of the then occupying tenants may move at any time to substitute themselves as petitioners in place of DHPD, even after a final judgment has been rendered (RPAPL § 770 [2]). Conditions which warrant the appointment of an Article 7-A administrator include, but are not limited to: a lack of heat or of running water, or of light or of electricity or of adequate sewage disposal facilities, an infestation by rodents, or course of conduct by the owner or his agents of harassment, illegal eviction, or a continued deprivation of services (RPAPL § 770 [1]).

Affirmative defenses to an Article 7-A action include: (a) the condition or conditions alleged in the petition did not in fact exist or that such condition or conditions have been removed or remedied; or (b) the conditions have been caused by a petitioning tenant or tenants or members of the family or families of such petitioner or petitioners or of their guests or by other residents of the dwelling or their families or guests; or (c) that any tenant or resident of the dwelling has refused entry to the owner or his agent to a portion of the premises for the purpose of correcting such condition or conditions (RPAPL § 775; Feliciano V. Kia, NYLJ, June 11, 1990 at 26, col 1 [App Term, 1st Dept 1990]; Jules v. Douglass, NYLJ, August 17, 2001, at 21, col 5; Ansonia Associates v. King, NYLJ, May 27, 1992, at 24, col 2). [*5]

After trial in an Article 7-A action, the Court shall render a final judgment either (a) dismissing the petition for failure to affirmatively establish the allegation thereof or because the respondent has established one of the defenses in RPAPL § 775, or (b) appoint an administrator for the subject building pursuant to RPAPL § 778 under which the rents due shall be paid to the administrator and shall be used to correct the violations alleged in the petition (RPAPL § 776). There is no minimum required number of violations for a Court to be permitted to appoint an Article 7-A administrator (see Matter of Housing Preservation and Development of the City of New York, NYLJ, February 28, 1990, at 26, col 5 [administrator appointed for as little 15 violations, only two of which were class C violations]).

Additionally, a Court, in lieu of appointing an administrator, may, in its discretion, permit the owner to remedy the conditions specified in the petition, upon a demonstration by the owner of the ability to promptly undertake the work required and posting sufficient security (RPAPL § 777).

A. Article 7-A Administrator

After trial, the Court orders the appointment of an Article 7-A administrator. The living conditions of petitioners are hazardous and detrimental to life, health and safety and have persisted for a period far greater than five days (Rosenbaum, 96 NY2d at 472). Specifically, the deprivation of essential services such as functioning bathrooms, running water, electricity, the presence of rodents and other vermin and the hosts of other violations, violates the warranty of habitability and are amongst those enumerated conditions that warrants the appointment of an Article 7-A administrator (RPAPL § 770).

As this Article 7-A action was DHPD initiated, 1/3 of the then occupying tenants were not required to maintain this action. The appropriate time to determine whether the tenants may substitute for DHPD is at the time of their petition, not at trial. At the time of their petition, fifteen tenants moved to substitute in for DHPD. Those fifteen tenants constituted more than 1/3 of the then occupying tenants and thus were properly substituted in for DHPD. Further, whether tenants constitute 1/3 of the then occupying tenants is a statutory threshold question that determines whether petitioning tenants have the proper capacity to maintain an action. A party may move to dismiss an action based on the ground that the party asserting the cause of action lacks the capacity to sue (New York Civil Practice Law and Rules ("CPLR") § 3211 [a] [3]). However, any objection or defense based on the grounds of a party's lack of capacity is waived unless raised prior to an answer or in a responsive pleading (CPLR § 3211 [e]). After consenting to the substitution by petitioners, respondents never requested leave of the court. under CPLR § 3025 (a), to amended their responsive pleading to add the defense of lack of capacity. The first time that respondents raised the issue of whether petitioners met the 1/3 requirement was after the close of petitioners case. Hence, any potential defense relating to whether petitioners constituted 1/3 of the then occupying tenants was waived (Mayers v. D'Agostino, 58 NY2d 696 [1982]).

Respondents have demonstrated that they have corrected many of the violations in apartments outside the two-line, however, as conceded by respondents a number of violations, including C violations, still exist in non-two-line apartments. Further, a vast number of violations [*6]persist in the two-line apartments which will remain uncorrected until those bathrooms are restored to use.

Although the appointment of an Article 7-A administrator has been described as a "drastic remedy," the Court finds that such a remedy is necessitated by the facts (See Matter of Garcia, NYLJ, November 13, 2002, at 20, col 6). Petitioners have lived without many essential services for years, including two years without working bathrooms in two-line apartments requiring the tenants of those apartments to go, even in the dead of night, across the hall to use such facilities. The two-line apartments have been in an intolerable state of disrepair for the past two years and respondents have virtually no progress to show for their lackluster efforts. Respondents have not completed anything close to "substantial repairs" as in Garcia. Id. While respondents certainly have made some repairs over the years and have expended money while not receiving rent, the living conditions that the two-line tenants have endured are so drastically poor that a drastic remedy is appropriate.

B. Affirmative Defense of Refusal of Access

Respondents failed to meet their burden of proof on their affirmative defense that petitioners' refusal of access to the owner and the agents of the owner for the purpose of making corrections was the cause of their failure to correct violations (RPAPL § 775 [c]). Although there

have been a few sporadic and distinct occasions when access was refused or was obtained through Court intervention, overall, access was available to respondents and it was respondents' overwhelming delays and inaction that kept respondents from correcting the conditions in the building. Indeed, petitioners have continuously expressed their desire for a restoration of essential services. Respondents have had access to the two-line bathrooms during the pendency of this proceeding and yet the problems remain and repairs have not been made.

