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Know Your Rights
Source: New York Times
Subject: Housing & Environmental Justice
Type: Media Coverage

A Year After Suing Their Landlord, Brooklyn Tenants Still Lack Heat

Two weeks ago, a city housing inspector visited an apartment on the fourth floor of 940 Prospect Place in Brooklyn and issued a violation to the landlord for inadequate heat. The visit was nothing new — since December 2013, residents of 940 and the adjoining building at 930 Prospect Place have made more than 100 complaints about lack of heat or hot water.

One year ago, when the polar vortex brought record low temperatures to the city, I reported on conditions in the two buildings, including a frigid bedroom where a 6-year-old girl with severe respiratory problems breathed through a ventilator. At the time, the tenants had some hope for respite: They had a lawyer and a date in Housing Court the following week. Surely a resolution was at hand.

Twelve months later, the case is continuing and conditions have not improved, according to residents.

“My question is, why hasn’t anyone from H.P.D. come in and made sure we have heat?” said Vernaline McFarlane, 46, using the initials for the Department of Housing Preservation and Development. “All we are asking for is heat.”

Court dates have been adjourned, motions argued, testimony given, new violations documented. In the clogged, forlorn courthouse on 141 Livingston Street in Downtown Brooklyn, full-day sessions have sometimes lasted less than three hours. Afternoons have evaporated as lawyers pondered questions like whether a city-certified master plumber was qualified to testify about the pipes in a steam heat system.

One thing lawyers on both sides agree on: Compared with other cases in Housing Court, this one is moving quickly.

“It’s really upsetting, because there is a court system set up to make this happen in an expeditious manner, and everyone agrees it’s not working,” said Paris R. Baldacci, director of the housing rights clinic at the Benjamin N. Cardozo School of Law. Mr. Baldacci, who is not a party in the 930-940 Prospect Place case, said there was no reason the court could not resolve cases like it in a couple of days.

“The inspector comes in once a month and finds there’s no heat,” he said. “That’s a relatively easy issue to resolve. But it’s for the most part almost on sleeping pills. There’s a culture that’s developed that slows it all down and misses the seriousness of it. It’s crazy and unfair.”

How does a simple heat complaint, confirmed by city housing inspectors, take more than a year to resolve?

For many tenants stuck in cold apartments, Housing Court is, on paper at least, the place where they can meet their landlord on equal footing. In practice, tenants and lawyers say, it can feel more like a black hole where complaints languish, city agencies lack enforcement powers and delay seems to be the rule.

“Sometimes cases go on and on, and everyone has a bit of a hand in why,” said Justice Fern A. Fisher, the deputy chief administrative judge for New York’s courts. “The system is a complicated system; we don’t disavow that. We don’t want any case to take long. But sometimes factors make it go on.”

One way to view Housing Court is from the sidewalk outside, where on a January morning after a long holiday weekend, a restive line of several hundred people snaked around the block, waiting to get in the front door. From there they waited to pass through metal detectors, then on to a bottleneck at the elevators.

The State Legislature created Housing Court in 1972 as a quick and efficient vehicle to enforce housing codes. But almost from the start, the court was overrun by lawsuits brought by landlords to remove tenants. In each borough, only one judge hears cases against landlords; the other judges — in Brooklyn, about a dozen — hear cases for eviction.

In Room 409 in Brooklyn, where Judge Marina Cora Mundy heard the Prospect Place case, 30 to 40 cases compete for time on her docket every day. Tenants in eviction cases clogged the hall outside.

“Brooklyn Housing Court is the worst building,” said Luis Henriquez, a supervising attorney at Make the Road New York, a group that works on immigrants’ issues, including housing. “It’s not designed to be a court. The elevators are awful. All these obstacles exacerbate the imbalance between landlords and tenants.”

The courthouse’s owner has appeared on the public advocate’s watch list of worst landlords for violations in buildings he owns in Flatbush.

The owner of the Prospect Place buildings, Seth Miller, is on the list, too, for two buildings his companies own in the Bronx.

The Prospect Place tenants sued on Dec. 17, 2013, asking the court to order Mr. Miller, who bought the two buildings out of a bankruptcy proceeding in 2012, to make repairs and pay civil penalties.

The housing department filed separate suits against him, seeking $250 per day that any heat violations remained open.

