New York, New York 10007
Donald O. Chesworth, Chairman
Earl W. Brydges, Jr.
Thomas J. Culhane
Joseph S. Dominelli
Salvatore R. Martoche
William F. Passannante
Helene B. Gurian, Deputy Commissioner/Chief Counsel
William F. Friedlieb, Chief Investigator
Jerome Lightfoot, Deputy Chief Investigator
Staff for this Investigation
Allan M. Morofsky, Senior Supervising Assistant Counsel
Kenneth Christophersen, Special Agent
Francis D. Rawdon, Supervising Assistant Counsel
Laurence Snyder, Special Agent
Alfonso Campagnola, Special Agent
Sherida Azeez, Administrative Assistant
Cheryl Cox, Secretary
Chapter One: The Town of Hempstead Department of Buildings
Hempstead's Building Code
History of the Bedford Plaza Mall
Renovations at the Mall
Chapter Two: Receivership of the Bedford Plaza Property
Events leading to the appointment of Edward T. Robinson,
Receiverships of Property in Foreclosure
Actions of the Bedford Plaza Receiver
Chapter Three: the Investigation and Prosecution
Liability of Nicholas Corvacciola
Liability of Costas Poulikidis
Liability of the Former Inspector
Liability of Edward T. Robinson, III
Chapter Four: Analysis of the District Attorney's Actions and Conclusions
The Law of Criminally Negligent Homicide and Reckless
The Evaluation of Evidence Against Edward T. Robinson, III
The Former Inspector
Conclusions and Recommendations
Conduct of the District Attorney's Office
The Hempstead Department of Buildings
On the afternoon of January 21, 1994, Michael Unterweiser, a nineteen-year old Nassau County resident, was fatally injured when an eighteen-foot high concrete masonry wall collapsed on top of him. The masonry wall was a decorative facade abutting the south side of a strip shopping mall in Bellmore, New York, known as Bedford Plaza. At the time of the incident, the property was the subject of a mortgage foreclosure proceeding instituted by Ezra Cattan, a local businessman. Edward T. Robinson, III, a Nassau County attorney, was the court appointed receiver for the mall when the facade collapsed.
The Nassau County Police Department immediately launched an investigation into the incident. See footnote 1 In addition, an architect retained by the Town of Hempstead's Department of Buildings ("DOB") examined the structure hours after it collapsed and determined that the wall had no foundation, was improperly connected to the abutting south wall of the mall and had no means by which water could escape from in between the two walls, all in violation of state and local building codes. Investigators also quickly discovered that no building permit or certificate of completion had ever been issued for the wall by Hempstead's Department of Buildings, also in violation of local law. A former inspector employed by DOB ("former inspector") later acknowledged to police that he had been at Bedford Plaza during the renovations and was aware that the wall had been constructed without a building permit, but took no action because he believed that the mall was under the jurisdiction of the Unsafe Buildings Division of his agency. Officials at the agency denied this.
The police investigation revealed that the wall had been constructed as part of a number of renovations initiated by Costas Poulikidis, who had purchased the property from Mr. Cattan in May, 1988. The actual construction of the facade was performed in the spring of 1988 by Nicholas Corvacciola, a seventy-six year old stone mason who had worked for Mr. Poulikidis on previous occasions. In a written statement to police, Mr. Corvacciola allegedly acknowledged that he had improperly built the facade, but insisted that he had done so at Mr. Poulikidis' direction.
Court documents obtained by Nassau County investigators reflect that by 1990, Mr. Poulikidis had defaulted on both the purchase money mortgage given to Mr. Cattan as part of the original purchase agreement, and a secondary mortgage given in August, 1988, to Effenzee Capital, a Brooklyn based company. See footnote 2 Mr. Cattan suspended foreclosure proceedings, however, when an agreement was reached whereby maintenance and operation of the property were taken over by Effenzee Capital which, in turn, assumed Mr. Poulikidis' mortgage obligations to Mr. Cattan. The foreclosure proceedings were reinstituted in 1992 when Effenzee ostensibly breached the agreement. Prompted by a concern that, pending final resolution of the foreclosure proceeding, rents and other monies due him were not being forwarded, Mr. Cattan's attorney, Ronald Lenowitz, asked Nassau County Supreme Court Judge John Burke, who was presiding over the foreclosure action, to appoint a receiver for the property.
Edward T. Robinson, III, was appointed as Bedford Plaza receiver in December, 1992. He testified before the Commission that, while on a tour of the property in March, 1993, he observed several loose bricks on the upper southeast corner of the facade. (See Exhibit 1). He also testified that he subsequently sought and received court approval to retain William Amoroso, of Concord Home Improvement, to effect repairs to this and other defective conditions at the mall. In May, 1993, Mr. Amoroso's subcontractor, Carmello Folti, purportedly poured some cement between the loose bricks and the abutting south wall of the mall, but this had no effect on the facade's defective condition. Mr. Amoroso denied to the Commission that he had any knowledge of the danger posed by the facade but testified that he told Mr. Robinson that the wall might need to be repaired in the future.
While Mr. Amoroso was making repairs to the property, Mr. Robinson received a letter from David Weiss, an attorney and local businessman, who expressed concern that the wall was "in danger of collapse." Mr. Robinson testified before the Commission that he believed this letter referred to the problem he had previously observed. He responded to Mr. Weiss that "some" repairs had already been made to the wall. Mr. Robinson took no additional action with respect to the structure, believing that his discharge as receiver was imminent. Instead, Mr. Robinson advised Mr. Cattan's attorney about the problem. In his letter to Mr. Lenowitz, dated June 15, 1993, Mr. Robinson stated that the wall was "still dangerous" and posed a "potentially dangerous situation." Mr. Robinson added that in his contractor's judgment, "the wall should be ripped down and rebuilt." Despite his expectations, Mr. Robinson was not discharged until January 31, 1994, ten days after the wall collapsed.
The District Attorney's Office evaluated the facts and circumstances surrounding the construction of the facade and the events leading to its collapse. They determined that, based largely on his written statement to police, Mr. Corvacciola could be prosecuted for criminally negligent homicide stemming from his improper construction of the wall. It was also decided that the only way Mr. Poulikidis could be charged with a crime arising out of this incident would be if Mr. Corvacciola agreed to cooperate with the authorities. Although discussions did take place regarding such cooperation, no agreement was reached. The District Attorney's Office concluded that without Mr. Corvacciola's testimony, a criminal action against Mr. Poulikidis could not be maintained.
The District Attorney's Office also determined that no one else, other than Mr. Corvacciola, could be charged with a crime in connection with this incident. Prosecutors concluded that Mr. Robinson made reasonable efforts to repair what he perceived to be the problem with the facade, and that he had no information which would have indicated that the wall was in imminent danger of collapse. They also ruled out any prosecution of the former building inspector because his actions did not, as a matter of law, rise to the level of criminal conduct. After a grand jury presentation in the fall of 1994, Mr. Corvacciola was indicted for Criminally Negligent Homicide. See footnote 3
By letter dated December 30, 1994, after receiving reports which were critical of the District Attorney's determination to prosecute only Mr. Corvacciola for this incident, former Governor Mario M. Cuomo requested that the Commission investigate this matter to determine if the appointment of a special prosecutor was warranted. The Commission conducted thirty-three interviews, held private hearings, reviewed the investigative files from both the Nassau County Police and District Attorney's Office and obtained additional records, including numerous documents from the Hempstead Department of Buildings and the various court proceedings.
The Commission found no basis for recommending the appointment of a special prosecutor. The Commission determined that the Nassau County District Attorney fully considered potential criminal charges against various individuals prior to determining whether action was warranted. While the Commission does not concur with every assessment made by the District Attorney's Office, it is clear that the District Attorney's actions were well within his authority, and that none of his actions constituted an abuse of discretion.
Furthermore, the Commission concurred with the prosecution's finding that there was insufficient evidence of criminal conduct on Mr. Robinson's part. While finding cause for concern regarding some aspects of Mr. Robinson's account of his actions, the Commission found that he had no information which should have led him to believe that the wall's collapse was imminent. The Commission also concurred with the conclusion that the former building inspector could not, as a matter of law, be prosecuted for his failure to enforce Hempstead's Building Code. While the Commission had some reservations concerning the District Attorney's assessment that Mr. Corvacciola's testimony was "absolutely essential" to a criminal case against Mr. Poulikidis, it found that the decision not to proceed without the stone mason's cooperation was clearly within the appropriate exercise of the District Attorney's discretion.
With respect to the conduct of Hempstead's Department of Buildings, the Commission found that a system of internal audits and controls was completely lacking at the agency. This resulted in the absence of written guidelines and protocols pertaining to the issuance of permits, certificates and other documentation required by the Hempstead Building Code, haphazard reviews of outstanding building permits and virtually no supervision of the work of inspectors. There are also no written guidelines with respect to the procedures to be followed upon receipt of a complaint or allegation of an unsafe building.
The Commission, therefore recommends that the Town of Hempstead Department of Buildings take the following action:
A number of governmental authorities were quickly notified of the incident. In addition to emergency medical personnel, officers and detectives from the Nassau County Police Department arrived at the location within minutes of the wall's collapse. Two prosecutors from the Nassau County District Attorney's Office also responded to the scene. In addition, an official from the Hempstead Department of Buildings immediately retained the architecture firm of James Thomas Martino & Associates to conduct an emergency inspection of the fallen structure. Based on this inspection, which took place only a few hours after the incident, it was determined that the facade, along with an identical one on the north side of the mall, had not been built in conformance with the New York State Construction Code. Specifically, the walls, each consisting of forty-pound split face concrete blocks, had no structural foundation, no horizontal or vertical reinforcements, lacked the required metal ties and failed to include drainage passageways, often referred to as weepholes, in the vertical mortar joists. James Martino, the architect who performed the emergency inspection, determined that the lack of weepholes permitted water to build up between the facade and the brick veneer of the mall. He later opined that when the accumulated water froze during the winter of 1993-94, it expanded, forcing the facade away from the structural wall and ultimately causing it to collapse.
The initial criminal investigation into this incident was conducted by the Nassau County Police Department. Subsequently, the Nassau County District Attorney's Office joined the investigation. The authorities ascertained that the cement block facade was built in the summer of 1988 by a former owner of the mall, Costas Poulikidis. Mr. Poulikidis, through his company, Bedford Plaza Realty, had purchased the property in the spring of 1988 from Ezra Cattan, a local businessman, who had owned it since the 1950s. In addition to a cash down payment, Mr. Poulikidis gave Mr. Cattan a purchase money mortgage of $2.2 million on the property.
The facade's construction was one of a number of renovations to the mall Mr. Poulikidis initiated after purchasing the property. Investigators learned that Mr. Poulikidis did not have the required permit from Hempstead DOB to construct the facade. DOB records revealed that the former inspector was present at the mall during the renovations. He told the police, however, that while he was aware of the wall's construction, it was not his responsibility to determine whether a permit had been issued. According to the former inspector, that was the job of the "dangerous buildings unit." DOB officials did not concur with the former inspector's assertion. The actual construction of the cement wall was performed in May, 1988, by Nicholas Corvacciola, a seventy-six year old stone mason who had worked for Mr. Poulikidis on previous occasions. Mr. Corvacciola allegedly told police investigators that he knew the wall was built improperly and had so advised Mr. Poulikidis.
The police investigation further revealed that, in 1990, Mr. Poulikidis had defaulted on his purchase mortgage for the property. Mr. Cattan commenced foreclosure proceedings later that year but agreed to discontinue the action after a second mortgage holder, Effenzee Capital, offered to take over operation of the mall and assume Mr. Poulikidis' mortgage obligations. By the end of 1992, however, Effenzee had also defaulted on the mortgage and, consequently, Mr. Cattan reinstituted the foreclosure proceedings in order to recover legal title to the property. Ronald Lenowitz, Mr. Cattan's attorney, requested that the Nassau County Supreme Court appoint a receiver for the property. In December, 1992, Nassau County Supreme Court Justice John Burke appointed Edward T. Robinson, III as receiver. Mr. Robinson was given authority to collect rents, negotiate leases having terms of one year or less, pay bills owed by the mall and effect necessary repairs to the property.