There were many substantial time periods when nothing was done to repair the two-line bathrooms, which are attributable entirely to respondents. Many of the access problems alleged by respondents occurred prior to the completion of the shoring. From the time of the removal of the bathrooms from apartments 32 and 52 through the completion of the shoring work (January 2008 through February 2009) most of the delays were not due to petitioners but to respondents. From January 2008 through May 2008, no work could be done on the two-line because of the January 2008 stop work order and delay by respondents in obtaining approvals and permits. From June 25, 2008 through September 9, 2008, respondents were subject to a DOB issued stop work order because respondents' workers had submitted an incomplete application. It was not until December 2008 that Gladys Salva briefly refused access for shoring until her half-bathroom was restored. This delay combined with the difficultly getting access in apartment 52 for shoring work in late January and early February 2009 accounts for several weeks to, at most, two months that could fairly be attributable to petitioners. In any event, the shoring work was completed by February 2009. Most of the delay was a result of the January 2008 stop work order which resulted from respondents removal of apartments 32 and 52 bathrooms without

seeking permits in the first instance, plans not being promptly and properly filed, the June 2008 revocation of shoring permits attributable to respondents' defective filing and respondents' inaction from September 2008 through December 2008.

From completion of shoring through the close of the trial, a time period of one year, access was not an issue at all and the failures were again the result of extensive delay by respondents. The shoring work was finished in February 2009 and from that time through June 2009 no work was done in the two-line bathrooms. After commencement of the structural work in June 2009, problems [*7]developed because respondents' contractors use of improper materials not in compliance with DOB regulations. Work again stopped in July 2009 and from July 2009 through January 2010, there was again no work done on the two-line bathrooms. These failures are not because of petitioners refusal to grant access, but rather because respondents were unable, or perhaps unwilling, to properly perform the work. Over a period of more than twenty-four months that work could have been performed to restore the two-line bathrooms, at most, two months of delay is attributable to petitioners and none since February 2009.

That respondents again claim to be ready to go forward with the repairs in the two-line and have provided the Court with approved DOB plans for such repairs, however, the existence of approved plans do not controvert any element of petitioners' prima facie case nor do they constitute any affirmative defense to the appointment (RPAPL §775; see Davalia v. 88 Clay Street, NYLJ, July 13, 2005, at 22, col 1). Respondents' activities over the past several years show no true desire to make the necessary repairs, but rather, a desire to delay and prolong the

period of time during which petitioners live with conditions dangerous to their health and safety as much as possible.

C. Respondents RPAPL § 777 Motion

Respondents' application pursuant to RPAPL § 777 that this Court, in lieu of appointing an administrator should permit the owner to remedy the conditions specified in the petition since structural work has recently started up again in the two-line is denied. The Court has the discretion of permitting the owner to make the repairs upon a demonstration of the ability to promptly undertake the work required and posting sufficient security (RPAPL § 777; Maresca v. 167 Bleecker, Inc., 121 Misc 2d 846 [Civ Ct, New York County 1983]). The Court is mindful of the recent re-commencement of work in the two-line apartments. However, the trial record reflects countless times that respondents appeared to have work underway only to have that work come to a complete stop for some reason or another. Respondents have engaged at least four separate contractors over the last two years and have engaged at least four separate engineers over this time period, most recently just one-and-one-half months ago, for the task of restoring the two-line bathroom alone. Countless professionals have been engaged to work on repairs to the two-line, yet little has been accomplished to restore the two-line bathrooms since the shoring work was completed over a year ago. Some of the professionals engaged have been discharged, some simply stopped working and one, in the words of respondent Levine, faded away.

The record also reflects many gaps in the chronology of the repairs. There was no testimony explaining the delays in obtaining approved DOB plans between the completion of the shoring and the commencement of the structural work, nor was there sufficient explanation given as to why the delay after work stopped in July 2009 extended all the way though January 2010. Because of all the starts and stops, the constant changing of engineers and contractors, the defective structural work, the delays in filing permits and receiving approvals and the revocation of permits, respondents have demonstrated only a deft talent for bungling all efforts to rebuild the two-line bathrooms. Respondents have, thus, not demonstrated that they are capable of performing the work promptly or properly and, as respondents have admitted, there have been several false starts already. Based upon respondents' track record, there is overwhelming reason to believe that the recent work is [*8]simply another false start. Accordingly, in the exercise of the Court's discretion respondents' RPAPL § 777 application is denied.

D. The HP Action

In light of the substantial number of violations found to still exist in the building, in the absence of an order appointing an Article 7-A administrator, petitioners' would be entitled to an order to correct. In light of the appointment of the Article 7-A administrator, issuance of such an order would be academic. The grant of any motion seeking the removal of the Article 7-A administrator shall be conditioned upon an order to correct any violations outstanding at that time.

Conclusion

Accordingly, this Court orders the appointment of an Article 7-A administrator. Petitioners shall forthwith submit an order appointing the Article 7-A administrator.

The clerk shall mail a copy of this decision and order to the parties.

The parties are to pick up trial exhibits in Part P by April 11, 2010.

This constitutes the decision and order of the Court.

Dated: March 11, 2010

New York, New York

__________________________________

DAVID B. COHEN, J.H.C.

To:

Kellner Herlihy Getty & Friedman LLP

Attorneys for Petitioners

470 Park Avenue South - 4th Floor

New York, New York 10016

By: Bruno Bianchi, Esq.

Jeffrey H. Roth, Esq.

Attorney for Respondents

100 Park Avenue, 20th Floor

New York, New York 10017

DHPD

Housing Litigation Division

Attorney for Co-Respondent

100 Gold Street

New York, New York 10038

By: Lynnete Parker, Esq.