This proceeding was commenced by DON MACLEAN, JACQUES SALLE &

This proceeding was commenced by an Order to Show Cause on or about October 18th, 2013, alleging lack of a residential certificate of occupancy, failure to comply with Loft Board rules in regards to legalizing the Subject Premises, construction without a permit, low water pressure, defective electrical wiring, leaking radiators, lack of maintenance, lack of front door buzzer and intercom, no security, permitting illegal use of premises, no heat, no water, empty apartments left open allowing vagrants to come in and out, and no superintendent. On October 18, 2013, both sides appeared by counsel, and the proceeding was adjourned to November 21, 2013, by stipulation.

Respondents filed an answer on January 9, 2014, asserting: a general denial; that Respondents are new owners of the Subject Building, and therefore not responsible for the condition of the Subject Building prior to their ownership; that they are ready, willing and able to perform the necessary work; that Petitioners have failed to provide access; and that the violations cited by Petitioners have been corrected.

On January 14, 2014, the parties entered into an interim stipulationregarding repairs and services. Respondents were to place a sign in the lobby indicating the name and number of the superintendent, keep the common areas of the Subject Building clean, remove garbage, keep the front of the building clean, provide tenants with a schedule for garbage collection. Petitioners were to provide access to their units for Respondents to inspect. Respondents also agreed to continue their best efforts to have the gas restored to the Subject Building, repair mailboxes, and make any necessary repairs as required by law. The proceeding was adjourned to February 20, 2014, and then to March 26, 2014, for trial.The trial commenced on March 26, 2014, and continued and concluded on April 25, 2014. Post trial memorandum and proposed findings of fact were submitted on June 17, 2014, and the Court reserved decision.FINDINGS OF FACT

Petitioner is the owner and landlord of the buildings located at 365 Seventh Avenue and 367-369 Seventh Avenue. The Subject Buildings were previously in foreclosure and were being managed by a receiver. During this period the buildings were in need of repairs. There appear to be 7 units in the building which are registered with the Loft Board, only six of whixh are registered as "reg".

While there were problems with heat and hot water in some units, Respondent installed a gas line and had a building wide boiler, which was operational as of February 25, 2014. During the installation of the permanent gas line, Respondents provided heat to the building via a temporary heating unit truck which was located on the street in front of the building. Respondents have installed new intercoms in all units, new front door locks in both buildings, made some repairs to the roof, installed new mailboxes, and painted and upgraded the common areas of the building.

RU Huang (Huang), an electrician who visited the Subject Premises on March 25, 2014, the day before the trial; Derek Wright (Wright), a private investigator; and Mary Ward (Ward), a retired police officer, testified for Petitioners.

Petitioners Salle and MacLean also testified on their own behalf.

Huang testified to having observed exposed wires hanging in the basement and fuse boxes and electrical outlets uncovered throughout the building, but on cross-examination admitted he was unaware of any violations having been issued for anything electrical in the

Similarly the court did not find that the testimony of Wright or Ward regarding other tenants at the subject building, established any conditions warranting the appointment of a 7-A Administrator.Salle testified to problems within his apartment, including what he alleged was a ceiling that was starting to collapse in the bathroom, and an inadequate stove and electrical power supply. Salle also testified to problems with the floors in his apartment, and the bricks deteriorating outside the building. Salle acknowledged that he has had essential services at all times for the last year, and that Respondents has recently made repairs to the building, including painting the common areas, and installing smoke detectors and fire alarms. Salle also testified that the building previously had no Superintendent, but Respondents have now hired a manger. Salle testified that he had done most of the work in his apartment himself, including installation of the ceilings and purchase of his own stove. This is not unusual for an IMD building. Salle testified that his stove was not working, but it was not clear why. Salle also attempted to have his own electrical work done. Salle testified that there is problems with variations in the hot water for the building and sometimes the water can become too hot without warning. However it is clear that Salle's biggest concern was what he alleged to be a lack of security in the building and traffic generated by some commercial tenants. On cross examination, Salle acknowledged that since April 2013 he has had heat and hot water. Salle failed to offer in evidence any photographs of the alleged collapsing ceiling or of any alleged condition inside of his apartment.

