On Roosevelt Island

Has Manhattan Park Collected Millions in Unauthorized Electric Bills? Part II

Updated 4 years ago David Stone
Tenant Protests: A New York Tradition
Tenant Protests: A New York Tradition
Photo Credit: Wikipedia, Creative Commons License

In the days following the first article in this series, some doors opened on Manhattan Park’s history of sub metering on Roosevelt Island. By week’s end, management tried to close them.

The depth of my understanding of Manhattan Park’s electric billing practices deepened when Mark Lyon, an attorney who tussled with the management while serving on the Residents’ Association Common Council, shared files he accumulated before relocating. Mark’s moving away from Manhattan Park ended his efforts, but not before he’d engaged former State Assembly Member Micah Kellner, the Roosevelt Island Operating Corp., and the Public Service Commission.

Along with my own research, Mark’s archives helped draw a clearer picture and convinced me I was on the right track. A letter from Manhattan Park’s Brian Weisberg at week’s end strengthened that conviction.

Countless tenants gave up trying to break down the defensive barriers Manhattan Park puts up around its sub metering operation. Conflict resolution gets to seem such a waste of energy, you give up. Many move rather than endure the frustrations. Often, this happens because they see no options going forward.

Little did we all know, until recently, that RIOC had foreseen problems with sub metering from the start and included tenant protections in the ground lease.

It’s this simple. Before billing a dime for sub metered electricity, Manhattan Park was required to establish a grievance procedure that was approved and administered by the PSC or approved by RIOC.

Just about anyone who has tried to present Manhattan Park with concerns about sub metering will tell you that there is, in fact, no established grievance procedure, unless being rebuffed or simply ignored by Brian Weisberg or Michael Kim can be considered a “grievance procedure.”

And even if that absurdity proved to be true, no evidence exists that it or any other grievance procedure was ever approved by the PSC or RIOC. Manhattan Park disputes this but has been unable to produce one let alone any evidence that it has ever been used, that is, established.

In my July 20, 2016, letter to Michael Kim, Manhattan Park’s Property Manager, I asked for proof of both. I received neither.

That puzzled me because Manhattan Park could have closed the case simply by providing the proofs requested. Easy, right? Instead, what I received from Weisberg was a variation on “trust me.”

Weisberg’s response on behalf of Kim says the complex’s “grievance procedures were approved by RIOC in 1989,” but offered no evidence. Susan Rosenthal, RIOC’s Acting President/CEO, told me that the public benefit corporation found no record of an approved grievance procedure.

A critical piece is missing from Manhattan Park’s claims, and while further investigation may turn up something, an internal RIOC memo discovered by Lyon proves that Manhattan Park did, in fact, submit a grievance procedure to the PSC.

It was rejected.

The reason it was rejected is significant. What the PSC didn’t like about the proposal was that it positioned the PSC itself as the responsible party for arbitrating disputes between Manhattan Park and its tenants in disputes over sub metering. Instead, the PSC recommended that Manhattan Park assign that task to an impartial third party arbiter. They even went to the trouble of recommending one they believed would be fair.

No evidence has been found that Manhattan Park followed their recommendation or submitted an alternative that was approved.

We have to be careful here because it is always possible that, in twenty-five years, documents have been misplaced and still may be discovered, but as the record now stands, it appears that Manhattan Park went forward with billing for sub metering without an approved or established grievance procedure in violation of its ground lease with RIOC.

Why A Grievance Procedure Matters

It will come as no surprise to New Yorkers that, although most real estate developers are fair and honest in their dealings, enough are not that protections against abuse have been written into law and incorporated in general practices. One such protection, demanded by RIOC in its ground lease, is to require a grievance procedure tenants can follow to get relief from unfair practices, if such exist.

Just as a grievance procedure can earn tenant confidence by protecting them from unfair or predatory practices by landlords, the absence of one can be used to throttle tenant complaints.

RIOC, in an effort to protect tenants while giving Manhattan Park development rights to prime real estate on Roosevelt Island, demanded that the real estate company have an established and approved grievance procedure “Prior to billing…”

No evidence supplied by Manhattan Park shows that those criteria were met. On the other hand, the Roosevelt Island Daily has documentary evidence of multiple complaints about alleged sub metering abuses by tenants, none of which ever resulted in the initiation of a grievance procedure or even the suggestion of one from management.

Perhaps even more important, until Frank Farance dug up and shared a copy of the actual ground lease, no tenant to our knowledge was aware of the grievance procedure Manhattan Park now claims was approved in 1989. No tenant to our knowledge was ever offered access to it or even informed about it.

