Summary
In Garcia v Adams, (71 Misc 3d 1205[A] [Civ Ct, Kings County 2021]), as here, the court found that the service of a predicate notice in preparation for the commencement of a summary proceeding did not constitute harassment.
Summary of this case from Lendor v. MoussaviOpinion
HP 1020/20
04-07-2021
Milagros GARCIA, Petitioner, v. Sophia ADAMS, Respondent.
For Petitioner: Lucinda James For Respondent: Tarik Davis
For Petitioner: Lucinda James
For Respondent: Tarik Davis
Jack Stoller, J.
Milagros Garcia, the petitioner in this proceeding ("Petitioner"), commenced this proceeding by an order to show cause signed on May 26, 2020 against Sophia Adams, the respondent in this proceeding ("Respondent"), seeking relief pursuant to N.Y.C. Admin. Code §§ 27-2005(d) and 27-2004(a)(48) on an allegation of harassment relating to Petitioner's tenancy at 676 Midwood Street, Apt. 1, Brooklyn, New York ("the subject premises"). Respondent interposed an answer. The Court held a trial of this matter on January 6, 2021, February 10, 2021, and March 12, 2021 and adjourned the matter for post-trial memoranda to March 26, 2021.
The trial
Petitioner introduced into evidence a one-year lease between the parties commencing on September 1, 2019 with a monthly rent of $1,303.00. Petitioner testified that she receives assistance with payment of her rent from a program administered by the Human Resources Administration ("HRA") known as City FEPS; that the rent on the lease is $1,303 because that is the maximum that FEPS will pay; that Respondent actually received $2,000 a month because Petitioner paid Respondent an additional $700 a month by cash in an envelope from September 2019 through January of 2020; that Respondent said that she did not want a paper trail; and that Petitioner paid $2,000 for a broker's fee at the time she moved in even though no broker was involved.
City FEPS is an acronym for Family Eviction Prevention Supplement, provided for as per 68 R.C.NY § 8-01 et seq.
Petitioner testified that the subject premises was a good apartment when she moved in; that since the time she moved in she experienced chipped paint, a defective socket, and a non-working carbon monoxide detector; that Respondent painted the radiator; that Petitioner fixed a handle on her kitchen sink herself because she does not want to deal with Respondent; that a handyman came to the subject premises to make repairs when she complained in the past; that hot water is cut off sometimes for two hours at a time without notice to her; that Respondent only provided heat in the subject premises twice a day for 15 minutes each time; that she texted Respondent asking for heat; that Respondent said that the thermostat turns on its own and that she was cold too; that Petitioner then reported the heat condition to the Department of Housing Preservation and Development of the City of New York ("HPD"); and that Respondent got upset about that.
Petitioner introduced into evidence a purported predicate notice dated February 2, 2020 ("the Predicate Notice") that she testified she found taped to her door the day after she complained to HPD. The Predicate Notice demands possession of the subject premises on or before March 2, 2020 on the grounds of nonpayment, smoking, and the occupancy of an unauthorized occupant.
Petitioner testified that she commenced a Housing Part proceeding against Respondent pursuant to New York City Civil Court Act § 110(c) ("HP proceeding"); that on February 5, Respondent made a threat against her when she served Respondent with the petition in the HP proceeding; and that Respondent said "come outside, I'm going to fucking drag you." Petitioner introduced into evidence a return receipt from a certified mailing she made to Respondent of the petition in the HP proceeding that had a notation on it saying "covid-19 RIP" ("the Certified Mail Slip"), which Petitioner testified that she interpreted as a threat from Respondent.
Petitioner testified that the bathroom ceiling sustained defective plaster from a leak — which sometimes was audible when the shower upstairs from her was used — going on since June that caused a water bubble in the ceiling and then it exploded; that she called the Fire Department when she heard the shower being used upstairs; that the handyman, coached by Respondent, picked up powder; and that Respondent spread powder throughout Petitioner's tub.
