When Stuart Feldman purchased a cooperative apartment in Whitestone, Queens, in 1997, it was to provide a home for his parents, Clara and Jerome Feldman who were in their eighties. Three years later, the family had an air conditioner installed in one room although the building had a central cooling system. After another three years, an employee of the cooperative corporation noticed the unit protruding through a brick wall on the apartment’s terrace. Management said the air conditioner was against their rules. The co-op and the Feldmans have fought this issue in and out of court, where it has now ended in a judicial determination and order. In November, the the Feldmans won their case and were awarded legal fees.
Upon learning of the existence of the air conditioner, the management of the Cryder House informed Stuart Feldman that he was in violation of the lease and the building’s rules which prohibited installation of such units. If he did not remove it within five days, he risked having his proprietary lease and ownership of his shares in the co-op terminated; that would lead to the eviction of his parents.
The boards of directors of cooperative housing, which is considered by some to be an ironic description, have enormous control over their buildings and the occupants. They have almost unfettered powers to act in what they determine to be the best interests of the corporation and the shareholders in general, under something recognized by the state’s highest court as “the business judgment rule.” But in this case the Board came up against charges more powerful.
The board was met by a lawsuit commenced by the Feldmans complaining of discrimination. It was alleged that Ms. Feldman was highly allergic and asthmatic but that air conditioning eased her breathing. The absence of purified air, the plaintiffs claimed, interfered with her ability to carry out the “activities of daily living.” The charge was discrimination based on her physical condition, a violation of federal, city and state laws including the federal Fair Housing Act, and the New York State and New York City Human Rights Laws. Her eviction based on her disability or impairment would constitute an unfair housing practice. The plaintiffs argued that even if there was a violation of the building’s rules, it was minor and was outweighed by Ms. Feldman’s medical needs and legal rights. Still, the defendant corporation continued to press for removal of the air conditioner, and, otherwise, removal of the occupants.
A judicial hearing officer appointed by Justice Martin Schulman of Queens Supreme Court agreed with the defendants that the unit was prohibited, and that the Board had never consented to its installation. However, there was no evidence that this caused substantial damages to the building or other residents, who could neither see nor hear the air conditioner, and who had never complained about it. The hearing officer found that while the building does have cooling units; those units do not provide the filtration provided by the air conditioner, and are not in use all year round. He also reported his findings that Ms. Feldman needed air conditioning to protect her from pollen, dust, mold, lint, feathers, and other allergens which caused her to suffer severe headaches, coughing, sneezing, pain, and difficulty in breathing. An expert witness, Dr. Morton Teich, an allergist and immunologist, testified that exposure to such allergens “induced a reaction including local skin reaction, nausea, burning sensation, itchy throat, dry cough and general malaise [because she is] extremely allergic, hyper-reactive and had delayed reactions [which would last for days].” The air conditioning unit, he testified, was medically necessary for Ms. Feldman’s health.
The post-hearing report led to a determination of discrimination in the defendants’ refusal to accommodate Clara Feldman’s medical needs, without which she could not enjoy the apartment in which she resided, as others do enjoy theirs. The business judgment rule may be nearly all-encompassing, but does not permit co-op boards to discriminate, in this case, against residents who have special medical needs.
While not cited by Justice Schulman, the Court of Appeals had previously ruled in a Manhattan case that a midtown co-op’s ban on the installation of washing machines and dryers could not override all circumstances. In that case, Merle Hirschmann v Constantine Hassapoyannes v 20166 Tenants Corp., Et al., an apartment buyer had cancer which necessitated the frequent laundering of his bed linens and undergarments. The State’s highest court found that the installation of the machines was a reasonable accommodation to the plaintiff’s infirmities, and the board could not discriminate by withholding consent despite their rules.
The result in Feldman v Cryder House is that plaintiffs can maintain the air-conditioning unit as long as Ms. Feldman resides in the apartment. The family will then be required to remove it and repair the wall. The co-op corporation was ordered to pay the Feldmans’ legal fees.
Emily Jane Goodman is a New York State Supreme Court Justice
Mention the words "NYPD" and "corruption" or "scandal" in the same sentence these days, and many New Yorkers quickly think of ticket fixing. The rest reach for the nearest soap box to decry the department's treatment of Occupy Wall Street protestors.
