Opinion
HP 6035/2019
03-31-2021
Nicholas HARTMAN and Toni Allocca, Petitioner, v. WVH HDFC and HPD, Respondents.
For Petitioner: Elizabeth Donoghue For Respondent: Jared Langenthal
For Petitioner: Elizabeth Donoghue
For Respondent: Jared Langenthal
Jack Stoller, J.
Nicholas Hartman ("Petitioner") and Toni Allocca ("Co-Petitioner"), the petitioners in this proceeding (collectively, "Petitioners"), commenced this Housing Part proceeding ("HP proceeding") pursuant to New York City Civil Court Act § 110 against WVH Housing Development Fund Corporation ("Respondent") and the Department of Housing Preservation and Development of the City of New York ("HPD"), seeking an order to correct conditions at 668 Washington Street, No.GB, New York, New York ("the subject premises"). Respondent interposed an answer alleging, inter alia , that the conditions complained of are not violations of the New York City Housing Maintenance Code. The Court held a trial of this matter on November 6, 2019, January 15, 2020, February 5, 2020, September 9, 2020, October 23, 2020, November 24, 2020, December 1, 2020, December 18, 2020, December 21, 2020, January 7, 2021, and January 27, 2021 and adjourned the matter for post-trial briefs to March 15, 2021.
The trial record
Respondent is a residential cooperative corporation and Petitioners are shareholders in the cooperative. The shares that Petitioners hold are appurtenant to the subject premises and Petitioners have a proprietary lease for the subject premises. In this opinion, the Court refers to the board of the cooperative that is Respondent as "the Board."
Petitioner's case
The manager ("the Manager") of the complex in which the subject premises is located ("the Complex") testified that he appeared on Petitioners’ subpoena; that he did not produce documents responsive to the subpoena; that he knows Petitioners as they live in the subject premises; that he has been to the subject premises on a number of occasions since some sort of plumbing problem arose, initially on or about March of 2018; and that he showed inspectors the subject premises for testing for mold, radon, and an electro-magnetic field ("EMF").
Petitioners introduced into evidence an engineering report about mold which the Manager received on November 20, 2018. Petitioner introduced into evidence immediately hazardous violations that HPD placed on the subject premises for broken defective concrete floors, one at a walk-in closet at the west wall of basement apartment, and another in the second bathroom.
A former manager of the Complex ("the Former Manager") testified that she managed the Complex from 2006 through 2012; that Co-Petitioner had been a member of the Board; that they had a huge renovation project; that, after Petitioners sent a letter dated January 8, 2007 to the Board bringing to their attention that Petitioners had two pets who died of cancer, the Board hired an engineer to test for EMF levels; that, in 2007, the engineer recommended the application of aluminum foil on walls and floors in certain areas of the common areas of the Complex and inside the subject premises and to move a bank of electrical meters; that, in response to these recommendations, the Board instructed her to get bids to have work done; that she hired the house electrician to install electro-magnetic coverings in certain parts of the common area; that she did not remember them doing it in the subject premises because the subject premises was about to undergo extensive renovation; that they were always looking for ways to minimize flooding that occurred in the subject premises; and that those conditions existed as long as she was a manager. The Former Manager testified on cross-examination that Petitioners’ renovation project came after the engineer's recommendations.
The Court granted Petitioners’ application to qualify an industrial hygienist as an expert on mold assessment and testing ("Petitioners’ mold expert"). Petitioners’ mold expert testified that he tested the subject premises in July and October of 2019; that he measured for moisture; that on the day of his readings in July, it had not rained and it was a hot day; that, on the inspection in July, he took tape-lift samples from a kitchen cabinet, the remaining plywood floor in the kitchen, the remaining finished floor in kitchen, the bottom of the wall in the kitchen, and from contents of a closet in the master bedroom to test for mold; that he looked at the samples under a microscope; that he also took air samples; and that he vacuumed dust in second bedroom and had that dust cultured.
Petitioners’ mold expert testified that, in general, mold spores are everywhere; that every test has some arguments as to benefits and disadvantages; that tape-lifts are perfect in that if you identify growing mold, it is conclusive; that sometimes mold grows in places that is hidden; that air samples can detect mold growth in a hidden area by identifying the kinds of spores and levels of spores in the air; that spores are how mold reproduces; that when there is enough water, the spores germinate and start to grow; that after germination, they produce vegetative root-like structures which are called hyphae, the part of the mold that grows and feeds; that this part of the mold would grow where it finds a food source, which could be wood or anything that produces sugar or carbohydrates; that hyphae will grow where water is; that hyphae will break down whatever it is growing in, like wood; and that they will generate more spores and thus reproduce further.
Petitioners’ mold expert testified that a wood-finished floor had been removed and a plywood floor was under the finished floor such that the subject premises has a concrete slab covered by a plywood subfloor; that a floor was slightly warped and weathered and showed evidence of cupping; that there was a visual indication of water getting under wood; that, in the kitchen area, the wood floor, the concrete floor, and a base of the wall tested damp with a moisture meter that showed where water was coming in; that he found moisture along edge of a room that faces outside and in the bedrooms and the living room; that he observed more moisture along walls and active water intrusion; that wood planks are starting to separate; that water is getting into the seam; that he did not find dampness in other areas of the subject premises; that air samples, tape-lifts, and his observations showed mold growth, spores, and conidiophores in the flooring, cabinets, and base kitchen from water intrusion; that the species of mold he found was trichoderma orzyae, which does not dominate house dust in a normal house; that he also believed that there is mold growth under warped and wet flooring along the living room and bedrooms; that humidity probably caused mold growth in the subject premises; that the under-floor is going to cause mold growth under other areas of the floor; and that the water intrusion is going to get worse over time and the mold will not go away on its own.
Petitioners introduced into evidence Petitioners’ mold expert's report from July 24, 2019 ("Petitioners’ first mold report"), which reported findings of mold growth from tape-lift samples that Petitioner's mold expert had analyzed himself in the kitchen floor and wall and in the closet in the master bedroom. Petitioners’ first mold report recommended, inter alia , the removal of the kitchen and living room floor and base cabinets and remediation by professionals. Petitioners also introduced into evidence Petitioners’ mold expert's report from October 30, 2019 ("Petitioners’ second mold report"), which reported findings that of mold growth in the kitchen floor and cabinet from tape-lift samples that Petitioner's mold expert had an outside lab analyze. Petitioners’ second mold report also found evidence of mold colonization from air samples in the master bedroom and middle bedroom. Petitioners’ second mold report also recorded findings of elevated moisture in the floors of the bedrooms and the living room. Petitioners’ second mold report recommended mold remediation in the floors in the kitchen, living room, and bedrooms.
Petitioners’ mold expert testified that the moisture readings he found were consistent with those done by an expert that Respondent hired ("Respondent's mold expert"), who he observed assessing mold in the subject premises and that he observed that Respondent's mold expert took tape-lift samples from the surface of the wood living room floor where it was cupping, the floors in the middle bedroom and the master bedroom, a ceiling above the master bathroom, from a ceramic tile floor in the hall bathroom, from the kitchen floor, and from boots in a master bedroom closet ("the Boots").
