Opinion
13412/2019
08-24-2020
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.
Recitation, as required by C.P.L.R. § 2219(a), of the papers considered in review of this motion.
Papers Numbered
Notice of Motion With Affidavit Annexed And Exhibits A-F 1
Affirmation in Opposition With Affidavit And Exhibits 1-3, 2
Reply Affirmation With Exhibits A-B 3
After hearing held on August 13th and 17th, 2020, and upon the foregoing cited papers, the decision and order on this motion is as follows:
FACTUAL AND PROCEDURAL HISTORY
The within Housing Part proceeding ("HP") was commenced by various tenants residing at 351-359 east 163rd Street, Bronx, NY 10451. The tenants collectively complained that hot water was not being provided as required by law. On June 2, 2020, there being hot water violations placed in apartment 3-G on April 4, 2020 and April 10, 2020, the Hon. Brenda Spears issued an Order to Correct in favor of Toshima Garner ("petitioner"), the tenant of apartment 3-G. The Order required correction of those specific violations "within 72 hours of service by the court, via email " or respondents would be subject to civil penalties.
The court notes that the June 2, 2020 Order and a subsequent Decision by this court both contain typos in the violation numbers. The violation number for the April 4, 2020 violation is 13662289 and the April 10, 2020 violation is 13663818. The court also notes that the April 4, 2020 violation referred to in the June 2, 2020 and July 15, 2020 Decision and Order was, according to the Closed Summary Report, "reported" on April 6, 2020. There is no indication that another violation was placed on April 4, 2020 and as the violation number in the June 2, 2020 Order clearly refers to the same April 6, 2020 "reported" violation, the court finds respondent's claim that the April 6, 2020 violation is not part of the June 2, 2020 Order to be without merit.
Toshima Garner ("petitioner") now moves for civil contempt, criminal contempt, civil penalties, actual damages and punitive damages based on respondents' alleged failure to comply with the June 2, 2020 Order to Correct. In addition to the respondents, petitioner seeks relief against a Martin Meyer, a person not named in this proceeding.
Petitioner's June 26, 2020 affidavit in support of the motion alleges "continual lack of hot water," and "periodic outage of hot water" after the Order to Correct, with the last such incident having occurred on June 23, 2020. Petitioner argues that civil contempt is appropriate where there is a lawful, unequivocal court order and where a party is aware of the order, disobeys the order and the other party has been prejudiced. Petitioner also seeks criminal contempt under Judicial Law § 750(A)(3) based on respondents' [and Martin Meyer's] "willful disobedience" of a lawful mandate. Petitioner acknowledges that "[f]or a finding of criminal contempt, Petitioners must demonstrate, beyond a reasonable doubt, that the alleged contemnor willfully disobeyed a court order."
Petitioner also seeks statutory civil penalties be assessed against respondents based on the alleged failure to timely cure the violations. Finally, petitioner seeks actual and punitive damages.
Respondents, for their part, argue that the motion must be denied. Firstly, they claim the motion must be personally served for the court to entertain even a civil contempt motion. Secondly, even if the court were to consider the motion, respondents claim they complied with the underlying Order to Correct.
In order to clarify the issues, and given the seriousness of the requested relief, a hearing was held on August 13, 2020 and August 17, 2020.
DISCUSSION
The Hearing
Petitioner credibly testified that she experienced periodic loss of hot water, including last on August 10, 2020. Although she claimed thirty (30) such occurrences, which could last from a few hours to days, since the entry of the Order to Correct, she specifically testified only about the August 10, 2020 occurrence. Petitioner introduced a photo, taken on August 10, showing a thermometer under the kitchen sink with a temperature reading of 83.6 Celsius. Petitioner testified she runs the water from seven (7) minutes for the kitchen sink, as she did on August 10, to thirty (30) minutes for the shower, to see if the water will become warm. On cross-examination, petitioner acknowledged she did not "calibrate" the thermometer, but deduced its accuracy based on the fact the water was cold to the touch.
The photo was taken between 3:20 and 3:40 p.m., according to petitioner.
Petitioner alleged she called DHPD seventeen (17) times since the Order to Correct was issued. She claimed, on cross examination, that the thirty (30) instances of inadequate hot water is a number based on her recollection of "311" calls, emails and notes she kept. When asked specifically about the days immediately after the June 2 Order, petitioner testified she had hot water on June 3 and June 4 but not on June 5 or June 6. Though petitioner referred to emails and notes, including that she had documented a complaint number for an alleged June 5, 2020 call to DHPD, none of these items were offered into evidence. The court was asked to and does take notice of DHPD website's record of complaints emanating from the subject apartment and building. The complaint history shows eleven (11) relevant complaints from apartment 3-G after June 2, 2020, with the first complaint on June 5, 2020.
https://hpdonline.hpdnyc.org/HPDonline/select_applications.aspx. Last accessed on August 13, 2020.