After assuming his receivership duties in January, 1993, Mr. Robinson became aware of a number of defective conditions which required prompt attention. These included a leaking roof which was causing repeated flooding to certain stores in the mall, the accumulation of garbage, and problems related to pigeon and rodent excrement in vacant stores within the mall. Mr. Robinson also purportedly learned about a defective condition in the vicinity of the wall on the southern portion of the building.
In April, 1993, Mr. Robinson sought and received permission from Judge Burke to use funds in the receivership account to effect certain repairs. Included in the authorization to expend funds for repair work was $750 "to repair and/or replace the damaged and defective exterior wall which is located on the south and east of the subject building... ." Subsequently, William Amoroso, a local contractor retained by Mr. Robinson, directed his subcontractor to commence certain repair work on the wall. The subcontractor performed a variety of repairs, including filling in a gap at the top of the southeast wall with mortar, but did nothing to alleviate the defective conditions which ultimately caused the south wall to collapse.
After Mr. Amoroso completed the repair work on the southeast corner of the mall, Mr. Robinson corresponded with several individuals about the facade. David Weiss, then President of the Bellmore Chamber of Commerce, wrote to Mr. Robinson in May, 1993 to express concern that the wall was "in danger of collapse". Apparently relying on his mistaken belief that the structure had been "patched," Mr. Robinson advised Mr. Weiss that the south wall had been repaired, albeit temporarily. In June, 1993, Mr. Robinson wrote to Ronald Lenowitz and informed him that, even though temporary repairs had been completed, the wall "at the southeast corner" of the mall was "still dangerous." At the time Mr. Robinson wrote this letter, he was apparently expecting that he would soon be discharged as receiver. He was not, in fact, relieved of his receivership responsibilities until January 31, 1994, ten days after the fatal incident. During this seven month period, Mr. Robinson retained exclusive authority to effect repairs on the property, subject to court approval. No repair work of any kind was ever performed on the defective facade.
After conducting its investigation, the Nassau County District Attorney's office concluded that the only person who could be criminally prosecuted for the death of Michael Unterweiser was the stone mason who was responsible for the original construction of the wall, Nicholas Corvacciola. Mr. Corvacciola had given two statements to police, the first oral and the second written, in which he allegedly admitted knowing that the wall was improperly constructed. In addition, based on information from architectural and engineering experts who were consulted by the District Attorney, it was established that the wall fell, at least in part, as a result of the accumulation of water in between the facade and the brick veneer of the mall. The water collected, according to these experts, due to the lack of weepholes in the facade. The lack of a foundation also contributed to the wall's collapse. Based on these findings, prosecutors concluded that the collapse was directly attributable to the improper construction of the wall. In January, 1995, Mr. Corvacciola was indicted by the Nassau County grand jury for Manslaughter in the Second Degree and Criminally Negligent Homicide in connection with the death of Michael Unterweiser, and with Assault in the Third Degree stemming from the injuries to Gayle Unterweiser.
The District Attorney's office also evaluated the available evidence against others. Consideration was given to prosecuting Mr. Poulikidis for Criminally Negligent Homicide. Based on Mr. Corvacciola's statements, it appeared that Mr. Poulikidis was aware of the defective construction and had directed how the wall was to be built. Accordingly, efforts were made by the District Attorney's office to secure Mr. Corvacciola's cooperation against Mr. Poulikidis. Despite negotiations between the parties, however, no agreement was reached. The District Attorney concluded that, absent Mr. Corvacciola's testimony, it would be impossible to establish Mr. Poulikidis' potential criminal liability. In addition, the fact that Mr. Poulikidis was residing in Greece made it extremely unlikely he could ever be involuntarily brought back to the United States to stand trial. The District Attorney determined that, although an extradition treaty exists between Greece and the United States, it does not provide for extradition for a crime of this nature.
The District Attorney's office also considered prosecuting Edward T. Robinson, III. Prosecutors concluded, however, that a prosecution was not warranted because Mr. Robinson was "aware only that a few square feet of the upper southeast corner of the facade was in disrepair." See footnote 4 Because Mr. Robinson believed he had effected temporary repairs to what he perceived to be the problem with the facade, even though it was later acknowledged that no repairs were actually made to the defective south wall, the District Attorney's office concluded that Mr. Robinson's actions constituted a good faith effort to discharge his receivership obligations under the law. Moreover, according to the District Attorney's Office, Mr. Robinson's June, 1993 communication with Mr. Lenowitz, in which he advised Lenowitz of the defect in the wall, reflected Robinson's good faith effort to satisfy his legal duties in this matter. The prosecution reasoned that Mr. Robinson was, in effect, alerting the next owner of the property of the wall's condition and of the effort he made at preserving it until Mr. Cattan regained title to the mall. As a result, the District Attorney's office found that Mr. Robinson had not engaged in any criminally culpable conduct.
The District Attorney's Office also considered bringing criminal charges against the former building inspector who was at Bedford Plaza during the wall's construction. Prosecutors again concluded that there was no evidence to support any criminal charges in connection with Michael Unterweiser's death. Although the District Attorney's Office attempted to pursue information that Mr. Poulikidis had bribed the former inspector during the course of the renovations at the mall, it was unable to establish a prima facie case without securing the cooperation of Mr. Poulikidis. While there were preliminary discussions with Mr. Poulikidis' attorney regarding such cooperation, the District Attorney refused to consider immunizing Mr. Poulikidis and no agreement materialized. With respect to a possible charge of Criminally Negligent Homicide against the former inspector, the District Attorney's Office determined that, at most, the former inspector was aware only that Mr. Poulikidis was constructing the facade without a building permit, and that this was insufficient, as a matter of law, to warrant a prosecution for criminally negligent homicide.
After Mr. Corvacciola's arrest, the Unterweiser family expressed dissatisfaction with the District Attorney's handling of the case. The Unterweisers believed that the prosecution's investigation was narrowly focused and that, as a result, the prosecution had decided not to pursue criminal charges against Mr. Poulikidis, Mr. Robinson and the former inspector. They requested that a special prosecutor be appointed to review the District Attorney's actions. By letter dated December 30, 1994, former New York State Director of Criminal Justice Richard H. Girgenti, acting at the request of then Governor Mario M. Cuomo, directed that the New York State Commission of Investigation ("the Commission") conduct an investigation to determine whether the appointment of a special prosecutor in this matter was warranted. Accordingly, on January 12, 1995, the Commission, by unanimous resolution, authorized an investigation into "the facts and circumstances surrounding the death of Michael Unterweiser, and matters relating thereto."
In furtherance of its investigation, the Commission obtained all relevant records from the Hempstead Department of Buildings, the Nassau County Police Department and the Nassau County District Attorney's Office. See footnote 5 Additionally, the Commission secured business records from various companies and individuals who performed repair work at the mall in 1993, as well as records from numerous merchants who have maintained places of business at Bedford Plaza. The Commission also reviewed the court files pertaining to the mortgage foreclosure proceedings as well as records of other relevant court proceedings.
The Commission interviewed thirty-three individuals in connection with its inquiry, including tenants at the mall, neighboring merchants and representatives from local business organizations, repair workers who worked at the mall in 1993, officials from the Hempstead Department of Buildings and prosecutors from the District Attorney's Office. The Commission also interviewed Ronald Lenowitz, attorney for Ezra Cattan, Edward Waldman, attorney for several merchants at the mall, and Lester Stanco of Stanco Enterprises. The Commission met with Allen Unterweiser, father of the decedent, and his counsel. Additionally, the Commission received sworn testimony from Lee Bor Cheung, William Amoroso and Edward T. Robinson, III.
DOB is also responsible for the enforcement of ordinances, rules and regulations pertaining to unsafe or dangerous buildings in the Town of Hempstead. Hempstead Code, § 52-3; See also, Ch. 90. Section 90-1(5) of the Hempstead Code defines a dangerous building or structure as:
Those [buildings or structures] which have parts thereof which are so attached or connected in such a manner that they may fall, collapse or cause damage and injury to the occupants thereof or other persons or property." See footnote 8When DOB receives a complaint or other information indicating a building or other structure may be unsafe or dangerous, the agency is required to investigate and issue a written report. Hempstead Code, §§ 86-5(E); 86-27(B). Once DOB makes a finding that a structure is dangerous, the owner, after being notified of the condition, is required to effect repairs within a specified period of time. Hempstead Code, § 86-27(C). Failure to comply with DOB's directive is illegal. Id.
Personnel at Hempstead's DOB include the Commissioner, appointed by the Town Board of Supervisors, Hempstead Code, §52-1, two deputy commissioners, a supervisor of inspection services, and a chief code enforcement officer. In addition, the agency's inspection function is divided into five units: zoning, plumbing, buildings, multiple residence and public assembly. Each unit has a chief, supervising inspectors and field inspectors. There is also a separate Division for Unsafe Buildings. Although DOB Inspectors are assigned to the various units according to their experience, the only prerequisite for employment by DOB is that applicants must pass a civil service examination. According to Mario Gaiti, DOB's Chief Code Enforcement Officer, structural inspectors from the buildings unit must also be able to read building plans and blue-prints.
Applications for permits, prepared in accordance with the Building Code are reviewed by plans examiners at DOB. Hempstead Code, §86-9. If the appropriate documentation is not submitted with the application, or if the building plans do not comply with state or local laws, DOB will not issue a permit. Once the permit is issued, work on the project must commence within ninety days and be completed within one year, although DOB can extend a permit for up to an additional year. Upon satisfactory completion of the project, a Certificate of Occupancy or Completion will be issued by DOB. According to Mr. Gaiti, it is the contractor's or owner's responsibility to request inspections by DOB to determine if the project has complied with the Code's legal and technical requirements. If this does not occur, a written reminder is sent eleven months after the permit is issued, advising the owner that, if the project is not completed within one year of the date of issuance of the permit, the permit will be voided and the project will be deemed abandoned. Continued work on an abandoned project is illegal. Hempstead Code, § 86-13(A),(B).
Mr. Gaiti informed the Commission that inspectors have complete discretion to issue or deny building permits and certificates of completion or occupancy. DOB has no manuals or written guidelines, however, pertaining to the issuance of permits or certificates. The only guidance available to an inspector making these determinations is the assistance of a supervisor.
Mr. Gaiti stated that regular inspections are conducted by DOB employees only at multi- dwelling residences and places of public assembly. There are no regularly scheduled inspections of commercial structures. In general, the only way DOB officials would learn of an unsafe or dangerous condition at an existing commercial structure is by a complaint from the public.
Ensuring that this and other conditions were corrected was primarily the responsibility of the Unsafe Buildings Division of DOB. Hempstead Code, Ch. 90. Despite repeated attempts over the next several years from representatives of both the Health and Buildings Departments, however, Mr. Cattan failed to repair the roof or rid the building of pigeons. See footnote 9 In addition, commercial tenants in the mall complained of the general deterioration of the entire structure, including the occupied stores. One tenant, apparently exasperated over Mr. Cattan's lack of concern, wrote to Nassau County Executive Thomas Gulotta in October, 1987, stating that, as a result of Mr. Cattan's neglect, the building was rapidly becoming an eyesore and the adjacent parking lot was returning to its "natural dirt state and general slum-like appearance." By the beginning of 1988, tenants, concerned citizens and the local press were complaining of leaking roofs, decaying building structures, mosquito infestation, dead pigeons and a hazardous parking lot. See footnote 10 After repeated efforts by both the Town's Building's Department and the County's Health Department, in March, 1988, Mr. Cattan finally pumped out the raw sewage from the basement of the abandoned theater. Some of the other hazardous conditions, however, including the leaking roof and pigeon infestation, were never corrected by Mr. Cattan. Nevertheless, DOB's files on the mall indicate that, by the time the building was sold in May, 1988, the Unsafe Buildings Division had closed its file and declared the building safe.
The defective facade abutted the side wall of a chinese restaurant, located at 501 Bedford Avenue along the south side of the mall, several stores away from the theater. Hempstead DOB records reflect no building permit of any kind for this, or for the facade on the north side of the mall.
