On New Year’s Day, Harlem resident Aaron Topping was celebrating his 53rd birthday and looking forward to a new year. He had applied for a job as a maintenance worker at NYU and thought, “This year’s gonna be better than last year.”
That’s what he recalled one month later, sitting in a homeless shelter, tears streaming down his face, trying to explain what happened.
“I been there 25 years and then after awhile I’m in the streets, homeless, nowhere to go, nothing to do. I don’t understand it,” he said of being evicted from his apartment between West 145th and 146th Streets.
The rapid unraveling of this mild man’s life reflects the challenges faced by tenants with housing problems who try to navigate the legal system without counsel, and the grave ramifications for low-income tenants facing eviction. To hear Topping and his recently acquired attorney tell it, the recent string of events form a veritable case study in which things went wrong for the tenant at every turn, either because of an exploitative landlord, an insensitive court system, an initial lack of a lawyer or some combination of the three.
Aaron Topping’s troubles began last winter when his landlord, Behemoth Doughnut Corp., took him and his next-door neighbor, Ethel Bates, to Supreme Court, suing them each for being “wrongfully in possession” of their apartments and for $1 million in damages besides. Topping says he lived in the $200 per month rent-stabilized Single Room Occupancy (SRO) apartment for almost 26 years in the building at 719 Saint Nicholas Avenue, now nearby condominiums and a new Starbucks.
In its complaint, Behemoth claimed that Topping was not a permanent tenant because he was renting his SRO unit on a weekly basis without a written lease. It also accused him of, among other things, “clogging drain lines to create overflows into other space, breaking a stove, and denying access to his unit so that a radiator leak could be repaired.” There was no mention of his apartment’s rent-stabilization status.
These claims are all meritless, says Topping’s attorney Ryan Napoli, who suggests that Behemoth wanted to get his client and Bates out of the building so it could be sold to pay off $1 million dollars that Behemoth owed in unpaid back taxes. Behemoth, a company created by Evan Blum in order to purchase 719 St. Nicholas Avenue, has filed for bankruptcy.
But once made, the claims against him meant that Topping – who uses $126 per month in food stamps as part of his spare lifestyle and used to work as a carpenter– was caught up in complicated legal proceedings whose high stakes he would soon come to know intimately.
He struggled at a disadvantage without a lawyer in Supreme Court. Then, lacking a support system or financial cushion to fall back on, he became homeless while his neighbor was able to afford an attorney and remained in her apartment. The allegations against each tenant do differ, but Bates was accused of breaking and entering her apartment and changing the locks— yet she was never forced to leave.
Behemoth’s lawyer, John Simoni, of Goetz, Fitzpatrick LLP, claims that neither tenant ever paid rent to Blum, and that “the owner of the building is unable to sell or renovate the building while Topping and Bates remain in it.” The damages, Simoni said, “are related to the specific… labor and material to correct the damages they caused in the units and into the building, but also for the loss—anticipated loss—of profits over not being able to sell the building.”
Both Bates and Topping filed “pro se” answers to the complaint – meaning they were representing themselves – but Justice Leland DeGrasse granted Behemoth’s motion for summary judgment, allowing Behemoth to repossess the apartments without holding a trial.
“I felt dumb,” Topping said of his time in court. “I didn’t understand.”
With eviction looming, Bates hired an attorney, Kofi Scott, of Scott and Liburd, who filed an “order to show cause” for wrongful possession. In order to get Bates’ wrongful possession charge dismissed, Scott used his client’s rent-stabilization paper trail with the state Division of Housing and Community Renewal (DHCR), as well as court documents, to prove that she was a permanent resident of the building. In a previous non-payment case before Housing Court, which was later dismissed, Behemoth had sworn Topping was a permanent tenant under a signed lease. Yet this time around, Behemoth was claiming they were not.
“He struck the prior order as to Ms. Bates only,” Scott said. “The judge could have, at his discretion, inquired about Mr. Topping” also. But Justice DeGrasse told City Limits, “You cannot go outside the record that is before the court,” and so he did not inquire into the status of Topping’s apartment. He also said the allegations against Bates and Topping differed significantly.
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Topping did not sit idly waiting to be evicted. He also went to see his neighbor’s lawyer, and Scott drew up an order to show cause for Topping on a pro-bono basis, using similar evidence as for Bates. But when Topping went alone to bring the papers to court and have them signed, he said the clerk disappeared for a few minutes and then told him it couldn’t be signed. Scott said he planned to return to court with Topping the next day, but by then he had already been evicted.
Behemoth is owned by Evan Blum, who made the news last summer for his contentious relations with tenants in a building neighboring his Houston Street business, Irreplaceable Artifacts. They were trying to block him from building a hotel on the site where a wall collapsed in 2000, forcing them to evacuate and resulting in the Department of Buildings partially demolishing it the same day. Blum, who also owns Demolition Depot on East 125th Street and several other buildings, was convicted of a misdemeanor count of reckless endangerment. Still, he claimed he was the victim because he wasn’t given a chance to remove his belongings: architectural fixtures from buildings soon to be destroyed.