Regarding the April 4, 2020 and April 10, 2020 hot water violations, petitioner believes they were not corrected. While she testified that she responded to the CIV-14 form she received from DHPD on or about April 19, 2020 and noted that the April 6, 2020 violation had not been corrected, she did not offer any further testimony regarding the April 10, 2020 violation. As it turns out, both violations under which petitioner seeks contempt and penalties were closed by DHPD on or about June 24, 2020 after the landlord self-certified with the department.
The CIV-14 offers the tenant an opportunity to dispute a landlord's certification of open violation(s).
The court refers to a certified Closed Violation Summary Report from DHPD. The court requested further clarification from DHPD and received an email, which it shared with the parties. Per DHPD, the violations in question were both administratively closed pursuant to the landlord's certifications. One violation was dismissed because the Department could not inspect in time and one dismissed because they did not gain access to the apartment.
Petitioner further testified that the lack of hot water has impacted her life in various ways. When she cannot bathe at home, she must either go to her mother's home, or go to work without bathing. It is often the latter because her mom is immunocompromised. She testified she has severe psoriasis and uses medicated soaps. Without hot water, she's had to increase her steroid prescriptions.
Respondent presented one witness, Sam Schachter, the "managing agent" of the property for three (3) years. He testified he is familiar with the subject building as he goes there three to four times per week. He is familiar with petitioner and her apartment and with the April 2020 violations. He knew they concerned hot water, that they had been corrected and testified there were no further violations for hot water after June 2, 2020. On cross-examination, Mr. Schachter testified that there were no ongoing hot water issues. He testified he had not sent a plumber to apartment 3-G. He testified he would ask the tenant if the condition had been corrected or go and check it himself. He clarified that the process was that he would first check the hot water, then send the super, and then the plumber, as required.
Mr. Schachter testified he was aware of the June 2, 2020 Order and that he knew the landlord had 72 hours to comply. He was also aware that a new hot water violation had been placed in apartment 4-A on August 4, 2020. He went to the apartment to check and later certified he had corrected the condition. He did not recall a July 2, 2020 violation for hot water for apartment 4-A. He thought August 4 may have been a day a temporary boiler was being installed. Mr. Schachter alleged a new boiler was being installed but did not concede that a new boiler meant that anything had been wrong with the old one. Though the court surmises that the cost of a temporary boiler and of a new boiler for a forty-four (44) unit building would be considerable and such proof would be reasonably offered to mitigate against potential fines, no proof was offered.
The court confirmed the existence of both 4-A violations. https://hpdonline.hpdnyc.org/HPDonline/select_application.aspx. Last accessed August 19, 2020.
Service and Jurisdictional Issues
As an initial matter, the court finds that service of the within motion upon the named respondents and upon the non-party was proper. Mr. Mayer, who is listed as Head Officer on the DHPD registration, was personally served at the registered address within the meaning of CPLR 308. (see Hampton v. Annal Management Co., LTD , 168 Misc 2d 138, 139, 646 NYS2d 227 [1st Dept 1996] ). The named respondents were similarly served.
Civil Contempt
In Matter of McCormack v. Axelrod , the Court of Appeals articulated a four-pronged test for civil contempt: (1) that a lawful court order was in effect clearly expressed an unequivocal mandate, (2) the order was disobeyed, (3) the contemnor had knowledge of the order, and (4) that the movant was prejudiced. ( 59 NY2d 574, 583, 466 NYS2d 279 [1983] ). To succeed on a civil contempt motion, the moving party must establish contempt by clear and convincing evidence. ( Simens v. Darwish , 104 AD3d 465, 466, 960 NYS2d 120 [1st Dept 2013] ; Denaro v. Rosalia , 52 AD3d 727, 855 NYS2d 601 [2nd Dept 2008]).
Here, the respondents do not dispute that they had knowledge of a lawful and unequivocal court order. As such, the court discusses the remaining prongs.
See Affirmation in Opposition at ¶ 4.
Based on the papers and evidence adduced at the hearing, petitioner failed to establish that the order was disobeyed by clear and convincing evidence. The violations, according to respondents, had been corrected in April. They were removed from the DHPD database on or about June 24, 2020. While petitioner disputed that the violations had been corrected as required by the Order to Correct, it was her affirmative burden to prove non-compliance by clear and convincing evidence. Though tenants' testimony might establish a violation in absence of any material opposition, (see 351-359 E. 163rd Street Tenants Assoc. et. al. v. East 163 LLC, et al , 68 Misc 3d 1206[A], 2020 NY Slip Op 50877[U] [Civ Ct, Bronx County 2020] ), because the burden of proof is only preponderance of the evidence, (see Department of Housing Preservation and Development of City of New York v. Ieraci , 156 Misc 2d 646, 651, 594 NYS2d 574 [Civ Ct, Kings County 1992] ), similar proof may not establish a claim clearly and convincingly.