Petitioners introduced the Boots into evidence. The Boots showed discoloration. Petitioners’ mold expert testified that the Boots exhibited visible mold growth, confirmed by testing which also showed mold spores.
Petitioners’ mold expert testified that the subject premises is right next to an electrical feed equipment room ("the Electrical Room"); that that is where all power comes through for that part of the Complex; that a screen designed to shield the cables that feed that room grid is made of metal; that the screen shows signs of water damage; that the plywood underneath it shows damp growth and mold underneath it; that dampness and mold cause an insect infestation, as mites — which he found in a tape-lift sample -- feed on mold and attract insects who feed on mites; and that he recommends removal of a wood floor in the kitchen, living room, and bedrooms down to the concrete and removal of the kitchen base cabinets.
Petitioners’ mold expert testified on cross-examination that he took eight to ten tape-lift samples in July; that not all samples showed mold growth; that two samples from the Boots came up positive for mold and others were less conclusive; that the subject premises is below grade; that the only places he found mold were by the kitchen floor, except for contents of the subject premises; that a lab analyzed them in October; that he does not hold lab certifications; that he tested samples in July because he is trained to test them; that he sends samples to a lab sometimes because he likes to get corroboration; that in October he took samples from the same places; that he did not find mold on all the contents; that the lab characterized the findings as large to moderate amounts of growth; that the measurements taken in October showed that the mold was growing; that he did not see mites in the July; that he prefers to assess samples for mold with a microscope; that accredited labs have a similar set-up to his facilities; and that he is not an accredited lab in the sense that he does not sell his services as a tester to others.
Petitioners’ mold expert testified on cross-examination that it is not typical to find mold growth underneath subflooring unless there is moisture; that in a basement apartment, wood flooring can be dry, but there is a greater risk of moisture; that he would not advocate wood flooring in a basement unless there is a lot of work to assure water proofing; that generally mold does not come from wearing shoes outside; that it takes about a week in dampness before mold will grow; that the pattern of growth on the Boots was consistent with humid air, not with just getting wet, as the growth is dispersed all over the Boots, not just by the sole of the Boots; that it is theoretically possible that if you soak a boot and leave it in the closet for a week, mold could grow on it; that, in general, mold spores inside should reflect outdoor air; that his samples suggest a source within the subject premises; that he believes that mold in air samples comes from the underside of the floor; that mold spores are small enough that the seams in a wood floor are not a barrier; that, when someone walks across a floor, the spores can get outside even if the floor was not removed; that he does not want to impart too much empirical value to tape-lift samples; that the weather can be a factor affecting mold growth, depending on how wet or dry it is; that all dust in a petri dish will show mold; that the number of spores indicated growth; that the species that are dominant is the issue; that the species shifts the ecology; that "indicator" species like trichoderma suggest that something is growing in the wood; that, in a dry house, you would not find growing mold; that a tape-lift would find spores everywhere, but you should not find growth; that not all spores grow; that the tape-lifts he took show the presence of hyphae and conidiophores, which show growth and are not just regular spores; that those are growth structures; that stopping mold required water-proofing so that water would not come through a slab or foundation walls; that mites can be found in dust; that there are many kinds of mites, which are all microscopic; that some eat human skin; that there are also mites that eat spores and fungal material; that his report does not show what kind of mites there are; that spores migrate with air currents; and that air and culture samples are not as reliable as tape-lift samples.
Respondent introduced into evidence a photograph of the floor of the kitchen in the subject premises, which depicts a floorboard of a finished floor that had been removed. Petitioners’ mold expert testified that he might have tipped it over; that the floor was already out to a degree; that removal of the floorboard was the only way that he could find mold by a tape-lift test; that he does not normally remove flooring that is intact, but rather only when it has been removed; that he did not want to cut up floors in rooms other than kitchen; and that his tests are conclusive in kitchen.
Petitioners’ mold expert testified on redirect examination that he took a class at an institute that trains people in microscopy on identifying mold growth and mold spores; that, in October he found more moisture under the floor than he found in July; and that, to get rid of mold, you'd have to remove porous material, i.e. a sheetrock wall.
Co-Petitioner testified that Petitioners bought shares appurtenant to the subject premises in March 2006; that, within the first two years of her residence there, she had two dogs die of cancer, which caused her to look into issues concerning the Electrical Room; that she complained in writing to the Board; that the Board said that she should move her bedroom away from the Electrical Room; that the Board shielded walls with a product called GIRON; and that the Board was supposed to shield the Electrical Room, move meters off of the meter wall and shield the interior of the Electrical Room, but the Board did not do that. Petitioners introduced into evidence photographs of the shielding on the kitchen floor, taken in July of 2019, depicting rust and mold on it. Co-Petitioner testified that the Board has never replaced the shielding.
Co-Petitioner testified that she has not physically resided in the subject premises since April 30, 2018 because of health issues, that is, mold, radon, and EMF; that she was last in the subject premises in July of 2020; that she experienced a foul sewage smell and a mustiness that she had previously smelled at the end of 2017 or the beginning of 2018; that, in July of 2020, she observed mold on the Boots; that she experienced an infestation of flies in the subject premises; that, on January 8, 2018, a fly went into a guest's food; that Petitioners experienced bad odors; that Respondent has not remediated for mold; and that a diagram of the subject premises prepared by Petitioner's mold expert is accurate, particularly to the extent that it depicts three walls of the Electrical Room bordering on the subject premises. Petitioners introduced into evidence a photograph of shoes in a closet on July 16, 2020 with a substance on the shoes and a photograph taken around March of 2018 of dead flies that Co-Petitioner testified that she found in the refrigerator every day.
Co-Petitioner testified that, in March of 2018, there was a problem with a sewage drain line; that she heard gurgling and experienced bad smells; that Respondent brought in a plumber and contractor to do work; that they broke open a wall, revealing rotten pipes that went into the foundation; that Respondent made a hole that was eight feet by four feet big; that she got sick with vertigo in April; that there was unearthed dirt in the subject premises; that they brought in a mold tester; that she ordered a home radon test in April of 2018; that she got results and sent them to Respondent; that members of the Board told her that she should open her windows; and that Respondent did not take action to remediate. Petitioners introduced into evidence photographs of a plumber doing work in the subject premises in April of 2018, depicting holes in the wall and the floor there, with ground underneath the hole, and depicting the bathroom once the hole was refilled with new dirt and brought up to slab grade.
Co-Petitioner testified on cross-examination that she was with Petitioner when he bought the Boots; that they are dress shoes; that he did not wear them often; that she was not with him every time that he wore them; that she did not know if he ever wore them in the rain; that she did not remember the last time that she saw flies; that someone did remediation work in the subject premises; that she did a gut renovation of the subject premises when she bought it, installing floors, ceilings, walls, and appliances; that they relocated rooms due to the EMF issue; that she had a contractor install wood flooring after the shielding was put down; that the old floors were parquet on cement with no subfloor; that in June of 2018 she commenced a prior HP proceeding before this one; that she removed the flooring between the two HP proceedings actions, between June of 2018 and February of 2019, before Petitioner's mold expert came to test; that she only asked Petitioner's mold expert to test for mold; and that she did not know if Petitioner's mold expert tested the shielding. Co-Petitioner testified on redirect examination that the Board gave her permission to renovate the subject premises; that she had the kitchen floor replaced between the two HP proceedings because they were trying to move back into the subject premises in September or October 2018; and that Petitioner had difficulty breathing in the subject premises.