On Jan. 14 of last year, four weeks after the tenants brought their suit, Mr. Miller agreed to provide essential services, including heat and hot water, and Judge Mundy adjourned the case.

To appearances, justice had been served, swiftly and voluntarily. Residents received a flier under their doors telling them that the heating system was functioning well, “despite the vocal efforts of a few occupants to try to distract attention from their legal issues in Housing Court.”

But nothing changed. Within a week, tenants called 311 with more heat complaints, and on Jan. 22 a housing inspector issued a violation for inadequate heat in a first-floor apartment in 940 Prospect Place. The next day, the tenants’ lawyers filed a motion to hold Mr. Miller in contempt for not complying with the court-ordered stipulation to provide heat.

The contempt motion added new hurdles and more delays. The court denied the motion; tenants moved to reargue, based on continued violations. On April 25, the judge granted their motion and scheduled testimony to begin June 3, nearly six months after the original heat suit was filed.

The winter had come and gone without a resolution. So had part of the summer, as the June 3 court date slid to July 23.

New Yorkers made 120,136 complaints for inadequate heat and hot water last fiscal year, up 10 percent from the previous year.

When a resident calls 311 with a heat complaint, the call goes to the Department of Housing Preservation and Development, which automatically notifies the landlord. Two or three days later, the agency is supposed to send an inspector to the apartment that called in the complaint. If the resident is at home when the inspector arrives, and if the apartment is cold at the time, the inspector can issue a violation, giving the landlord 24 hours to repair the condition. The agency issued 12,352 violations for heat and hot water in fiscal year 2014, roughly one for every 10 complaints.

Violations alone do not mean penalties. Unlike city agencies that regulate parking or sanitation, the housing department cannot directly assess fines; instead, it must seek them in Housing Court. Even then, Mr. Henriquez of Make the Road said, civil penalties are usually reduced in negotiations between the landlord and the agency. “When landlords know that,” he said, “that incentivizes a culture of noncompliance.”

Last winter, the department brought 4,333 heat and hot water suits, collecting $3,244,041 in fines, an average of $749 per case (or $27 per complaint).

A 2003 study by a tenant advocacy group called the City Wide Task Force on Housing Court (now Housing Court Answers) found that in cases initiated by tenants, only 2 percent in the study resulted in fines for the landlord.

On a rainy morning in mid-December, lawyers for both sides of the Prospect Place suit were scheduled to appear before Judge Mundy at 9:30 a.m. for a full day of testimony. The court session began at 10:32 and broke before noon. When the parties reconvened at 2:30 p.m., the landlord’s lawyer announced that his witness was not present, so court adjourned.

The next date was scheduled for three weeks later. That date, too, would be adjourned. As would the next.

At a Dunkin’ Donuts near Housing Court, Stephanie Rudolph, one of the lawyers representing the tenants for the nonprofit Urban Justice Center, shook off the dreary weather and pace of the court case. “Time definitely isn’t on the tenants’ side in a case like this,” she said.

“It’s very frustrating,” Ms. Rudolph said. “Whatever is supposed to deter the landlord is not forthcoming, and it may be spring before there’s a ruling.”

If the tenants eventually prevail, any fines will go to the housing department, not the residents.

Mr. Miller’s lawyer, Todd Rothenberg, said that although the case might seem to be on a slow track, this was true of many legal proceedings. “Thirteen months as legal cases go is not a long time,” he said.

Ms. McFarlane was one of several residents who spent time in court during the trial, chafing at the slow progress.

“Why should we have to take him to court?” she asked during a break in testimony. “This is H.P.D.’s job. Why should we have to take time off from our jobs to be here?”

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The frustration of a year in court ran through the lobby of 930 Prospect Place, where residents met with a tenant organizer from the Pratt Area Community Council. The colonial revival-style building and its identical twin dot a neat block near the Brooklyn Children’s Museum that has seen an influx of students and young professionals.

To the tenants in the suit, most of whom pay below-market rents, the case is about not just heat, but also gentrification. Mr. Miller has brought suits to remove residents from nearly one-third of the buildings’ 32 apartments, challenging their leases’ validity or claiming other grounds.