Petitioner introduced into evidence the following violations of the New York City Housing Maintenance Code placed by HPD: "C" violations dating from November 4, 2020 to January 2, 2021 for a lack of hot water, and the following "B" violations: violations dating from July 17, 2020 to December 29, 2020 for a mouse infestation, violations dating from September 3, 2020 to December 26, 2020 for a carbon monoxide detector, violations dating from June 19, 2020 to December 25, 2020 for damage and mold in a bathroom ceiling, violations dating from September 24, 2020 to December 3, 2020 for broken or defective ceilings in a room, violations dating from August 21, 2020 to September 26, 2020 for a roach infestation, violations dating from September 24, 2020 to September 26, 2020 for bathroom sink faucets, a violation dated September 24, 2020 for defective kitchen walls, and a violation dated November 18, 2020 for mold on a bathroom cabinet.
A class "A" violation is "non-hazardous" pursuant to N.Y.C. Admin. Code § 27-2115(c)(1) ; class "B" violation is "hazardous" pursuant to N.Y.C. Admin. Code § 27-2115(c)(2) ; and a class "C" violation is "immediately hazardous" pursuant to N.Y.C. Admin. Code § 27-2115(c)(3). Notre Dame Leasing LLC v. Rosario , 2 NY3d 459, 463 n.1 (2004).
Petitioner introduced into evidence violations placed by the New York City Department of Buildings ("DOB") in 2020. Two of the violations state that they implicate N.Y.C. Admin. Code § 28-105.1 : Violation No.#35466646X ("the First DOB Violation") and #353414018X ("the Second DOB Violation"). DOB placed the First DOB Violation on June 4, 2020 for a split air conditioning unit in the subject premises with a disconnect box attached to the house in which the subject premises is located ("the House") with an electrical cable running. DOB placed the Second DOB Violation on July 16, 2020 for the replacement of a garage door with a brick wall with a door and a window.
Petitioner introduced into evidence the following photographs: of a ceiling with extensive leak damage from June 11, 2020; of mice, one by the refrigerator and one by a sink; of the living room ceiling with a crack in it from January of 2021; and of cracks in the seams of moldings in the living room ceiling from March of 2020. Petitioner introduced into evidence a video recording of a damaged ceiling.
Petitioner testified that Respondent and Respondent's son live in an apartment upstairs from her ("the Upstairs Apartment") and that she hears heavy objects being thrown all day and drilling and pounding above her bedroom starting at various random hours late into the night.
Petitioner testified on cross-examination that she was not in danger of going into a shelter system at the time that she moved in; that she did not express to Respondent that she would be homeless if she did not move into the subject premises; that she expressed gratitude to Respondent for renting the subject premises to her; that she gave Respondent $4,000 in cash when she moved in, $2,000 for a security deposit and $2,000 for a broker's fee; that FEPS, even up to the date of her testimony, is paying Respondent the rent everything but $230 a month in rent; that she told Respondent that HRA would be paying the rent; that Respondent said that FEPS was $19 short; that HRA immediately sent out a check to Respondent before February 1; and that FEPS is paying rent, but Respondent is not cashing the checks, which she knows because FEPS sends her proof of direct-vendor payments.
Both OTDA and HRA favor the provision of a shelter allowance by direct-vendor check to the landlords of recipients of public assistance. See 18 NYCRR §§ 370.4(b)(2) and 381.3(d).
Respondent introduced into evidence five photographs of the subject premises, depicting an apartment in good condition. Petitioner testified on cross-examination that she liked the subject premises when she moved in and that she made no complaints about the subject premises before January 1, 2020. Respondent introduced into evidence a document from HPD showing that Petitioner made 129 complaints about the subject premises to HPD from January of 2020 through May 26, 2020. Petitioner testified on cross-examination that she started an HP proceeding on February 4, 2020 and that she received the Predicate Notice on February 2, which was a Sunday. Respondent introduced the petition in the HP proceeding into evidence. The petition, captioned at Garcia v. Adams , Index # 477/20 (Civ. Ct. Kings Co.), includes allegations about heat and hot water and is dated February 4, 2020. Respondent introduced into evidence a petition for a second HP proceeding Petitioner had commenced against Respondent on February 7, 2020, captioned at Garcia v. Adams , Index # 527/2020 (Civ. Ct. Kings Co.), which includes allegations about a carbon monoxide detector, a fire alarm, and vermin infestation. Petitioner testified on cross-examination that the mouse in the photograph that Petitioner had introduced into evidence was alive when she took the photograph on January 5, 2021; that she saw the mouse in the sink; that she did not see how mouse got to the sink; that another photograph of a mouse taken near a refrigerator was taken on a different day from the other picture; that she texted Respondent in November, when she first saw mice there; that there is a mousetrap in the subject premises which never caught a mouse; that Respondent sent a handyman the next day who put mouse poison all over; that that did not cure the problem; that holes in the subject premises are stuffed with Brillo; that there is mold is in the bathroom and in a closet in the common area; that she did not complain about that then; and that she does not remember mold in February.
