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Matter of 20 Beaver Street LLC
OATH Index No. 691/06 (June 25, 2007)
[Loft Bd. Dkt. No. LB-0147; 20 Beaver Street, New York, N.Y.]
Abandonment application in whichresidential occupant of fourth floor unit, alleged to have vacated the unit in 1987 or 1988, defaulted. Occupant of third floor unit opposed the application, but withdrew his opposition after reaching settlement of his claims against owner. On direction from tribunal, owner re-served application on former fourth-floor tenant with corrected name and address. Following additional notice from applicant and notice of default from tribunal, no answer filed by that tenant. Finding of abandonment recommended.
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NEW YORK CITY OFFICE OF
ADMINISTRATIVE TRIALS AND HEARINGS
In the Matter of
20 BEAVER STREET LLC,
Applicant
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REPORT AND RECOMMENDATION
JOAN R. SALZMAN, Administrative Law Judge
This application, brought by 20 Beaver Street LLC, owner of the interim multiple dwelling at 20 Beaver Street, New York, New York, seeks a declaration of abandonment of the fourth floor unit, pursuant to Article 7-C of the Multiple Dwelling Law and title 29, section 210(f) of the Rules of the City of New York (RCNY).
As set forth more fully in my Memorandum Decision of March 16, 2007, in this matter, which decision is incorporated herein by reference, counsel for petitioner wrote to Mr. “Sellers” at 20 Beaver Street, fourth floor, on August 1, 2005, after the Loft Board’s Director of Hearings, Martha Cruz,[1] notified petitioner’s counsel on July 6, 2005, that the application as filed was incomplete insofar as Mr. “Sellers” (as then identified in the rider to the original application), was not listed as an “affected party” on the front of the abandonment application as originally filed, and that the owner must exercise due diligence in making efforts to locate the former occupant. Petitioner submitted an amended abandonment application, showing Peter “Sellers” as an affected party, with an attached affidavit from Kenneth Dubow, President of Century Realty, Inc., and an investigative report on a local search for Peter “Sellers” (Pet. Ex. 5). Notice of an amended application and an opportunity to answer was served, by mail, upon Peter “Sellers,”who was later to be identified at the hearing as “Peter Sellars,” the alleged former occupant of the fourth floor, and upon Michael and Elise Dawe, occupants of the third floor, on August10, 2005. Answers were due on September 14, 2005. Michael Dawe filed an answer opposing the application on September 14, 2005. No other answers were filed.
Trial was scheduled for December 20, 2005, but was adjourned to January 23, 2006, due to the transit strike. On October 19, 2005 and December 28, 2005, combined notices of trial and notices of default were servedon all affected parties for the December 20, 2005 and January 23, 2006 trial dates, respectively. The notices of default informed those who failed to answer the application that they would be barred from participating in the proceeding unless they moved to vacate their default within 30 days. 29 RCNY § 1-06(i)(2) (Lexis 2007). Mr. Sellars did not respond to either notice. The hearing went forward on January 23, 2006.
Following the hearing, by letter dated March 7, 2006, I informed the parties that I was consolidating this matter for disposition with two other matters then pending against the same owner, a harassment application, Loft Board Docket No. TH-0178, OATH Index No. 237/06, and a diminution of services application, Loft Board Docket No. TM-0061, OATH Index No. 335/06, and that I was reserving decision on this matter until the resolution of those applications, either by settlement or adjudication. With unresolved claims by Mr. Dawe of continuing harassment and diminution of services in the building pending, I was reluctant to proceed with the abandonment disposition, given that (a) Mr. Dawe appeared pro sein this abandonment matter, but was represented by counsel as to the related claims of building-wide harassment, and (b) the pendency of a harassment application is a factor to be considered in determining an application for abandonment. See 29 RCNY § 2-10(f)(4)(vi) (Lexis 2007).
