Hidden cameras under scrutiny

| 28 Jul 2015 | 12:53

It’s common practice for a landlord to install a hidden camera facing the apartment door of a tenant they want to evict. Such tactics are most often used in non-primary residence suits, when a landlord seeks to prove one of their tenants is not using their rent stabilized or rent regulated apartment as a primary residence, in violation of affordable housing law. If such a case can be proved in court, that tenant can be evicted, allowing the landlord to rent their unit at market rate.

Although there are exceptions, affordable housing law generally says a tenant must spend at least half the year in their apartment in order for it to qualify as a primary residence. Non-primary residence suits, and the use of hidden electronic surveillance in support of such proceedings, primarily occurs in the trendier neighborhoods of Manhattan where stabilized and regulated apartments that rent for hundreds of dollars per month can be flipped and rented for thousands of dollars if the affordable tenant can be evicted.

But does the use of hidden electronic surveillance ever cross the line into tenant harassment? Attorney Arthur Schwartz may soon find out. In June he removed five cameras that were pointed at the door of Ruth Berk’s apartment in the West Village. As Berk’s legal guardian, Schwartz claims the amount of cameras pointed at her door, and the minimal effort that went into hiding them, is evidence that her landlord is harassing her.

“These weren’t hidden, these were open and notorious, which is why I feel they took a step in an even worse direction,” he said. “There were large holes in the crown molding.”

Schwartz removed the cameras, without damaging them, he said, and turned them over to the state Attorney General’s office as evidence of possible tenant harassment. Three weeks later he was arrested on grand larceny charges after the landlord, BLDG Christopher LLC, complained to the police that removing the cameras amounted to theft.

Schwartz’s position is that he only removed the cameras to keep Berk from being intimidated. He also said the value of the five cameras, which ranged in price from $83 to $123 when he looked them up online, do not exceed the $1,000 threshold required for a grand larceny charge.

And he believes the landlord sought charges against him only after he wrote about the episode in the West View News, a local newspaper in the West Village. According to Schwartz, police in the Sixth Precinct initially told the building manager when she complained that the issue of the removed cameras was a civil matter. Soon after the article appeared, however, he received a phone call informing him that he was being charged with grand larceny.

“When that paper hit the street, the building agent marched back into the precinct and started yelling and screaming,” Schwartz said. “I actually think it was more retribution for writing about it than for my doing it.”

The building manager, Sophia Lamas, did not return a request for comment. A phone call to parent company BLDG Management also went unreturned.

Attorney Sam Himmelstein, who exclusively represents tenants in housing-related matters, said the issue of hidden surveillance cameras targeting tenants is new legal territory. He was only able to find one case that indirectly dealt with the practice.

In 1998, a New York City Civil Court judge ordered a landlord to remove a surveillance camera from the hallway of a building on Broome Street. A state Supreme Court appellate panel later reversed the decision, saying that the civil court overstepped its authority as it relates to the enforcement of housing standards.

The case — reversed for a jurisdictional reason — offers meager insight into how the courts view hidden surveillance cameras and tenants’ rights. Can a camera be pointed into someone’s apartment, as was the case with the five cameras aimed at Berk’s front door?

“Every time she opened her front door they could see what was going on inside,” said Schwartz. “That’s why I believe it was harassment. One camera would’ve been sufficient if you really thought there was something suspicious going on. And they had every angle covered you could possibly think of.”

Sue Susman, a lawyer and tenant activist who maintains a network of affordable housing organizers, said the issue hinges on what constitutes a reasonable expectation of privacy.

“The main legal issue is privacy. If someone reasonably expects privacy, such as inside their apartment, then it’s a violation of law to aim a camera there,” said Susman. “So the essential question is whether a camera in a hallway, where there is no expectation of privacy, is OK if it would show anything inside a tenant’s apartment when the door is open. Another aspect is whether people have a right to privacy about who visits them.”

Himmelstein said the expectation of privacy, at least in New York, doesn’t exist.

“This notion that people have a right to privacy is kind of an urban myth,” Himmelstein said. “The minute you step out of your apartment door, you’re in the public.”

Playing devil’s advocate, Himmelstein said the pro-surveillance argument would be that when an apartment door is open, the camera can see what the human eye can see, and by opening the door a tenant is exposing the interior of their apartment to a person that might be passing by, who would not be violating the law by looking into the apartment.

“Right now there’s not any really strong arguments that these cameras violate the law,” he said. “It seems to me that right now, the only way we can address this is legislatively.”

The state Attorney General’s office, which along with the Department of Homes and Community Renewal is piloting the state’s newly formed Tenant Protection Unit, referred inquiries on the topic to tenant harassment laws at the city and state level, neither of which address the use of hidden surveillance cameras.

“We haven’t put out specific guidelines on this,” said a spokesperson with the AG’s office. DHCR did not return a request for comment.

But the ubiquity with which Himmelstein sees hidden cameras being used by landlords, and the dearth of case law around the issue, leads him to believe building owners have the upper hand.

“I can tell you that it is a very common practice,” Himmelstein said. “Some landlord law firms use (hidden surveillance cameras) as a matter of course.”

He did allow, however, that his clients do feel intimidated when they discover surveillance cameras are monitoring them.

“They hate it, they all feel invaded by it,” Himmelstein said. “When people discover a camera, yea they get angry. They feel it’s intrusive. And with good reason. You don’t think of your hallway as a public space like you do with your lobby or out on the street.”

But does the obvious and seemingly excessive use of surveillance cameras against a tenant constitute illegal harassment?

Schwartz believes the cameras were installed outside of Berk’s apartment in such a way as to make their presence known, for the express purpose of intimidating Berk and her daughter, who have lived in the apartment at 95 Christopher St. since 1961.

“When you do surveillance and it’s not known, it doesn’t harass people ... but here, when they’re open and notorious, and they’re objected to and the landlord says, ‘tough luck I can do it anyway,’ then it moves into the realm of harassment,” Schwartz said. “Especially because they didn’t exist anywhere else in the entire building.”

For Schwartz, as Berk’s legal guardian, removing the cameras was a simple choice and one he doesn’t regret.

“She’s 92 and in a wheelchair. I’m supposed to look out for her well-being, and it bothered her a lot,” he said. “Those cameras, I mean, you open the door and they look right inside.”

The case against Schwartz goes before a grand jury on Oct. 15.