Petitioner testified on cross-examination that she discovered in December of 2019 that the carbon monoxide detector was not working; that she found out in January of 2020 that she could not change batteries on it; that she did not communicate that to Respondent because there was a threat that she had talked to police about, when the first HP proceeding was filed; that she broke a doorknob because Respondent told her to use a knife on it to open it when she had the wrong key to that door; that the doorknob was already broken when she filed the first HP proceeding; that Respondent exterminated and fixed the doorknob; that Petitioner gave access to an exterminator and a handyman; that the bubble in the ceiling in June was after the commencement of this proceeding; that water came down every time people upstairs showered; that four days elapsed between noticing the bubble and when it burst; that she was in bathroom when water bubble burst; and that her back was injured at that time.
Petitioner testified on cross-examination that she has made about 70 complaints to DOB, testimony corroborated by DOB records of complaints about construction and demolition that Respondent introduced into evidence; that she made a couple of hundred complaints to HPD starting in January of 2020; that she continued to call HPD for the same complaints as were being addressed in the HP proceedings; that another HP proceeding was filed in April of 2020; that Respondent was not trying to get access in April and May of 2020; that Respondent did text asking for access for a plumber and an exterminator; and that Petitioner did not respond to Respondent. Respondent introduced into evidence a letter dated May 20, 2020 from Respondent's counsel requesting access to the subject premises. Petitioner testified on cross-examination that she did not contact Respondent or Respondent's counsel after receiving this letter; that she did not communicate with Respondent about conditions in need of repair although she had Respondent's phone number at that point in time; that the parties’ attorneys tried to arrange access after the case commenced; that on June 15, Respondent gained access to the subject premises with a plumber to address the leaky ceiling; that Respondent came to the subject premises on June 18 after the Fire Department came; that Respondent tried to gain access to the subject premises on June 17, but Petitioner's daughter had a doctor's appointment that day, so Petitioner could not give access; and that she is maintaining a plenary action against Respondent about the condition of the ceiling.
Respondent introduced into evidence a summons and complaint of the plenary action that Petitioner commenced against Respondent. Respondent introduced into evidence a photograph of a hole in the ceiling. Petitioner testified on cross-examination that the Fire Department created this hole on June 18 to get to the source of the leak. Respondent introduced into evidence a report from the Fire Department dated June 18, 2020 referencing the leak that said "no FDNY action required" and which did not make a reference to making holes or taking something down from ceiling. Respondent introduced into evidence a photograph of a bathroom ceiling, which is in good repair.
Petitioner testified on cross-examination that Respondent said she would drag Petitioner and kill her in February when Respondent was served with the petition in the HP proceeding; that Respondent's signature on her lease does not look anything like the signature on the Certified Mail Slip; and that the signature on that return receipt is not the same name as Respondent's.
Petitioner testified on redirect examination that she called HPD to complain about heat January 31, 2020 and February 2, 2020, shortly before receiving the Predicate Notice; that she filed an HP proceeding on February 4, 2020 because the connection between parties was not going good after that threat and she was not going to communicate with Respondent anymore; and that she did not communicate with Respondent in May of 2020 because of Respondent's actions.
