By Chris Lombardi

After two days of emotional testimony from SRO tenants back in June, an administrative law judge ruled last week that there was no evidence of tenant harassment by management at the Hotel Breslin. The verdict could clear the way for management to convert many of the Breslin’s rooms to high-end transient use, possibly putting long-term tenants at risk of losing their homes.

In her ruling issued last Wednesday, Judge Faye Lewis, of the city’s Office of Administrative Trials and Hearings (OATH), stated that she believed some, but not all, of what tenants had charged in the June 5–7 hearing. But overall, she wrote, the tenants “failed to establish harassment.” Therefore, Lewis ended her 30-page statement, “application for a certificate of no harassment should be granted” to the Breslin management.

To Breslin lease-holder Edward Haddad, those words meant that he could plan long-delayed renovations, since the city’s Department of Housing Preservation and Development (HPD) usually does what such judges recommend. To many tenants—dozens of whom had spent the past year having long meetings, going floor-by-floor to share information, presenting testimony to attorneys—those words were devastating.

The 103-year-old Breslin, traditionally a place for both transient visitors and long-term tenants, had over the years become solely a single-room occupancy hotel; in recent years, many writers and craftspeople had created a sort of artists’ colony there. If Haddad and his partners at GFI Realty Services are ultimately granted the certificate of no harassment (CONH) by HPD, they can continue to “create vacancies,” as they call it, slowly emptying the building of as many tenants as possible. For that, they can thank their attorneys at the giant land-use firm Belkin, Burden, Wenig and Goldman.

The 18-year-old law firm, whose clients include major hospitals, banks and universities as well as developers like Donald Trump and the Rockrose Corporation, has been a constant presence in New York’s battles over land use and zoning for years. The firm even secured a seat this year on the Rent Guidelines Board, three years after founding partner Joseph Burden was suspended from practice for three months by a New York State appeals court in 2004 for “conduct involving dishonesty, fraud, deceit or misrepresentation.”

The firm is a notable foe of tenant advocates throughout the city. Attorney Kara Rakowski, who presented the Breslin case on behalf of Haddad and GFI, is known by advocates as the face of the “phony demolitions” at 7 Dutch St. and 131 Duane St., downtown, where tenants were forced to move out on false pretenses in 2004 and 2006. She is routinely named an “expert” on the rent laws in real estate publications, and her firm’s quarterly newsletter, “Update,” which she co-edits, advised landlords in January 2004 that tenants do not have to be paying $2,000 for their apartment to be taken out of stabilization, implying that there are other means of de-regulating apartments before they hit that de-control threashold.

Susan Cohen, one of the attorneys advising the Broadway Breslin Tenants Association, acknowledged the niche that Rakowski carved out for herself, and that by representing high-net-worth clients, she can more easily focus on a few high-profile cases at a time. (Rates for real estate lawyers nationally exceed $750 an hour.)

Such was not the case for the HPD attorneys assigned to the case. Press Secretary Seth Donlin told Chelsea Now this week that the entire legal staff of the agency’s Housing Litigation Division numbers “about 40.” According to data obtained by the office of Public Advocate Betsy Gotbaum, in fiscal year 2005 HPD’s lawyers initiated 12,662 cases, only some of which can be assumed to have closed in the same year. These cases include individual housing court appearances, harassment cases under HPD’s new anti-harassment division and CONH proceedings such as the Breslin’s. Those on the Breslin case were not available to talk to Chelsea Now while the case is still officially open, said Donlin.

At the City Council’s Spring 2007 hearings on HPD’s budget, Gotbaum urged the Council to “make funding available to HPD to hire additional housing litigation attorneys,” noting that “without the threat of penalties, landlords will have very little reason to comply with the housing maintenance code…. To ensure that landlords are dealt with effectively, more resources need to be placed within the Housing Litigation Division.” On the same day in front of the City Council Finance Committee, Susan Cohen of Manhattan Legal Services, who is working with the Breslin tenants, testified, decrying planned cuts in funding for legal services for low-income people.

Legal resources are especially critical in housing cases, given the often multiple testimonies and the need to provide nitty-gritty evidence of the facts. An imbalance in such resources may have been a factor in this week’s decision.

Judge Faye Lewis, the OATH hearing officer who decided the case, has often ruled against building owners, as when she affirmed Soho’s “loft law” in 2005. Earlier this year, she actually revoked a previously issued CONH belonging to Larry Tauber of Chelsea Partners, giving a victory to longtime tenant and advocate Daniel Peckham. As Chelsea Now reported on a little more than a month ago, Lewis ruled in another SRO tenant case that “through interruption and discontinuation of essential services and at least one instance of verbal harassment, Tauber intended to provoke the tenants into vacating their apartments.”

In her 30-page decision on the Breslin, Lewis often compares events at the Breslin with such earlier cases, many of which involved extreme circumstances such as “pit bulls in hallways” and “shutting off water.” And after “careful scrutiny of witness testimony,” she writes that she found the Breslin tenants’ case lacking in substantial, credible evidence of harassment.
In many ways, Lewis’ ruling was an assessment of whom she believed: the tenants and their tales of woe, or the managers who said most of the repairs were on track and denied they had tried to intimidate anyone.

The word “credible” appears on almost every page. As Lewis reports tenants’ complaints about heat, garbage pileups, inadequate repairs and intimidation by managers offering buyouts of the apartments, her decision also assesses each witness in surprisingly personal terms. She cites as believable one male tenant “who testified in a more subdued manner” over several women “who seemed to have a tendency to exaggerate” and used “colloquial and imprecise” language to describe events. The judge then listed, for each, how much of their testimony she “credited” as being truthful.

For the owner’s representatives—Breslin building manager Robert Carolan and employee Vincent Carolina, and GFI associate Adam Cassidy—Lewis states she “credited much of [their] testimony,” whereas for tenants it was usually “some” or not at all.

Lewis also evaluated most of the external evidence (complaints to 311, photographs) as supporting the owners’ position. After one witness presented a cell phone bill as evidence of harassing phone calls made by Cassidy, Lewis presents her own theory about the calls on the bill, different from those presented by either side. She downgrades numerous tenant accounts of weeks with no heat by citing that 2006–2007 calls to 311 about heat seemed limited to March 2007, without noting that unusually warm December-January or the single-digit temperatures of early March (8 degrees Fahrenheit, according to the National Weather Service). And her summary leaves little doubt as to whom she believes.

“According to [building manager] Carolan, no tenants were told they would have to leave,” Lewis writes, dismissing tenants’ testimony to the contrary.

At press time, Haddad and GFI were still refusing to talk to Chelsea Now. GFI spokesman Linda Novellino accepted Chelsea Now’s congratulations on the victory: “Thank you…but I just can’t comment.” Meanwhile, the Breslin tenants were regrouping, hoping to make that victory short-lived.

While HPD follows the direction of OATH’s lawyers most of the time, the fact that no CONH has yet been issued offers a small opening to the tenants and their counsel.

“A lot of our information didn’t get into evidence, so the judge never heard it,” said Stephen Colvin, president of the Broadway Breslin Tenants Association, on Wednesday. “We have many other facts that the judge never heard, and that we expect to use in the future as we move forward.”

The association was meeting furiously in Cohen’s tiny Water Street office at press time, trying to plan the next step with the ammunition still available to them. Key among their contentions: “We [also] think the judge incorrectly interpreted the definition of ‘harassment,” said Colvin, speaking for the association.

“Right now, we’re reviewing our options,” said Susan Cohen, who represents the association. “The fight is not over.”