(For a related article on whether the moves against demonstrators will change political attitudes toward the police and dissent, see Crackdown on Protests Could Spark More Scrutiny of Police)
Both the ongoing prosecution of 16 current officers for making their buddies' (or their buddies' buddies') traffic tickets go away and the rising feud over Zuccotti Park patrolling have for weeks been fodder for local news and afternoon radio show debates. Yet while these sagas continue to play out in judicial proceedings and the court of public opinion, they draw attention away from other, more serious instances of police wrongdoing. Recently exposed criminal conduct -- armed robbery, gun running and drug planting, for example -- by active police officers not only draws a cloud over a department that has made vast strides in keeping the city safe in the last decade, but also again raises an important question that New York has grappled with for more than a century: how to police the police?
A recent report by the Citizens Crime Commission of New York City indicates that, unlike some of the nation's other large police forces, New York's police lack strong, independent oversight controls. "We have been concerned for some time that NYPD is uniquely lacking independent oversight," said Richard Aborn, the commission's president.
If a string of recent criminal incidents is any indication, Aborn isn't the only one who should be keeping an eye on New York's Finest.
On Nov. 1, police detective Jason Arbeeny was convicted on criminal charges for planting crack cocaine on a woman and her boyfriend outside a Coney Island apartment building. At trial, former detective Stephen Anderson testified that during his time on the force undercover cops often planted drugs on innocent people -- what he and other officers called "attaching bodies" to the drugs -- in order to beef up arrest numbers. In finding Arbeeny guilty, State Supreme Court Justice Gustin L. Reichbach said Arbeeny was not simply one rogue cop, but rather the result of the "cowboy culture" prevalent in the city's police drug units.
One of seven narcotics investigators recently convicted for planting drugs, Arbeeny is not the only city police officer to turn up on the wrong side of the law lately. An officer was convicted and three other current or former officers pleaded guilty for their roles in the 2010 armed robbery of $500,000 in perfume from a Carlstadt, N.J. warehouse. Some of the men announced themselves as police officer, displaying guns and badges, during the robbery, in whic11 employees were held hostage.
In October, eight current and former police officers, including 18-year veteran William Masso, were among 12 people arrested in connection with a gun smuggling ring.
All of this is not to mention conduct that, while, not criminal, has raised concern bout police conduct n the city, such as the aggressive, department-wide "stop and frisk" policy that some claim amounts to racial profiling and the recently reported Moroccan Initiative in which officers allegedly targeted Muslims for investigation based solely on their ethnicity.
Police abuse of power is nothing new, in New York City or elsewhere. In 1912 a committee headed by Alderman Henry Curran found that police officers had assisted in robberies throughout the city and, after being caught, were allowed to resign without punishment. Over the years, similar scandals have rocked cop shops from Boston to San Francisco.
Certainly, in a force of nearly 35,000 uniformed officers –New York has more police than Chicago, Philadelphia and Los Angeles combined -- there are sure to be a few bad apples. "The NYPD is the finest police department in the world, and theses arrests do nothing to diminish the selfless commitment of the 35,000 men and women who put on a uniform every day, and who put their lives on the line to keep us safe," Mayor Michael Bloomberg said in a statement following the gun smuggling arrests.
Indeed, the Citizens Crime Commission report calls the city's police department "one of the most effective crime fighting forces in the country" as shown by the nearly 80 percent drop in crime over the last 20 years. But the report also indicates that the department needs stronger independent oversight.
"Independent police oversight is essentially non-existent in New York City," Aborn, a former Manhattan assistant district attorney, said.
The commission compared New York's police oversight methods with those in place at the next five largest police departments across the country: Chicago, Los Angeles, Philadelphia, Houston and Washington, D.C. It identified three "core elements" essential to proper oversight that are apparent in all, but one of these departments (Houston): transparency; independence; and the power to require that the police provide access to documents, personnel and other information.
While New York has two civilian-run police oversight entities, each fairly transparent and with some power to demand documents and interview officers, they are both only quasi-independent, and their power is limited. One refers all misconduct complaints back to the police department for investigation, and the other is limited to simply making recommendations based on the results of its investigations.
New York City's model, in Aborn's views, pales in comparison to that of Los Angeles, which he cites as the gold standard for police oversight. There, the Office of the Inspector General oversees the city police department, operating completely independently of the department's self-policing Internal Affairs Group. According to Aborn, the inspector general has "unfettered access" to information and officers in carrying out its investigations.
