Opinion
13412/2019
07-15-2020
351-359 EAST 163RD STREET TENANTS ASSOC., Candida Carrasquillo, Gudalupe Rojas, Doris Pluas, Jesayna Olivera, Toshima Gardner, Angelica Rojas, Petitioner(s), v. EAST 163 LLC, PD Family Shelter Trust, Manny Stein, Respondent(s)-Landlord, Department of Housing Preservation and Development of the City of New York, Co-Respondent(s).
Todd Rothenberg, Esq., Attorney for Respondents, 271 North Avenue, Suite 115, New Rochelle, NY 10801, Email: Todd@trothenbergesq.com, The Legal Aid Society Attn: Zoe Kheyman, Esq., Attorneys for Petitioners, 260 E. 161st Street, 8th Floor, Bronx, NY 10451, Email: zkheyman@legal-aid.org, DHPD, Attn: Emily Veale, Esq., Email: VealeE@hpd.nyc.gov
Todd Rothenberg, Esq., Attorney for Respondents, 271 North Avenue, Suite 115, New Rochelle, NY 10801, Email: Todd@trothenbergesq.com, The Legal Aid Society
Attn: Zoe Kheyman, Esq., Attorneys for Petitioners, 260 E. 161st Street, 8th Floor, Bronx, NY 10451, Email: zkheyman@legal-aid.org, DHPD, Attn: Emily Veale, Esq., Email: VealeE@hpd.nyc.gov
Shorab Ibrahim, J.
The court has considered the pleadings, prior orders and hearing testimony in reaching this decision:
FACTUAL AND PROCEDURAL HISTORY
Petitioners commenced this proceeding by Order to Show Cause dated May 5, 2020. Respondents interposed an Answer dated May 12, 2020. Both sides are represented by counsel. As this matter was commenced during the height of the Covid-19 pandemic, it was assigned to the emergency part, also known as the H-E part. As with all the HP proceedings commenced during this time, the court limited the matter to only those conditions alleged to be immediately hazardous, or otherwise immediately affecting the health and safety of petitioner(s). In this case, the petitioners each complained they consistently lacked hot water.
On May 15, 2020, the Hon. Krzysztof Lach adjourned the matter to June 2, 2020 and ordered a DHPD inspection of the subject units. Petitioners were also ordered to provide interim access and respondents were ordered to inspect and repair the alleged hot water conditions. Judge Lach noted that "if no "C" class violations are found to exist or DHPD is unable to inspect the subject units, the Court will hold a hearing and take testimony concerning the allegations in the underlying Petition."
On June 2, 2020, the Hon. Brenda Spears issued an Order finding that two (2) hot water violations issued by DHPD for apartment 3-G exist. As such, an Order to Correct was entered in Toshima Garner's favor. Consequently, the matter was settled as to Ms. Garner, leaving five (5) named petitioners. On June 2, 2020, the case was adjourned to June 16, 2020 for settlement or for "testimony to be taken in conformity with" Judge Lach's May 15, 2020 Order.
On or about June 22, 2020, this court accepted the matter for a hearing. On July 1, 2020 three (3) petitioners testified on the record, seeking additional order(s) to correct their alleged lack of hot water.
JULY 1, 2020 HEARING
The hearing was held entirely over the Skype for Business platform pursuant to the court's efforts to limit in-person appearances in the housing courts across New York City.
Candida Carrasquillo—4-A
Ms. Candida Carrasquillo testified first. Ms. Carrasquillo lives in apartment 4-A. She testified there is little hot water in the winter. She testified she did not have hot water Sunday night (June 28, 2020) and the morning of June 29, 2020. Ms. Carrasquillo testified there were five (5) days in June 2020 when she did not have hot water. She also testified that sometimes the hot water is off for short spurts and other times for the entire afternoon. On cross-examination, she specified the dates at June 3rd at night, June 4th at several times during the day, June 5th at several times during the day, June 28th at night and June 29th in the early morning.
Each witness was sworn in.