With respect to the building permit for the renovations to the abandoned movie theater, the former inspector was assigned to the construction project. The former inspector was employed by Hempstead DOB in the same capacity from 1967 to 1991. See footnote 13 In 1988, he was responsible for the area of the Town which included the Bedford Plaza Mall. According to his written statement to Nassau County Police investigators, the former inspector acknowledged that he was aware of the wall's construction during the summer of 1988. Nassau Police Department interview notes reflect that the former inspector advised them that Mr. Poulikidis was "overseeing" the construction work on the building and was there "all of the time." The former inspector maintained, however, that at the time of the construction of the facade's the mall was under the jurisdiction of the Division of Unsafe Buildings. He claimed that, after observing the extensive renovation work at the mall, he brought the facade's construction to the attention of his supervisor at the time, Julie Delia, who purportedly advised him that the building was still "in the hands of the Unsafe Section of [DOB]." See footnote 14 The former inspector also told police investigators that he passed by the mall several more times during the renovations and continued to question his supervisors about the existence of permits for the construction work. The former inspector claimed he was never given a direct answer, but was told "it [the permit] is in [the] works." Finally, he stated that, in the fall of 1988, he was transferred to the Public Assembly Division of DOB.
Information contained in DOB's files, as well as interviews conducted by the Nassau County Police Department and by the Commission, contradict the former inspector's assertion that the renovations at the Bedford Plaza mall, including the construction of the concrete facades, was not his responsibility. James Dean, the Chief of the Unsafe Buildings Division of DOB during the period of time when the renovations were taking place, denied that his division had jurisdiction over the construction of the facades. Mr. Dean told police investigators that the function of his unit was to ensure that unsafe conditions in existing structures were corrected. He stated the facades would be considered new construction and, therefore, his unit would "have nothing to do with inspections of new facades." In addition, DOB files from the Unsafe Buildings Division indicate that the conditions which DOB had determined to be unsafe existed in the middle building where the abandoned theater was located. There are no references in these files to any unsafe or dangerous conditions existing at the northern or southern end of the mall, where the decorative facades were located. As noted, the files also indicate that by April, 1988, prior to Mr. Poulikidis' purchase and subsequent renovations of the property, the mall was considered safe by DOB officials and, therefore, was no longer under the jurisdiction of the Unsafe Buildings Division. See footnote 15
Furthermore, the former inspector's actions during the time in question reflect that he was responsible for inspecting the mall and that the Unsafe Buildings Division was no longer involved in the process. DOB files indicate that the former inspector conducted at least five inspections of the mall between October, 1988 and November, 1989. These records also reflect that the inspections were conducted with respect to the renovations to the abandoned theater. The build-up of raw sewage in the abandoned theater had been the subject of scrutiny by the Unsafe Buildings Division. If this portion of the mall was still under the control of that unit between October, 1988 and November, 1989, as the former inspector claimed, DOB would not have issued a permit authorizing renovations. Thus, DOB would not have assigned the former inspector, an employee in the Buildings Unit of DOB, to conduct inspections during this period of time. See footnote 16
Neither the former inspector nor any other official at Hempstead's DOB took any action with respect to the facades. A review of Hempstead DOB files reflects that there are no building permits, certificates of completion or any other record which would indicate DOB officials, other than the former inspector, were even aware that the facades were being erected. In addition, even with respect to the renovation work at the abandoned theater, for which a building permit was obtained, no record of completion of work for the conversion of the theater to retail space was filed with DOB within the time prescribed by the Hempstead Building Code. Records also indicate that DOB officials did not realize that a certificate of completion or occupancy had not been issued, pursuant to the October, 1988 building permit until, January, 1991, when a tenant in the mall complained of cement falling through the overhang in front of her store. According to the Hempstead Building Code, since no extensions for the October, 1988 permit were approved, the project should have been deemed abandoned by October, 1989, and, consequently, all of the renovations performed by Mr. Poulikidis, including the construction of the facades, were illegal. Hempstead Code §86-13(B). See footnote 17
DOB's files indicate that, between November, 1988 and April, 1991, no permits or certificates of completion or occupancy were issued for any portion of the Bedford Plaza Mall. Moreover, despite Mr. Poulikidis' extensive, albeit, illegal renovations, safety hazards still plagued the property. By letter dated January 3, 1991, Joan Logie, the proprietor of a thrift shop at the mall, complained of cement falling through the overhang in front of her store. By letter dated January 17, 1991, a DOB supervisor wrote to Bedford Plaza Realty See footnote 18 and advised the principals that there were no permits on file with DOB for the overhangs in front of the stores running along Bedford Avenue. In addition, the DOB supervisor referred to the October, 1988 building permit for renovations to the theater and advised the owners that no certificate of occupancy had been issued.
Responding to Ms. Logie's complaint, on January 24, 1991, a DOB inspector, Nicholas DiNapoli, issued a Notice of Violation to Charles Friedman, one of the principals of Effenzee Capital. Effenzee was directed to obtain a new building permit for the theater renovation work and an original permit for the overhangs, often referred to as soffits, along Bedford Avenue. In April, 1991, a building permit was issued with respect to the soffit repairs and for the theater renovations, which had apparently still not been completed. See footnote 19 DOB files reflect at least four inspections of the mall by Mr. DiNapoli with respect to this permit. There are no references to the two concrete facades, however, or the fact that no permits for their construction or certificates for their completion had been issued by DOB. After the fatal incident, Mr. DiNapoli told Nassau County Police investigators that he had devoted his efforts at the mall exclusively to correcting the problems with the soffits. He asserted that he never even examined the facades and, consequently, was not aware that they existed. See footnote 20
Between May, 1991 and the end of January, 1994, no permits or certificates of any kind were
issued by DOB with respect to any structure within the mall, including the two concrete
facades. The first and only reference in the DOB files to the facade which fell on Michael
Unterweiser was after the event. An architect retained by DOB examined the fallen structure
the night of the occurrence and the identical northern facade the next day. As previously
noted, the architect confirmed that the facades failed to conform to the requirements under
both the Hempstead and New York State Building Codes.
DOB officials also bear responsibility for the failure to ensure that all of the renovations initiated by Mr. Poulikidis conformed to state and local laws and ordinances. First, the poor condition of the mall at the time of the May, 1988, purchase of the property should have prompted DOB to be alert to future problems. The litany of health and safety hazards which existed prior to Mr. Poulikidis' purchase is well documented in DOB's own files. Although Mr. Cattan, after sustained pressure from Town and County officials, cured the most obvious threat to the health and safety of merchants and customers at the mall, other potentially dangerous conditions, including the extensive holes in the roof, were never addressed by these officials. While the remaining hazards may not have rendered the property "dangerous," as that term is defined in the Hempstead Building Code, these conditions were certainly serious enough that the mall should have been subject to increased scrutiny by DOB personnel.
Second, DOB's oversight and supervisory procedures with respect to inspections of renovations at commercial structures are virtually non-existent. In this matter, the former inspector's disregard for his duties as a building inspector is at least partially attributable to the lack of oversight by supervisory personnel at DOB. According to Mario Gaiti, there is no regular review of the work of DOB inspectors and they are not required to consult with their supervisors. Mr. Gaiti also stated that inspectors have complete discretion to act as they see fit with respect to projects for which building permits have been obtained. Consequently, it is difficult, if not impossible, for DOB officials to uncover potential misdeeds or incomplete work on the part of its inspectors. In this instance, not only did the former inspector fail to ensure that a permit was obtained for the construction of the facades, he also did nothing with respect to the October, 1988 building permit for the theater renovations after it expired in October, 1989. DOB officials failed to detect this for more than a year after the permit expired. Even then, DOB became aware of the illegal, abandoned theater renovation project only as a result of a written complaint by a tenant at the mall. DOB's eventual discovery, in January, 1991, that the permit for the theater renovations had expired, and that other structures in the mall, such as the soffits, had been constructed without any permit, should have prompted DOB officials to scrutinize the entire property. No such scrutiny, however, occurred. The same lax oversight procedures were again apparent with respect to the April, 1991 building permit obtained by Effenzee Capital, as it took almost four years, until February, 1995, for a certificate of completion to be issued under this permit. See footnote 22 At most, a building permit is valid for two years. Hempstead Code, §86-13(C). Consequently, for a minimum of almost two years, according to the Hempstead Building Code, the overhang running along Bedford Avenue was an illegal structure. DOB officials, however, failed to take any action during this time.
DOB officials not only failed to detect the illegal and improper construction of concrete facade in 1988, they also were not aware, for almost five and one-half years, that this structure, clearly qualifying as "dangerous" under the Hempstead Building Code, even existed. Knowing that the mall had a history of safety hazards, which continued even after renovations were completed, and that the renovated mall contained illegal structures, it was incumbent upon DOB to exercise its authority and ensure that the entire mall, and all of the structures within it, complied with the State and Town building codes. This was not done and, as a result, DOB bears at least some responsibility for the tragic occurrence in January, 1994, which caused Michael Unterweiser's death.
Mr. Robinson testified before the Commission concerning his appointment as receiver for the Bedford Plaza property. He stated that, while he had been a court appointed referee in foreclosure proceedings on "many occasions" he had never been a receiver prior to the Bedford Plaza mall appointment. Robinson, p. 20. He first learned that Judge Burke was considering appointing a receiver for the mall in November, 1992 when he received a telephone call from the Judge's chambers inquiring if he would be interested in the position. Robinson, p. 26. See footnote 36 He was given confirmation of the appointment during a subsequent communication with Ronald Lenowitz on January 8, 1993. Robinson, p. 29.
The order by Judge Burke appointing Mr. Robinson as receiver for Bedford Plaza granted him "the usual powers and directions ... for the benefit of [Ezra Cattan] of all the rents, issues and profits now due and unpaid ... pending this action..." See footnote 37 Accordingly, Mr. Robinson was directed to "demand, collect and receive from the tenants in possession of said premises ... all rents thereof now due and unpaid, or hereafter to become due ..." The receiver was also directed to maintain all rent monies and other profits in an escrow account for the benefit of Mr. Cattan and to pay all expenses relating to the management and care of the premises, including taxes, insurance premiums, water and sewer costs. He was also authorized to rent or lease any portion of the property "for terms not exceeding one year" and "to keep the subject premises ... in repair ... ."
Mr. Robinson testified that he first visited the premises on January 21, 1993, for the purpose of "making an overall general determination of ... what [the building] consisted of and to make note of the occupancies ... in the various stores." Robinson, pp. 36-37. Although he only spoke with "a couple" of store owners during this visit, he testified that he subsequently received "tons of telephone calls" from many other of the mall's tenants during the early part of February, 1993 complaining about declining conditions at the mall. Robinson, pp. 37,40. Based on his visit and his conversations with the stores' occupants, he concluded that Bedford Plaza was "in a serious state of disrepair." Robinson, p. 40. See footnote 38
Mr. Robinson testified that he did not observe the south wall of the mall on his first visit to the property and, in fact, did not learn of a defective condition pertaining to the concrete facade until March 23, 1993, during a "tour" of the property with Jeffrey Lovering, a proprietor of one of the mall storefronts. Robinson, pp.41, 43-44, 45. While Mr. Lovering was showing Mr. Robinson a defective parking light at the "southeast corner of the building," Robinson noticed a "slight separation of the brick at the very, very top of the southeast corner of the wall." Robinson, p. 46. He described the portion of the cement facade which appeared to him to be separating slightly from the wall as follows:
[I]f I was standing on Wilson Street and looking at the fac[e] of the wall, it would be the top right-hand corner, about five feet. And you could only see it by looking from the [parking lot] in the rear, and there was a slight, maybe a one-inch space that tapered down to nothing, maybe coming down about four feet. I noticed that.During the early spring of 1993, Mr. Robinson made several motions before Judge Burke seeking permission to effect repairs to some of the most serious conditions at the mall, including damage to the concrete facade running along the south wall. In March, 1993, he obtained permission to hire a roofing contractor to repair and/or replace part of the mall roof which was causing substantial flooding to one of the stores on the second floor. In April, he again filed a motion before Judge Burke seeking authorization: (1) to repair or replace the defective soffits above the mall stores along Bedford Avenue; (See Exhibit 1); (2) to hire a plumber to repair parts of the "elements" of the mall; (3) to remove trash and debris from the basement and vacant stores inside the mall; (4) to hire a contractor "to repair and/or replace the damaged and defective exterior wall which is located on the south and east of the subject building... ."