Respondent introduced into evidence a certificate of occupancy for the House, which shows that the House is a two-family house. Respondent testified that she lives in the House; that she has been working, in part, for two years as a real estate agent and salesperson; that she purchased the House on November 19, 2009; that she had tenants living in the subject premises before Petitioner moved in; and that the subject premises is a two-bedroom apartment. Respondent introduced into evidence the lease for the tenant of the subject premises before Petitioner, which was a one-year lease commencing on July 1, 2018 with a monthly rent of $1,924 per month. Respondent testified that those prior tenants moved out on June 30, 2019 and that after they moved out, she had the wood floors refinished, the subject premises painted, the backsplash replaced, a faucet replaced, air valves on radiator replaced, and a new smoke detector installed.
Respondent testified that she listed the subject premises through a broker seeking a monthly rent of $2,200; that she first communicated with Petitioner when Petitioner called her sometime in late July or early August of 2019 when Petitioner was looking for an apartment; that Petitioner told Respondent that Petitioner had to move out and that if she did not find a place, she might have to move to a shelter; that Petitioner initially was fine with a rent of $2,200; that Petitioner said that she signed up for Section 8 so she had some way to pay the rent; that Petitioner really liked the subject premises; that Petitioner said Section 8 did not work out and was seeking FEPS; that FEPS would only pay $1,303; that Respondent felt bad because she did not want to see Petitioner go into a shelter and, as a single mother herself, she felt empathy toward Petitioner, also a single mother; that she did not require any money to be paid for Petitioner to move in; that Petitioner moved into the subject premises in September of 2019; that FEPS paid the first four months of rent upfront; that Petitioner did not pay her $4,000 in a combined broker's fee and security deposit; that Respondent never asked for $2,000 a month and did not receive an extra $700 a month in cash as Petitioner testified; that Petitioner complained about mice in November of 2019; that Respondent went to the subject premises the next day; that she had an exterminator come out; that in December or early January Petitioner complained about a door knob and was locked out of a room; that Petitioner complained about heat in January; and that she addressed those complaints by turning up the thermostat.
"Section 8" is a colloquial term for a federal rental subsidy pursuant to 42 U.S.C. § 1437f.
Respondent introduced into evidence a rent history showing a rent of $1303 per month and receipt of checks. Respondent testified that FEPS was responsible for $787 of the rent and the balance of the rent came from HRA and Petitioner; that Petitioner paid her share by money order; that she did not provide receipts for money orders because the money order stubs were receipts; that, in January of 2020, she had not received FEPS portion of the rent; that she reached out to Petitioner's caseworker and Respondent to notify them; that Petitioner said FEPS would not pay anymore and she would have to get assistance elsewhere; that after January of 2020, HRA made payments and Petitioner paid her portion, but Respondent did not receive the FEPS portion; that a number of text messages ensued; that Petitioner claimed that Respondent received the money; that she had Petitioner served with the Predicate Notice; that she did not threaten Petitioner; that she did not ask Petitioner to come out and fight her; that she never said anything about physical harm; that the Predicate Notice was based on her mistaken belief at the time that she could terminate Petitioner's tenancy in this way; that Petitioner gave her access to correct conditions in the subject premises; and that Petitioner did not respond to texts and letters she sent Petitioner or otherwise communicate with Respondent from January through May of 2020. Respondent introduced into evidence unanswered texts she sent on May 7, 8, and 17 of 2020 to Petitioner seeking access and a letter with a certified mail slip dated May 9, 2020.
Respondent testified that she, along with a plumber and a handyman, got access to the subject premises on June 15, 2020 and June 18, 2020; that on June 15, she ran water in the tub, the bathroom sink, and the kitchen sink, and the handyman flushed toilet several times, all in the apartment upstairs from the subject premises and then checked the subject premises for leaks; that she did not see any; that the handyman repaired the ceiling in the subject premises on June 19 or 20; that she did not try directly to gain access after June 2020; that she understood that the attorneys were arranging access; and that there was construction in the Upstairs Apartment. Respondent introduced into evidence DOB violations against the House which were resolved, cured, or dismissed. Respondent testified that a hot water heater had been purchased in last two years and that sometimes she has been at home and has heard water running in the subject premises for hours on end.