A consulting engineer ("the Consulting Engineer") testified that he worked at the Complex in the 1990s on a drainage and sewage study of the entire property; that he was contacted to do an EMF inspection in 2007 because Petitioner was concerned about it; that he did a digital survey of the subject premises and the surrounding part of the building; and that he took readings. Petitioners introduced into evidence reports that the Consulting Engineer wrote for Petitioner, the first on April 16, 2007. The Consulting Engineer testified that he made recommendations in his report that would have required that he return; that he returned to the subject premises in 2008 because he was asked to follow up because work had been done to remediate the situation in response to recommendations that he made; that he repeated his inspection; that he observed that EMF readings of a standard alternating current taken by a magnetic field meter were significantly lower than they had been the previous year; and that the shielding was not visible to him. Petitioners introduced into evidence a report that the Consulting Engineer issued on April 29, 2008.
The Court granted Petitioners’ application to qualify an architect ("the Architect") as an expert witness in water infiltration. The Architect testified that that Petitioner contacted him on March 12, 2019 about the possibility of assessing the subject premises for moisture intrusion and EMF exposure; that he visited the subject premises; that he conferred with a consultant for radon investigations and EMF exposure; that he did not show a radon investigator any information or test results because he wanted them to conduct investigations with absolute objectivity; that he observed the EMF tester on April 16 calibrate his equipment, take readings outside the subject premises, and operate equipment inside the subject premises; that observed the radon investigator conduct a seven-day test to gather levels of readings of radon, put equipment in place, take notes, and take data; that he returned with the investigator on the 17th to collect the data; that he continued his observation of exterior of the subject premises on April 25, 2019; that he observed vertical and diagonal cracks on face of brick veneer on the north-facing wall; that he also saw steel lintels above windows that were rusted, deteriorated, and blooming, meaning expanded from rust, which increases pressure, which causes cracks; that he saw cracking where the steel of the fire escapes meets the parapet; that he noted an absence of weepholes, which are gaps that allow for gathered moisture and vapor to exit from behind a façade wall; that there is an inch or inch-and-a-half air gap between the brick and the interior where vapor and moisture collect if they cannot exit by weepholes; and that he also saw convex cupping of wood floor panels in the master bedroom, a sign of moisture penetration.
Petitioners introduced into evidence a part of a pipe that appeared to be corroded ("the Pipe"). The Architect testified on voir dire that the Pipe is rusted in a way that is consistent with an age of a building. The Architect testified on direct examination that the Pipe is consistent with pipes shown in the drawings from the Complex with the New York City Department of Buildings ("DOB"), such he is able to discern that the Pipe is from the Complex; that Petitioner gave him the Pipe; that it appears as if there is corrosion from the interior of the Pipe which would be consistent with a blockage in the system and the stress from the blockage appears to have created a burst of the shell of the Pipe; that the contents of the Pipe would saturate any of the soil beneath the Pipe; and that vapors and any moisture would rise up and deteriorate the concrete slab above the Pipe.
Petitioners introduced into evidence a report the Architect wrote assessing conditions at the subject premises ("the Architect's report"). The Architect's report stated that he observed exterior and interior damage consistent with inadequate moisture management systems in the exterior envelope of the Complex; that the design of the combined waste and storm systems in the Complex were poorly designed with no regard for cleanout or servicing and eventual pipe damage; that corrosion resulted; that there are inadequate and ineffective measures retroactively installed to shield Petitioners from EMF emanating from spaces outside the subject premises and inadequate reinforcement of a concrete slab, which may have been exacerbated by deteriorated waste and the storm pipe below the slab, and which enabled cracks to form in the concrete slab, and which in turn contributed to an elevated amount of radon found within the subject premises; that wood floor planks showed expansion and contraction, suggesting the presence of moisture intrusion within the wood flooring; that moisture is permeating through the substrate concrete basement slab below, occurring along a north wall as well as the east perimeter wall; that floor planks in the master bedroom showed convex cupping, suggesting moisture intrusion at an accelerated level at a localized section of flooring in the area; that he did not observe intrusion on the walls; that building staff could not identify clean-outs; that both sanitary waste and storm lines are in one system; that the state of the Pipe shows that periodic maintenance may not have been conducted in this system; that he could not see in drawings measures to allow subsurface storm water to be diverted from foundation walls; that EMF measurements show that they are at a severe level; that an investigator concluded that the subject premises is unsafe due to EMF levels that appear to be originating from high voltage power being routed into the Electrical Room; that radon levels in the living room and bedroom were, respectively, 4.3 and 5 picocuries per liter ("pCi/L") on a seven-day test; and that Environmental Protection Agency ("EPA") standards recommend remediation if radon exceeds 4.0 pCi/L because that level is hazardous.
Respondent objected to the report on the ground that the report contained records from other entities. Such records are admissible as business records, Taylor v. 72A Realty Assocs., L.P. , 151 AD3d 95, 104 (1st Dept. 2017), if the recipient can establish personal knowledge of the maker's business practices and procedures, or that the records provided by the maker were incorporated into the recipient's own records or routinely relied upon by the recipient in its business. State of NY v. 158th St. & Riverside Drive Hous. Co., Inc. , 100 AD3d 1293, 1296-97 (3rd Dept. 2012), citing People v Cratsley , 86 NY2d 81, 90-91 (1995), Matter of Carothers v. GEICO Indem. Co. , 79 AD3d 864, 865 (2nd Dept. 2010), People v. DiSalvo , 284 AD2d 547, 548-549 (2nd Dept. 2001).
The Architect testified that storm water and waste water infiltrated through the deteriorated pipe from a waste pipe; that this infiltration impacted the soil; that the specific location of warped wood floor planks in the master bedroom coincided with the location of a storm pipe as it ran from a core of the Complex out toward the garden area; that water is supposed to go through traps and clean-outs into the municipal system; that a "clean-out" is an access point that interrupts piping system in a building where a person can physically open what appears to be a jar lid to a pipe on the side of a vertical run of pipe to access the pipe and clean out clogs with a long flexible hook; that he could not identify any clean-outs; that clogged water would collect at the point where the riser would turn horizontal underneath the slab and exit toward the municipal waste system and would collect underneath the slab of the subject premises underneath the master bedroom, where the pipes went horizontal; that water collecting in the soil underneath the slab under the subject premises at the point of compromise of a pipe system could soak the soil beneath the slab and settle and compact that soil; that, as water meets a clog, the pipe exerts pressure and would be compromised and would burst and the flow would flow out and underneath the slab and because there is no clean-out; that the only way to repair the pipe or remove the clog is to do so in a catastrophic manner, i.e., by opening up the concrete slab and replacing walls; that drawings from 1974 did not match up with what he saw, insofar as the drawings depicted a clean-out that he did not see; that the code requires a clean-out; that moisture settling in the soil creates a void where radon gas can collect; that the cracks in the façade that he observed are entry points for rain and moisture into the exterior wall; that the water then travels down the air gap through the wall and further penetrates the exterior foundation walls of the Complex; that the pipe burst; that water collected from that failure of the pipe; and that vapors are coming from this point of compromise of the pipe combined with the moisture that cannot leave the air gap system, contributing to a deterioration of the concrete slab underneath the subject premises which would facilitate cracks and compromises in the concrete slab which would allow radon gas to travel up through the slab.