Ms. Carrasquillo first identified the early morning of Tuesday, June 30th as the most recent time when she did not have sufficient hot water but corrected her recollection on cross-examination.
Ms. Carrasquillo described her process in ascertaining whether there is hot water. She first runs the water for some time. On cross-examination she stated she runs it for three to four minutes. Ms. Carrasquillo testified she knows there is not enough hot water by feeling that it was cold.
Ms. Carrasquillo testified she would usually email the building manager, "Sam", to complain. She stated she also calls 311 to report the outages. She claimed DHPD contacts her and sends inspectors. On cross-examination she stated the inspectors usually come out two days later. However, when the inspector comes to the apartment, sometimes the hot water is on and sometimes not.
On cross-examination, Ms. Carrasquillo reaffirmed she usually emailed "Sam." When asked to whether she emailed him specifically on the dates in June she alleged having no hot water, she stated she probably did. Ms. Carrasquillo did not recall calling DHPD on June 3, 2020. She did not think she called on June 4th or June 5th either. She stated that calling "Sam" usually got results. She also testified that she did not call DHPD every time because of frustration. Ms. Carrasquillo confirmed she never measured the water temperature [other than by feeling it].
During Ms. Carrasquillo's testimony, the parties consented to the court accessing the DHPD website and reviewing the complaint history therein. The court notes that the complaint history shows sixty-four separate complaints for hot-water issues from apartments 3-G, 5-A, 4-A and 4-G from July 2019 through June 2020. https://hpdonline.hpdnyc.org/HPDonline/select_application.aspx. Printout dated July 1, 2020 and last accessed July 14, 2020.
Guadalupe Rojas—4-G
Ms. Rojas testified she has lived in the building since 1990. According to her testimony, hot water is an ongoing problem and is getting worse. She stated the hot water can be out anywhere from a few hours to the entire day. Ms. Rojas testified she runs the water for approximately five (5) minutes and feels it with her hand to know that it is cold. She recalled not having hot water on June 4, 2020, June 11th, June 18th, June 25th in the mornings from 7 a.m. to 10 a.m. and on most Sundays during the month.
Ms. Rojas stated she sometimes texts building management when she has a problem; other times, she calls 311. She recalled texting on May 5, 2020. As to DHPD's response, she testified they would sometimes send an inspector. Ms. Rojas testified she must take hot water from the kitchen to bathroom to be able to wash. The most recent incident of no hot water, Ms. Rojas testified, was on June 27, 2020, between 7 a.m. and 9 a.m.
On cross-examination, Ms. Rojas testified the last time an inspector was in the apartment to check the hot water was on May 27, 2020.
Angelica Rojas—5-A
Angelica Rojas testified her problems with hot water date to the inception of her tenancy in 2012. Problems can last from two to four hours up to the entire day. She testified she lets the water run between ten and fifteen minutes and knows it is cold by touch. She recalled June 29, 2020 as the last time there was insufficient hot water.
On cross-examination, Ms. Rojas testified she has complained to DHPD in the past, especially during school days when there was no hot water in the morning. She acknowledged not using a thermometer, but insisted the water was cold and freezing cold during the winter. When asked if she had hot water on May 27, 2020, she stated she did.
Ms. Rojas referred to a "log" to refresh her recollection.
The court notes that each of the witnesses testified credibly.
July 10, 2020 HEARING
As only three of five remaining petitioners were available and testified on July 1, 2020, the matter was adjourned to July 10, 2020 for petitioners Doris Pluas and Jesayna Olivera to testify. On that morning, petitioners' counsel informed the court that Ms. Pluas and Ms. Olivera would not appear and has authorized counsel to withdraw their claims without prejudice. Respondent did not oppose. Consequently, the court grants the application and Ms. Pluas' and Ms. Oliver's claims are withdrawn without prejudice to a future proceeding.
Respondent rested without calling any witnesses or providing any further evidence.