Respondent testified that, on around the end of January or early February or 2020 Petitioner threatened to kill her and harm her son and make her lose her home; that Petitioner came to the window and started yelling and cursing at her; that Petitioner made similar threats to her two to three times after that, most recently in September of 2020; that Respondent made a police report; that she has not been banging; that she has heard banging on the ceiling and loud noises from the subject premises two to three times a week, day and night; that she never sprinkled powder throughout the subject premises; that she never saw the Certified Mail Slip; and that her signature is not on the Certified Mail Slip.
Petitioner introduced into evidence a demand for rent dated February 19, 2020 pursuant to RPAPL § 711(2) claiming a balance of $787 owed in January of 2020 and $1,303 owed in February of 2020. Petitioner introduced into evidence a notice that Respondent served upon Petitioner dated July 14, 2020 that Respondent was not going to renew Petitioner's lease and purporting to terminate Petitioner's tenancy as of August 31, 2020. Petitioner introduced into evidence a summons and complaint showing an action that Respondent commenced against Petitioner seeking damages and to enjoin Petitioner from making complaints to HPD, filed on January 5, 2021. The complaint, verified by Respondent, says that FEPS was discontinued and that she has not received the rent. Petitioner introduced into evidence a printout from HRA showing a number of checks cashed, in particular reissuance of direct vendor shelter allowance checks that had gone stale.
Respondent testified on cross-examination that the cashed HRA shelter allowance checks do not mean that she has received FEPS; that Respondent draws a distinction between FEPS and HRA; that HRA sends checks to the House; that she used a broker; that a partial broker's fee of a little over $600 was paid to the agency that she worked at as a sales agent; that a canceled check in evidence from HRA to the agency dated September 4, 2019 in the amount of $651.50 was the payment for the subject premises, although she did not endorse the check to the agency; and that she was not the sales person for the subject premises. Petitioner introduced the listing for the subject premises on the agency's website from the time frame when Petitioner had moved into the subject premises, which identifies Respondent as the agent. Respondent testified on cross-examination that once she found out that she could not list the subject premises, she used another agent from the agency.
Respondent testified on cross-examination that she moved to the Upstairs Apartment in November of 2020; that the prior tenants of the Upstairs Apartment moved out in September of 2020; that she did not list the Upstairs Apartment for rent; that Petitioner threatened her life in September; that FEPS payments were issued from September to December 2019 that she received at the House; that when she did not live at the House, she came to the House three to four times a week to take out garbage and clean out and do repairs; that the rent for the subject premises was originally supposed to be $2,000; that in July of 2019, she spoke to Petitioner, who agreed to a $2,200 rent; that after that Petitioner said $1,303 is what FEPS could pay; that Respondent's mother needs a place to move to; that Respondent's mother would move into the subject premises; that she had previously rented the subject premises for $2,200; that the water system in the House was not shut off despite the Fire Department report in evidence saying that it was; that it is not possible that there was a leak from the upstairs apartment to the subject premises; and that the thermostat that controls heat for the entirety of the House is now in the living room of the Upstairs Apartment.
Respondent testified on redirect examination that she was not aware of which agency was responsible for the FEPS program; that she never refrained from cashing a check that she received; that she needs every dollar; that she and her son are afraid to go outside; and that Petitioner causes her to suffers from anxiety.
Petitioner testified in rebuttal that HRA never stopped sending Respondent checks. Petitioner introduced into evidence a photograph dated February 11, 2021 of a direct-vendor rent check in an envelope postmarked November 10, 2020 on top of a mailbox at the House.
Discussion
The New York City Housing Maintenance Code defines "harassment" as, inter alia , any act or omission by or on behalf of an owner to cause a tenant to surrender rights, N.Y.C. Admin. Code § 27-2004(a)(48), and, if a tenant did not vacate, includes a use threats, N.Y.C. Admin. Code § 27-2004(a)(48)(a), a deprivation of essential services, N.Y.C. Admin. Code § 27-2004(a)(48)(b), repeated failures to correct hazardous or immediately hazardous violations of the housing maintenance code or construction codes, N.Y.C. Admin. Code § 27-2004(a)(48)(b-2), repeated violations of N.Y.C. Admin Code § 28-105.1, a provision that proscribes, inter alia , construction or alterations without a DOB permit, N.Y.C. Admin. Code § 27-2004(a)(48)(b-4), or other repeated acts or omissions of such significance as to substantially interfere with or disturb the comfort, reposes, peace, or quiet of any tenant. N.Y.C. Admin. Code § 27-2004(a)(48)(g). While proof of one of these predicates gives rise to a presumption that the owner intended to cause a tenant to vacate or surrender rights, this presumption does not apply to "private dwellings," defined in N.Y.C. Admin. Code § 27-2004(a)(6) as structures designed and occupied for residential purposes by not more than two families. The certificate of occupancy in evidence demonstrates that the House, as a two-unit dwelling, is a private dwelling.