Robinson, p. 47. See footnote 39
Mr. Robinson testified that, at the time he sought court approval for repairs to, among other things, the south wall, his only source of information about the condition of the wall was his own observation. Robinson, p. 58. See footnote 40 He did indicate, however, in his moving papers that he had secured verbal estimates for the repairs from Stanco Enterprises and Concord Home Improvement Company, both contractors operating in Nassau County. Mr. Robinson's supporting affidavit states that both companies had estimated that the repairs needed for the defective condition of the south wall would cost approximately $750. Mr. Robinson testified that he decided to hire Concord Home Improvement, which is owned and operated by William Amoroso. See footnote 41 He could not recall, however, how he described the condition of the wall at the southeast corner of the south wall to Mr. Amoroso, or specifically what it was that he wanted Mr. Amoroso to repair at that location. Robinson, pp. 53, 54. See footnote 42 By order dated May 17, 1993, Judge Burke approved Mr. Robinson's request for funds to repair the conditions referred to above.
William Amoroso, the proprietor of Concord Home Improvement, testified before the Commission and confirmed that he performed repair work at the Bedford Plaza Mall during the spring of 1993. He indicated that this included work on the soffits along Bedford Avenue, replacement of some gutters and leaders, and some "patch work" to the stucco on the east wall of the building, at the rear of the chinese restaurant. During sworn testimony before the Commission Mr. Amoroso initially insisted that he never personally observed any problem with the concrete facade or any portion of the wall. Amoroso, pp. 28,29,38,41,43. His recollection was that the only information he ever received about the facade came from a brief conversation with Carmello Folti, the subcontractor he had hired to repair the stucco at the rear of the chinese restaurant. Mr. Amoroso testified that, after this work was completed, Mr. Folti informed him that "one or two bricks ... were loose" on the upper southeast corner of the concrete facade and that "[Folti] had just thrown some cement in there." Amoroso, p. 29. Subsequently, after reviewing a copy of a sworn statement he had provided to the Nassau District Attorney's office in July, 1994, Mr. Amoroso recalled that he did observe the two bricks at the top southeast corner of the concrete facade which Mr. Folti had "cemented" to the brick veneer of the chinese restaurant. He further testified before the Commission that he observed those bricks "leaning a bit ... maybe one, two inches." Amoroso, p. 51. Mr. Amoroso advised the Commission that he later informed Mr. Robinson that "sooner or later the wall is going to have to be repaired up on the top with some cement." Amoroso, pp. 45- 46. Mr. Amoroso denied ever telling Mr. Robinson that the wall had to be ripped down and rebuilt, or that the wall was either "dangerous" or "potentially dangerous." Amoroso, pp. 58, 59. Furthermore, Mr. Amoroso insisted that he had no other conversation or communication with Mr. Robinson about the subject. Amoroso, pp. 56-57.
During the period of time Mr. Amoroso was doing repair work at the mall, Mr. Robinson received a complaint about the south wall from David Weiss, an attorney and local businessman. In 1993, Mr. Weiss was President of the Bellmore Chamber of Commerce and maintained an office across the street from Bedford Plaza. He informed the Commission that, after receiving complaints from merchants in the area, he inspected the concrete facade abutting the south side of the mall. After observing that it was separating from the "main wall," and taking note that the facade was constructed on the sidewalk without proper "footings," he notified Mr. Robinson of the condition. By letter dated May 12, 1993, he advised Mr. Robinson as follows:
I have been informed by a number of people that the brick facade on the south end of the building facing Wilson Avenue is separating from the main portion of the building and is in danger of collapse. I was also told that this was due to the fact that this brick facade was not put on proper footings and that it was merely laid on the sidewalk.Mr. Robinson testified that, after he received this letter, he conferred with Mr. Amoroso. Robinson, p. 64. See footnote 43 Mr. Robinson stated that he believed Mr. Weiss was relating to him the same problem he had observed during his tour of the property with Mr. Lovering on March 23rd. He also asserted that Mr. Amoroso did not advise him that this was a dangerous, or potentially dangerous, situation.
I am not an engineer but a number of people have mentioned this to me and I thought it would be in everyone's best interest to notify you so that you may have someone check this out to make sure that a dangerous situation does not exist and, if it does, that this is remedied as quickly as possible.
Q. [What was] the substance ... of what Mr. Amoroso told you on this particular occasion about the southeast corner of the south wall?Mr. Robinson's May 28, 1993 letter responding to Mr. Weiss supports his Commission testimony. In this letter, he noted that the problem with the south wall had been repaired, albeit, temporarily: "Please be advised that I had some repairs made to the wall to which you refer. I am aware of the problem, but any repairs I make are subject to court order, and I am advising the mortgagee-plaintiff's attorney of the situation." Mr. Robinson also advised Mr. Weiss that he was expecting to be discharged as receiver by the following week and that Mr. Cattan, the mortgagee-plaintiff, would be taking over the property.
A. ... I summarized what the complaint [from Mr. Weiss] was and asked him to check it out. And he indicated that the brick was pulling away a little at ... the upper section of [the southeast] corner, and that he couldn't really tell much more about the wall, [he'd] have to take it down in order to find out what was behind it.
But he said nothing to me that would have indic[a]ted to me that it was of any imminent danger of falling. And I assumed there was no such danger.
. . . .
... And he did say ... "I did have some patching done there."
. . . .
Q. When you read [the correspondence from Mr. Weiss] and then had a subsequent conversation with Mr. Amoroso, was it your understanding or belief that Mr. Weiss was relating to you a problem which Mr. Amoroso either had or was about to repair?
A. When I read [the correspondence], in my mind's eye what I saw was what I had already seen. I envisioned what I have just described to [the Commission] where the brick was pulling away in that upper right-hand corner.
... I assumed I had already seen what [Mr. Weiss] was drawing to my attention. And, yes, it was that to which I was referring Mr. Amoroso.
Robinson, pp. 64-65, 67-68.
Mr. Robinson testified that, other than the letter from Mr. Weiss, he never received any other complaint or information from anyone concerning the south wall. Robinson, p. 88. Mr. Robinson advised the Commission that by late spring, 1993, he had been informed by Mr. Lenowitz that he was going to be relieved of his receivership responsibilities. Robinson, p. 70. By mid-June, however, having been given no additional information about his discharge, he corresponded with Mr. Lenowitz. By letter dated June 15, 1993, Mr. Robinson advised Mr. Cattan's attorney that he had heard nothing more about his supposed discharge, and was therefore concerned about what he should be doing in connection with his receivership duties. See footnote 44 Mr. Robinson also referred to the south wall and expressed concern about its condition.
The condition of the wall at the southeast corner of the building behind the chinese restaurant is still dangerous, although it has been temporarily patched by the contractor I engaged to do the other work mentioned in the [court] order. Please be advised that this is a potentially dangerous situation. The judgment of my contractor is that the wall should be ripped down and rebuilt.Mr. Robinson testified that his use of the terms "dangerous" and "potentially dangerous" in this correspondence were based entirely on his own observations. Robinson, p. 77. His purpose in describing the wall in this manner was "to get the attention of Mr. Lenowitz." Id. He could not recall whether Mr. Amoroso used those, or similar, words in his discussions. In fact, Mr. Robinson testified that Mr. Amoroso made a statement to him which implied that "the wall wasn't going to go anywhere, that [it] had been there a long time and looked reasonably solid." Robinson, p. 76.
Despite Mr. Robinson's expectations, he was not discharged as receiver until January 31, 1994. By order dated, August 31, 1993, Judge Burke authorized Mr. Robinson to file an accounting which would provide the basis for his discharge. The accounting papers were not filed, however, until December 1, 1993, apparently because of some defects in the paperwork. It also appears that, due to a further delay in the court's review of the paperwork, the order of discharge was not signed by Judge Burke until January 31, approximately one week after the accident which caused the death of Michael Unterweiser.
According to Mr. Robinson, from the date of his correspondence with Mr. Lenowitz up to the day the south wall collapsed, he never received any additional complaints or information about the condition of the south wall, nor did he personally examine the wall during this period. Robinson, p. 86. Despite his description of the wall in his letter to Mr. Lenowitz as "dangerous" and "potentially dangerous," Mr. Robinson insisted to the Commission that the passing of over seven months did nothing to elevate his concern about the "potential danger" of the structure. Robinson, pp. 79, 84.
BY COMMISSIONER CULHANE:
Q. You did nothing about the wall, though [after August 31]?According to Mr. Robinson, he took no action after August 31, 1993 for the same reason he took no additional action prior to that date -- he saw no need to do so. In his testimony before the Commission Mr. Robinson stated that he never received any complaints from anyone, other than Mr. Weiss, about the south wall facade. Robinson, p. 88. This, conflicts, however, with information provided to the Commission by Lee Bor Cheung, the owner of the chinese restaurant at 501 Bedford Avenue, a structure which abutted the concrete facade.
A. No, I did not do anything about the wall.
Q. Why not?
A. I didn't think there was anything necessary to be done about the wall at that time.
Q. It was still dangerous, wasn't it?
A. I didn't think it was of sufficient danger at that time to warrant anything to be done to it.
. . . .
Q. What did you base that thought on?
A. On my own observations of it and the patching that was reported to me that had been done.
Q. Did you review, did you look at the work that was done yourself?
A. No, I did not.
Q. Why did you think it was adequate?
A. I took the word of my contractor that he had done a patching job and I thought it was adequate.
Robinson, pp. 116-117.
Mr. Cheung testified before the Commission See footnote 45 and stated that he first noticed a "crack" in the defective facade about one year prior to its collapse. Cheung, p. 11. He further stated that he observed the crack from the front of his store, standing on Bedford Avenue. Cheung, p. 12. According to Mr. Cheung, after Mr. Robinson's appointment, he called the receiver to complain about this condition because "the crack continued to grow". Cheung, p. 19. Mr. Cheung stated that he directed his son to make the telephone call to Mr. Robinson because he has difficulty speaking English. Id. He further testified that he had "two or three" more conversations with Mr. Robinson about the crack in the facade, but could not approximate the dates of these conversations. Cheung, p. 21. He did not know, however, if Mr. Robinson ever saw the condition he complained of, and was unaware of what Mr. Robinson intended to do about the problem. Cheung, pp. 23, 25.
The Commission also interviewed Edward Waldman, an attorney for the chinese restaurant. Mr. Waldman asserted that, after consulting with his client, he wrote to Mr. Robinson, specifically describing the wall's condition and the fact that it had to be corrected. He was unable, however, to provide a copy of this correspondence to the Commission. Mr. Robinson did not recall receiving any writing from Mr. Waldman See footnote 46 and denied ever getting a complaint from anyone connected to the chinese restaurant about the concrete facade. Robinson, pp. 49, 50. See footnote 47
Even accepting Mr. Robinson's assertion that he received no information which led him to believe there was a need for immediate repair of the wall, Mr. Robinson's lack of concern about the potential danger caused by the passage of over seven months is troubling. Assuming, arguendo, that Mr. Robinson was reasonable in his belief, albeit mistaken, that Mr. Amoroso had temporarily "patched" the defective facade in May, 1993, Mr. Robinson apparently failed to recognize the possibility that, after more than seven months, the condition which he knew in June, 1993 was at least "potentially dangerous" could have been heightened to a more imminent danger by January, 1994. During this time, Mr. Robinson was the court appointed receiver for Bedford Plaza, and he continued to function in that capacity by collecting rents, arranging for snow removal, and responding to tenants complaints about leaks and plumbing difficulties. Robinson, pp. 78, 87. Even though he had been led to believe he was going to be discharged long before January 31, 1994, his legal obligations with respect to the property were clearly in effect until the day Judge Burke authorized the discharge, and he was the only one in a position to effect any repair to the premises.
It is the nonetheless the Commission's view that there is an insufficient basis to conclude that Mr. Robinson acted with either criminal negligence or recklessness. This assessment supports the determination of the Nassau District Attorney's Office with regard to potential charges against Mr. Robinson in connection with the death of Michael Unterweiser. Mr. Robinson testified before the Commission that he had no expertise in the area of commercial repairs, Robinson, p.56, and it was, therefore, reasonable for him to rely on Mr. Amoroso, a commercial and residential repair contractor, for guidance as to what needed to be done to "patch" the wall. The possibility that he may have received complaints concerning the facade from individuals associated with the abutting chinese restaurant does not alter this assessment, since he believed that Mr. Amoroso had temporarily repaired the condition. Moreover, in June, 1993, with the expectation that he was about to be discharged as receiver, he undertook to alert Ezra Cattan, through the mortgagee's attorney, Ronald Lenowitz, about the condition of the wall. With the benefit of hindsight, these actions seem woefully insufficient. Given the circumstances at the time, however, the Commission must conclude that his actions were reasonable. Furthermore, as will be discussed more fully later in this report, in order to sustain a charge of criminally negligent homicide it must be proven, beyond a reasonable doubt, that a person, by his or her actions, failed to perceive a substantial and unjustifiable risk of harm, and that it was reasonably foreseeable that this failure would be a "sufficiently" direct cause of the victim's death. People v. Kibbe, 35 N.Y.2d 407 (1974). In this matter, Mr. Robinson observed a condition which he believed required repair and obtained court authorization to hire an experienced repair contractor. He relied on the contractor's assertion that the wall "looked perfectly solid" and that the "patching" job he done was "adequate." Robinson, pp. 59, 117. In the context of a criminal prosecution, there is insufficient evidence to prove, beyond a reasonable doubt, that Mr. Robinson failed to perceive the risk posed by the defective facade or that this failure was the proximate cause of Michael Unterweiser's death.
