New York's Cooperative and Condominium Community
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It may not be your fault, but it could become your problem.
It began on a pleasant afternoon last fall, when Ming Virasami took her 14-month-old daughter, Natalie, out for a stroll. She paused to rest on a bench in one of the well-groomed courtyards at their Clinton Hill Co-op, a 12-building, 1,213-unit development spread across two campuses near the Brooklyn Navy Yard. Suddenly a man sprinted toward them, jumped in the air and flicked a lit cigarette at the child’s face, then spun and walked away. Virasami said she was “terrified” and “frozen with fear.”
Two days later, Virasami and her husband, Bryan, were walking their daughter when the man reappeared. “He stopped and pointed at us while shouting expletives,” Bryan says.
Keith Olsen wasn’t surprised when he heard about the incidents. Olsen lives in a ground-floor apartment nearby, and over the past two years he has had numerous run-ins with the butt-tosser, who lives in a rent-stabilized apartment owned by the sponsor. “He has thrown lit cigarettes at me and my dog,” says Olsen, a law student. “He has screamed a slur at me. He once chased a pregnant woman into my building. He talks to himself.”
Bryan Virasami and Olsen took their complaints to the co-op board, the property manager and the director of security. Virasami says the director of security gave him a sobering message: “We are not peace officers.” He was told by the board that it was getting legal advice on how to handle the troublesome resident. Olsen spoke with the property manager, Parvez Ahmed of Charles H. Greenthal. “He and the security director were very concerned and responsive to my complaint,” Olsen says. “I don’t envy management when they have to deal with residents like him.”
Then this neighbor-on-neighbor dispute went to an ugly new level.
Late on the morning of Oct. 5, a 78-year-old man was walking past the co-op near the intersection of Lafayette and Waverly Avenues when a stranger approached him and smashed a beer bottle on the man’s skull, knocking him to the ground and opening a gash that required 13 stitches. An eyewitness gave a description that matched the man who had menaced Virasami and Olsen. After police took the man in for questioning, the Clinton Hill Co-op board refused to turn over video surveillance footage to the police, citing a policy that it would do so only if the police produced a subpoena. With no video and no way to contact the eyewitness, the police released the suspect.
The board’s decision sent shareholders into an uproar, setting a co-op chat room ablaze with angry comments. Eventually the board reversed itself and surrendered the footage to the police, according to several shareholders’ posts in the chat room. The attacker on the video was the troublesome resident of the co-op, identified by police as Jonathan Sinclair, and he was soon arrested and charged with two counts of felony assault and four misdemeanors. He was granted supervised release and is due back in court in May.
Mike Westfall, board member, declined to comment for this article. Jim Fields, board president, did not respond to a request for a comment. And the board’s attorney, Jack Lepper, the managing partner at Kagan Lubic Lepper Finkelstein & Gold, declined to comment about this specific case because of pending criminal charges, but added: “In general, a co-op, as a landlord, may be responsible to address complaints of residents related to its obligations under the proprietary lease.”
A Rising Tide of Disputes
The uproar at Clinton Hill Co-op is playing out against a changing legal landscape in neighbor-against-neighbor disputes – and amid a sharp rise in such disputes during a pandemic that has confined many New Yorkers to their apartments for almost a year. In the past, co-op boards have tended to turn to their managing agents when faced with these unwelcome intramural conflicts. “Boards don’t want to get involved in these disputes,” says Timo Lipping, who served as president of the Clinton Hill Co-op board until January 2020. “They would rather have management intervene and act as referee.”
Steve Greenbaum, the director of property management at Charles H. Greenthal, who is not personally involved in managing Clinton Hill Co-op, describes a property manager’s role this way: “We try to act like a mediator. The traditional approach when it’s a dispute between two neighbors is, you listen, you talk to the building staff. Sometimes you can work it out through a conversation. We don’t take sides until we’ve looked into it.”
If conversation fails to bring peace, management might try to determine the validity of a complaint – say, by hiring an acoustical engineer to document the decibel level of a noise complaint. After that, some boards turn to a third-party mediator. The final option is to begin sending legal letters alerting the offender that the board is moving to terminate the shareholder’s proprietary lease – in effect, an eviction.
“It’s not the board’s fault, but it is their problem,” says Geoffrey Mazel, a partner at the law firm Hankin & Mazel. “It’s a big problem that has gotten worse since the pandemic hit. People are home all the time, and now they hear everything, they smell smoke. It’s become a big issue.”
A Battle Royal
Mazel’s remark – that a neighbor-against-neighbor conflict may not be the board’s fault but it is definitely the board’s problem – is at the heart of a lawsuit now working its way through the federal courts. The case, according to several legal observers, could have massive repercussions for co-op boards and landlords.
It revolves around a dispute between two neighbors at a rental complex called Kings Park Manor in Kings Park, Long Island. A black tenant named Francis Donahue claimed that a white neighbor, Raymond Endres, bombarded him with racial slurs, took photographs through the open doorway of his apartment and caused him to feel “fear and anxiety.” Donahue summoned the Suffolk County Police Department’s Hate Crimes Unit, which charged Endres with aggravated harassment, a misdemeanor. The police then issued an order of protection, which prohibited Endres from having contact with Donahue.
Donahue then filed a lawsuit in U.S. District Court against Endres, the owners of Kings Manor and the property manager, Corinne Downing, claiming that Endres’s actions – and the landlord’s refusal to address those actions – resulted in a “negligent infliction of emotional distress” that was a violation of the Civil Rights Act, the Fair Housing Act and the state’s Executive Law.
“Contrary to the Plaintiff’s contention,” U.S. District Judge Arthur D. Spatt wrote in his decision, “the mere fact that the Kings Park Manor Defendants were allegedly made aware of the underlying verbal abuse and threats of physical assault did not trigger a common law duty on their part to investigate and intervene.”
Donahue appealed that decision to the U.S Court of Appeals for the Second Circuit, which covers New York, Connecticut and Vermont. The next level of appeal after this jurisdiction is the U.S. Supreme Court. A three-judge panel reversed the District Courts’ decision in a split 2-to-1 ruling, then reversed its reversal and asked attorneys to submit new briefs so the case could be heard by all of the Second District’s 13 judges.
“We’re awaiting the decision,” says Stanley Somer, a partner in the law firm Somer & Heller, which is representing Kings Park Manor and Downing. “It seems ludicrous to us, but the appeals court found that the statute is applicable to the landlord – and, by extension, to co-op boards. Depending on how the Second District rules, the impact of this could be nationwide, and the cost could be astronomical. If you have to investigate every complaint, boards would have to hire outside companies. By not acting, the co-op board or landlord is discriminating? That’s insanity.”
If the appeals court rules in Donahue’s favor, adds Andrew P. Brucker, a partner at the law firm Armstrong Teasdale, the world of co-op governance will change. “It would certainly be a broadening of the application of the law, and it’s a little scary,” Brucker says. “The scary thing is that if the person making the complaint is a member of a protected class, the board might be under a microscope. Even the way you treat them after they move in will be under a microscope.”
Somer is cautiously optimistic that the Second District court will not turn the co-op world upside down: “I believe that they’re going to find in our favor that the tenant-on-tenant complaint is not a responsibility of the landlord or co-op board. But,” he adds, “one never knows.”
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