Petitioner testified that someone else lived elsewhere in the House besides the subject premises and the Upstairs Apartment, but this testimony was vague and did not rebut the certificate of occupancy.
Petitioner's testimony was her only evidence that Respondent verbally threatened her. Respondent not only denied Petitioner's allegation in her testimony, but testified that Petitioner was the one who threatened her. Petitioner did not introduce other documentation or testimony from a disinterested witness. When the evidence comes down to one interested party's word against the other interested party's word, in the absence of some reason to weight one party's testimony more than another, the evidence is in equipoise and the proponent, Petitioner, does not satisfy her burden of proving her proposition by a preponderance of the evidence. Rinaldi & Sons, Inc. v. Wells Fargo Alarm Service, Inc. , 39 NY2d 191, 196 (1976), White v. State of New York. 41 AD3d 1071, 2073-74 (3rd Dept. 2007). Petitioner argues that Respondent's testimony about her broker's fee should discredit her testimony. Respondent's direct testimony that she did not require Petitioner to pay additional money was indeed cagey and disingenuous given that Respondent listed the subject premises herself as an agent and HRA eventually paid a broker's fee to the agency she worked for, but the testimony was within the bounds of literal truth insofar as she did not endorse the check from HRA, and insufficient to discredit the balance of her testimony on collateral subjects. Notably, Petitioner also interpreted the Certified Mail Slip as a threat even though Petitioner testified that neither Respondent's name nor signature was on the Certified Mail Slip.
Without more than the testimony of interested parties, what the Court is left with is evidence of a mutually bad relationship. Both parties testified that they had a good relationship up until January of 2020. Indeed, Petitioner testified that she did not complain about any conditions in the subject premises up to that month. January of 2020 is when both parties testified about a confused communication about whether FEPS would continue to pay Petitioner's rent. Petitioner then, on January 31, 2020, complained to HPD about heat and Respondent had the Predicate Notice taped to Petitioner's door two days later. The parties’ relationship spiraled downward, likely entailing contentious exchanges that left each party justified in feeling victimized. Just as a mutually acrimonious landlord/tenant relationship is not a basis to find that a tenant has committed a nuisance, Tsangarinos v. Attaway , 43 Misc 3d 142(A)(App. Term 1st Dept. 2014), CDC Dev. Co. III LLC v. Rivera , 8 Misc 3d 132(A)(App. Term 1st Dept. 2005), it does not prove harassment.
Petitioner also characterized the Predicate Notice as a threat. However, a notice like that is a predicate to a summary proceeding. The statute defines harassment in part as "repeated" commencement of frivolous Court proceedings, N.Y.C. Admin. Code § 27-2004(a)(48)(d), which entails the commencement of a plural number of Court proceedings. Khazanov v. 2800 Coyle St. Owners Corp. , 2015 NY Slip Op. 31437(U), ¶¶ 8-9 (S. Ct. Kings Co.)(Toussaint, J.), Martinez v. Pinnacle Grp. , 34 Misc 3d 131(A)(App. Term 1st Dept. 2011). If the failure to commence more than one proceeding does not constitute harassment, then the service of a predicate notice to a proceeding without commencing the actual proceeding itself is not harassment by the definition of the statute.
Petitioner also alleges that Respondent harassed her by depriving her of essential services and by repeated failures to correct hazardous and immediately hazardous violations. However, Petitioner also testified that within a day of complaining about mice in the subject premises, Respondent sent someone to the subject premises to put down a mousetrap and put Brillo in the holes. Within a day of the ceiling collapsing, Respondent sent someone to the subject premises to repair the ceiling and the photograph in evidence shows that Respondent corrected that condition. Respondent fixed the doorknob after Petitioner apparently damaged it when she forgot her key and used a knife to try to open the door.