After some months of continuing settlement discussions before Administrative Law Judge Donna Merris in those other matters, followed by several more months of contentious litigation before me in those matters, I issued a memorandum decision imposing sanctions on Mr. Dawe’s attorney at that time, and a report and recommendation, on October 20, 2006, recommending dismissal of the harassment and diminution matters with prejudice, or without prejudice, but on specified conditions, for failure by Mr. Dawe and his attorneys to prosecute and for their failure to provide pre-trial discovery, failure to prepare for trial as ordered, repeated and flagrant violation of this tribunal’s pre-trial orders, and manipulation of the OATH calendar to avoid the final trial date that had been ordered in those cases. The Loft Board issued an order rejecting in part and modifying the report and recommendation, but expressed no opinion as to the attorney sanctions, and remanded those matters. Loft Board Order No. 3161 (Feb. 15, 2007). Soon thereafter, Mr. and Mrs. Dawe, represented by new counsel, and the owner settled their disputes, and the Dawes withdrew their harassment and diminution applications with prejudice, and withdrew their opposition to this abandonment application regarding the vacant fourth floor of 20 Beaver Street.[2] I forwarded their settlement agreement to the Loft Board on March 5, 2007, indicating that the abandonment application then appeared ripe for decision. However, the matter was not actually ripe for decision until after May 2, 2007, due to my requirement that additional notice be provided to Mr. Sellars.
Upon review of the record of the abandonment application for purposes of disposing of the matter, I determined that the matter could not be considered on the merits until a problem with service of the amended application upon Mr. Sellars could be addressed. I concluded upon review of the evidence that there was no way that Mr. Sellars, whose rights might be affected by this proceeding as former occupant of the fourth floor, had notice of the amended application or of the hearing because the proof at the hearing showed that his name had been misspelled, unbeknownst to the owner, and that he is a public figure more likely to be found, with additional effort, outside New York City, and because the owner’s localized search for Peter “Sellers,” under the wrong name, in New York City was too narrow and could not have succeeded. Therefore, due to my concerns about the due process rights of Mr. Sellars, I issued the Memorandum Decision on March 16, 2007,directing the owner’s counsel to make renewed efforts to locate Mr. Sellars based on testimony of Mr. Dawe at the hearing herein that Mr. Sellars is a world-renowned opera director and could be found at the University of California at LosAngeles (“UCLA”),and to correct and re-serve the application with appropriate notice of Mr.
Sellars’ right to answer.[3] The owner’s counsel, Joseph Burden, Esq., promptly followed that direction, and on March 19, 2007, wrote a letter to Mr. Sellars at UCLA concerning 20 Beaver Street, identifying himself as counsel to the owner of the building, and asking Mr. Sellars to call him upon receipt of the letter to discuss “how you came to occupy 20 Beaver Street, when you left, the circumstances of your leaving and whether you subleased the premises to any other parties including, but not limited to, Charles Liu,” and indicating that counsel needed to provide this information to the Loft Board “as soon as possible.” Mr. Burden received no response to his letter (Second Amended Abandonment Application Ex. E; Letter of Joseph Burden, Esq., dated March 30, 2007). On March 30, 2007, he filed a corrected, Second Amended Abandonment application showing Peter “Sellars” as an affected party, with proof of service on Mr. Sellars at UCLA on March 30, 2007, of the new application and of a clear notice of his right to answer. Mr. Burden notified Mr. Sellars that he had until May 2, 2007, slightly more than 30 days, to file an answer at OATH. That time has expired and Mr. Sellars has not answered.
Mr. Sellars has defaulted after the owner made more diligent efforts reasonably calculated to locate him. Counsel to the owner also made reasonable efforts, at my direction, to find one Charles Liu, who, according to Mr. Dawe’s testimony at the original hearing, was either a guest or possibly a subtenant of Mr. Sellars, but Mr. Dawe had no further information as to his identity or whereabouts (Ex. C to Second Amended Abandonment Application), and Mr. Liu could not be found in the absence of any response from Mr. Sellars himself. Nonetheless, the owner served Mr. Liu with notice of the Second Amended Application at his last known address, 20 Beaver Street (Ex. E to Second Amended Abandonment Application). On May 21, 2007, this tribunal issued a Notice of Default to Mr. Sellars and to Charles Liu, pursuant to 29 RCNY section 1-06(i), advising them that they were in default for failure to answer and that they had 30 days in which to move to vacate their defaults and seek a continued hearing. OATH has received no response from either Mr. Sellars or Mr. Liu and no mail was returned to this tribunal. Accordingly, there is no occasion to reopen the record for a continued hearing, see Matter of 20 Beaver Street LLC, OATH 691/06, mem. dec., at 9 (Mar. 16, 2007), and I proceed to consider the merits of this application without opposition from any tenant or former occupant.
