
    Frank Eyedent et al., Respondents, v Vickers Management et al., Appellants, and Department of Housing Preservation and Development of the City of New York, Respondent.
    Supreme Court, Appellate Term, First Department,
    March 21, 1988
    
      APPEARANCES OF COUNSEL
    
      Liebman, Adolf & Charme (Stephen M. Charme and James E. Schwartz of counsel), for appellants. Wayne G. Hawley and Theodore W. Zeichner for Frank Eyedent and others, respondents. Bruce Kramer and Janessa C. Nisley for Department of Housing Preservation and Development of the City of New York, respondent.
   OPINION OF THE COURT

Per Curiam.

Order entered October 31, 1986 reversed, without costs, and petitioners’ motion for an order compelling respondents to correct violations at the subject premises is denied, without prejudice to petitioners’ right, if so advised, to maintain a proceeding for such relief as may be appropriate to compensate them for the loss of their tenancies.

The subject of this proceeding is premises 41-43 Avenue B in Manhattan, a lot which consists of two adjacent buildings containing some 20 apartments. The respondents are the owner and managing agent of the property, the former having acquired title in October 1985 at a purchase price of $394,000. It seems clear that the buildings (about 100 years old) were already in an advanced state of distress at the time of purchase. On April 27, 1986, the rear wall collapsed and on May 2, the Department of Buildings issued "repair/vacate” orders for both buildings, directing that all persons in occupancy vacate immediately (there had been a partial vacate order issued on April 22) and that the owner repair certain described conditions deemed dangerous and detrimental to health and safety (see, Administrative Code of City of New York § 27-2125). The order specified such serious conditions as collapsed foundation and rear walls; rotted columns and girders; sagging of the cellar ceiling; and floors out of level. Approximately 16 tenants, protected under either rent control or rent stabilization, had resided in the premises prior to issuance of the vacate orders.

Upon respondents’ failure to make the repairs identified in the "repair/vacate” orders, petitioners (who are nine of the displaced tenants) moved in the Housing Part for an order directing respondents to correct all violations and for an order assessing civil penalties against respondents (Administrative Code § 27-2115 [i]). The Department of Housing Preservation and Development was joined as a party respondent; and the Department has supported the position of the petitioners throughout the proceeding.

The basic defense of the respondents at the hearing below was that the cost of the extensive renovations required to restore the buildings was so prohibitive, given the valuation of the structures, that repair or reconstruction would be economically improvident and confiscatory. To this end, expert testimony was received from both sides as to the nature of the work necessary to restore the premises to habitable condition, and the cost of that work. The hearing court ultimately adopted a total cost figure of $320,000 ($170,000 for structural work and $150,000 for interior improvements) which, it must be presumed, the court did not view as too economically burdensome for respondents to bear. Accordingly, an order was entered directing respondents to, inter alia, replace or repair beams and other structural members as necessary; to rebuild the collapsed rear wall and repair or replace all other exterior walls of the premises; to replace or repair plumbing and electric wiring; and to complete all finishing and cosmetic work so that the premises are in violation-free condition.

There is respectable precedent, in quite analogous cases, that where it is shown to be economically unreasonable to repair uninhabitable premises which have been vacated, an owner will not be compelled "to expend unwisely and wastefully large sums to repair property better demolished” (Harmor Operating Co. v Vent-O-Matic Incinerator Corp., 1 AD2d 551, 554; Matter of Atco-Midwood Assocs. v Benitez, 106 AD2d 501; Rubin v Hevro Realty Corp., 84 Misc 2d 1074). It is apparent from the tenor of the Housing Court’s decision that it did not wish to be seen as condoning a situation where buildings are allowed to deteriorate by their owners to the point where there is no other viable alternative but demolition, resulting in the loss of regulated tenancies and further "gentrification” as former residents are forced out of neighborhoods and replaced by more affluent consumers seeking to occupy upgraded properties. We are not unsympathetic to these general housing concerns, although it remains dubious whether the courts, in the end, are the forum best situated to address the underlying problems of rebuilding the rental housing stock for lower-income and middle-income tenants. But on the particular facts presented in this case, the weight of the evidence persuades us that we are dealing with dwellings which, unfortunately, have deteriorated "to the point where [they] can no longer be reclaimed” (see, Administrative Code § 27-2002 [2], [3]), and where it is no longer economically feasible to salvage them for the benefit of the petitioner tenants.

Estimates testified to by contractors on behalf of the respondents indicated that the cost of the necessary structural repairs would exceed $200,000 (including demolition; rebuilding of rear, front and foundation walls; and replacement of fire escapes, windows and staircases), and that the cost of restoring all apartments would cost $600,000 more. The tenants’ principal witness testified that the basic structural rehabilitation would cost approximately $170,000, and that the cost of the interior renovations would vary depending upon the quality of work done — i.e., a minimal "patch job” to restore the buildings more or less as they were prior to the collapse would cost an additional $150,000 (totaling $320,000); to restore the buildings to "a level of adequate comfort which might be somewhat better condition than they were before the collapse” would cost, in total, $450,000; and to restore to the level of luxury accommodations would amount to about $800,000.

