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Shelter Inc. Realty v. City of New York

January 4, 2007


The opinion of the court was delivered by: Trager, J


Shelter Inc. Realty, Jack Safos and Matthew Safos (collectively, "plaintiffs") bring this action pursuant to 42 U.S.C. §§ 1981, 1983*fn1 and 1985 against The City of New York ("the City"), The City of New York Department of Buildings ("DOB"), Community Board 14, Jonathan Gaska, District Manager of Community Board 14, individually and in his official capacity, and James Leonard, former Borough Commissioner of DOB for the Borough of Queens, individually and in his official capacity (collectively, "defendants"). Plaintiffs allege that defendants unfairly targeted them for enforcement of housing code violations because plaintiffs rented their properties to minorities. Plaintiffs charge that defendants' selective enforcement of the housing code violated plaintiffs' Fourteenth Amendment equal protection rights, Fifth Amendment due process rights, First Amendment free speech and free association rights, the Fair Housing Act, 42 U.S.C. §§ 3601 et seq., New York Executive Law § 296 et seq., New York State Human Rights Law § 290 et seq. and the New York City Human Rights Law, N.Y.C. Admin. Code Title 8. Plaintiffs seek (1) compensatory and punitive damages in the amount of five million dollars each, (2) declaratory judgment regarding the legal occupancy of one of their properties and (3) a permanent injunction enjoining defendants from taking enforcement action against that property on the basis of illegal occupancy. Defendants have moved for summary judgment on all claims. For the following reasons, the motion is granted.


Plaintiffs Jack Safos and Matthew Safos are officers of plaintiff Shelter Inc. Realty. In or about July 1998, plaintiff Shelter Inc. Realty purchased a Single Room Occupancy ("SRO") property located at 175 Beach 115th Street in Rockaway, Queens, New York (the "Beach 115th Street SRO"). Plaintiffs Jack and Matthew Safos are also officers of 113 Rock Hotel Corp. or Rock Hotel Corp. In or about 2000, 113 Rock Hotel Corp. purchased an SRO located at 147 Beach 113th Street in Rockaway, Queens, New York (the "Beach 113th Street SRO"). Plaintiffs rented rooms in both SROs on a month-to-month basis, primarily to minorities. After purchasing these properties, plaintiffs allege that they were continuously harassed by the defendants' issuance of numerous building code violations. In addition, the City issued a vacate order for the Beach 115th Street SRO on February 8, 1999. Plaintiffs allege that these actions were taken as a result of defendants' racially-motivated selective enforcement practices.

A strikingly similar case was brought by a different plaintiff in the same community which involved many of the same defendants and raised many of the same issues of law. See Andrews v. City of New York, No. 01-cv-7333 (E.D.N.Y. Nov. 22, 2004) (Sifton, J.). Therefore, much of the explanatory background that follows is drawn from that case, as many of the facts are not only identical but also gleaned from some of the same affidavits and depositions, which were submitted in both cases.

(1) Department of Buildings

The DOB "is an agency of the City responsible for ensuring compliance with the regulations and codes pertaining to building construction safety, certificates of occupancy, zoning, alteration and renovation of building structures." Andrews, slip op. at 3. To enforce the regulations and codes, building inspectors can issue summonses and commence criminal proceedings for violations. In some cases, the DOB may issue vacate orders "when a property presents a danger to the health and welfare of the inhabitants or others." Id.

Charles Fraser was the Assistant Commissioner for Enforcement at the DOB from November of 1998 to November of 2003. According to Mr. Fraser, inspections are, for the most part, complaint-based. In other words, the DOB generally inspects a property only when it has received a complaint. The DOB is required by law to maintain records of complaints and "cause all complaints to be investigated." NYC Code § 26-104. Records indicate the name and address of the complainant, the name of the person complained of, the date of entry of the complaint and any suggested remedies. The records do not include the racial makeup of tenants in the complained of buildings. All information, excluding the name and address of the complainant, is available to DOB staff and the public. If an inspector finds a code violation, one or more tickets will be issued.

A field inspector can also issue a vacate order when a building is "dangerous or detrimental to life or health." NYC Code § 26-127(a). According to Mr. Fraser, however, vacate orders are generally not issued by field inspectors, but rather by the borough commissioner after receiving a recommendation to vacate from the inspector. Regardless, a field inspector can post a vacate order on the building if necessary. See NYC Code § 26-127(b). If a vacate order is posted, "officers and employees of the police department, the department, and other authorized officers and employees of the city shall immediately act upon and enforce such order." NYC Code § 26-127(c). An order to vacate can be rescinded if the owner "provides assurance, in a form satisfactory to the commissioner, that the conditions which caused the issuance of such order have been corrected and will not reoccur." NYC Code § 26-127(f).

James Leonard was the Borough Commissioner for the DOB in Queens from August 3, 1998 until September 29, 2001. In 2001, Mr. Leonard was indicted for professional misconduct and offering a false instrument related to a property in Middle Village, Queens. Mr. Leonard allegedly destroyed a DOB file for a home in Queens and obtained a "blind" inspector for the same property. The indictment was subsequently disposed of pursuant to a plea agreement.