Also included in the interview records concerning the wall's construction is a statement Nassau detectives obtained from the former inspector. See footnote 52 As discussed previously, the former building inspector maintained that at the time Mr. Poulikidis initiated his renovations to the property, which he described as having a "history of disrepair and derelic [sic] condition," the former inspector believed the mall was under the jurisdiction of the Division of Unsafe Buildings. He insisted that he had alerted a number of officials at Hempstead's DOB to the renovations being conducted at the mall, and that he had made many follow-up inquiries concerning Mr. Poulikidis' authorization to perform this work. The former inspector claimed that he was always informed by these officials that the mall was "in the hands of the Unsafe Section of [Hempstead DOB]." Nassau County Police Report, 4/19/94. See footnote 53
In addition to the interviews conducted by the police pertaining to this aspect of the investigation, their case file contains reports and information concerning Mr. Poulikidis' other business endeavors in Nassau County, as well as extensive information concerning his personal and corporate assets and liabilities. These records reflect that Mr. Poulikidis, who for a number of years resided with his family in Nassau County, owned at least two shopping centers in Merrick, New York, prior to his purchase of the Bedford Plaza mall. See footnote 54 Mr. Poulikidis also owned and operated two "home improvement" businesses in Nassau County. See footnote 55
The police file includes copies of numerous civil lawsuits, some of them ongoing, against Mr. Poulikidis' corporate and other business concerns. There were also a number of liens filed against the Bedford Plaza property. Many of these liens and civil actions were based on allegations that Mr. Poulikidis had breached numerous contractual business agreements with various companies and individuals on Long Island.
The police file also contains records relating to events after Edward Robinson was appointed receiver by Judge Burke. In addition to Mr. Robinson, investigators interviewed William Amoroso and his subcontractor, Carmello Folti. These three interviews, which were apparently conducted on the day the wall collapsed, indicate some knowledge on Mr. Amoroso's and Mr. Folti's part regarding the structure's substandard condition. Mr. Amoroso's interview reflects he was informed by Mr. Folti that the wall was not "anchored," See footnote 56 while Mr. Folti stated that he did not observe any "footing or foundation for the bad wall." Nassau County Police Report, 1/21/94. Mr. Folti also told police that he informed Mr. Amoroso he could "fill in the space between the old wall and the new [cement] block." The records of Mr. Robinson's interview with police reflect that he was told by Mr. Amoroso that "the wall was unsafe and should be torn down." Nassau County Police Report, undated.
Prior to the commencement of any criminal action stemming from this incident, the Nassau County District Attorney's Office joined the investigation conducted by the Nassau County Police. See footnote 57 The District Attorney's Office obtained additional data concerning the facts and circumstances surrounding Michael Unterweiser's death. Included in these files were analyses by various architectural and engineering experts as to the causes of the wall's collapse, See footnote 58 records from Hempstead's Department of Buildings, including all the building applications, permits and code violations issued for the mall property subsequent to Mr. Poulikidis' purchase of the property, and additional information concerning Mr. Poulikidis' role in the construction of the defective facade. The prosecution's files also reflect follow-up interviews conducted of Edward Robinson and William Amoroso, including a sworn statement provided to the District Attorney's Office by Mr. Amoroso. Extensive records from the foreclosure proceedings and documents reflecting the various transfers in property ownership between the time of Mr. Poulikidis' 1988 purchase and January, 1994, are also part of the prosecution's file. Finally, there is documentation reflecting research into many of the legal issues raised as a result of this incident. Among the issues analyzed were the elements of Criminally Negligent Homicide, the potential criminal liability of receivers stemming from actions performed in connection with their court authorized responsibilities, pertinent treaty provisions between the United States and Greece on the issue of extradition, and the potential criminal responsibility of Hempstead DOB and its employees with respect to the insufficient oversight of the mall property.
The Commission interviewed the prosecutors from the Nassau County District Attorney's
Office who participated in the investigation and evaluation of this matter. These included
George Peck, Deputy Bureau Chief of the Major Offense Bureau, who went to the scene of the
incident on the day of its occurrence with the former Chief of that Bureau, Barry Grennan, See footnote 59 Fred Klein, who replaced Barry
Grennan as Chief of the Major Offense Bureau in September,
1994, Peter Weinstein, Chief of the Appeals Bureau and Charles Brock, a former Assistant
District Attorney in the Special Investigations Bureau. These prosecutors informed the
Commission that they held weekly meetings on this case with Chief Assistant District Attorney
Lawrence Leff. None of them reported directly to District Attorney Denis Dillon.
Prosecutors also considered the possibility of having the former inspector testify against Mr.
Poulikidis in order to demonstrate Poulikidis' direct role in the facade's construction. For a
variety of reasons, however, the former inspector's cooperation was not sought. First, it was
concluded that, even with the former inspector's cooperation, the prosecution would still not
have had a prima facie case against Mr. Poulikidis without Mr. Corvacciola's testimony.
Second, the former inspector's credibility would have been seriously compromised by his prior
inaccurate statements that he had no responsibility to insure that Mr. Poulikidis complied with
the requirements of Hempstead's Building Code. Finally, while prosecutors were still
evaluating the matter, information was received which revealed the possibility that Mr.
Poulikidis had paid a bribe to the former inspector during the renovations at the mall. A
memorandum in the District Attorney's files indicates that, in November, 1994, Kenneth
Martin, Mr. Poulikidis' attorney, met with prosecutors assigned to this matter. Mr. Martin
stated that, in exchange for favorable consideration, Mr. Poulikidis would be willing to testify
that he paid the former inspector $2500 on three separate occasions for the former inspector to
"look the other way" and to make sure that "things [ran] smoothly" with
respect to the mall
renovations. District Attorney's Memorandum, 11/21/94. According to his lawyer, Mr.
Poulikidis was willing to return to the United States and engage the former inspector in a
recorded telephone conversation if prosecutors would agree not to arrest him and if he
received immunity from anything he said during the call. See footnote 61 The Commission was advised that, based upon their
assessment of Mr. Poulikidis' culpability and various other factors, the
District Attorney's Office declined to agree to these terms. It was suggested, however, that
investigators go to Greece for the purpose of recording a telephone call from Mr. Poulikidis to
the former inspector. This proposal also did not come to fruition, ostensibly because Mr.
Martin was unwilling to travel to Greece and Mr. Poulikidis refused to make the recorded call
to the former inspector without his attorney present. Consequently, not only was any
prosecution of the former inspector for bribery effectively precluded by Mr. Poulikidis'
unwillingness to cooperate, the former inspector's potential utility as a witness against Mr.
Poulikidis was also obviated by the specter that the former inspector had engaged in criminal
Based on the investigation and events referred to above, and the legal analysis of the evidentiary requirements with respect to the possible crimes arising out of this incident, the District Attorney's Office concluded that the only person who could be successfully prosecuted for the improper construction of the defective facade was Mr. Corvacciola. In addition, based upon research into the terms of the Treaty between the United States and Greece, it was determined that Mr. Poulikidis could not be extradited for a crime involving involuntary manslaughter. See footnote 62 Prosecutors also concluded that the former inspector could neither be charged with bribery, since Mr. Poulikidis would not cooperate in the investigation, nor with a criminal charge based upon his failure to carry out his responsibilities with respect to the facade's construction. The District Attorney's Office therefore elected to proceed solely against Mr. Corvacciola for the negligent construction of the defective wall.
With respect to Mr. Robinson's June, 1993, letter to Mr. Lenowitz, it was the District Attorney's assessment that Mr. Robinson's use of the word "dangerous" did not provide proof that he believed there was any "imminent danger." Portions of this correspondence were also viewed as exculpatory, in that it demonstrated that Mr. Robinson was only aware of a problem with the upper southeast corner of the facade, and that he believed that Mr. Amoroso had temporarily taken care of the problem. The letter reflects that Mr. Robinson was, in effect, alerting Mr. Lenowitz that the condition should be reexamined when his client, Mr. Cattan, obtained control of the property. Finally, none of the prosecutors interviewed believed that, even though Mr. Robinson was aware that no repair work had been performed on the wall in the seven month period between the date of the letter to Mr. Lenowitz and the collapse of the facade, Mr. Robinson incurred any additional obligation to reexamine the defective structure. The District Attorney's Office concluded that Mr. Robinson had no legal duty to reassess the situation during this seven month period.
Prosecutors also found no inconsistency between the reference in Mr. Robinson's correspondence with Mr. Lenowitz regarding Mr. Amoroso's "judgment" that the wall should be torn down and rebuilt and Mr. Amoroso's sworn statement on this issue. In his sworn statement to the District Attorney's Office, Mr. Amoroso stated: I explained to [Mr. Robinson that] the wall, if we take it apart and repair it, then we would see [whether] the rest of the wall would have to come down. I was only talking about that one corner, not the whole entire wall." Amoroso, Statement to District Attorney, p. 10. See footnote 65 The District Attorney's Office concluded that Mr. Amoroso's statement only reflected a general discussion with Mr. Robinson regarding the wall, and that Amoroso was only referring to tearing down a few bricks on the southeast corner of the wall.
Based on the facts and circumstances set forth above, the District Attorney's Office concluded that Mr. Robinson was not criminally liable for the death of Michael Unterweiser. Even assuming that a receiver could be charged with a crime in connection with acts performed pursuant to his receivership responsibilities, See footnote 66 prosecutors determined that Mr. Robinson made reasonable efforts to repair what he believed was a relatively minor defect in a small portion of the concrete facade. They concluded that he had no information about the condition of the wall, other than Mr. Amoroso's statement and his own observations, which should have alerted him to any immediate danger. Additionally, Mr. Robinson's assertion, that when he received Mr. Weiss' letter regarding the wall he believed that Mr. Amoroso had already temporarily fixed the problem, was found by the prosecutors to be credible. They found no significant inconsistencies in the respective accounts of Messrs. Robinson and Amoroso concerning what was said about the wall's condition. They also concluded that Mr. Robinson's use of the word "dangerous" in the letter to Mr. Lenowitz was equivocal, and not an indication that he was aware of the imminence or gravity of the danger. Moreover, none of the prosecutors questioned by the Commission believed that the passage of over seven months between the date of this letter and the wall's collapse did anything to alter that assessment. The District Attorney's Office, therefore, declined to prosecute Mr. Robinson for any crimes arising out of Michael Unterweiser's death.