For John Jay College police science professor Maria Haberfeld how Los Angeles -- or any other city for that matter-- monitors its cops is neither here nor there. "Oversight is something that should be agency specific. We have over 18,000 police agencies in the United States. NYPD is certainly very different from all of the others both size and logistics-wise," she said.
Nevertheless, the Citizens Crime Commission expressed concern that, unlike most of the other large police departments, New York lacks a completely independent oversight body with the power to compel testimony and the release of evidence from the police department.
The department's Internal Affairs Bureau investigates allegations of corruption and serious misconduct against police officers. Anyone can file an complaint and may even do so anonymously. The bureau worked with the FBI to bring down the gun smuggling ring in October and built the case against the ticket-fixing officers. It does not appear to have been at the forefront of investigating the perfume heist or drug planting incidents.
The two civilian-run city entities intended to independently oversee police operations -- the Civilian Complaint Review Board and the Commission to Combat Police Corruption -- also appeared to have had little involvement with these case. The 13-member review board deals with complaints against police officers alleging specific behavior: "excessive or unnecessary force, abuse of authority, discourtesy or the use of offensive language."
Following an investigation, the board submits findings and recommendations to the police commissioner. The police commissioner is required to cooperate by making records and officers available for inspection and interrogation. Once the board issues its finding, however, the commissioner remains free to implement the board's recommendations, take them under advisement or simply do nothing at all.
Despite its civilian bent, Brooklyn civil rights attorney Richard J. Cardinale said that the board is not nearly as independent as it holds itself out to be. "The Civilian Complaints Review Board and the Internal Affairs Bureau are both rubber stamps for the officers," said Cardinale, who has recently represented clients in stop and frisk related cases against the city. "I don't even encourage clients to go there."
Neither the police department nor the Civilian Complaint Review Board responded to the Gazette's request for comment.
Last year, the review board found sufficient credible evidence to believe that an officer acted improperly in 11 percent of the complaints it investigated. The number of officers involved in substantiated complaints last year -- 377 – was the highest number since 2006. The department took some sort of disciplinary action, which can range from an oral warning to termination, in 78 percent of those cases.
The Commission to Combat Police Corruption's monitors all the department's corruption control policies and procedures. It reviews all corruption complaints received by the department as well as Internal Affairs' investigation of these complaints. The commission is authorized to demand police department documents for auditing purposes. It also receives corruption complaints.
On its website, the commission touts itself as "completely independent of the NYPD." Yet it also advises, "Please be aware that the commission does not, absent extraordinary circumstances, handle investigations itself. Complaints received by the Commission to Combat Police Corruption are, when appropriate, forwarded to the NYPD's Internal Affairs Bureau for review and investigation. In some instances, the commission monitors complaints that have been forwarded to the Internal Affairs Bureau."
Thus, while the review board and the Commission to Combat Police Corruption are both on their face independent entities, neither has final enforcement authority. In the case of the board all of its recommendations are subject to department approval. As for the commission, any complaints it receives are actually investigated by the officer's peers in Internal Affairs.
Aborn believes the current system simply isn't good enough. "An entirely independent body with subpoena power is necessary to reassure the public that its findings will not be tainted and to serve as a deterrent to officers," he said.
In a 2008 report, the good government group, Citizens Union, issued a review of police policies and procedures and also called for a more independent review board and a "stronger" commission to combat corruption. Among other things, the group advocated letting the review board prosecute cases and that it have more money for staff and investigations. (Citizens Union's sister organization publishes Gotham Gazette.)
But not everyone agrees independent oversight is the sine qua non. "Policing is a profession that can be fully understood only by its members," said Haberfeld. "I understand the need for accountability and to include citizens, but to make oversight completely independent without police input is to already indict the profession."
One thing that Haberfeld, Aborn and Cardinale agree on is that the department's current oversight models can be improved.
"I would like to see more accountability at the precinct level," Haberfeld said. While she thinks that current safeguards are sufficient, she added, "It's one thing to have the structure in place; it's another for it to be carried out effectively."
Cardinale has his own ideas about how local police can be made accountable: "I think that the Justice Department needs to intervene, the same way that they did in New Orleans."
On June 8, 2009 -- the same day as the notorious State Senate coup -- a group of state senators began hearings on the Commission on Judicial Conduct and New York's system for disciplining attorneys. During the hearings, witnesses testified as to how the state's judicial watchdog group had ignored their complaints about judges and rebuffed their attempts to ascertain what happened to their complaints. Overall, many said, they were left feeling helpless before the justice system.