None of the violations of the Housing Maintenance Code in evidence pre-date the commencement of this proceeding on May 26, 2020, which is significant given Petitioner's commencement of three HP proceedings against Respondent and Petitioner's 129 complaints to HPD before May 26, 2020. The Court takes judicial notice that the Court orders HPD to inspect for violations every time an occupant commences an HP proceeding. An absence of extant violations dating from the commencement of this proceeding compels the conclusion either that HPD inspected but did not find violations or that HPD did find violations but Respondent corrected them, neither of which accords with the proposition that Respondent repeatedly failed to correct violations. If harassment did not exist at the commencement of the proceeding, so much of the petition as seeks a judgment based on a failure to maintain the subject premises is defective ab initio even assuming arguendo that later conduct somehow ripened into harassment. See N.Y.C. Admin. Code § 27-2115(h)(2)(i) (an allegation of harassment based on a physical condition must be based on at least one violation placed by HPD).
Moreover, the record shows no dispute that Petitioner did not give Respondent notice of conditions in need of repair and did not respond to requests for access, with evident implications for Petitioner's harassment cause of action. Instructively, a tenant cannot obtain a rent abatement when the tenant does not give a landlord notice of the conditions, Matter of Moskowitz v. Jorden , 27 AD3d 305, 306 (1st Dept.), appeal dismissed , 7 NY3d 783 (2006), 1050 Tenants Corp. v. Lapidus , 16 Misc 3d 70, 72 (App. Term 1st Dept. 2007), Windemere Chateau, Inc. v. Hirsch , 22 Misc 3d 1108(A)(Civ. Ct. NY Co. 2008), or access to repair the conditions. Marz Realty v. Reichman , 2003 NY Slip Op. 50700(U), ¶ 2 (App. Term 2nd Dept.), Fifty-Seven Assoc., L.P. v Feinman , 30 Misc 3d 141(A)(App. Term 1st Dept. 2011), NYCHA Coney Island Houses v. Ramos , 41 Misc 3d 702, 713 (Civ. Ct. Kings Co. 2013). To the extent that Respondent did not correct violations, the Court cannot find that such a failure alone harassed Petitioner when Petitioner testified that she did not give Respondent notice of the conditions and that she did not answer Respondent's entreaties for access.
Petitioner also claims harassment on the basis that Respondent repeatedly incurred violations of N.Y.C. Admin. Code § 28-105.1. The First DOB Violation was for a split air conditioning unit in the subject premises with a disconnect box attached to the House with an electrical air conditioning cable running. The Second DOB Violation was for a garage door replaced with a brick wall with a door and a window. The record contains no evidence of any connection between an air-conditioning unit in the subject premises or a bricked-over garage and any condition that would cause Petitioner to surrender rights. Moreover, like the HPD violations in evidence, none of the DOB violations pre-date the commencement of this proceeding.
The DOB issues bear some relationship with another complaint of Petitioner's, i.e., construction noise. However, DOB has not placed any violation for construction during proscribed hours, so construction would be harassment if it fit into the catch-all category of N.Y.C. Admin. Code 27-2004(a)(48)(g). In the absence of a violation, again the only evidence regarding construction noise is the disputed testimony of two interested parties and the attendant problems of proof explained above.
Petitioner requests an order to correct in her closing memorandum. However, the petition in this proceeding does not seek an order to correct in relief requested. This omission does not necessarily prevent the Court from entering into an order to correct given the broad language of New York City Civil Court Act § 110(c). However, the record on this case shows that Petitioner commenced three HP proceedings against Respondent. While no party showed the disposition of those proceedings, the Court deems those previously-commenced proceedings to be the appropriate forum in which to seek an order to correct. See CPLR § 3211(a)(4).
Accordingly, the Court dismisses the petition after trial. This finding is limited to the very specific elements of a cause of action sounding in harassment and is without prejudice to any other cause of action or defense either party has against the other in other litigation between them.
This constitutes the decision and order of this Court.