MacLean also testified on his own behalf. MacLean testified he has not had hot water since December 2013, and did not have it as of the day he testified. The most significant conditions alleged to exist by Maclean in his apartment are mold in the apartment, a slow leak when it rains, and lack of hot water. MacLean acknowledged its possible that Respondents have made repairs to the roof, but stated the leaks continue when there is a heavy rain. Maclean acknowledged that Respondents have restored gas to his apartment, but not to the hot water tank he has in his apartment. MacLean acknowledged that Respondents have been working on addressing conditions and that he had received a written request for access a few days prior to his testimony that he had not yet responded to. MacLean acknowledged that he has heat.

MacLean appears to be refusing access to allow Respondents to replace his current gas operated hot water heater, with an electric hot water heater which Respondents have installed for other tenants who did provide accessfor the work. MacLean's position is that because he is asserting the rights of a protected tenant under the loft laws, Respondents should not be allowed to make the change. Given that it is undisputed that Respondents are ready, willing and able to install an electric hot water heater, and MacLean has declined to allow, the Court will allow said issue to be resolved by the Loft Board as MacLean's claim is dependant on his assertion of protections there.

MacLean offered photographs into evidence but only two actually depicted any condition inside his apartment (Exs 10K & 10L). The two photos are not very clear and purport to show a small area of mold growth.

On cross-examination, MacLean testified about some pending matters before the Loft Board. MacLean denied Respondent's claim that he is not a tenant of record and alleged that he [*3]has a lease for the Subject Premises naming him as a tenant, however, MacLean never produced the lease. MacLean acknowledged he has never paid rent to the current owner. The court must consider that MacLean's testimony was in some part influenced by the pending conflict between himself and Respondents as to his status as a tenant of record of the Subject Premises. This limits the weight the court gives to Maclean's testimony.

Respondent called Francis Leung (Leung) as their first witness. Leung is an owner of the Subject Premises and a property manager. Leung purchased the Subject Premises from a Receiver, after a foreclosure proceeding, in April 2013. He testified the Subject Premises had been neglected prior to his ownership. Leung described the work he has done to have the gas service restored to the Subject Premises and fix the boiler. Leung installed individual electric hot water heaters in each apartment that did not have hot water, although he was not given access by the third floor tenant (MacLean) for this work. In addition, Leung hired an architect to have the building legalized with the Loft Board and upgrade the electrical system. Leung also described other repairs Respondents made including fixing the building front door lock and placing a sign in the building with the name and phone number of the superintendent, repairing the roof, replacing the mailboxes, and installing smoke and carbon monoxide detectors. Leung had the roof of the building re-roofed and reflashed. The work was done by Channel Construction in February 2014. Leung credibly testified that after the roof work he was not aware of any further leaks in the building.

Leung had the tenants in the Subject Premises operating a massage parlor evicted in late 2013.Respondents entered a contract for the installation of the new gas meter into evidence. The contract shows Respondents spent approximately $10,000 for this work from the Spring of 2013 forward (Ex B). Respondents further established significant work done to the Chimney of the building for the boiler flue at a cost of $8,500.00 in late 2013 (Ex C).

John Peachy (Peachy), an architect, testified on behalf of Respondents. Peachy testified he has been to the Subject Building and has inspected most of the property. Peachy testified he was not provided access to MacLean's apartment. He testified there was evidence of some water leaks in the building and that the roof was in fair condition, having been recently repaired. Peachy also testified that an intercom was installed and being updated. Peachy testified he did not observe any conditions dangerous to life, health or safety.

Petitioners failed to provide any evidence supporting their cause of action for harassment and said claim is dismissed.

DISCUSSION

RPAPL § 770(1) requires proof of a lack of heat or of running water or light or electricity or adequate sewage disposal facilities, or any condition dangerous to life, health or safety, which has existed for five days, or an infestation by rodents, or any combination of such condition, in order to appoint a 7-A administrator to the property. To determine if a dangerous condition exists, courts generally consider housing violations, and any conditions found to exist which violate housing maintenance laws (Maresca v. 167 Bleecker, Inc., 121 Misc 2d 846)."