The court was also made aware that a violation has been placed at apartment 4-A for lack of hot water. DHPD, through its counsel, asked that the court take judicial notice of the open "C" class violation. This was done upon review of the DHPD website.
https://hpdonline.hpdnyc.org/HPDonline/select_application.aspx. Last accessed on July 10, 2020. See Multiple Dwelling Law ("MDL") § 328(3). See also, Kingsbrook Jewish Med. Ctr. V Allstate Ins. Co. , 61 AD3d 13, 20, 871 NYS2d 680 [2nd Dept 2009].
As to closing statements, petitioners argue the testimony established that hot water was often not provided, so that the lack of violations was not dispositive. They urge the court to issue orders to correct for the remaining petitioners. Respondents argue the petitioners did not establish a violation and made particular issue of the fact that none of the witnesses used a thermometer in determining that hot water was not being provided.
DISCUSSION
Having found her testimony credible and such testimony further supported by a violation placed as of July 7, 2020 (Violation No. 13713046), Candida Carrasquillo has met her prima facie burden. Respondent did not present any evidence or testimony that the violation has been cured. As such she is entitled to an Order to Correct the hot water condition in apartment 4-A.
The court likewise found Guadalupe Rojas and Angelica Rojas to be forthright and credible. Notwithstanding respondents' counsel's argument that thermometer readings are required for someone to understand the absence of hot water or, in other words, that the water is cold, this court will not leave its common sense aside. (see Lloyd v. Oestreicher , 22 Misc. 900, 902, 195 NYS2d 895 [City of New York Mun. Ct, First District 1959] ("Inquiry, observation and experience all lead me to this conclusion")). Indeed, "common sense" is often employed in HP actions, such as this. (see Smith v. Parkchester North Condominium , 163 Misc 2d 66, 68, 619 NYS 2d 523 [Civ Ct, Bronx County 1994] ; Division of Housing Preservation and Development of the City of New York v. NYSandy 12CPB9 LLC , 61 Misc 3d 1219[A] [Civ Ct, Bronx County 2019] ). Petitioners each let the faucet run between four and fifteen minutes, sufficient to determine if they had hot water at the time.
Petitioners' testimony is further buttressed by the fact that hot water violations have been placed at the subject building. Violation # 36638186868603 placed at apartment 3-G on April 10, 2020, violation # 136622896867638 placed on April 4, 2020 at apartment 3-G and violation # 13713046 placed in apartment in apartment 4-A on July 7, 2020. Respondents did not provide any testimony that the conditions were limited to apartments 3-G and 4-A. In light of Guadalupe Rojas' and Angelica Rojas' unrebutted, credible testimony, the court draws a reasonable inference that they suffered during times of no hot water as well. (see Schlueter v. East 45th Development LLC , 9 Misc 3d 1105[A] at *3, 2005 NY Slip Op 51405[U] [Civ Ct, New York County, 2005], citing Commissioner of Social Services v. Philip De G , 59 NY2d 137, 141, 463 NYS2d 761 [1983] (where a respondent does not testify in a civil proceeding, the trier of fact may draw the strongest inference against him that the opposing evidence permits)).
See June 2, 2020 Order.
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The court notes that Ms. Carrasquillo's and Ms. Guadalupe Rojas' unrebutted, credible testimony was that they gave respondents notice of the hot water problems. Ms. Carrasquillo testified she emailed "Sam," while Guadalupe Rojas testified she sent texts to management. Angelica Rojas did not affirmatively state that she notified the respondents. However, respondents did not raise lack of notice in their answer. Indeed, petitioners proved their prima facie case without opposition. Respondents are "owners" pursuant to N.Y.C. Admin Code § 27-2004(a)(45). (see Robinson v. Taube , 63 Misc 3d 1224[A] [Civ Ct, New York County 2019] ). All the tenants have standing individually and as a tenants' association. ( N.Y.C. Admin Code § 27-2115(h) ). There are violations, either placed by DHPD or this court, in each of the petitioners' apartments.