The Architect testified on cross-examination that anything that had happened with the Pipe is not happening now; that the pipes are hidden behind walls; that he only looked at the subject premises when he looked for clean-outs; that radon measurement can take place over a seven-day period which is a relatively small snapshot of overall levels; that another testing method takes six months, and another takes twelve months, which are preferable testing methods because radon levels can vary over the course of a twelve-month period; that a seven-day period has an accepted level of reliability especially when the space is unreliable; that the variation between these tests is not significant enough to validate one test's accuracy over another; that he does not know what method of remediation there is; that weather does not affect radon levels; that radon is a geological condition, isolated from weather conditions; that he is unaware of any recommendation for a follow-up test; that the radon test done in the subject premises was a placement of metal pods that collect samples of ambient air; that he does not claim to be an expert in radon; that his radon tester is a state-certified radon investigator; and that the person who provided the EMF readings is not an EMF expert. The Architect testified on redirect examination that there are 21,000 deaths per year in the United States from radon-induced lung cancer.
The Court granted Petitioners’ motion to qualify a health physicist ("Petitioner's EMF expert") as an expert in EMF testing and "characterization," which the Health Physicist testified involves examinations of frequencies riding on conductors. The Health Physicist testified that that the earth generates magnetic waves; that magnetic waves can vary around houses or buildings because of the earth materials underneath it; that when magnetic waves are slightly elevated, different people have different sensitivities to them, depending upon intensity or duration; that even without a direct link between illnesses and magnetic fields, chronic exposure over time has led to more illnesses, to the point that mobile phone manufacturers now have to minimize the amount of wattage they emit; that he described standard radiation principles with the acronym "ALARA," which stands for "as low as reasonably achievable"; that an application of the "ALARA" principle means that a finding that radiation exceeds background values raises the question of whether anything can be done to limit that level, or to limit the time that people stay in the area or to increase shielding or to increase distance from the source of the radiation; that a wave can cause an atom to vibrate and go into an excited state that generates heat that destroys a cell; that such non-ionizing radiation emanates from television, radio, visible light, MRI's, and mobile phones; that an international commission on non-ionizing radiation provides guidelines on EMF exposure, working with the World Health Organization ("WHO"); that the Food and Drug Administration ("FDA") and the National Institutes of Health ("NIH") make recommendations for certain frequencies of EMF; that a commission in the 1990s established some limits; that rooms will have different values; that values could still be elevated when the power is turned off; that a normal value range, measured by a units of measurement called milligauss (mG) goes from one to three mG; that an area adjacent to the subject premises on a diagram of the subject premises identified as a "meter bank" refers to the Electrical Room; that rooms in the subject premises opposite the Electrical Room have readings displayed that would be much higher than normal background values; that the values are 90 mG; that readings in the subject premises are shown to be 3, 5.35, 16, 17, and 50 mG; that when the values elevate to 16, 17, and 50 mG, he would want to see if that could be mitigated; that time, distance, and shielding all mitigate such exposure; and that a residential space is not conducive to a limitation on the time one spends there, so shielding or distance would be the preferable means of mitigation, which would either entail moving the energy source or shielding the energy source so it lowers energy levels in the subject premises.
The Health Physicist testified on cross-examination that there is no direct link between EMF and a particular illness; that there are causal factors only; that there are no New York State standards for regulating EMF levels; that everything that runs on electricity creates EMF; that any current produces a magnetic field; that light bulbs put off a certain frequency; that visible light is EMF; that computers produce EMF, as do vacuums; that a hair dryer produces about 10 mG of EMF; that the closer you are to an electricity source, the higher the EMF reading; that it is an exponential relationship; and that he did not know the exact distance for each location at the subject premises where a reading was taken.
Petitioner testified that he conducted a radon test and mailed it in to the testing facility; that he received the results back; that he emailed them to the Board; that he saw a contractor remove the Pipe from the subject premises three feet below the slab from a closet in upper left corner of floor plans for the subject premises; that he relocated pipes and drains when he renovated the subject premises; and that the renovation did not affect the Pipe. Petitioners introduced into evidence documents from DOB showing approved plans for their renovation of the subject premises. Petitioner testified that the Board retained an engineer to oversee the renovation; that Petitioners could not do anything without this engineer's approval; that the Board hired the Consulting Engineer to generate the report in evidence; that he later paid the Consulting Engineer for other work; and that the Board did not complete the Consulting Engineer's recommendations, particularly the removal of equipment from the Electrical Room and the shielding of walls.
Petitioner testified on cross-examination that he does not smoke or use tobacco; that he has not resided at the subject premises for three years; that he had had kitchen flooring removed when they first started the renovation; that he did not remove anything else or instruct anyone to remove anything else; that when they had to dig the floor, the subject premises was full of sewer bugs; and that they had to replace a refrigerator after this case started. Petitioner testified on redirect examination that flooring was removed for inspectors because they were puzzled about levels of mold; that inspectors found water and moisture and rotting and decay and electro-magnetic shielding in the kitchen; that the refrigerator was removed because they dug up a hole to excavate, which led to an infestation of flies; and that the flies caused the motor of the refrigerator to fail.
Respondent's case
The Court granted Respondent's application to qualify Respondent's mold expert, a certified industrial hygienist, as an expert in mold. Respondent's mold expert testified that he performed two separate mold surveys in the subject premises; that the subject premises is on the ground level; that if mold growth is under the floor and floor is intact there is no exposure because the floor would act as a barrier to exposure; that he is familiar with air sample testing for mold and he has conducted such tests himself; that air sampling is highly variable and not particularly reliable, yielding very different results in multiple samples in the same location; that air samples do not definitively show mold growth on a surface; that there are no numerical standards for when air sampling shows mold; that he has read articles about dust vacuum testing for mold; that this test is not reliable and would be highly variable depending on when the sample is collected; that the most reliable method of testing is sampling directly from the surface that is suspected of having mold growth; that he uses bio-tapes which have an adhesive area onto which he would press the surface that is suspected of mold growth; that he sends the sample to a lab for analysis; that there is a standard for when tape-lift samples show mold growth; that mold spores will always be found in an air sample; that mold spores are produced in nature and are always in the air; that mold growth, by contrast, occurs from a water damage event; that mold spores land on that surface and begin to grow; that in the absence of growth, mold spores in air sampling are not problematic; that he knows Petitioner's mold expert; that he has reviewed Petitioner's mold expert's reports from other mold surveys; that Petitioner's mold expert has practices that he would categorize as problematic, i.e., Petitioner's mold expert analyzed his own samples instead of sending them to an accredited lab; that he reviewed reports where Petitioner's mold expert categorized a dwelling as too hazardous to occupy when results did not show that; that he has seen Petitioner's mold expert remove barriers to mold exposure; and that someone with Petitioner's mold expert's experience could not rely on air samples alone to find mold.