On Sept. 24, 2009 another hearing was held in Manhattan. The parade of witnesses with complaints about judges who allegedly flout the law, hold grudges against lawyers and levy absurdly large fines for perceived slights continued. In fact so many people wanted to testify on the matter that a third meeting was scheduled for Dec. 16, 2009.
That hearing never took place. A notice was issued that the hearing had been cancelled and would be rescheduled. It never was.
No findings were issued, no committee report was put together and no task force was called to investigate as some senators had suggested while reacting to testimony.
What happened? According to Senate Minority Leader John Sampson who headed the proceedings, he got too busy. “We started these hearings right when the coup happened. I believe that it was just the demands I had as leader. I couldn’t do everything,” he said. Sampson was anointed leader of the Democratic conference after the coup and continued to lead it after the Democrats returned to power. Many other Senate hearings continued during and after the coup.
In the two years since, no one has held any additional hearings on judicial accountability, but critics say the issue has not gone away. Observers and many people who have had bad experiences say the state's judicial watchdog ignores major complaints to focus on infractions of low-level judges, dismisses many worthy complaints and does all this in secrecy.
The Commission on Judicial Conduct is tasked with accepting complaints against judges and investigating complaints deemed meritorious. But a number of critics say the commission investigates lower level town judges for small infractions while ignoring repeated complaints against higher ranking judges such as those on the state Supreme Court. The Commission on Judicial Conduct has 11 members, each of whom serves a renewable four-year term. The governor appoints four members, the chief judge three and the speaker of the Assembly, the minority leader of the Assembly, the temporary president of the Senate (the majority leader) and the minority leader of the Senate each appoint one.
Of the governor's appointees, one must be a judge, and one must be a member of the state bar. The chief judge must appoint a justice of the Appellate Division, a judge who is not from the Court of Appeals or Appellate Division, and one who is a justice of a town or village court. Legislative leaders may not appoint anyone who has served as a judge.
Saratoga Family Court Judge Gilbert Abramson was the only judge removed by the commission in 2010. He allegedly made comments about a woman’s shirt that were “full of sexual innuendo.”
Two other judges resigned while under investigation. One had approved of anti-semetic comments in court, the other hadn’t bothered to sentence 100 people who had been convicted. Twelve judges were censured last year for a variety of reasons.
A number of observers, including commission members feel that the commission is far too reserved in its disciplining of judges. Albany Family Court Judge Gerald Maney tried to use his position to get out of a driving while intoxicated charge and yet he kept his seat. But critics say even more serious allegations are ignored -- ones about cases being fixed, rights being ignored and clear conflicts of interest.
So what came out of the hours of testimony, the money, time and miles witnesses spent getting to Albany, the risk lawyers took by complaining about judges in a public forum?
In 2010 Sampson began pushing a piece of legislation that would open judicial disciplinary hearings to the public -- not the actual complaints against judges, but the proceedings that take place after the commission has found sufficient reason to proceed against a judge. Proceedings such as these are open to the public in 35 other states. In New York, the proceedings are public only if the judge waives the right to a private hearing and agrees to have the accusations aired in public. Information about cases that result in disciplinary action are available to the public after a decision has been made.
Robert Tembjeckian, administrator and counsel to the Commission on Judicial Conduct, supports making the proceedings public. But he points out that no one is exactly in a rush to act on such legislation. “There is a preoccupation with economic and budgetary issues. At the moment it doesn’t seem to be a major concern," he said, adding, "The best case to move it forward is hopefully one house will see fit to have public hearings, generate momentum and public discussion.”
Sampson says he may initiate hearings on the Commission on Judicial Conduct early next year. “Reforms are necessary. Lady Justice is supposed to be blind but she has a hole in her blindfold and her scales are not balanced. There is a call out there [for hearings],” Sampson said. Sampson said he plans to start early in the year, and thinks he will enjoy the support of Gov. Andrew Cuomo. “I know our governor is all for reform. He believes people lost faith in our government and he wants to restore it, so I know this is something governor would truly support.” Cuomo’s office did not return calls for comment.
While Sampson may be prepared to hold hearings, other supporters of the measure aren’t exactly chomping at the bit. Dennis Hawkins, executive director of The Fund for Modern Courts, says the economy has led his group to focus on court budgets and working for judicial pay raises. He expects the budget to be a major focus during the 2012 session as well. “Sometimes larger issues block out other issues,” he said.
