Opinion
825/2019
06-06-2019
Manuel CASTILLO, Petitioner, v. BANNER GROUP LLC, Joseph Ratner, and HPD, Respondents.
Recitation, as required by CPLR § 2219(a), of the papers considered in the review of this motion.
Papers Numbered
Order To Show Cause and Supplemental Affirmation and Affidavits Annexed 1, 2, 3
Opposition Taken On the Record on May 28, 2019 and May 30, 2019 4
Upon the foregoing cited papers, the Decision and Order on this Motion are as follows:
Manuel Castillo, the petitioner in this proceeding ("Petitioner"), commenced this proceeding ("the HP proceeding") against Banner Group LLC and Joseph Ratner, two of the respondents in this proceeding ("Respondents"), the Department of Housing Preservation and Development of the City of New York ("HPD"), and the New York City Department of Health and Mental Hygiene ("DOHMH") pursuant to New York City Civil Court Act § 110 seeking an order to correct violations of the New York City Housing Maintenance Code ("the Code"). The Court entered into an order on this matter. Petitioner now moves to hold Respondents in contempt of Court.
The petition was noticed to be heard on May 17, 2019. On that day, Respondents made an application to adjourn the petition. Petitioner opposed the application.
In an HP proceeding, defenses to an order to correct violations of the Code are limited to lack of standing, lack of jurisdiction, completed repairs, that conditions are not code violations, that a notice of violation is facially insufficient, that a respondent is no longer an owner, and economic infeasibility. D'Agostino v. Forty-Three E. Equities Corp. , 12 Misc 3d 486, 489-90 (Civ. Ct. NY Co. 2006), aff'd on other grounds , 16 Misc 3d 59 (App. Term 1st Dept. 2007). Respondents had not articulated any of these grounds to defend against an order to correct. More important than the absence of such affirmative defenses was the evident lack of dispute among the parties, documented in part by violations placed by HPD upon a reading of lead levels in the subject premises, of lead paint violations in the subject premises, where a child under the age of seven resides.
New York City Civil Court Act § 110(c) enables this Court to "employ any remedy, program, procedure, or sanction authorized by law for the enforcement of housing standards" regardless of the relief sought by any party, i.e, to enter into orders sua sponte to enforce housing standards. In light of this authority vested in the Court, in light of the lack of any defense to the petition, and in light of the exigent circumstances occasioned by lead paint in an apartment with a child under seven years old, the Court, while granting Respondent's application to adjourn to May 28, 2019, also directed Respondent to correct the lead-paint-related violations on or before May 21, 2019, by an order dated May 17, 2019 ("the order").
"The dangers of exposure to lead-based paint, especially to young children, are well documented young children are at a higher risk for lead exposure and its deleterious effects because of their normal hand-to-mouth activity and their developing neurological systems." NY City Coalition to End Lead Poisoning, Inc. v. Vallone , 100 NY2d 337, 342-343 (2003).
Petitioner moved by order to show cause to hold Respondent in contempt of Court by an order to show cause filed on May 22, 2019 and made returnable May 28, 2019. The Court permitted service by fax. On May 28, 2019, Respondents' counsel represented to the Court that he had not been in his office when the order to show cause was served, that he did not see it until May 28, 2019, and that his copy was illegible. The Court adjourned the petition and the order to show cause to May 30, 2019, with Petitioner providing Respondents' counsel with a clean copy of the order to show cause in Court. While Respondents' counsel represented to the Court that the circumstances did not permit written opposition to the motion, the Court reconciled Respondents' counsel's position with the exigency of a lead paint condition in the subject premises by agreeing to take Respondents' counsel's opposition orally on the record on both May 28, 2019 and May 30, 2019.
The record, as taken on those days, reveals no fact dispute between the parties that DOHMH inspected the subject premises on May 21, 2019 and found that some, but not all, of the lead abatement had been completed; that the contractor abating the lead in the subject premises that Respondents retained has a license to abate lead; that workers doing a lead paint abatement that Respondents hired did lead paint abatement work in the subject premises on May 23, 2019, May 24, 2019, and May 27, 2019; and that Respondents had not completed the correction of the lead-paint-related violations on or before May 30, 2019.