Respondent's mold expert testified that Petitioner's first mold report showed that Petitioner's mold expert collected tape-lift samples and performed the analysis himself, which was problematic as Petitioner's mold expert is not an accredited lab; that Petitioner's mold expert's results are questionable at best; that Petitioner's mold expert relied more on air samples; that it is not typical for investigators to analyze their own samples; that the standard practice would be to send samples to a third party lab accredited by the American Industrial Hygienist Association ("AIHA") for microbial analysis; that such accreditation entails auditing, proficiency tests, and a review of contamination; that he does not agree that conditions in the subject premises caused mold on the Boots because, then all of the shoes would have mold growth; that there is a quality-control sample called field-blank so the collection, whether surface or air, has a baseline to assure that a sample has not been contaminated; that Petitioner's mold expert did not take a field blank; and that Petitioner's second mold report has a reliance on air sampling results in its discussion and recommendation sections.
Respondent introduced into evidence a report prepared by Respondent's mold expert ("Respondent's first mold report"). Respondent's first mold report, resulting from a survey of the subject premises dated February 26, 2019, found, inter alia , sporadic dampness in the living room floor, dryness in the floors of the kitchen and bedrooms, rare levels of mycelial fragments, meaning that mold growth was unlikely, off of tape-lift samples of the floors of the living room and bedrooms, and rare levels of a specific type of mold later identified, as abbreviated, as "pen-asp" mold off of tape-lift samples in the kitchen floor.
Respondent's mold expert testified that that he performed a full visual inspection; that he used a moisture meter to test all of the surfaces to determine whether they were dry or wet; that in areas where he suspected mold growth he collected surface tape lift samples; that wall surfaces were dry; that he did not experience musty odors in the living room, kitchen, or hallway; that tape-lift samples in the living room, kitchen, and hallway walls showed mold growth to be rare; that the wood floor in the kitchen where the refrigerator used to be was stained; and that he did not find any mold growth. Respondent's first mold report did not recommend any remediation.
Respondent moved into evidence another report prepared by Respondent's mold expert ("Respondent's second mold report"). Respondent's second mold report, resulting from a survey of the subject premises dated October 30, 2019, found, inter alia , dampness and damage in the floors of the living room, the master bedroom, and another bedroom, dryness in the floors of the kitchen and one of the bedrooms, rare levels of pen-asp mold off of tape-lift samples of the floors of the living room and one of the bedrooms, rare levels of another kind of mold in the master bedroom, and rare levels of pen-asp mold and mycelial fragments off of tape-lift samples in the kitchen floor. Respondent's second mold report recommended a mitigation of water intrusion into the subject premises and mold remediation in affected area in the kitchen.
Respondent's mold expert testified that that he saw that a floorboard was removed and turned over; that he found mold growth on the underside of the floorboard; that, had the floorboard remained in place, the underside which they determined had mold growth would not have been exposed and therefore would have been contained underneath; that it would not be possible for that mold growth to penetrate the floor; that by exposing mold growth, the removal of the floorboard would require a remediation of that area; that other than the kitchen, his inspection revealed mold on the Boots; and that he does not believe that mold growth on the Boots was due to conditions in the subject premises based on the fact that other shoes in the subject premises did not display visible mold growth.
Respondent's mold expert testified on cross-examination that Petitioner's mold expert was with him in the subject premises in October of 2019; that he knows Petitioner's mold expert; that he does not have a positive opinion of Petitioner's mold expert as an industrial hygienist; that certifications and awards on Petitioner's mold expert's curriculum vitae in evidence speak positively of Petitioner's mold expert; that Petitioner's mold expert has been published a lot, which also speaks positively of him; that he did not see Petitioner's mold expert collecting any samples in October; that Petitioner's expert's reports show that Petitioner's mold expert did not restrict himself to air sampling; that air sampling is an approach approved by the AIHA; that he has collected air samples himself maybe five times out of 1,000 mold inspections; that there is such a thing as hidden mold, which is mold growth on surfaces that are hidden such as an underside of a floorboard; that hidden mold cannot permeate a floor; that he has no health concerns about unremediated mold beneath a floor; that mold spores are several microns in size and cannot be seen with the naked eye; that it is possible for mold spores to come up through a crack in the floor; that a photograph of a floorboard in the subject premises does seem to depict a crack in the floor through which mold could possibly come; that he does not know the individual moisture meter readings; that a photograph of shoes in the subject premises revealing staining resembles the Boots; that wetness indicated to him that there is a potential water intrusion pathway; that mold growth can occur when it is wet; that the sample that he took was on the top of the floor; that Petitioner's mold expert did three types of sampling: air, tape-lift, and vacuum dust; that a lab accreditation process is a part of AIHA but not all of it; that he respects AIHA regarding lab accreditation; that he disagrees with AIHA on air sampling; that where Petitioner's mold expert's report says "Pen/asp-like," that stands for a particular kind of spore which is ubiquitous; that there are some mold spores that are based on the existence of water damage, but not "pen/asp" spores, although you can see them in water-damaged buildings; that his degree is in chemical engineering; that he is not a biologist or a microbiologist; that Petitioner's mold expert's findings of fungal structures throughout the subject premises do not mean that mold is growing inside, as air samples in themselves do not indicate mold growth on surfaces; that the numbers based on one set of samples do not give him concern; that Petitioner's second mold report shows that Petitioner's mold expert's samples were tested by a lab which Respondent's mold expert knows to be an accredited lab; that the lab shows fungal growth from tape-lift samples from the kitchen floor, the kitchen cabinet, and the Boots; that Petitioner's first mold report shows that Petitioner's mold expert sent samples to an accredited lab that found "pen-asp" fungal structures in the kitchen, living room, and master bathroom; that a tape-lift is the most reliable method to determine whether there is mold growth on surface because you can see mycelial fragments, which are vegetative structures that indicate mold growth; that Respondent's first mold report shows that mycelial fragments were found in the living room, on tape-lifts in the kitchen, at rare levels in the cavity where the refrigerator was, at rare levels in the east bedroom, at rare levels in tape-lift samples from the top of a painted wood floor in the west bedroom, and at rare levels from the master bathroom which also show conidiophores; that other hygienists test for hidden mold by testing the underside of a floor or a ceiling cavity; and that photographs of white spots on clothing in the closet in the subject premises look more like wear than mold to him.
Respondent's mold expert testified on redirect examination that the amount of mycelial fragments found matters; that rare levels mean that there is so little mold growth that mold growth is unlikely; and that when he testified that air samples show mold, he meant spores, and all air samples will show spores; that the results showed spore counts, not mold growth.