Peter Barlet, president of the New York State Magistrate’s Association, said his organization has no position on the issue but said making hearings public could “be a concern among judges who have to run for office.” He said opponents could use baseless cases as ammunition against sitting judges.
Despite the talk about opening hearings, that was not the key concern of a majority of the people who testified in 2009. “None of those people said they lacked confidence in the commission because hearings weren’t open,” said Elena Sassower, director of the Center for Judicial Accountability, a group that describes itself as "a national nonpartisan, nonprofit, citizens’ organization documenting how judges break the law and get away with it." Instead, Sassower said, "They lack confidence because their detailed, documented complaints were dismissed without reason and they were told the reasons were confidential.
A majority of the testimony focused on complaints the commission decided not to pursue. Attorney Regina Felton described how one judge routinely altered the court record, failed to file motions and repeatedly fined her large amounts. Since these motions were not filed. Felton had difficulty appealing them. Eventually when the judge demanded she pay $6,700 in fines Felton told the judge she had appealed, but he sent her to Rikers Island where she spent 11 days. Other complainants detailed how judges who oversaw their cases had conflicts of interest thanks to business relationships.
Currently there is no way to judge how the commission performs its duties when it comes to investigating meritorious cases, because all complaints are secret.
In 1989 then State Comptroller Edward Regan attempted to audit the Commission on Judicial Conduct. The report that came of the attempt was titled “Not Accountable to the Public: Resolving Charges Against Judges is Cloaked in Secrecy.”
"The commission has denied our request for access to confidential files and has refused to propose legislation to open its records to my office," Regan said in a statement accompanying the report. "As a result, my auditors cannot determine if the commission is complying with applicable state laws and regulations." Regan added, "The potential exists that the commission could be abusing its authority by wrongfully dismissing complaints against judges without cause and justification."
The only group pushing to actually make these complaints available to the public is the Center for Judicial Accountability. Sassower said, "Making the hearings public is like snow in the wintertime. Opening hearings will only give us an idea of what is going on with a handful of complaints, not addressing the 95 percent that do not result in an investigation."
Sassower says she has a good idea about the number of complaints the commission gets and does not act on, because she encourages complainants to forward their grievances to her organization. Sassower’s group has brought suit against the commission a number of times, each case has failed and she has since been barred by the judiciary from bringing any further cases.
Sassower says the commission routinely ignores meritorious cases and even destroys complaints it has held for five years, thereby making it impossible to track a pattern of complaints against judges who serve long terms. She wants the veil of secrecy to be lifted so that the public can see whether the commission is doing its job.
The center has recently started pushing its case in a new way: attaching the issue to the very sensitive topic of judicial pay raises.
The Special Commission on Judicial Compensation was created by a 2010 law that mandates the group recommend salaries for judges. This year, the group issued a report recommending a 27 percent pay increase. The recommendation is binding and will go into effect next year unless the legislature blocks it. Late last month Sassower’s group issued its own report, which said the increase should not be given and charged that that the testimony given to the Senate in 2009 adds up to “evidence of systemic corruption” that “disqualifies judges from pay raises by a constitutional bar.”
Other groups that work on court issues are loathe to tie judicial pay raises to increasing transparency at the Commission for Judicial Conduct. After all, those same groups have been pushing for judicial pay raises for years.
“I don’t think that’s the way government works,” said Dennis Hawkins of the Fund for Modern Courts. “That seems like a way of coercion by the legislature against the judiciary. We need to keep the judiciary a separate, independent branch of government. Judges don’t have the ability to change the Commission on Public Conduct, so we shouldn’t be penalizing people who aren’t in charge of it.”
Others disagree with the very idea of opening the records. Tembjeckian, the commission’s administrator and counsel, says that the promise of confidentiality regarding complaints made against judges is “important and explicit. The statutory mandate precludes that even a grand jury cannot subpoena commission records. You are innocent until proven guilty.”
But Sassower argues that it is public record when a judge is sued. She notes that she has tried to get members of the press to write about the many complaints she has collected over the years, but to no avail. “The media is not running to cover complaints against judges. The fear is baseless.”
Sassower has distributed her report to the office of Chief Justice Jonathan Lippman, the governor and the heads of the legislature. She is currently awaiting response.