In a first-floor apartment, Max Mecklenburg and Sara Duvisac paid $1,750 in rent — two or three times as much as their neighbors. When Mr. Mecklenburg, who is part of the suit, complained about the cold, Mr. Miller installed an electric heater for which the building provided electricity. He told Mr. Mecklenburg in an email, “To be quite frank, I would appreciate it if you would stop making complaints to H.P.D. or tenant organizers.”

Other tenants got no such relief. Malaika Quashie, 27, said she was back to using the oven to warm her apartment, even though she knew it posed a fire risk.

Last winter, she said, her employer suspended her for missing too many days when her 1-year-old daughter got recurrent colds.

“It’s been going on so long, it’s like he knows nothing is happening,” Ms. Quashie said of Mr. Miller. “So he’s just gonna continue until he gets penalized for what he’s doing.”

“He knows most people won’t stay in the cold,” she added. “Right now, he don’t expect us to continue fighting him. We pay $536 for a one-bedroom. He said, ‘I can get $1,350 for the apartment; I’m gonna get you out,’ and he left. It’s just stressful. All we want is to be in our apartment, with heat, peacefully.”

Elizabeth Darius, who has lived in the building 34 years, said she used a space heater every day, even though it drove up her electric bills.

Mr. Miller, in an email, denied that he withheld heat to get residents to move out, saying the heat complaints were retaliation against him for bringing eviction cases.

“If tenants do not have the right under the law to occupy an apartment, of course we want them to move,” he wrote. “In such circumstances we take legal action, not illegal action. Any implication that we withhold services to accomplish these ends is simply untrue.”

In court, Mr. Miller and several witnesses testified to extensive repairs to the buildings, which had hundreds of violations when he bought them.

Ms. Rudolph, the tenants’ lawyer, called his lawsuits frivolous, brought to harass tenants. “They have to go to court, and he doesn’t show up,” she said. Yet her firm did not have the manpower to sue for harassment, Ms. Rudolph said. Most newer tenants did not join the suit, Ms. Rudolph added, because they did not plan to settle in the building and did not want to be branded as troublemakers.

At the meeting, tenants described the same heating pattern they had a year earlier: The radiators warmed the apartments for a few minutes in the morning, then again briefly at night, with no heat in between. Weekends were sometimes without heat altogether.

“I know when the heat comes on because there’s a leak in the radiator upstairs, and it drips into my apartment,” said Ella-Mae Maurice-LaCroix, 48, an Army logistics officer. “Yesterday it came on at 7 in the evening, 2 in the morning and 9:45, for five minutes each time.”

The pace of the court case was “unsettling,” she said. “You don’t know from one day to the next what’s going to happen,” Ms. Maurice-LaCroix said. “My 75-year-old mother can’t visit. I’m always waiting for the other shoe to drop. We’re always going back to court, and some judge could see his side of it.”

Thirteen days of testimony stretched from July until this week. Days were short and infrequent, falling into a numbing rhythm.

June 3: adjourned for a scheduling conflict (no testimony).

July 23: one witness (95 minutes of testimony).

July 24: one witness (41 minutes).

Aug. 25: no testimony.

Sept. 15: one witness (65 minutes).

Oct. 9: one witness (79 minutes).

On Jan. 12, as testimony neared an end, Mr. Rothenberg, the landlord’s lawyer, added yet another turn: The past months of testimony, he argued, applied only to the contempt motion, not to the tenant’s original complaint or to the housing department’s suit. Those, he said, would have to be argued from the top after Judge Mundy decided the contempt case — the same facts, the same witnesses.

Was he right? After so long in court, no one quite knew the answer.

Judge Mundy said she would review the record and rule on Mr. Rothenberg’s contention in February. Then she would decide whatever case was at issue.

Vito Mustaciuolo, deputy housing commissioner for enforcement and neighborhood services, said the case lacked the urgency of others on the docket because it was about past contempt, not a nonfunctioning boiler or another condition in need of immediate action. “Civil penalties are effective, but our primary focus is on compliance,” he said.

On Jan. 18 and 19, tenants called 311 with more heat complaints.

During his testimony, Mr. Miller said that his company erred on the side of providing excess heat, but that tenants left air-conditioners in windows, or opened windows before the housing inspectors came.

To tenants, this was just the latest insult.

“He’s making a mockery of the judicial system,” Ms. Maurice-LaCroix said. “He knows how long a housing case can take.”

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