The Court granted Respondent's application to qualify a registered professional engineer ("Respondent's EMF expert") as an expert in EMF. Respondent's EMF expert testified that he has a PhD in physics and had been a full professor in bio-engineering at the University of Pennsylvania from 2000; that for ten years he taught a physics course which covered EMF; that he has conducted research in the field of EMF, publishing papers in peer-reviewed journals and a number of conference papers; that he worked with WHO on a range of topics relating to EMF; that he has been a consultant to the Centers for Disease Controls ("CDC") with regard to EMF; and that he has given hundreds of presentations on health and safety applications of EMF. Respondent's EMF expert testified that earth has a background EMF; that there is no health risk to exposure to 1,000 mG or below for EMF; and that humans are exposed to a background magnetic field of 500 mG although the background field can vary by 100 mG depending on where one walks.
Respondent introduced into evidence a report by the National Institutes of Environmental Health Sciences ("NIEHS") which stated, inter alia , that the scientific evidence that EMF poses a health risk is weak. Respondent's EMF expert testified that he agrees with this conclusion and that he knows of no other evidence that would contradict this conclusion; that he disagrees with the conclusion of the Architect in a report the Architect wrote that 50 mG are unsafe, on the basis of systematic reviews, expert reviews of literature, and reviews of international exposure limits; that it is not uncommon at all to find 50 mG of EMF in a residence; that all appliances that use electric fields and electric currents produce EMF, such as hairdryers, vacuum cleaners, and electric stoves; that the EMF produced by common household appliances could be much higher than those stated in the report; that a coffee maker goes up to 300 mG; that a pedestrian in New York City is exposed to much higher levels because New York City has a lot of underground power lines; that riders on the subway are exposed to EMF if seated near the motor that powers the car; that there is no scientific basis to conclude that exposures at levels reported in the subject premises trigger any adverse affects; that WHO does not have safety limits for these fields; and that the European Union has a statutory limit of 1,000 mG. Respondent introduced into evidence a report generated by the Empire State Development that shows, inter alia , that a can opener generates 10,000 mG of EMF and that a garbage disposal generates 850 mG of EMF.
NIEHS is an agency of NIH. 42 U.S.C. § 281(b)(16).
Respondent's EMF expert testified on cross-examination that he has had a number of consultant jobs with industries interested in electronics, including the wireless industry, the electric power institute, and the Wifi Alliance; that the microwave and wireless forum supported his research for a number of the papers that his curriculum vitae mentions; that he has testified on behalf of cell tower construction; that, at some level of exposure, EMF might have an effect on people; that if he knew that when power was off there was 90 mG of EMF in an apartment, it would not concern him; that a level of 1,000 mG would concern his as a matter of compliance; that an exposure far above 1,000 mG is a concern, depending on the circumstances of exposure; that people disagree with him; that it is a good idea to set limits on EMF exposure because at some levels it is dangerous to the point that it could electrocute a person; that he knows the term "ALARA" as a term in risk management; that he does not use it; that generally one tries limit a time exposure to EMF, but neither distance nor shielding bear a direct relation to EMF exposure; that he thinks that shielding measures that Con Edison takes to limit EMF exposure are not necessary; that exposure matters more than distance, although distance affects the extent of exposure; that shielding matters in that it determines exposure; that he cannot imagine any circumstance in normal residential use where one would use shielding; that he once testified for someone who had EMF exposure; that there is no harm in installing shielding; that he knows that the subject premises is right next to the Electrical Room; that some levels of EMF exposure could cause headaches and a flickering of retinas; and that he would have no health objections to living in a room next to an electrical room.
Respondent's EMF expert testified on redirect examination that he did similar work in this field before being paid by industry; that there was no change in his conclusions before and after getting paid by industry; that for a health risk to be demonstrated far more than 1,000 mG would need to be shown; that people have looked for link between EMF exposure and health risks for forty years; and that the intensity of the exposure to EMF matters more than distance.
The Court granted Respondent's application to qualify a professor emeritus of, inter alia , radiation oncology ("Respondent's radon expert") as an expert in radon. Respondent's radon expert testified that he was a tenured full professor for 18 years; that radon is the major source of radiation exposure to general population; that he has published works on it; that for forty years he has been a member of a professional society of scientists who study radiation and radiation effects; and that he advises the EPA on radiation issues.
Respondent's radon expert testified that radon levels of 20.0 pCi/L and below are not dangerous to humans; that he knows about the EPA's recommended action level of 4.0 pCi/L; that this action level is a reasonable estimate, meaning that the EPA is extrapolating from high doses of radon from underground mines to levels where the increase in risk would not be detectable; that the EPA's recommended action level is not based on direct scientific evidence; that there is no real difference in risk between 2.0 and 5.0 pCi/L; that the readings of radon shown in the Architect's report of 4.3 and 5 pCi/L are not unsafe; that these are short-term measurements; that he would expect that radon levels in a crawl space would be higher than in living quarters, the reverse of the findings in the Architect's report, but nothing is otherwise unusual about the reported radon levels; that physical occupancy affects radon readings because the act of opening doors and windows lowers the levels, as radon comes from the ground on a continued basis and accumulates in a living space and it builds up if it does not have a way to get out; that radon levels vary across the years, depending on weather and whether heating and air conditioning is on; that heating systems lower the air pressure inside the dwelling, which pulls more radon out of the ground, while air conditioning injects extra fresh air into the dwelling; that the readings on the Architect's report are not sufficient to show radon levels because those readings require a long-term test of a minimum of three months and preferably an entire year when residents are actually living in the space; that a radon test that Petitioner himself conducted showed a reading of 3.3 pCi/L, not enough to show a proven risk and taken from readings of less than a week; and that another radon test of the subject premises of less than a week with a reading 3.7 pCi/L had the same problem.
Respondent's radon expert testified that his teaching involved EMF's relating to power lines and mobile phones since the early 1990s; that these was no relationship between EMF's and health risks, which he knew in part from participating in a federal program called "EMF rapid"; that he is a member of professional societies that address the issue; that he has reviewed scientific literature on that issue; that he has published on that issue, at least eight articles of which were subject to peer review; that he has given twelve to twenty presentations on EMF's; and that he worked with the FDA on EMF's. The Court granted Respondent's motion to qualify Respondent's radon expert as an expert witness in EMF. Respondent's radon expert testified that exposure levels of 1,000 mGs of EMF and below are not a health risk; that an extreme level of EMF would be 2,000 mG; that EMF has been researched and that it does not cause cancer ; that the link between EMF and health risks is weak; and that any use of electricity creates EMF's.