Courts in this state have held that criminally negligent homicide involves, in essence, "the failure to perceive the risk [of death] in a situation where the offender has a legal duty of awareness." People v. Haney, 30 N.Y.2d 328,334 (1972). This legal duty may be based on statutory law, See footnote 68 on contractual relationships, See footnote 69 or on the common law. See footnote 70 As the statute defining criminal negligence expressly provides, the failure to perceive the risk of death in situations where the offender has a duty of awareness must be a gross deviation from the standard of care which a reasonable person would exercise in the same situation. People v. Boutin, 75 N.Y.2d 692 (1990). Mere carelessness which results in death, without more, is insufficient to establish criminal culpability. See footnote 71
In addition to the failure to perceive the risk of death, three other criteria must be evaluated before a prosecution for criminally negligent homicide or manslaughter based on reckless conduct can be maintained. First, the defendant must have engaged in some wrongful conduct. See footnote 72 That is, he must have created or contributed to the substantial and unjustifiable risk of death. Mere non-perception of such a risk, even if death occurs, is insufficient to warrant criminal liability. "[C]riminally negligent homicide requires not only a failure to perceive a risk of death, but also some serious blameworthiness in the conduct that caused it." Boutin, supra., at 696. See footnote 73
Second, the defendant's actions must be a sufficiently direct cause of the ensuing death. This is a more stringent standard than that required under the law of civil negligence, which necessitates only a finding that the defendant's conduct be a proximate cause of a particular result. It is not necessary in criminal cases, however, to prove that the ultimate harm was intended by the actor. See People v. Kibbe, 35 N.Y.2d 407 (1974); cert. granted, Henderson v. Kibbe, 534 F.2d 493 (2d Cir. 1976); rev'd., 431 U.S. 145 (1977). Moreover, the possibility that other events, independent of the actor's conduct, may have contributed to the victim's death will not, standing alone, obviate the actor's criminal liability for homicide. See, People v. Cicchetti, 44 N.Y.2d 803 (1978). In Kibbe, supra., the defendants forced the decedent from their vehicle after robbing him, and left him on the shoulder of an unlit road on a cold winter night without his shoes or eyeglasses and with his trousers down around his ankles. In addition, the defendants were aware that their victim was "thoroughly intoxicated." A short time later, a pickup truck struck and killed the decedent while he was sitting in the middle of the road attempting to signal for help. In appealing their convictions for murder, See footnote 74 defendants contended that the actions of the driver of the pickup truck constituted an "intervening and superseding cause" of death, thereby relieving them of criminal responsibility. The Court of Appeals rejected this argument, asserting that the victim would have frozen to death had he remained on the side of the road where the defendants abandoned him. Therefore, the Court reasoned, the victim had little choice but to go onto the road in search of assistance. Given his intoxicated condition and state of undress, the Court concluded that this clearly "foreboded the probability of his resulting death." Id., at 412. The Court went on to state that to be a sufficiently direct cause of death, "it will suffice if it can be said beyond a reasonable doubt ... that the ultimate harm is something which should have been foreseen as being reasonably related to the acts of the accused." Id., at 412.
Finally, it must be shown that the substantial and unjustifiable risk of death brought about by the defendant's conduct was foreseeable. Even if the defendant failed to perceive that he created or contributed to the risk of death, criminal liability will not attach unless it can also be proven that the harm resulting from such conduct was reasonably foreseeable. In People v. Warner-Lambert Co, 51 N.Y. 2d 295 (1980), the defendant was a chewing gum manufacturer. Two chemicals used in the manufacturing process, magnesium stearate and liquid nitrogen, were generally considered safe. However, magnesium stearate will burn if ignited and liquid nitrogen can be used to produce liquid oxygen, which is highly flammable. Two explosions occurred at the plant, killing six employees. Despite expert testimony which suggested that the explosions were triggered by machine sparks which ignited the liquid oxygen and magnesium stearate, the Court of Appeals found that the actual cause of the explosions was entirely speculative. In dismissing the indictment, the Court found that while the defendants were aware of a "broad, undifferentiated risk of an explosion" the corporate and individual defendants could not be held criminally liable where the triggering cause of the explosion was neither foreseen nor foreseeable. Warner-Lambert, supra., at 298.
Prosecutions for the crimes of Criminally Negligent Homicide and Manslaughter have been promulgated based on diverse factual situations which have resulted in death. These include vehicular homicides, People v. Rooney, 57 N.Y.2d 822 (1982), deaths arising out of the failure to provide adequate medical care, People v. Green, 180 A.D.2d 141 (1st Dept. 1992); habeus corpus denied, appeal denied, 79 N.Y.2d 1054 (1992), child abuse, People v. Humiston, 187 A.D.2d 990 (4th Dept. 1992), improper use of firearms, People v. Rosario, 78 A.D.2d 864 (2d Dept. 1980), negligently caused fires, People v. Deitsch, 97 A.D.2d 327 (2d Dept. 1983), and industrial accidents, People v. Polstein, 184 A.D. 260 (1st Dept. 1918). Although these factual settings are distinct, the application of the law on criminal negligence or reckless conduct is based on the same legal principals. The cases discussed below illustrate these principals which must be analyzed to determine whether the facts and circumstances surrounding the death of Michael Unterweiser gives rise to criminal liability.
In People v. Deitsch, supra., the defendants were, respectively, a corporate entity which conducted its business of baling and storing cloth at a Brooklyn warehouse, the president of the corporation and the warehouse foreman. The individual defendants were responsible for the daily supervision of the premises. A fire occurred at the warehouse, resulting in the death of several employees. Although a New York City fire marshal testified before the grand jury examining this matter that he was unable to ascertain the cause of the fire, evidence was elicited that the defendants failed to properly address potential fire hazards. These hazards included open elevator shafts, blocked and unmarked fire exits, and the lack of fire escape training for employees, all of which violated local fire and building ordinances.
The Appellate Division, unanimously reversing the Supreme Court's dismissal of the
indictment, found that the evidence presented to the grand jury supported the conclusion that
the individual defendants who were responsible for the daily supervision of the premises were
also responsible for the hazardous fire conditions in the warehouse. Responding to the
contention that, since the cause of the fire was never determined, there was insufficient
evidence to conclude that the risk of death occasioned by the defendants' conduct was
foreseeable, the Appellate Division distinguished the holding in Warner - Lambert,
supra., finding a foreseeable, causal link between the defendants' conduct and the death
by fire of several employees:
The triggering cause of the explosion [in Warner - Lambert ... was "hypothetical and speculative", [and] was [therefore] neither foreseen nor foreseeable ... [In this case] defendants created conditions in the warehouse which they should have foreseen could result in death in the event of the fire.In People v. Reyes, 148 A.D.2d 756, (2d Dept. 1989); aff'd. 75 N.Y.2d 590 (1990), Reyes, the owner of a residential building in Brooklyn, New York, entered into a triple net-lease agreement with the co-defendant, Velez, where-in Velez occupied one of the units and acted as the building's manager. The lease identified Reyes as the owner of record and provided that "[t]enant shall make no changes in or to the premises of any nature without [o]wner's prior written consent," and that "[o]wner shall maintain and repair the public portions of the building." 148 A.D.2d at 757. Subsequently, Reyes illegally renovated the structure to a single room occupancy premise, in violation of various provisions of the New York City Fire and Building Codes. Part of the illegality stemmed from improper electrical work and the fact that the structure was a three story building with a wooden frame and no fire stopping materials to impede the spread of fire from room to room. Additional evidence indicated that Reyes was seen in the building during renovations, giving instructions to the men working on the project. Subsequently, a fire occurred resulting in the death of one tenant. A fire marshal testified that he was "98%" certain that the fire had been started by heat from overloaded electrical wiring in one of the second floor kitchens. 75 N.Y. 2d at 593.
We can see no bar to the imposition of criminal liability for deaths caused by a fire upon one who maintains what is, in effect, a fire trap ...
Deitsch, supra. at 335, 336.
The Appellate Division, unanimously reversing the Supreme Court's dismissal of the
indictment against both defendants, found a legally sufficient basis for the indictment based not
only on the illegal construction, but also on the maintenance of the illegal condition.
[t]he illegal construction of the premises took place while [Velez] was in possession and occupancy of the building. Furthermore, the evidence established that the various fire and building code violations were created or allowed to exist during his tenure as net lessee.The Court of Appeals unanimously affirmed the Appellate Division holding as to Reyes. See footnote 75 The court cited as factors supporting its conclusions that the defendant had retained control of the building under the lease agreement, that Reyes had personally supervised the illegal construction and that subsequently Reyes failed to respond to notices sent to him of various electrical violations arising out of the illegal construction.
Reyes and Velez created and maintained the unsafe conditions which resulted in the foreseeable danger of fire and injury to the building's tenants.
Reyes, 148 A.D.2d at 758, 759.
[Reyes] participated in the creation of the fire-producing conditions in the building, and ... he also failed in his continuing duty as legal owner of the building to eliminate those conditions. It was reasonably foreseeable that the creation and continuance of the dangerous conditions presented a substantial and unjustifiable risk of death or injury in a fire.
Reyes, 75 N.Y. 2d at 593.
Without Mr. Corvacciola's statement, however, this conclusion is much less apparent. The District Attorney's Office maintained that it must be proven that Mr. Poulikidis directly supervised the construction of the facade. While the case law analyzing matters involving fatal incidents stemming from building conditions, renovations or repairs clearly indicates a requirement of some direct involvement of a defendant in the conduct which created or contributed to the substantial risk of harm, See footnote 78 these cases do not define the specific level of involvement or supervision which would be required to demonstrate an awareness, or duty of awareness, of a such a condition. Clearly, in this matter, it would be necessary to show some level of direct participation by Mr. Poulikidis in the construction of the defective facade. The District Attorney's Office concluded that Mr. Corvacciola's testimony was required to provide such evidence.
It cannot be concluded, based upon the relevant legal standards and the particular facts of this
case, that this determination was incorrect. It is certain, from a review of the District
Attorney's file and discussions with those who considered these issues, that a conscientious
effort was made to consider all of the relevant legal and factual issues. The District Attorney's
decision with regard to the prosecution of Mr. Poulikidis was based upon a considered
judgment, and was clearly not an abuse of the District Attorney's discretion or a substantive
deviation from the legal requirements concerning criminally negligent homicide. Mr.
Corvacciola's testimony could have established Mr. Poulikidis' direct involvement in the
wall's construction. This would have been highly probative on the issue of Mr. Poulikidis'
knowledge of the danger created by the wall's substandard construction. Absent Mr.
Corvacciola testimony, both the quality and quantity of the evidence against Mr. Poulikidis
would clearly be substantially reduced. Whether it would have been fatal to any prosecution is
a decision which the District Attorney is both authorized and compelled to make before
determining how to proceed. See footnote 79
Compounding the issue is Mr. Poulikidis' unavailability to be held accountable for any crime he
may have committed due to his absence from the country.
Under these circumstances, the Commission concludes that the District Attorney was acting
within his discretion, based on a reasonable evaluation of the law as it applies to the facts and
circumstances of this case, in declining to prosecute Mr. Poulikidis for this incident at this
Costas Poulikidis clearly bears responsibility for erecting this wall in that Mr. Poulikidis set in motion and directed the forces which created this eighteen-foot high, multi-ton masonry hazard. While the circumstances surrounding the construction of the wall will continue to be the subject of litigation in pending criminal and civil lawsuits, it is undisputed that Mr. Poulikidis, as owner of this property, purchased the materials for the wall, did not obtain necessary building permits, and, in some manner, directed the building of the structure.
The Hempstead Department of Buildings is also accountable for failing to take necessary steps to monitor work within its jurisdiction. After Mr. Cattan had ameliorated the most obvious safety hazard at Bedford Plaza, the accumulation of over 500,000 gallons of raw sewage in the basement of one of the larger buildings in the mall, DOB's Unsafe Buildings Division closed its file with little, if any, attention given to the litany of other health and safety hazards which existed at the property. Many of these problems were documented in DOB's records on the building, and continued to plague the property after it was sold to Mr. Poulikidis. This lack of concern was effectively exploited by Mr. Poulikidis, who proceeded with his substandard renovations virtually unfettered by any consideration of compliance with state and local construction requirements. Obtaining building permits, certificates of completion or arranging for required inspections of various stages of the renovation process were evidently of little importance to Mr. Poulikidis, and the Department of Buildings, although aware of the construction because an inspector was at the premises for other purposes, did nothing to oversee the process.
The former building inspector who had knowledge of the property, either by intention or incompetence, failed to take any action to insure that the construction of the wall met minimum safety standards. While there is some indication that the former inspector may have engaged in illegal conduct with regard to his duties, it is nonetheless unclear whether his duties entailed the supervision of the construction of the wall. According to his statement to the Nassau County Police, the former inspector believed the structure still came within the jurisdiction of the Unsafe Buildings Division. Representatives from Hempstead DOB dispute this, and claim that it was the inspector's responsibility to initiate an inquiry if he saw the construction in progress.