The New York City Civil Court Act vests the Housing Court with broad authority to "recommend or employ any remedy, program, procedure or sanction authorized by law for the enforcement of housing standards, if it believes they will be more effective to accomplish compliance or to protect and promote the public interest. " ( CCA § 110 [c] [emphasis added]; see Prometheus Realty Corp. v. City of New York , 80 AD3d 206, 911 NYS2d 299 [1st Dept 2010] (Housing Court granted broad authority to enforce "housing standards")). Under § 110(c) , this court may even enter into orders sua sponte to enforce housing standards. ( Castillo v. Banner Group LLC , 2019 NY Slip Op 50897[U] [Civ Ct, New York County 2019] ). The existence of violations may be proved by DHPD or inspection reports, DHPD or other governmental computerized records, photographs, or through testimony . (Scherer and Fisher, Residential Landlord-Tenant Law in New York § 19:65 [2019 Update] ; see Mite v. Pipedreams Realty , 190 Misc 2d 543, 740 NYS2d 564 [Civ Ct, Bronx County 2002] ).
There is no dispute that the issues here involve "housing standards." As the DHPD violations both pre-date and post-date the petition, and petitioners testified the lack of hot water continues, the court places "C" class violations in both apartment 4-G and apartment 5-A. As such, orders to correct are warranted. (Chamberlain v. West 24th Tenant's Corp. , 2002 NY Slip Op[U], 2002 WL 31520427 [App Term, 1st Dept 2002] ).
ORDER TO CORRECT AND NOTICE OF VIOLATIONS
It is hereby ordered as follows:
a The respondents, East 163 LLC, PD Family Trust and Manny Stein, shall correct the class "C" violation placed by DHPD in apartment 4-A on July 7, 2020, for lack of hot water, within 72 hours of service of a copy of this Order upon respondents' counsel via email, and upon sufficient access being given, with such access to be arranged by respective counsel, or be subject to civil penalties. The penalty for violations placed for failure to supply hot water as required by law shall be, for such violation, $250 per day, per violation, from and including the date the violation was placed until the violation is corrected. Nothing in this order shall be deemed to stay any activity of DHPD's Emergency Repair Program.
b The respondents, East 163 LLC, PD Family Trust and Manny Stein, shall correct the class "C" violation placed by this court in apartment 4-G as of the date of this Order, for lack of hot water, within 72 hours of service of a copy of this Order upon respondents' counsel via email, and upon sufficient access being given, with such access to be arranged by respective counsel, or be subject to civil penalties. The penalty for violations placed for failure to supply hot water as required by law shall be, for such violation, $250 per day, per violation, from and including the date the violation was placed until the violation is corrected. Nothing in this order shall be deemed to stay any activity of DHPD's Emergency Repair Program.
c The respondents, East 163 LLC, PD Family Trust and Manny Stein, shall correct the class "C" violation placed by this court in apartment 5-A on as of the date of this Order, for lack of hot water, within 72 hours of service of a copy of this Order upon respondents' counsel via email, and upon sufficient access being given, with such access to be arranged by respective counsel, or be subject to civil penalties. The penalty for violations placed for failure to supply hot water as required by law shall be, for such violation, $250 per day, per violation, from and including the date the violation was placed until the violation is corrected. Nothing in this order shall be deemed to stay any activity of DHPD's Emergency Repair Program.
d Respondents are directed to comply with all appropriate safety protocols in light of the COVID-19 pandemic, including but not limited to: wearing gloves and masks, complying with all rules, regulations, and orders related to social distancing, and following the recommendations of the Centers for Disease Control ("CDC"), the NYS and NYC Departments of Health and other health officials, and to take into consideration the health and safety vulnerabilities of the tenants and their household members to the extent the landlord and/or its agents have knowledge.
e Failure to comply with the orders herein shall subject respondents to the contempt powers of the court and civil penalties, as appropriate.
f Service of this Order will be made upon all parties or their attorneys via email from the court.
g This court shall retain continuing jurisdiction over this matter.
CONCLUSION
Orders to Correct are hereby entered in favor of petitioners Candida Carrasquillo, Guadalupe Rojas and Angelica Rojas as against all named respondents. This constitutes the Decision and Order of the court.
SO ORDERED,