Respondent's radon expert testified on cross-examination that radon is the major source of radiation to the general population; that EPA's recommendations of radiation exposure of 4.0 pCi/L was reasonable, although he does not agree with the EPA; that radiation exposure can cause illness, including cancer ; that radon is present in all dwellings; that he is not sure whether remediation is recommended based on a radon test result, as that is a cost-benefit analysis rather than a scientific question, although he would not rely on a short-term test to make a cost-benefit analysis; that it was unusual for a crawl space to have a lower radon reading that the living space because since radon levels tend to go down as you move up; that the condition evinced by photographs in evidence depicting a cracked floor and where the soil is can explain why radon levels are elevated in living quarters; that he did not recommend that Wisconsin, where he had been consulting, legislate permissible levels of radon exposure; that EMF exposure of 1,000 mG or less was harmless even for acute cases or protracted exposure; that such exposure might be a concern, but there are no proven risks; that the establishment of 200 mG as a standard in New York for transmission lines is not a safety-based standard; that if New York's goal is to insure that whatever project it is does not cause an increase in existing fields, then this standard is reasonable; that there were epidemiological studies that showed that powerful exposure to EMF is linked with diseases; that some people think there are links between EMF and diseases; that there is some increased risk for illness sufficient to warrant concern; and that it is not reasonable to install shielding to limit exposure to EMF.
Rebuttal case
The Consulting Engineer testified that New York State established a standard of 200 mG of EMF at a power line near a right of way and that a WHO study reviewed a plethora of evidence regarding EMF's and they concluded that the rate of childhood leukemia doubled based on a standard of 4 mG. The Consulting Engineer testified on cross-examination that there is a difference between a safety standard and an occupational standard; that an occupational standard is for people working in their jobs; and that a safety standard is more general.
The Architect testified on cross-examination that he was last at the subject premises on January 26, 2021; that he saw displaced floor planks in middle bedroom, office area, and master bedroom and signs of an expansion of floor planks in the living room; that in the middle bedroom floor planks were displaced because they had expanded due to moisture penetration; and that a thin layer of mold spores was present on the floor adjacent to those surfaces.
Petitioners introduced into evidence photographs of displaced floor planks in the subject premises expanding so that they rose up. Petitioner testified on rebuttal that the photographs, taken on January 26, 2021, showed a condition getting worse. Petitioners introduced into evidence photographs taken in January of 2021 of clothes in the subject premises with white spots on them. Petitioner testified that even though he has not been living in the subject premises that clothing has been there the whole time; that he last wore the clothes three years before his testimony; and that they were clean and in fact had been dry-cleaned.
Discussion: Mold
While Petitioners’ mold expert and Respondent's mold expert disagreed on such issues as the efficacy of air sampling, the propriety of Petitioners’ mold expert analyzing his own samples, and the extent of Petitioner's mold expert's responsibility for a removal of a floorboard, their agreements bear more significance for the resolution of the ultimate issues of this matter. Both experts agreed that mold spores are ubiquitous. Both experts agreed that moisture promotes mold growth. Both experts agreed that tape-lift samples are the best way to test for mold growth. Both experts agreed that Petitioners’ mold expert used tape-lift samples and that he sent his samples from October of 2019 to an accredited lab. Both experts agreed that, in October of 2019, they detected mold growth in the kitchen floor and on the Boots. And both experts agreed that the mold growth they found required remediation, at least in the kitchen.
Respondent made an oral application for a hearing pursuant to the rule articulated in Frye v. United States , 293 F. 1013 (D.C. Cir. 1923), cited with favor in People v. Wernick , 89 NY2d 111, 115-16 (1996), which requires that expert testimony be based on a scientific principle or procedure which has been sufficiently established to have gained general acceptance and further requires a determination as to the reliability of novel scientific evidence. Respondent's application concerned Petitioner's mold expert's use of air sampling. However, while Respondent's mold expert clearly disagreed with the use of air sampling, Respondent's mold expert testified on cross-examination that he used it on rare occasions and, more importantly, that the AIHA countenanced air sampling. The mere citation of some experts who do not endorse a procedure is not a sufficient basis for granting a Frye hearing, People v. Garcia , 39 Misc 3d 482, 484-85 (S. Ct. Bronx Co. 2013), particularly in light of Respondent's mold expert's concession regarding the AIHA's position on the issue. Moreover, a Frye hearing is a pre-trial hearing, Canick v. Cranin , 2008 NY Slip Op. 31520(U), ¶ 8 (S. Ct. NY Co.) (Gische, J.), citing Marsh v. Smyth, 12 AD3d 307 (1st Dept. 2004), such that a failure to timely make an application for a rye hearing precludes further review. Cocca v. Conway , 283 AD2d 787, 788 (3rd Dept. 2001). An application for a Frye hearing after the close of a party's case, the posture at which Respondent made its application here, is untimely as such. Zelaya v. NY NY Auto Body, Inc. , 41 AD3d 594, 594 (2nd Dept. 2007).
Petitioner's mold expert also found mold growth in the kitchen cabinets, living room floor, and the master bedroom floor. Respondent's mold expert disputed that the mold on the Boots came from the subject premises and further disputed Petitioner's mold expert's findings, with a host of criticisms of Petitioner's mold expert's methodologies. However, Respondent's mold reports themselves found mycelial fragments and other mold species in the living room and bedrooms, as well as conidiophores in the master bedroom. While Respondent's mold expert testified that the amount of mycelial fragments was insufficient to show mold growth, Respondent's mold expert's moisture meter showed dampness in the floors of the living room and bedrooms. These moisture meter findings are consistent with the extensive evidence of water intrusion of the subject premises, such as the cupping that the Architect and Petitioner's mold expert observed.
Even if, arguendo , Respondent's mold expert's criticisms of Petitioner's mold expert affect the weight the Court would accord Petitioner's mold expert's test results, the test results still retain at least some probative value. The same goes for the undisputed positive test of mold on the Boots, even if the parties dispute the provenance of that mold. The same also goes for Respondent's mold expert's finding of mycelial fragments in the floors, even if Respondent's mold expert diminished the amounts found as insignificant. All of these factors weigh in favor of a factfinding of mold growth in the kitchen cabinet and the floors of the living room and bedrooms. Notably, Respondent's mold expert's testimony and the Architect's report showed undisputed evidence of water intrusion in the subject premises, further weighing in favor of a finding of mold growth in the floors of the living room, bedrooms, and kitchen cabinets. See Forrester v. Sirulnick , 2021 NY Slip Op. 50052(U)(Civ. Ct. Kings Co. 2021) (crediting a surmise by a licensed mold assessor that mold is in need of remediation in rooms other than rooms where samples showed mold growth given signs of water intrusion). Thus, in addition to the undisputed evidence of mold growth in the kitchen floors, the preponderance of the evidence shows that mold growth in the kitchen cabinet and floors of the living room and bedrooms require remediation.
Even with regard to the mold growth that Respondent's mold expert acknowledges, Respondent argues that the Court should not order Respondent to remediate mold in the subject premises on the ground that Petitioner's mold expert caused the mold growth in the subject premises by opening a kitchen floorboard. While Respondent's mold expert testified that the kitchen floor, undisturbed, was a barrier to exposure to whatever mold growth there was on the underside of the floorboard, Respondent's mold expert did testify that mold spores are small enough to come to the surface by a crack depicted in the floor. Petitioner's mold expert testified that the floor was already open to a degree, which is consistent with photographs in evidence. And, as noted above, Respondent's finding of water intrusion in the subject premises accorded with the copious evidence from the Architect to that same effect. The preponderance of the evidence therefore does not support the proposition that Petitioner's mold expert caused the mold growth in kitchen.