If such a procedure existed, all those years, why was it kept secret? Why is Manhattan Park now unable or unwilling to produce it or document its approval by RIOC?

In my experience, I’ve learned there is little likelihood that either question will be answered voluntarily by Manhattan Park.

To be sure, in his recent letter, Weisberg directed me to “follow the procedures set forth in the HEFPA notice.” HEFPA is a New York State law that attempts to protect tenants through a bureaucratic complaint procedure. Curiously, that procedure is a virtual mirror of the one that Manhattan Park submitted and had rejected for lack of an impartial third party arbiter.

It’s significant, I believe, that Weisberg failed again to offer access to the grievance procedure required in the ground lease, which he claims was approved in 1989. Why? That clause was put there to protect me and other tenants. Why wasn’t I offered access to it, nor were many other frustrated tenants over twenty-five years?

A System’s Failure

In his role as Common Council Member and tenant, Mark Lyon devoted time and attention to the puzzle of sub metering in Manhattan Park. He turned up important evidence and, before leaving New York, presented his arguments to RIOC’s Board of Directors, the Roosevelt Island Resident’s Association, and the Public Service Commission.

The rewards for his efforts are discouraging.

  • First, the RIOC Board’s response was and remains deeply disappointing. After asking the governing body, made up of primarily Roosevelt Island residents elected for nomination to their positions, for help, “No action was taken by the board, though Howard (Polivy) and Margie (Smith) seemed receptive to the issue,” Lyon explained. For this article, I asked every current board member for a comment. Not one took the time to answer, not even to decline openly for any reason.
  • RIRA, once Lyon departed, appears to have done nothing either. Vice President Sherie Helstein explained that the Council is prohibited from getting involved in tenant/landlord disputes unless there is a tenant association. The unspoken truth is that Manhattan Park has long been so underrepresented on the Council that no one was both available and willing to take up the cause.
  • There is no record of the Public Service Commission doing anything but shuffling papers. Lyon presented complicated legal issues, which Manhattan Park tried to deflect in a condescending response offering to let him break his lease without penalty, since they did not want “unhappy” tenants. With no one to continue the battle, the PSC seems to have let the matter drop.

Note: Nowhere is there any record in the documents Lyon has shared of a RIOC approved grievance procedure ever being offered or enabled, further evidence that an established procedure required in the ground lease did not exist.

Credit should go to then Assembly Member Micah Kellner for his willingness to dig his heels in with Manhattan Park. He was eager to pick up the matter when I met with him in the shadow of Lyon’s relocation. His being kicked out of his office without benefit of a proper transition left me with no opportunity to carry on seamlessly with his successor, Rebecca Seawright.

And recognition also needs to go to Frank Farance, always an energetic ally unafraid of taking on the powers that be, for volunteering to pass along his copy of the ground lease as well as his insight into the issues it raises.

And to Susan Rosenthal, RIOC’s Acting President/CEO who has been consistently and ably helpful in clarifying my options.

Where Do “We” Go From Here?

In light of Manhattan Park’s frustrating response to my initial letter, this is becoming more of a “we” than an “I” situation.

My thought when I started my quest for resolution was to use provisions of the ground lease to, at long last, find a way to settle the disputes many tenants have had over sub metering charges with Manhattan Park. I hoped to use my efforts as a model for other tenants to follow, not to represent anyone else’s interests.

But Manhattan Park’s continued evasiveness and the condescending tone of Weisberg’s response have altered my thinking. It does not seem that management is interested in or willing to interact in good faith with me alone.

It becomes more apparent that any resolution will require that, with the support of elected officials who are already engaged, RIOC be asked to demand that Manhattan Park take full responsibility for its failure to meet the terms of the ground lease. The lack of an established and approved grievance procedure has been instrumental in throttling tenant complaints about sub metering for over a quarter of a century.

Failing that — if for example RIOC lacks the resources or Rosenthal’s Board, which in theory guides the organization, balks — the next most logical move would be to look for legal council to proceed with a class action lawsuit. By definition, this would include all eligible residents of Manhattan Park since it began sub metering in 1989.

Neither of these scenarios are attractive, nor should they be, to us or to RIOC and Manhattan Park. But continued evasiveness and opaque maneuvering may leave no choice.

Ideally, one of our elected officials or RIOC will be able to soften Manhattan Park’s resistance to compromise, but history hasn’t left me hopeful. I will be responding promptly to Weisberg’s letter and, again, explain the proofs we are seeking and why they are important. Then, we will wait — optimistically in spite of experience.

To be continued.

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