Now, Napoli accuses Blum of callously evicting Topping the same way – keeping him from his most personal and necessary items.
Topping, who said he had tried and failed to find a pro bono lawyer, received an eviction notice on Jan. 11, giving him five business days to leave. Fewer than five business days later (because of the weekend), he said, on Jan. 16 he came home to find his door bolted shut and a neighbor told him he saw Topping’s belongings being removed.
His medication for high blood pressure, his social security card and birth certificate were among the items put into storage with a removal fee of more than $600, he said. His parakeet was left inside to die.
Topping spent the next three nights sleeping on the A train, riding from 207th street to Far Rockaway and back again. Most of his extended family lives in North Carolina where he was born and raised. So, without a support network and dependent on public assistance, Topping said he could find no alternative to homelessness.
“She won her case and she’s still in the building and I’m in the streets,” he said.
On the fourth night Topping stayed with one of his few close friends who knew about the homeless shelter, Valley Lodge, on West 108th Street. Run by the West Side Federation for Senior Supportive Housing, it serves people age 50 and over. From there, he was referred to the West Side SRO Law project and gained legal representation through attorney Napoli.
Napoli saw that DeGrasse did not take SRO rent-stabilization law into account with regard to the wrongful possession allegation when he handed down his decision. Under rent-stabilization law, an SRO tenant only has to live in an apartment for six months to be considered a permanent resident.
Even though Behemoth registered the apartments of both Topping and Bates as rent-stabilized in its 2005 filings (the most recent) with DHCR, Behemoth’s lawyer Simoni said the apartments’ status is disputable. Simoni claims he did not know the issue was in question when he filed the complaint alleging wrongful possession, or he would have been obliged to include it. However, according to Mr. Napoli, “If you don’t mention it, the case is dismissible.”
According to Christopher Schwartz, supervising attorney of MFY Legal Services, who oversees the East Side SRO Law Project, pro se tenants – those who represent themselves in court – are at a great disadvantage in these types of cases. The problem, said Schwartz, is that “you’re having these negotiations where one side has sharply more experience than even the brightest tenant who is probably doing this for the first time.”
Simoni, the landlord’s attorney, said of Topping’s response to the original decision and judgment for eviction, “Topping did not pursue the matter. Topping didn’t go to West Side SRO. Topping didn’t do anything. Topping didn’t file similar motion papers. Topping just sat there,” he said.
Attorney Kofi Scott, who represented Bates, said of the neighbors’ cases: “His facts were essentially the same as hers … I’m confident that he would have been dealt with the same way if he had joined the motion initially.”
According to Judith Goldiner, a senior attorney with Legal Aid Society who works on housing issues, it is common for landlords to file complaints without disclosing a tenant’s Section 8 status or whether an apartment is rent-stabilized. This, Goldiner said, makes it even more difficult for tenants to get a fair shake in court, especially without a lawyer. She said she supports a “Civil Gideon,” meaning tenants in civil court be given the same right to a lawyer as they have in criminal court (the civil version of the right established in the 1963 U.S. Supreme Court case Gideon v. Wainwright). “Justice shouldn’t depend on whether you walk out and get a legal aid lawyer,” she said.
Napoli blames what happened to Topping, in part, on the Supreme Court venue. “I never thought I would compliment Housing Court,” he said, “but no Housing Court judge would ever evict this guy.”
In some ways, Topping was more fortunate than many, even if it was too late to avert eviction. “It’s very hard for a pro se litigant to find representation in New York City…It’s almost like winning the lottery,” said Schwartz, whose organization oversees the East Side SRO Law Project (which also represents SRO tenants but is not connected to the West Side SRO Law Project). Both groups say they regularly turn tenants away because they are swamped with requests for legal representation.
Even after he got an attorney, Topping remained homeless and without his medication for weeks, waiting for a stay to be lifted in Behemoth’s separate bankruptcy case. Behemoth filed for bankruptcy in Sept. 2007, long after it had filed suit against Topping and Bates. Judge Robert Drain barred anyone from filing a lawsuit against the landlord. “They [were] using the Supreme Court as a sword and they’re using the Bankruptcy Court as a shield,” said Napoli.
The stay was finally lifted on Feb. 13, during Topping’s fourth week of homelessness, and Napoli was then able to get a temporary restraining order allowing him to return to his apartment until the case is heard in full.
When he got back in, however, Napoli said Topping returned to find no heat or hot water, a large hole in his floor and other damage that wasn’t there when he left. The city’s Department of Housing Preservation and Development has told Mr. Topping they will make emergency repairs but according to Topping, have not yet done so. Next week, on March 3, Justice DeGrasse will make a final decision as to whether to restore Mr. Topping permanently.
Now, with a lawyer by his side, Topping said, “I feel a little bit better to have some kind of help.”
