<br>
Luca Capin<br>
Mehmet Capin<br>
Deniz Capin<br>
William Robbins<br>
<br>
Capin & Associates, Incorporated<br>
Solar Realty Management Corporation<br>
<br>
236 West 26th Street, Ste. 801<br>
New York, NY 10001-6736<br>
(212) 727-9550<br>
(212) 633-9985<br>
(212) 633-9986 fax<br>
<br>
49 Windsor Road<br>
Great Neck NY 11021-2720<br>
(516) 466-6779<br>
<br>
<br>
Vicki Richman<br>
Eileen V. Casey<br>
500 West 140 Street<br>
New York NY 10031-6139<br>
December 27, 2006
William Robbins Independence Community Bank RCG Longview II,
L.P.
Sole Member, 500140 LLC primary mortgage subordinate mortgage
18 West Parkway 195 Montague Street Seven Penn Plaza, Suite
310
Clifton, NJ 07014-1228 Brooklyn, NY 11201-3631 New York, NY
10001-0032
Mehmet A. (Luca) Capin Saruhan Capin Saruhan Dingil
Capin & Associates, Inc Solar Realty Management Corporation
57 West 38th Street, Fourth Floor P.O. Box 1970, JAF Station
New York, NY 10018-1924 New York, NY 10116-1970
Mr. Robbins owns our building, which is managed by Mr. Capin
and his assistants. Mr. Capin also brokered the owner's
purchase. The repeated failures, breaches, and incompetence
of the owner and manager/broker lead us to reduce our rent
payments by 60%, beginning January 2007.
In violation of housing law, we have no lock on our entrance
door, from the street to the lobby, and no intercom from the
street to our apartment. In violation of our contract to pay
rent, we have only one permanent employee, the building
superintendent. No porter works in this building any longer.
Our earlier letter stressed our lack of an elevator for
about two months. There have since been minimal repairs, but
the elevator still goes out of service for about 36 hours
every week. We can never be sure if and when the elevator
will be usable. That letter also cited the lack of a lock
and an intercom, and the reduction in the number of on-site
building employees by 50%. Further, as we have learned after
our last letter, there has been a mechanics lien against our
building since June 15, 2006, by Tremont Locksmiths &
Hardware Inc., 515 East Tremont Avenue, New York NY 10457.
Early this year a new entrance door to this building was
installed, but without a lock. At the same time, work began
on a new intercom system. In late spring the work
stopped. We infer that the mechanics lien is for the
landlord's failure to pay debts for the new door and
intercom work. Two weeks ago an unknown person tried to
remove the new door from the frame. He was stopped just at
the last bolt, with the door hanging precariously as a
hazard to all who passed. The intercom cables were also
destroyed.
As officers of the Tenants Association for this building, we
phoned Tremont Locksmiths, at (718) 731-8800. On learning
who was calling, the receptionist connected us to man called
"Mr. Z." The New York Department of State has the CEO of
Tremont Locksmiths as Zvi Zohar. "It's against the law,"
Mr. Z told us, "to take an entrance door, even for
nonpayment. We don't do that."
Violating law, lowering habitability, and reducing services
are grounds for reducing rent. See Ludlow Properties, LLC,
v. Young, 4 Misc.3d 515, 780 NYS2d 853 (2004). Those
offenses also violate the terms of the two mortgages, cited
in the head to this letter, and are grounds for foreclosure.
In particular, the Independence contract holds: "The
mortgagor will maintain the buildings on the premises in
good repair; if all or any portion thereof is rented . . . ,
then the mortgagor will maintain same in good rentable
condition at all times, whether or not occupied. Neither the
value of the mortgaged premises nor the lien of this
mortgage will be diminished or impaired . . ." (paragraph 4,
page 3). The mechanics lien appears to diminish or impair
the mortgagee's lien.
From the RCG subordinate loan: "The Mortgagor will cause the
Mortgaged Property to be maintained in good condition and
repair. . . . The Mortgagor shall promptly comply with all
laws, orders and ordinances affecting the Mortgaged Property
or the use thereof and shall promptly repair, replace or
rebuild . . . any part of the mortgaged property which may
be destroyed by any casualty or become damaged, worn or
dilapidated . . ." (paragraph 8, page 5).
The various limited-liability companies Mr. Robbins has
created for his investments, including 500140 LLC, which
owns our home, all use the business address and post-office
box number for Capin and Associates and for Solar Realty
Management. We tenants send our rent to the Solar Realty
postal-box address. The stationery and invoices for
Mr. Robbins's holdings, including statements to tenants, all
cite Solar as the owner and conceal Mr. Robbins's
investment. On the Independence mortgage, Mr. Robbins
claimed the Solar Realty Management address as his own.