The complete absence of supervisory oversight or review at Hempstead's Department of Buildings makes it virtually impossible to determine who is ultimately responsible for any actions that were taken or for any failures to act. According to DOB representatives, no one at that agency was aware of the facade's existence, except for the former inspector, until after it collapsed. DOB files reflect, however, that in January, 1991, the agency had been informed about the concrete falling from the soffits on Bedford Avenue, and then subsequently discovered that the soffits and the 1988 theater renovations did not have the required buildings' documentation and were therefore illegal. Nevertheless, no one at the agency saw fit to re-examine this building to ascertain whether other possible illegal or unsafe conditions existed. Even with regard to that work which was allegedly being monitored by DOB, their actions reflect a total absence of oversight. As noted previously, the certificate of completion for the construction work on the soffits along Bedford Avenue was not issued until February, 1995, after the Commission began its investigation and almost four years after the building permit application had been approved. According to Hempstead's Building Code, this project should have been deemed abandoned, and therefore, declared illegal, after no more than two years from the issuance of the building permit. Hempstead Code, §86-13(B)(C).
Assuring that the Town's commercial and residential structures are habitable and safe is a weighty mandate. The absence of written protocols, procedural manuals, supervisory oversight or even regular reviews of the work of inspectors clearly contributed to the circumstances of Mr. Unterweiser's death. The Commission is therefore recommending that Hempstead DOB reform its current practices and institute a series of internal controls to effectively monitor construction in the Town and to insure that such failures do not result in future tragedies. These recommendations are detailed below.
With regard to the actions of the receiver, Edward T. Robinson, III, it is clear to the Commission that when he was appointed receiver for Bedford Plaza in December, 1992, Mr. Robinson was unprepared for the deluge of complaints which confronted him. Leaking roofs, falling cement and stucco, flooded stores, broken drainage pipes, mosquito infestation and a burgeoning pigeon population were just some of the afflictions which plagued this property and resulted in constant complaints by the mall's tenants. Given his limited role of preserving the property and assets during the pendency of the foreclosure proceedings, Mr. Robinson made reasonable efforts to respond to the tenants' complaints and to manage a structure which he quickly realized was in "a serious state of disrepair."
Despite these efforts, the Commission finds Mr. Robinson's account of his actions regarding the wall which collapsed disturbing. First, Mr. Robinson apparently received complaints about the wall from various sources, including Mr. Weiss and at least one mall tenant. Mr. Robinson's court papers, submitted in connection with his final accounting as receiver, specifically refer to his receipt of tenant complaints about the "defective condition of a wall on the southerly portion of the building." In addition, Mr. Cheung, the proprietor of the abutting chinese restaurant, testified before the Commission that, through his son, he informed Mr. Robinson about "cracks" in the wall on "two or three occasions." Cheung, p. 11, 21. While the Commission does not believe this is dispositive of any issues pertaining to possible criminal conduct in this matter, it does suggest that there was a compelling basis to have the structure examined.
Second, in his May 12, 1993 correspondence to Mr. Robinson, Mr. Weiss advised Robinson that the facade was "laid on the sidewalk [without] proper footings...[was] separating from the main portion of the building...[and was] in danger of collapse." When viewed together with the other complaints he apparently received about the wall, it is difficult to understand how Mr. Robinson, who asserted that the only problem he observed with the wall was limited to a few bricks in the upper southeast corner of the structure, concluded that Mr. Weiss was referring to the same minor condition.
Finally, and perhaps most difficult to reconcile, is Mr. Robinson's failure to take any additional reparative measures after his June, 1993, correspondence with Mr. Lenowitz. Having characterized the condition of the wall to Mr. Lenowitz, alternatively, as either "dangerous" or "potentially dangerous," and having advised Lenowitz that his "contractor" had concluded that "the wall should be torn down and rebuilt," Mr. Robinson took no action during the next seven months to determine whether there was any immediate danger. Although Mr. Robinson clearly believed, in June, 1993, that he was soon to be relieved of his receivership responsibilities, at some point it must have become apparent to him that this was not going to occur as expeditiously as anticipated. See footnote 80 Until Judge Burke ordered his discharge on January 31, 1994, Mr. Robinson was still the receiver for Bedford Plaza and retained all of the powers and responsibilities stemming from that position. In fact, Mr. Robinson continued to collect rents, communicate with tenants, and, as late as December, 1993, sought court permission to arrange for snow removal from the premises. With a modicum of additional diligence, Mr. Robinson could have sought approval for funds to have a qualified contractor reexamine the wall to determine if the condition, which Mr. Robinson believed was at least "potentially dangerous" in June, 1993, had become a more imminent danger at some point thereafter. The Commission concludes this would have been the more appropriate response to his receivership duties than simply waiting for the discharge order to be signed.
It must be noted, however, that the Commission's attempt to ascertain precisely what information Mr. Robinson had with respect to the facade was hampered by inconsistencies in statements made by Mr. Amoroso to the Nassau County Police, the District Attorney's investigators, and the Commission. It is not clear, from the available evidence, exactly what Mr. Amoroso had learned about the wall or what he told Mr. Robinson about it. The evidence reflects that Mr. Robinson perceived that the wall was "dangerous" or "potentially dangerous" as a result of information he had obtained from Mr. Amoroso. Mr. Amoroso, however, denies ever providing such information. In addition, according to police reports, Mr. Folti had observed that the wall was not "anchored" and had "no footing," a direct reference to two of the problems stemming from the improper construction of the wall. This suggests that these experienced construction contractors were aware that the problem with the facade was more serious than simply a few loose bricks which could quickly be "patched" with a little cement.
The Commission nonetheless finds that there is insufficient evidence to suggest that any of the parties mentioned were criminally liable for Mr. Unterweiser's death. There is no basis to conclude that Mr. Robinson or Mr. Amoroso should have been aware that the facade was in imminent danger of collapsing. Furthermore, failures on the part of the Hempstead Buildings Department and its representatives cannot be causally related to the wall's collapse.
There are no protocols, guidelines or written regulations pertaining to the issuance of building permits, certificates or other documentation required for all structures within the Town of Hempstead, other than the Building Code itself. This absence of a uniform set of procedures causes erratic and haphazard application of the law pertaining to building construction and renovation. Moreover, the agency's method for monitoring construction or renovation projects for which building permits have been issued is ineffective. Currently, after a building permit is issued, inspectors go to building sites only when requested to do so by the owner. Secretaries at the Department of Buildings are responsible for sending notices to building owners informing them when their permits are about to expire, but there is no method for confirming that this was actually done in any particular instance. Thus, there is no mandatory review of projects for which permits have been issued, nor is there a reliable method by which an owner is notified that his or her license to build, repair or renovate is about to expire. As was the situation at Bedford Plaza, this allows structures which have not complied with the Building Code, and are therefore illegal, to remain undetected.
Finally, there are no established protocols for the investigation and follow-up review of complaints pertaining to unsafe buildings. With respect to Bedford Plaza, Inspector DiNapoli, who went to the mall in response to a complaint, confined his attention to the falling cement from the soffits along Bedford Avenue, even though this was only two stores away from the location of the defective facade. Moreover, despite the fact that DOB personnel ascertained the existence of at least two illegal structures in the mall, no comprehensive inspection of the entire mall was even contemplated. Obviously, this lack of effective oversight greatly increases the probability that dangerous structures, particularly large commercial outlets, will not be detected or monitored.
The Commission, therefore, makes the following recommendations for change:
Footnote: 1 The Nassau County District Attorney's Office responded to the scene and actively joined the investigation in March, 1994.
Footnote: 2 Mr. Poulikidis subsequently relocated to Greece and was residing there at the time of this incident.
Footnote: 3 In January, 1995, the charge of Reckless Manslaughter was added to the indictment.
Footnote: 4 District Attorney's Memorandum, March 10, 1995, at 16.
Footnote: 5 Grand jury transcripts were not obtained.
Footnote: 6 The New York State Uniform Fire Prevention and Building Code Act, N.Y. Exec. Law, Art. 18 (McKinney 1993), has also been adopted by Nassau County. See Hempstead Code, Chapter 86, preamble.
Footnote: 7 The specifications and requirements for the issuance of a building permit are set forth in the Hempstead Code, § 86-9.
Footnote: 8 "All ... unsafe [or otherwise dangerous] buildings are hereby declared to be illegal and shall be abated by repair and rehabilitation." Hempstead Code, § 86-27(A).
Footnote: 9 Although DOB's files also reflect some effort by Mr. Cattan to correct these hazardous conditions, he was again cited in early 1988 for failing to clean out the accumulation of dead birds and excrement in the building.
Footnote: 10 In October, 1987, a real estate broker inspecting the premises narrowly escaped serious injury when he fell through rotting floor boards into six feet of raw sewage.
Footnote: 11 Concomitantly, a Certificate of Completion would also have been required following the construction of the facades.
Footnote: 12 The renovations to be performed were described on the permit as "repair floor & roof as needed. Convert theater to retail stores and office." There is no reference on the DOB permit to the two decorative facades.
Footnote: 13 The former inspector has since retired from DOB and currently resides in Florida.
Footnote: 14 Mr. Delia died in 1993.
Footnote: 15 One of the last entries in these files is dated April 15, 1988, and includes the notation "building secure."
Footnote: 16 These inspections by the former inspector also contradict his assertion that he was transferred to the Public Assembly Unit in October, 1988.
Footnote: 17 Mr. Gaiti advised the Commission that, pursuant to DOB's practice with respect to building permits, a written notice should have been sent to Mr. Poulikidis, eleven months after the issuance of the building permit, reminding him of his obligation to secure a certificate of occupancy. DOB officials were unable to confirm, however, that such a notice was issued in this matter.
Footnote: 18 By 1991, pursuant to the agreement with Ezra Cattan, Effenzee Capital had assumed operational control of the mall. See Section Two, infra.
Footnote: 19 Even though this new building permit was issued in 1991, DOB files reflect that the certificate of completion for this particular project was not secured until February, 1995. According to the Hempstead Building Code, this is illegal. Hempstead Code, §86-13(B).
Footnote: 20 It should be noted that the location of the portion of the soffit which Ms. Logie complained of is only two doors away from the chinese restaurant which abutted the facade running along the southerly portion of the mall.
Footnote: 21 See Section Three, infra.
Footnote: 22 By February, 1995, the Commission had commenced its investigation in this matter.
Footnote: 23 The purchase mortgage required monthly payments of interest only, with the full principal due in five years.
Footnote: 24 This mortgage was for a $600,000 loan from Effenzee. In August, 1989, Mr. Poulikidis gave an additional mortgage on the property to Effenzee in exchange for a $400,000 loan. As security for these loans, Mr. Poulikidis, through his corporate entity, Pouli Enterprises, assigned all his rights to the leases and rents at Bedford Plaza to Effenzee.
Footnote: 25 Mr. Poulikidis subsequently relinquished all rights, title and interest in the property.
Footnote: 26 Mr. Lenowitz explained to the Commission that this agreement was motivated, in large measure, by the decline in real estate values during the end of the 1980s. Consequently, both mortgagees agreed to this arrangement to preserve the possibility of recouping their original investments in the property. At the time of this agreement, there were tax and mechanics liens on the property.
Footnote: 27 See 75 Corpus Juris Secundum, Receivers, at 657.
Footnote: 28 In re Stoll-Meyer Woodcrafters, Inc., 84 N.Y.S.2d 757 (Kings Co. S. Ct. 1948); Knickerbocker Ice Co. v. Benson, 155 Misc. 738, (N.Y. Co. Mun. Ct. 1935). See also, N.Y. Civil Practice Law §6401 Commentary C6401:3 (McKinney 1963).
Footnote: 29 N.Y. Civil Practice Law §6401.
Footnote: 30 See N.Y. Real Prop. Acts Law § 1325 (McKinney 1963).
Footnote: 31 See 66 Am. Jur. 2d § 203, at 32 (1973).
Footnote: 32 See People v. Eisenberg, 100 Misc.2d 29 (App. Term, N.Y. Co. 1979).
Footnote: 33 N.Y. Civil Practice Law §6401 Commentary C6401:4 (McKinney 1963). See also, Copeland v. Salomon, 56 N.Y.2d 222 (1982).
Footnote: 34 N.Y. Civil Practice Law §6401(c) (McKinney 1963).
Footnote: 35 Page references are to the transcripts of sworn testimony before the Commission.
Footnote: 36 Mr. Robinson testified that, while he had never expressed an interest in a receivership appointment, he has known Judge Burke for "a long time," and informed the judge that he was interested in the position. Robinson, pp. 26, 27.
Footnote: 37 The order also required Mr. Robinson to execute an oath, pursuant to section 640l of the CPLR, and file a bond with the court "conditioned for the faithful performance of his ... duties as such receiver." Mr. Robinson was also authorized to retain counsel in connection with his receivership duties.