(2) Community Board 14

Community Board 14 was formed pursuant to the City Charter and serves as an intermediary between the community and city agencies to assist in dealing with quality of life issues in Rockaway Park, among other neighborhoods. Community Board 14 responds to complaints received from members of the community. The Community Board contacts the DOB about complaints via telephone, letter and the internet. The Community Board has a limited and advisory role. Around March of 2003, the racial makeup of Community Board 14 was about 55% white and 45% black and Latino.

Jonathan Gaska (previously named improperly as "Glaska") is and was at all times relevant to this complaint the District Manager of Community Board 14 in Queens. The District Manager of Community Board 14 is not a policy-maker for the Community Board. Mr. Gaska acts on behalf of the Board and follows their policy. According to Mr. Gaska, the community was particularly concerned with repeat offenders of housing codes. Mr. Gaska does not believe that any complaints received by the Community Board, including those regarding plaintiffs' properties, were racially motivated. Plaintiffs disagree.

(3) Special Enforcement

At some point during the time relevant to this complaint, an Illegal Conversion Task Force ("Task Force") was created by the office of the Queens Borough President to address illegal conversions of residential properties that were causing health and safety issues. Illegal conversions involving SROs pose special fire safety dangers, because they tend to be high-density buildings, the tenants often use potentially unsafe cooking devices due to a lack of kitchen facilities and the structures are often old and wood-framed.

Plaintiff Matthew Safos was included on a list of "major offenders" created by the DOB. According to Assistant Commissioner Fraser, this list consisted of property owners who owned multiple properties in diverse areas with numerous uncorrected buildings violations, including illegal conversions. According to Mr. Safos, plaintiffs restored, repaired and maintained their buildings to avoid violations. When the list of major offenders was originally created, there were seventy-two non-compliant properties on the list. By February 2001, only fifteen remained non-compliant, and none of these fifteen properties were owned by Matthew Safos.

According to DOB Assistant Commissioner Fraser, there was no interest or inquiry into the race or ethnicity of the tenants of major offenders. In addition, Mr. Fraser asserts that race played no role in any of the enforcement activities undertaken by the City or any of its agencies in connection with the plaintiffs' properties. Plaintiffs disagree. Plaintiffs, however, acknowledge that no statements were ever made by Borough Commissioner Leonard or Community Board District Manager Gaska suggesting that race played a role in the City's actions. Plaintiffs also admit that no threats were ever made by any City employee about renting to minority tenants. Nonetheless, plaintiffs contend that statements made to them by community board members, accompanied by the City's actions, were demonstrative of Mr. Leonard and Mr. Gaska's intentions and motivations.

(4) The Vacate Order

On Saturday, February 6, 1999, Inspector Thomas Connors inspected the Beach 115th Street SRO, which was one of the locations listed on his daily "route sheet." According to the hand-written records in Mr. Connors's possession, the building had a legal occupancy of twenty-eight class B rooms. Class "B" rooms are designed primarily for transient occupancy. See N.Y. Mult. Dwell. Law § 4(9) (McKinney 2001). Mr. Connors observed a total of thirty class B rooms in the building. Due to the additional rooms observed, Mr. Connors issued a notice of violation for illegal occupancy. Plaintiffs assert that the two extra rooms were storage rooms and not bedrooms.

Mr. Connors also observed a wraparound porch in disrepair and issued a second violation for failure to maintain the porch. Although plaintiffs do not agree with Mr. Connors's characterization of the porch's physical condition, they acknowledge that a notice of violation was issued. Plaintiffs state further that they made the appropriate repairs in compliance with the notice.

On Monday, February 8, 1999, Inspector Connors provided Borough Commissioner Leonard with a copy of the two notices of violation. Mr. Leonard reviewed the records upon which Mr. Connors had based his inspection. Mr. Leonard observed that at least one of the hand-written records appeared to have been altered. Although the document stated that the 115th Beach Street SRO had a legal occupancy of twenty-eight rooms, it looked as though someone had, at some point, written a different number over the original number on the record. Plaintiffs agree that the records were altered but further assert that Mr. Leonard himself altered them.

In any event, Mr. Leonard asked the Department of Housing Preservation and Development of the City of New York ("HPD") to search their records and determine the correct legal occupancy of the Beach 115th Street SRO.*fn2 HPD computer records reflected that the legal use and occupancy was fourteen class B rooms and one class A apartment to be occupied in the summer only. Plaintiffs acknowledge this computer record but give it no weight and suggest that Mr. Leonard altered the computer records as well. Plaintiffs produce no evidence in support of this contention other than pure conjecture.

Based on the HPD computer record, Mr. Leonard determined that there were more than twice as many class B rooms as legal occupancy allowed. Mr. Leonard found that this overcrowding in a wood structure such as the Beach 115th Street SRO would not permit a safe and prompt evacuation of the tenants in the event of a fire. Therefore, Mr. Leonard stated that the Beach 115th Street SRO presented imminent danger to the occupants. Plaintiffs suggest that since Mr. Leonard had not personally observed the property, he was not properly situated to make such an assessment. The actual occupancy and the materials used in the structure of the 115th Beach Street SRO, however, are not in dispute. Thus, ...

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