This court takes no position on whether the statement in the June 2, 2020 Order that "the court has found that the two (2) aforesaid hot water violations listed on DHPD's database exist at the premises and are violations of the Housing Maintenance Code " refers to a fact—that there were, at the time, two (2) open violations and/or to whether, in addition, that the conditions referred to in those violations continued to exist on June 2, 2020. This is important in context of the landlord's certifications. Open violations, of course, are prima-facie proof of the conditions' continued existence. (NY City Housing Maintenance Code § 27-2115[f][7]; Department of Hous. Preserv. & Dev. of City of NY v. Living Waters Realty Inc. , 14 Misc 3d 484, 487, 2006 NY Slip Op 26490 [Civ Ct, New York County 2006], citing Department of Hous. Preserv & Dev. Of City of NY v. De Bona , 101 AD2d 875 [1984] ).
Here, the only specified date without hot water, according to petitioner's affidavit, was June 23, 2020. She did not produce any further proof or testify about June 23, 2020 at the hearing. Petitioner did testify that she was without hot water on June 5, 2020 and June 6, 2020. Her claim regarding June 5, 2020 is supported by her complaint made to DHPD as noted in the complaint history in evidence. However, the June 2, 2020 Order to Correct, at a minimum gives through June 5, 2020 for respondents to correct the violations. As to June 6, 2020, and indeed all other days outside of August 10, 2020, petitioner offered only generalities. For instance, she did not testify about any specific time of the day she did not have hot water, or how long the hot water was out for any specific day. She did not offer any of her alleged contemporaneously made records. The court also notes that after the June 5, 2020 complaint, petitioner made just one complaint (on June 18, 2020) in the subsequent thirty-seven (37) days through July 12, 2020. Alternatively, there were eight (8) such complaints logged between July 25, 2020 and August 10, 2020 (a sixteen (16) day span).
Criminal Contempt
Criminal contempt requires the movant prove willful disobedience of a court order. Because of the potential for criminal punishment, each element of contempt must be proven beyond a reasonable doubt. ( Gouiran Holdings, Inc. v. McCormick , 163 AD2d 44, 558 NYS2d 18 [1st Dept 1990] ; Schlueter v. East 45th Development LLC , 9 Misc 3d 1105[A] at *13, 2005 NY Slip Op 51405[U] [Civ Ct, New York County 2005] ). As petitioner cannot establish the elements of contempt beyond a reasonable doubt, this portion of her request is denied.
Damages
Assuming arguendo that petitioner had met its evidentiary burden as to contempt, she did not prove actual loss. As such, the court would have been limited to imposing a $250.00 fine. (see Randolph v. New York City Housing Authority East River Houses , 44 Misc 3d 1207[A] at *5, 2014 NY Slip Op 51045[U] [Civ Ct, New York County 2014], citing Berkowitz v. Astro Moving & Storage , 240 AD2 450, 658 NYS2d 425 [2nd Dept 1997] ). Any other damages claims are denied at this time.
Relief Against A Non-Party
Pursuant to the above findings, relief sough against Martin Meyer is denied. Mr. Meyer was never a party to this proceeding. While a non-party can be held in contempt under certain circumstances, (see Johnson v. Atop Roofing and Siding Corp. , 135 Misc 2d 746, 516 NYS2d 408 [Civ Ct, Kings County 1987] ; DHPD v. B.B. AM Holdings , NYLJ June 22, 1995, at 28, col 4 [App Term, 1st Dept] ), petitioner offered no proof at trial as to Mr. Meyer's culpability, or that he even had knowledge of the underlying Order. Mr. Meyer was the "Head Officer" of the respondent-corporation when this matter commenced. He was listed on the DHPD registration when this matter was commenced. Consequently, he could have been named at the inception of this case and had a full opportunity to litigate the matter before facing a motion for civil and criminal contempt. In this court's view, due process requires at least that much. (see e.g. Parkash 2125 LLC v. Galan , 61 Misc 3d 502, 508, 84 Misc 3d 724 [Civ Ct, Bronx County 2018], citing Joint Anti-Fascist Comm. v. McGrath , 341 US 123, 168 [1951] and Mathews v. Eldridge , 424 US 319, 348 [1976] ).
Additional Considerations
Petitioner clearly established the lack of hot water on August 10, 2020. Her proof and testimony were unrebutted. As this court may employ any remedy to enforce housing standards, ( CCA § 110, Prometheus Realty Corp. v. City of New York , 80 AD3d 206, 911 NYS2d 299 [1st Dept 2010] ), the court places a new class ‘C’ violation for lack of hot water in the subject apartment. (see 351-359 E. 163rd Street Tenants Assoc. et. al. v. East 163 LLC, et. al., supra , 68 Misc 3d 1206[A] at *5 ).
Order to Correct
Accordingly, the respondents, East 163 LLC, PD Family Trust and Manny Stein, are directed to correct the class "C" violation placed in apartment 3-G 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 [if such access to the apartment is required], 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.
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.
Failure to comply with the orders herein shall subject respondents to the contempt powers of the court and civil penalties, as appropriate.
A copy of this court's order will be emailed to counsels.
This court shall retain continuing jurisdiction over this matter.
CONCLUSION
Based on the foregoing, it is Ordered, petitioner's motion is DENIED in its entirety. It is further Ordered, that pursuant to the court's powers under the Civil Court Act, the above Order to Correct is entered. This constitutes the Decision and Order of the court.
SO ORDERED