In evidence are three HPD inspection reports. The first is dated March 26, 2014 (Ex 7), and shows seven open violations, five class "C" violations, and two class "B" violations. The class "C" violations were for inadequate supply of gas, lack of hot water, lack of heat, and lack of access to the boiler system. The class "B" violations were for the roof and ceiling in public hall. The three class "C" violations for lack of heat, lack of hot water and no access to the boiler were placed in January 2013. The other violations were placed in February 2014. Respondents presented two more HPD violation print outs, dated April 24, 2014, (Ex J-1 and J-2), showing [*4]there were no open violations for the Subject Building as of said dates.^[FN1]

Petitioners also presented the Court with a report from an HPD inspector, dated February 3, 2014, regarding an inspection done at MacLean's request. Most of the conditions were in common areas of the Subject Premises and had been corrected as of the date of the trial. The illegal partitions were likely installed by MacLean or his predessors. The inspector further indicated the apartment needed to be painted and provide window guards.

Only two of the three Petitioners actually appeared to testify. MacLean testified that the third tenant, Bordes was ".. not doing well" and "sort of in a wheelchair" and that she "couldn't walk right now" and that was "probably" why she didn't appear for the trial. No application was made by Petitioners for any accommodation to allow Bordes to appear or testify. MacLean acknowledged he had not been in Bordes' apartment for at least eight months prior to the trial. The court does not give any weight to MacLean's testimony about conditions in Bordes' apartment.

Additionally, Petitioners failed to establish as part of their prima facie case that MacLean is a tenant of record of the third floor unit. Already the fact that only two tenants appeared to give testimony and in support of the petition makes the case weaker. The fact that MacLean's status was not established by Petitioner at trial further weakens their claim.

... the appointment of a 7-A administrator is a drastic remedy which should not be invoked without the participation of all tenants interested in the habitability of the apartments and building where they reside. The requirement of RPAPL 770(1) that at least one third of the affected tenants join a 7-A petition must be seen as a safeguard provided by the Legislature against imposition of an administrator with all that entails, at the request of only an insignificant minority of the tenants in occupancy.

An owner may defend a petition for a 7A administrator under RPAPL §775 a-c. These defenses include: that the condition does not exist or has been fixed; that the condition was caused by the tenant; or that the tenant has refused access to allow correction of the condition.

Other courts have held that Article 7-A of the RPAPL applies to IMDs (Application of the Commissioner of DHPD 131 Misc 2d 505).

The court finds that the petition should be dismissed. The appointment of an Article 7-A administrator is not warranted because any remaining uncorrected conditions are not so significant or numerous as to deprive the tenants of essential services or endanger their life health and safety (Feliciano v Kia NYLJ, June 11, 1990, p.26, col. 5, App Term, 1st Dept). Most essential services have been restored. Where, as here, Petitioners have failed to establish the existence of emergency situations, unusual circumstances or neglect by Respondents the petition is subject to dismissal (Kahn v Riverside Syndicate, Inc. 34 AD2d 515 [1st Dept, 1970]). Respondents purchased this building a little over a year ago, and since that time have [*5]taken significant steps to remedy many of the outstanding conditions, taking into account the dire state of the building on the day it was purchased. Petitioners now have heat in the building, and hot water is being provided to the tenants who have cooperated with Respondents in allowing access to their units. Additionally, the fact that the Subject Premises is an IMD means that pending the conversion, there there are going to be some conditions that are not up to code and that is expected as Respondents continue to work through the conversion process to meet the standards as set by the Loft Board.

Based on the forgoing, the Court finds Petitioner did not meet the burden under RPAPL §770, in establishing the need for a 7-A Administrator. The proceeding is dismissed pursuant to RPAPL § 776(a), based on Petitioners failure to affirmatively establish the allegations in the petition, and based on Respondents having established pursuant to §775(a) that many of the conditions alleged have been remedied and pursuant to §775 (c) lack of cooperation by MacLean in providing access for restoration of hot water.

Respondents are ordered to correct any outstanding conditions, including painting MacLean's apartment and abating any mold in the third floor apartment. In addition, Respondents should inspect and repair the bathroom ceiling, stove, electricity, floor, and hot water temperature in Salle's apartment. Further, any additional problems with the roof that may be causing additional leaks, should also be repaired.

This constitutes the decision and order of this Court.^[FN2]

Dated: New York, New York

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Sabrina B. Kraus, JHC