At the hearing in January 2006, counsel for petitioner and Mr. Dawe appeared. Vladimir Kuznetsov, superintendent of the building, testified on behalf of petitioner, and Mr. Dawe testified on his own behalf. Although Mr. Dawe then had Lindsay J. Rosenberg, Esq., as counsel representing him in the harassment and diminution of services proceedings,Loft Board Docket No. TH0178, OATH Index No. 237/06, and Loft Bd. Docket No. TM-0061, OATH Index No. 335/06, respectively,then in the pre-trial conference stage, Mr. Rosenberg did not file a notice of appearance in this abandonment proceeding. At the hearing Mr. Dawe stated that he had spoken with Mr. Rosenberg, who would not be appearing, and that Mr. Dawehimself was prepared to go ahead with the hearing without his counsel (Tr. 8-9).[4] Although the Dawes have withdrawn their opposition to this application, the record stands, and I credit Mr. Dawe’s testimony as a witness with relevant personal knowledge, as part of the record of this proceeding, on the subject of the identity of the former occupant of the fourth floor in this building, Peter Sellars. Mr. Dawe has resided in this building more than 25 years, since 1980 (Pet. Ex. 2), and he spoke with Mr. Sellars before the latter vacated the building. Mr. Dawe’s testimony and representations about Peter Sellars’ identity are undisputed.
For the reasons discussed below, I find that petitioner has satisfied its burden of proof and recommend that the abandonment application forthe fourth floor unit be granted.
ANALYSIS
Under the Loft Board rules:
An owner or its authorized representative may apply to the Loft Board for a determination that the occupant of an Interim Multiple Dwelling (IMD) unit has abandoned the unit and no sale of rights pursuant to Multiple Dwelling Law § 286(12) or sale of fixtures pursuant to Multiple Dwelling Law § 286(6) has been executed, provided there has been no finding of harassment as to any occupant(s) of the unit, which has not been terminated pursuant to § 2-02(d)(2) of the Board’s Harassment Regulations.
29 RCNY § 2-10(f)(1)(i) (Lexis 2007). The rules define abandonment in pertinent part as “the [voluntary] relinquishment of possession of a unitand all rights relating to a unit . . . with the intention of never resuming possession or of reclaiming the rights surrendered.” 29 RCNY § 2-10(f)(2). Pursuant to section 2-10(f)(4) of the Loft Board’s rules, a number of factors may be considered in determining whether a unit has been abandoned:
In deciding whether a unit has been abandoned pursuant to [29 RCNY § 2-10(f)(2)(i)] above, the Loft Board may consider, inter alia, the following factors: (i) the length of time since the occupant allegedly abandoned the unit;(ii) whether the occupant owed rent as of the time the occupant allegedly abandoned the unit and whether court proceedings to attempt to collect this rent have been installed;(iii) whether the occupant’s lease for the unit has expired;(iv) whether the occupant provided notice of an intent to vacate or requested permission to sublet the unit for a specific period of time;(v) whether the unit contained improvements which were made or purchased by the occupant and whether the occupant was reimbursed for those improvements;(vi) whether any prior harassment findings have been made by the Loft Board concerning the occupant(s) of the unit or whether any harassment application remains pending;(vii) whether any violations or notices to appear pursuant to the Loft Board's Minimum Housing Maintenance Standards have been issued; (viii) whether the owner has made affirmative efforts to locate the occupant to attempt to purchase rights pursuant to Multiple Dwelling Law §286(12) or improvements pursuant to Multiple Dwelling Law §286(6); and(ix) whether an inspection of the unit by the Loft Board staff indicates that the unit is presently vacant.
29 RCNY § 2-10(f)(4).
Mr. Kuznetsov testified that he has worked for Century Realty, the managing agent of petitioner, since August or September of 1990, starting as a building superintendent for a number of Century’s properties, including 20 Beaver Street. He also testified that when he first visited the fourth floor in 1990, the apartment was unoccupied and full of “junk.” Thereafter, Mr. Kuznetsov would visit the apartment almost monthly, and throughout that time the apartment remained vacant.[5] In 1997 or 1998, he and other workers cleaned the clogged roof drain, cleared the fourth floor apartment, removed the partitions and kitchen cabinets, and “knocked down” and cleaned the bathroom area so that the apartment is now a single open space. Mr. Kuznetsov testified that when he first visited the building, the door to the fourth floor was always unlocked, but that he and his co-workers thereafter installed a lock for the apartment. They currently use the fourth floor as a staging area for other work in the building (Tr. 14-20). Mr. Dawe confirmed that the fourth floor unit contained “a lot of junk” and that the owner demolished the interior years after Mr. Sellars was gone (Tr. 31-32).