Given the fact that these are buildings which plainly require "radical surgery rather than patchwork” (Harmor Operating Co. v Vent-O-Matic Incinerator Corp., supra, at 554), tenants’ own expert’s alternative estimate of $450,000 (to which must be added perhaps 10% for cost overruns inevitable in projects such as this) is, realistically, the minimum amount which will be required to reconstruct the premises. Not only does that amount greatly exceed the actual assessed valuation of $175,000 (see, New York City Rent and Eviction Regulations [9 NYCRR] § 2204.9 [a] [2]; Rent Stabilization Code [9 NYCRR] § 2524.5 [a] [1] [ii], which permit withdrawal of property from the rental market upon the approval of the Division of Housing and Community Renewal where "substantial violations” have been filed against the property and the cost of removing such violations "would substantially equal or exceed the assessed valuation of the structure”), it exceeds the recent purchase price of $394,000. Moreover, the evidence reveals that even at the time of the buildings’ collapse, the rent roll was not generating sufficient income to carry the property at a profit. Since it is only reasonable to anticipate that the owner’s operating costs will increase considerably on account of the debt that will necessarily be incurred to pay for the "repairs” which petitioners seek, the prospect for continued operating losses well into the future seems unavoidable— even assuming that some upward adjustment in existing rentals is granted by the governing administrative agency. In such circumstances the rent control laws do not require repair rather than demolition (Harmor Operating Co. v Vent-O-Matic Incinerator Corp., supra).

While denying relief to the petitioners in this proceeding, we do not hold that they are without a remedy. By statute, an owner is obligated to keep a multiple dwelling in good repair (Multiple Dwelling Law § 78; Administrative Code § 27-2005). Although there is no proof in this case, or finding below, that the present owner or his predecessors intentionally withheld essential services or engaged in a campaign to drive the tenants out, the collapse of the dwellings in April 1986 must necessarily be viewed as the culmination of a longstanding pattern of neglected maintenance, benign or deliberate, and indifference to legal responsibilities. The respondents are chargeable with knowledge of the physical condition of the premises at the time of their purchase, particularly here where the obvious state of disrepair would have been revealed by even a cursory inspection. In the situation where years of nonfeasance have created conditions which now require that the buildings be vacated and demolished, thereby terminating tenancies protected by law, equitable considerations dictate that relief be fashioned for the tenants affected (see, Matter of Atco-Midwood Assocs. v Benitez, 106 AD2d 501, supra). Our disposition is without prejudice to the maintenance of such a proceeding.

Sandifer, J.

(dissenting). I would affirm the determination of the trial court. "On this appeal we are confronted with the issue as to whether the findings of fact are supported by the weight of the evidence. In a nonjury case, this court’s inquiry is not limited to whether the findings were supported by some credible evidence. If it appears on all the credible evidence that a different finding or a finding different from the court is not unreasonable, then this court must weigh the relative probative force of conflicting testimony and the relative strength of conflicting inferences that may be drawn from such testimony.” (Shipman v Words of Power Missionary Enters., 54 AD2d 1052, 1053.)

In weighing the relative force of conflicting testimony and the relative strength of conflicting inferences, the trial court’s assessment of credibility should be accorded great weight. (Cf., Matter of Liccione v John H., 65 NY2d 826, 827.)

The evidence in the trial court revealed that the purchase price of the building was $390,000. Interestingly, the evidence also revealed that, although sidewalk repair liens were noticed in the title examination, no prepurchase engineering report was ordered to ascertain the existence of any structural problems. Also, the owner’s managing agent inspected only one apartment prior to purchase.

The owner maintained below that he had no notice of any dangerous conditions prior to April 22, 1986, when the partial vacate order was issued.

The trial court concluded that the purchaser had no interest in the physical condition of the property at the time of purchase. The court was of the opinion that the building was purchased with the hope that it would soon become vacant. The property is located in what the court refers to as a "hot” location of Manhattan where vacant buildings are worth substantially more than property burdened with rent-controlled or rent-stabilized tenants.

The majority notes, that at the time of the collapse of the rear wall, the building was operating at a loss. The fact that the building operated at a loss was acknowledged by the trial court. In addition, however, the trial court noted that the net operating loss included $33,067 for payments on the first and second mortgages. Moreover, the trial court noted that there was a dearth of information on the total economic viability of the building which would include depreciation and other tax consequences.

Certainly, it is permissible for the trial court to draw unfavorable inferences against the owner for his failure to provide financial details in support of his position. (Cf., Noce v Kaufman, 2 NY2d 347, 353.)

The trial court chose to credit the valuation of the repair costs as put forth by the tenants’ experts. The court went on to hold that the owner failed to establish that the building would not be profitable if the repairs were done.

The trial court’s determination that the owner was interested in a vacant building, above all else, is certainly supported by the evidence and inferences that may be derived from the lack of evidence. The record below clearly supports the court’s decision to reject the opinion of the owner’s expert in favor of the opinion of the tenant’s experts.

In my opinion, the findings and determinations of the trial court are not against the weight of the credible evidence nor contrary to law, consequently they should not be disturbed. (See, Collier v Lukes, 36 AD2d 662.)

Parness, J. P., and Ostrau, J., concur; Sandifer, J., dissents in a separate memorandum.  