Civil contempt requires a determination that a lawful order of the court, clearly expressing an unequivocal mandate, was in effect; a determination "with reasonable certainty" that the contemnor disobeyed that order; that the contemnor knew of the Court's order, El-Dehdan v. El-Dehdan , 26 NY3d 19, 29 (2015), Matter of First Am. Title Ins. Co. v. Cohen , 163 AD3d 814, 816 (2nd Dept. 2018), and the disobedience defeats, impairs, impedes, or prejudices the rights or remedies of a party. Id. at 35, Bd. of Dirs. of Windsor Owners Corp. v. Platt , 148 AD3d 645, 646 (1st Dept.), leave to appeal dismissed , 30 NY3d 986 (2017). The order expressed an unequivocal mandate to correct the lead-paint-related violations by a date certain. Respondents do not dispute that they did not correct the violations by the date contained in the order. Respondents' counsel was in Court when the Court rendered the order, conferring the requisite knowledge to incur contempt liability. Compare Tishman Constr. Corp. v. United Hispanic Constr. Workers, Inc. , 158 AD3d 436, 437 (1st Dept. 2018). As a matter of public policy, expressed in 27 N.Y.C. Admin. Code § 27-2065.1 et seq ., Respondents' disobedience with an order to correct lead paint violations impairs the rights and remedies of Petitioner, as a parent of a child under seven years old. When the record on the motion practice shows no fact dispute as to the elements of contempt, the Court may make a finding of contempt without a hearing. Martin v. Martin , 163 AD3d 1139, 1141 (3rd Dept. 2018), Mollah v. Mollah , 136 AD3d 992, 994 (2nd Dept. 2016), Hush v. Taylor , 121 AD3d 1363, 1365 (3rd Dept. 2014), Speirs v. Leffer , 246 AD2d 590, 590-91 (2nd Dept. 1998). On this record, then, Respondents are in contempt of Court.
The Court's power to punish a party for civil contempt is discretionary and the Court should exercise that discretion in light of the facts and circumstances in each particular case. In re Hildreth , 28 AD2d 290, 292 (1st Dept. 1967), Telephone Dynamics Corp. v. Morrisey , 2009 NY Misc. LEXIS 4519 (S. Ct. NY Co. 2009). See , e.g. , Fabrikant v. Fabrikant , 77 AD3d 594, 594-595 (1st Dept. 2010) (when a defendant failed to provide proof of insurance required by the Court, the Court providently exercised its discretion in declining to adjudicate the defendant in contempt and instead directed him to provide such proof). The Court first considers Petitioner's application to order HPD to correct the lead violation instead of Respondents. Aside from the undisputed facts adduced at the argument of the motion, counsel for HPD, in response to an inquiry from the Court, opined that ordering HPD to abate the lead in the subject premises instead of Respondents' contractors would likely result in a longer time to correct the violation than if Respondents' contractors finished the job that they had already started. To the extent that lead abatement requires a containment field to control the spread of lead dust, Respondents' contractors would have to dismantle the containment field they constructed and HPD would have to construct one anew, incurring more delays. Counsel for HPD also indicated that Respondents' contractors, in the middle of a lead abatement job, have a better idea of where the lead abatement starts and stops than a contractor HPD would retain who would effectively reinvent the wheel. When it comes to the health of Petitioner's child, the Court is results-oriented enough at this posture to prioritize the timely abatement of the lead violations and, under these circumstances, directing HPD to take over lead abatement from Respondents would not obtain the desired result.
Be that as it may, the time that Respondents are taking abating the lead violation is taking longer than allowed by law, longer than allowed by the violation HPD placed, and longer than allowed by the order. Petitioner's contempt motion presents an occasion to fashion an order designed to expedite the timely correction of the lead paint violations in the subject premises.
The "large degree of discretion" the Court retains to forge an appropriate punishment for civil contempt and as to conditions on which contempt may be purged, Midlarsky v. D'Urso , 133 AD2d 616, 617 (2nd Dept. 1987), In re Hildreth , 28 AD2d 290, 293 (1st Dept. 1967), allows for an order designed to coerce compliance with the Court's mandate, even in the absence of proof of actual damages of the aggrieved party, Dep't of Envtl. Prot. v. Dep't of Envtl. Conservation , 70 NY2d 233, 239 (1987), Matter of Palmitesta v. Palmitesta , 166 AD3d 782, 782-83 (2nd Dept. 2018), including a prospective fine that is civil in nature so long as the contemnor is given an opportunity to purge. Ruesch v. Ruesch , 106 AD3d 976, 977 (2nd Dept. 2013).
Accordingly, the Court imposes a daily fine of $ 250.00 on Respondents, payable to Petitioner, for every day on and after June 7, 2019 that Respondents do not correct the lead-paint-related violations, and that Respondents may purge both the contempt and the fines by correcting the lead-paint-related violations on or before June 13, 2019. The Court calendars this matter on June 13, 2019 at 2:15 p.m. in part B, Room 583 of the Courthouse located at 111 Centre Street, New York, New York to check on compliance with this order. The Court notes that it makes no findings as to Petitioner's actual damages and that this order is not preclusive of any cause of action of Petitioner against Respondent related to the lead paint violations.
This constitutes the decision and order of this Court.