Petitioner submitted as Petitioner’s Exhibit 2 a coverage application filed with the Loft Board by Mr. Dawe on October 15, 1991. In the application, Mr. Dawe stated that the fourth floor unit was occupied by “Sellersfrom 1983 to 1988.” Thus, Mr. “Sellers” was among the occupants of the building listed as entitled to protection. In Loft Board Order No. 1403, dated March 3, 1993, the Board held that 20 Beaver Street was an interim multiple dwelling, consisting of three residential units (the second, third and fourth floors) covered by the Loft Law(Pet. Ex. 3).
Kenneth Dubow, President of the owner, Century Realty, Inc.,submitted an affirmation,sworn to August 1, 2005, that he has been employed as managing agent of 20 Beaver Street since 1990, and that to his knowledge Peter “Sellers”(whose name he recalled seeing in the file “many years ago”) vacated the fourth floor in or about 1987 or 1988. Mr. Dubow stated that there was “no indication in the fileas to where Mr. Sellars moved.” Mr. Dubow further stated that the fourth floor has not been rented or occupied in the years he has been managing the building (Pet. Ex. 5). The narrative statement dated March 21, 1996, shows that the fourth floor is designated as “commercial” and that no work is required in that unit (Pet. Ex. 6; Tr. 23-24, 26-27).
Mr. Dawe testified that a man named Charles Liu was in fact the last person to live in the fourth floor unit. Mr. Dawe said that Mr. Liu made “some kind of arrangement” with Mr. Sellars to live in the space, but that Mr. Liu left in 1988 (Tr. 28-29). There was no indication that Mr. Liu was a protected tenant or sublessee. As noted, even Mr. Dawe, in his 1991 Loft Board application for coverage and a rent adjustment, listed “Sellers,” not Mr. Liu, as the last occupant entitled to protection in the fourth floor unit from 1983 to 1988 (Pet. Ex. 2).
Mr. Dawe also testified that Mr. Sellars had left 20 Beaver Street in 1988 or even before that, in 1987, and that Mr. Dawe had not seen Mr. Sellars after 1990, when Mr. Sellars shot a film in the vacant fourth floor space:
MR. BURDEN: After 1988 do you know where Mr. Sellars was staying?
MR. DAWE: No. Actually, I do. He was in Washington, D.C.
MR. BURDEN: So after he moved out of this building he moved to Washington, D.C.?
MR. DAWE: Yes. He moved to direct the KennedyCenter for the Performing Arts in Washington, D.C. and was director of that for a while.
(Tr. 30-32; 33-34).
Mr. Dawe raised complaints about petitioner’s legalization efforts and maintenance issues occurring in 1999, more than a decade after Mr. Sellars’ departure (Tr. 27-28). However, Mr. Dawe did not testify that Mr. Sellars left the building because of acts of harassment by the landlord, nor that any of the claims in the then-pending harassment proceeding brought by Mr. Dawe as third floor tenant related to acts of harassment directed at Mr. Sellars, nor that any such acts constituted a continuing course of conduct that would toll the statute of limitations set forth in the Loft Board’s rules for harassment proceedings. 29 RCNY § 2-02(c)(2).
Most significant for the purposes of the instant application,Mr. Dawe testified that when Mr. Sellars left, he moved to Washington, D.C. to become the Director of the KennedyCenter for the Performing Arts (Tr. 32-33). Thus, the only proof was that Mr. Sellars intentionally left 20 Beaver Street to take an important job in Washington. I found Mr. Dawe’s testimony on this point to be credible, based as it was on his relationship with Mr. Sellars as a neighbor and resident of the building and on Mr. Dawe’s personal knowledge from his own conversations with Mr. Sellars. Mr. Dawe represented on the record early in the proceedings that he had talked “extensively” with Mr. Sellars about why Mr. Sellars left, and that Mr. Sellars told him the reason he left (Tr. 7). Whether Mr. Dawe has the precise chronology of Mr. Sellars’ career exactly right (cf.Exhibit D to the Second Amended Abandonment Application, website pages concerning Mr. Sellars’ career, suggesting that he may have vacated the building earlier, in or about 1986 or 1987) is not clear, but Mr. Dawe had no doubt that Mr. Sellars left to run a renowned theatre in Washington, D.C. in the 1980’s. This testimony was strong evidence that Mr. Sellars, the former occupant of the subject fourth floor unit, left, not because of harassment, but vacated the building voluntarily to advance his career.