However, on the RCG mortgage, Mr. Robbins used his personal
address, in Clifton, New Jersey. Mr. Robbins's contract with
RCG holds, with our emphasis added: "Mortgagor will be, and
at all times will hold itself out to the public as, a legal
entity separate and distinct from any other entity
(including any affiliate of Mortgagor . . . ) and shall
maintain and utilize separate stationery, invoices, and
checks" (clause [i], paragraph 46, page 16). The one and
only place that Mr. Robbins has used his real identify, and
has not hidden behind the Capin landlord-front industry, is
on the RCG mortgage, which forbids him from concealing who
he is and where he lives. However, Mr. Robbins's continual
use of Capin to hide from his tenants remains an RCG
mortgage violation.
We have alerted you earlier that we see such offenses
against our tenancy as grounds for withholding rent. The
tenant's typical redress, cited in Ludlow (id.), is to
refuse all the rent, until the court rules on how much the
tenant may deduct for violations, damages, and withdrawal of
services, and on how much the tenant owes. We have elected,
however, to anticipate any court action you choose to
initiate by using the Ludlow formula to calculate how much
rent we shall pay beginning January 2007.
In reducing the rent by 45%, the Ludlow court held that "bed
bugs . . . constituted an intolerable condition," but ruled
that only the tenant's vacancy, or constructive eviction,
could cancel any obligation at all to the landlord. We do
not wish to debate whether living without a lock to the
entrance door and without an intercom with the building
open to intruders, burglars, and unsanitary conditions, with
freedom of movement in and out of our apartment by our
guests and ourselves severely limited rises to the same
"intolerable condition" as sleeping with bedbugs.
But an open building, without a lock or intercom, is a
condition that the landlord was easily able, but has
repeatedly failed, to correct. The omission was apparently
simple evasion of the expense. By contrast, a bedbug
infestation is not easily corrected no matter how strong and
willing the effort. The Tremont Locksmiths mechanics lien
seems to show that all the landlord had to do to get the job
done was to pay the bill. In Ludlow, the offense was not the
will of the landlord but was nonetheless "intolerable."
Whatever the degree of tolerableness, the habitability of a
building accessible to all who chose to enter for any
purpose illegal, dangerous, obnoxious, annoying, or
threatening to life and property is compounded by the
landlord's open, willful, and unrepentant refusal to correct
the violation.
The court has held that "essential services shall be defined
as: . . . superintendent services, maintenance of front or
entrance door security (including but not limited to lock
and buzzer), . . . elevator services . . ." (Lowe
v. Division of Housing and Community Renewal
(N.Y.Sup. 05/19/2004), unpublished, 2004 NY Slip Op
50427(U), 2004.NY.0004805 <http://www.versuslaw.com>, index
number 10837/03, paragraph 26). Repeatedly the courts have
ruled, in the words of the Hon. Kaye, that "landlords have a
common-law duty to take minimal precautions to protect
tenants from foreseeable harm,' including a third party's
foreseeable criminal conduct" from an open building such as
ours, especially after the landlord's plain-view refusal to
correct the liability (Burgos v. Aqueduct Realty Corp., 684
NYS2d 139, 706 NE2d 1163, 92 NY2d 544,545-548[1998], citing:
Jacqueline S. v. City of New York, 81 NY2d 288, 293-294,
rearg denied 82 NY2d 749; Nallan v. Helmsley-Spear, Inc., 50
NY2d 507, 519-520; Miller v. State of New York, 62 NY2d 506,
509).
We won't wait until someone is assaulted, injured, maimed,
or killed, and then strive to produce preponderant evidence
of the proximate cause, before seeking to end our daily
danger and discomfort. We shall act now to protect
ourselves. Therefore, also considering the hazardous and
unreliable elevator with the lack of security, we shall use
the same 45% used by the Ludlow court in lowering the rent.
Our rent also pays for a porter, who cleans the hallways,
removes the garbage, and assists tenants. We estimate that
40% of our rent pays for employees, repairmen, and
contractors. Of that, we figure 35% is for two on-site
employees: 20% for a super, and 15% for a porter. Therefore,
we shall deduct 15% of our rent for the dirty hallways and
littered garbage caused by the absence of the porter.
After the two deductions, of 45% and 15%, we shall pay 40%
of our rent-stabilized payment or a reduced rent of
$570.55 beginning January 2007.
Vicki Richman
Eileen V. Casey