Footnote: 38 He also informed the Commission that he received correspondence from the mall's insurance company. The insurance company had conducted its own inspection of the premises and had threatened to cancel insurance coverage for the mall unless the most serious problems with the property were "corrected." Robinson, p. 43. This letter, a copy of which was obtained by the Commission, advised Mr. Robinson to effect repairs to the roofs of various buildings and the soffits along Bedford Avenue, but did not make reference to the south wall which subsequently collapsed.
Footnote: 39 Mr. Robinson stated that although he observed this condition, he had no conversation with Mr. Lovering about the wall. Robinson, p. 47. Mr. Lovering informed the Commission that he first noticed a problem with the south wall sometime during the spring of 1993. The area of the wall to which Mr. Lovering referred, however, was at the opposite end of the south wall from where Mr. Robinson noted the defect. Mr. Lovering advised the Commission that he observed a 6" long separation between the facade and brick wall adjacent to the front window next to the front of the chinese restaurant. This is the northeast portion of the facade. See, Exhibit 1. Mr. Lovering stated that he never observed any separation of the facade at the southeast end of the wall. He also indicated that, after making this observation, he notified David Weiss, former President of the Bellmore Chamber of Commerce, who then corresponded with Mr. Robinson.
Footnote: 40 Mr. Robinson also testified that he never spoke with anyone from the abutting chinese restaurant about the wall. Robinson, p. 50. This conflicts, however, with assertions made by various individuals associated with the restaurant.
Footnote: 41 Mr. Robinson informed the Commission that he "thought" Lester Stanco, a principal of Stanco Enterprises, went to look at the wall and that he "may have given" an estimate, but decided to hire William Amoroso, the proprietor of Concord Home Improvement, because of his "Bellmore affiliation." Robinson, p. 60. Lester Stanco, however, advised the Commission that he never visited the Bedford mall and that he gave no estimate to Mr. Robinson for repairs of any kind with respect to the mall.
Footnote: 42 Mr. Robinson testified that he initially received a verbal estimate from Mr. Amoroso but, on May 4, 1993, he was given one in writing. That document, obtained from Mr. Amoroso, refers to estimates for the installation of aluminum soffits, repairs to the roof, gutters and leaders, and also notes "repair wall on southside of building stucco - $600.00."
Footnote: 43 Mr. Amoroso testified before the Commission that Mr. Robinson never brought information concerning any complaints about the facade to his attention. Amoroso, p. 58.
Footnote: 44 Mr. Robinson testified before the Commission that he was "anxious" to be discharged as receiver because it was taking an "extraordinary" amount of his time. Robinson, p. 71.
Footnote: 45 Mr. Cheung's testimony was translated from Chinese into English by a New York State certified translator.
Footnote: 46 Mr. Robinson's attorney, Robert Zausmer, advised the Commission that Mr. Robinson had reviewed his files at the Commission's request and was unable to locate any correspondence from an attorney representing the chinese restaurant.
Footnote: 47 Mr. Robinson's court accounting also refers to complaints he received about the defective condition of the south wall. In his final accounting, dated September 30, 1993, Mr. Robinson advised the court: "[I]n the latter part of March and early part of April, 1993, having been contacted by various tenants with more complaints about the condition of the premises, in particular the defective condition of a wall on the southerly portion of the building... ."
Footnote: 48 As previously noted, Costas Poulikidis was residing in Greece at the time of the incident and has apparently remained there since that time. The police file reflects efforts made to ascertain Mr. Poulikidis' exact whereabouts in Greece.
Footnote: 49 The content of Mr. Corvacciola's statement is the subject of current litigation in Nassau County Court.
Footnote: 50 An invoice from Presti Stone & Mason Corp., a company located in Freeport, New York, is included in the police files. It is dated July 8, 1988, and memorializes the sale of "2500 4" Solid White Rib Blocks" to Bedford Plaza Realty, the company which Mr. Poulikidis utilized to purchase the mall.
Footnote: 51 The content and voluntariness of Mr. Corvacciola's statement is the subject of ongoing litigation in Nassau County Supreme Court.
Footnote: 52 By the time of the investigation by the Nassau Police Department, the former inspector had retired and was residing in Florida. Nassau County detectives traveled to Florida to speak with him about this matter.
Footnote: 53 The former inspector also denied having a personal relationship with Mr. Poulikidis. This was disputed, however, by Sidney Chertok, Mr. Poulikidis' real estate broker. He informed the District Attorney's investigators that he had seen the former inspector at "a number" of social events given by Mr. Poulikidis and his wife. District Attorney's Memorandum, 6/22/94.
Footnote: 54 The Commission's investigation revealed that these shopping centers have cement facades similar to those at Bedford Plaza. According to Herbert Kurzer, an attorney for the Merrick Gables Civic Association who informed the Commission that he has known Mr. Poulikidis since the early 1980's, these facades were constructed in a similar fashion to the one that collapsed at Bedford Plaza. Mr. Kurzer also stated to the Commission that he observed Mr. Poulikidis at the Merrick construction sites every day directing the workers.
Footnote: 55 Mr. Poulikidis' applications for consumer affairs licenses for these residential renovation companies are included in the police file. One application contains a description of the nature of the residential renovation business as "manufacturing-installing of windows and doors." The other application includes a description of the company's operation as "siding, windows and roofing." There is also a notation in this second document, that, as of 1990, Mr. Poulikidis had over twenty-five years experience in the home improvement business.
Footnote: 56 There is also a notation in the record of Mr. Amoroso's interview that he "advised Robinson of bad condition." It is unclear, however, if this reference pertains to the defective facade or the condition of the stucco on the wall behind the chinese restaurant at 501 Bedford Avenue.
Footnote: 57 Based on interviews and other information obtained by the Commission, the District Attorney's office actively joined the probe into Michael Unterweiser's death in March, 1994.
Footnote: 58 These experts consulted on this incident that the cause of the wall's collapse was directly attributable to the defective construction. Prosecutors interviewed by the Commission added that, although there was some disagreement among the experts consulted as to the precise condition which precipitated the collapse, there was no dispute that it stemmed from the improper construction.
Footnote: 59 Prior to the commencement of this trial, Mr. Peck, who had been originally assigned to prosecute Mr. Corvacciola, resigned from the District Attorney's Office to become a Town judge in Nassau County. Barry Grennan retired from the District Attorney's Office prior to the completion of the investigation and evaluation of this matter.
Footnote: 60 No agreement was reached because Mr. Corvacciola was only willing to plead guilty to a misdemeanor, and, according to Fred Klein, the District Attorney's Office was unwilling to agree to this.
Footnote: 61 Memoranda from the District Attorney's Office reflect the suspicion of police and prosecutors that Mr. Poulikidis' offer was merely a ruse to re-enter the country without fear of arrest in order to receive medical treatment which was unavailable in Greece.
Footnote: 62 The Commission's research into this issue confirms the conclusion of the District Attorney's Office. A 1931 extradition treaty between the United States and Greece does not provide for extradition of Greek citizens, or anyone located in Greece, for the crime of involuntary manslaughter. Treaty of Extradition, May 6, 1931, United States - The Hellenic Republic, Art. II, 47 Stat. 2185. In addition, the Commission was advised by Richard Owen, an Assistant United States Attorney in the International Affairs Division of the United States Department of Justice, that any request to extradite Mr. Poulikidis, in view of the treaty's limitations in this matter, would "almost certainly" be denied. According to Mr. Owen, the only remaining option for local prosecutors would be to have the New York State Police request that INTERPOL notify authorities should Mr. Poulikidis attempt to leave Greece.
Footnote: 63 Mr. Robinson's awareness of a problem with the south wall and his actions taken as receiver with respect to that structure are detailed in the previous section.
Footnote: 64 Prosecutors acknowledged to the Commission that they did not know who brought this problem to Mr. Robinson's attention or whether or not he had received information on the wall's "dangerous condition" from anyone other than Mr. Amoroso.
Footnote: 65 According to Mr. Peck, it was Chief Assistant District Attorney Leff who directed that Mr. Amoroso be interviewed under oath.
Footnote: 66 Research has revealed only one case in this country where a receiver was successfully prosecuted for a crime stemming from acts committed in connection with receivership duties. State v. Norfolk & S.R. Co., 152 N.C. 785 (1910). In this case, the court ruled that the defendants, receivers for a bankrupt railroad, could be indicted for the crime of Nuisance, for permitting the parking of vehicles on a public highway.
Footnote: 67 The distinction between Manslaughter in the Second Degree and Criminally Negligent Homicide lies in the mental state of the defendant: "In [cases involving Manslaughter based on reckless conduct] the actor perceives the risk, but consciously disregards it. In [cases involving Criminally Negligent Homicide] he negligently fails to perceive the risk." People v. Stanfield, 36 N.Y.2d 467, 470 (1975).
Footnote: 68 See, e.g., People v. Deitsch, 97 A.D.2d 327 (2d Dept. 1983); (compliance with local fire and building codes).
Footnote: 69 See, e.g. People v. Reyes, 148 A.D. 756 (2d Dept. 1989); aff'd. 75 N.Y.2d 590, (1990); (lease agreements - duty to repair, authority to alter premises).
Footnote: 70 See, e.g., People v. Boutin, 75 N.Y.2d 692 (1990); (duty to operate motor vehicle safely).
Footnote: 71 "A long distance separates the negligence which renders one criminally liable from that which establishes civil liability." People v. Rosenheimer, 209 N.Y. 115, 123 (1913). See also, Boutin, supra.
Footnote: 72 Conduct, in this context, includes omissions as well as affirmative acts. People v. Steinberg, 170 A.D.2d 50 (1st Dept. 1991); aff'd. 79 N.Y.2d 673 (1992).
Footnote: 73 In Boutin, the defendant crashed into a police car, killing a state trooper and another person. The defendant claimed he did not see the car before the crash, even though the police vehicle had its emergency lights flashing. Nevertheless, the Court of Appeals dismissed the indictment, holding that there was no evidence that the defendant had engaged in any criminally culpable risk creation, such as dangerous speeding or failure to obey traffic signals. Id., at 697.
Footnote: 74 In this case, the defendants were convicted of depraved indifference murder, pursuant to section 125.25(2) of the Penal Law. In Warner-Lambert, 51 N.Y. 2d 295 (1980), the Court of Appeals cited the Kibbe analysis on the issue of causation in the context of criminal culpability grounded in recklessness or negligence. The Court held that the law on criminally negligent homicide and reckless manslaughter requires a finding that the defendant's actions were a "sufficiently direct cause of the ensuing death." Warner-Lambert, supra. at 306.
Footnote: 75 Defendant Velez did not appeal the Appellate Division's reinstatement of the indictment.
Footnote: 76 The first interview conducted of Mr. Robinson by police investigators does reflect that the receiver stated he had been informed by Mr. Amoroso that "the wall was unsafe and should be torn down." Nassau County Police Report, undated. Even assuming the accuracy of this report, however, this would be of limited value to the prosecution since both Mr. Amoroso and Mr. Robinson have denied, under oath, that Mr. Amoroso ever made such a statement.
Footnote: 77 As noted earlier, the District Attorney's Office concluded that Mr. Robinson would have had to have been aware that the slight separation at the top of the wall would cause water to collect behind the facade, that the water would freeze, and that this would cause the entire wall to collapse. The Commission does not concur with the assessment. Had the District Attorney been able to prove, hypothetically, that Mr. Robinson was aware that bricks were continually falling from the top of the wall, and had he then failed to take any remedial action, his knowledge of the mechanism by which the wall ultimately fell would have been, in the Commission's view, irrelevant to the proof of criminally negligent homicide. See, Kibbe, Deitsch, supra.
Footnote: 78 See, e.g., Reyes, supra, wherein the owner of the building supervised the illegal and improper re- wiring of a residential premise; Deitsch, supra., wherein the owner of a corporation and a warehouse foreman were found to have been in charge, on a daily basis, of the operation of a warehouse which contained numerous fire hazards and lacked fire safety training for employees.
Footnote: 79 Similarly, the plea negotiations in this case were clearly within the District Attorney's sole discretion.
Footnote: 80 Mr. Robinson acknowledged to the Commission that he was aware that he had to file an accounting of his actions as receiver before Judge Burke could order his discharge. Robinson, p. 71. This was not accomplished until December 1, 1993.