Be that as it may, the New York City Housing Maintenance Code mandates the remediation of indoor allergen hazards, N.Y.C. Admin. Code § 27-2017.1, defined in part as mold. N.Y.C. Admin. Code § 27-2017. Accordingly, the nature of the defense that Respondent raises to an order to correct does not apply. 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). In an HP proceeding, a violation of the Housing Maintenance Code does not occasion an inquiry by the Court of whether the tenant is at fault. Stahl Assocs. Co. v. France , 1997 NY Misc. LEXIS 753, at *2 (App. Term 1st Dept.), Vargas v. 112 Suffolk St. Apt. Corp. , 66 Misc 3d 1214(A)(Civ. Ct. NY Co. 2020). Accordingly, the Court will order the placement of violations of the Housing Maintenance Code on the subject premises for mold growth and direct Respondent to correct the violation, without prejudice to any causes of action and/or defenses both litigants have against each other with regard to any other aspect of this dispute. Correction of the violation would moreover require the mitigation of the water intrusion into the subject premises, as recommended in Respondent's second mold report.
This provision of the Code addresses the distinction that Respondent attempts to make between findings of the kind the Court makes herein and a violation for "visible mold" as set forth in N.Y.C. Admin. Code § 27-2017.3
Discussion: radon
The New York City Housing Maintenance Code does not contain a provision addressing radon. Respondent argues that the Court therefore lacks the jurisdiction to render a determination related to radon. However, New York City Civil Court Act § 110(a) provides that the Housing Court shall be devoted to proceedings for the enforcement of state and local laws for the maintenance of housing standards "including, but not limited to ," inter alia , the Housing Maintenance Code (emphasis added). New York City Civil Court Act § 110(c) further empowers the Housing Court to recommend or employ, inter alia , any remedy or program or procedure authorized by law for the enforcement of housing standards if the Court finds that they will be more effective to, inter alia , promote the public interest. While the statute does not define "housing standards," such statutory language evinces an intention to provide for safe housing, entailing as broad a meaning as possible. Various Tenants of 515 E. 12th St. v. 515 E. 12th St., Inc., 128 Misc 2d 235, 236-37 (Civ. Ct. NY Co. 1985). See Also Beltre v. Carroll Place Assocs. LLC, 69 Misc 3d 1215(A)(Civ. Ct. Bronx Co. 2020) (preservation of the housing stock of New York City is the animating force behind New York City Civil Court Act § 110 ). Accordingly, the Court will consider Petitioners’ claim for relief related to radon on the criteria of whether such relief would further the legislative goal of maintenance of safe housing.
Although New York City Civil Court Act § 110 speaks of state and local laws, federal laws relating to radon offer some guidance and provide instructive context. Congress has made clear a federal goal that indoor air should be as free of radon as the ambient outside air, 15 U.S.C § 2661, and in advancement of that goal, directed the EPA to publish an updated version of its document entitled "a Citizen's Guide to Radon," which shall include a series of action levels indicating the health risk associated with different levels of radon exposure. 15 U.S.C. §§ 2663(a), 2663(b)(1). Petitioners had introduced this guide ("the EPA Guide") into evidence, which recommends that homeowners with a radon level of 4 pCi/L or greater remedy that condition. A New York State regulation incorporates a link on the EPA website that links to the EPA Guide, 6 N.Y.C.R.R.§ 638.7(d)(1)(i)(b)(4)(c)(4), in the context of a requirement that a buildings seeking a green certification demonstrate satisfactory radon levels. Tax Law § 19(b)(9)(e). The implementing regulation for this statute identifies a satisfactory radon level as 4 pCi/L for a 48-hour test. 6 N.Y.C.R.R. § 638.7(d)(1)(i)(b)(ii). New York City Local Law 49/2019, § 11, in approving a demonstration program for permitting occupancy of basement apartments in certain areas in New York City, required radon levels to be below 2 pCi/L.
Even though the Court can take judicial notice of federal law without any request from the parties, CPLR § 4511(a), Respondent argued that the Court should not take judicial notice of federal statutes relating to radon, citing the matter of Hamilton v. Miller , 23 NY3d 592 (2014), where the Court of Appeals held that a plaintiff in a personal injury lawsuit could not use Congressional findings in support of lead paint legislation to prove causation, i.e., that the presence of lead caused the plaintiff's injuries. An HP proceeding presents a distinguishable issue, that being the relevance of radon to upholding housing standards.
The EPA Guide is online and it can be found here: https://www.epa.gov/sites/production/files/2016-12/documents/2016_a_citizens_guide_to_radon.pdf
The results of the radon test that Petitioner used were based on a seven-day test. While the Architect testified that this test was reliable, he also testified that a longer-term test of up to one year is preferable as radon levels can vary. Respondent's radon expert more emphatically pressed this point, not only asserting the limited utility of a radon test of seven days’ duration but also emphasizing that Petitioners have not been living in the subject premises, which would cause the radon levels to be higher than they would be if someone was regularly opening and closing doors and windows there.
Page 6 of the EPA Guide that Petitioners introduced into evidence says that a short-term test is the first step to determining whether actionable radon is in a home and that a level of 4 pCi/L necessitates a follow-up test "to be sure." The only radon test in evidence, from the Architect's report, was last completed on April 17, 2019. The EPA Guide proceeds to say that if the follow-up test was a long-term test, then a result of 4 pCi/L would entail remediation and that if the follow-up test was another short-term test that an average of the two tests of at least 4 pCi/L means that a homeowner should "consider" remediation. While Respondent's radon expert disputed that level of 4 pCi/L was actionable, the guidance from the EPA Guide itself, requiring a follow-up test, and a long-term test at that to solidify the need for remediation, shows that the Court does not yet reach this dispute.
The home radon test results that Petitioner did himself was not in evidence for the truth of the matter asserted, but to show what actions Petitioners took.
Be that as it may, Respondent did not rebut the Architect's extensive evidence of water intrusion of the subject premises, which the Architect testified compromised the concrete slab below the subject premises, causing an elevated radon level. As Respondent's second mold report itself recommended mitigation of the water intrusion of the subject premises, the Architect's evidence suggests that such remedial action, combined with a repair of the concrete slab, could ameliorate radon levels in the subject premises. The appropriate course of action, then, based upon the EPA Guide, would be for Respondent to correct that water intrusion and the slab and to hold the balance Petitioner's cause of action to have the Court direct a radon remediation pending a follow-up test after correction of those conditions.
Discussion: EMF
Two of Respondent's expert witnesses testified vigorously not only that EMF levels found in the subject premises bore no connection to health hazards, but that such levels are consistent with everyday use of household electronics, such as hair dryers or can openers. Petitioners, both in their cross-examination of Respondent's expert witnesses and in their post-trial memorandum, portray Respondent's expert witnesses as overly partial to industries opposed to regulation.
Even assuming arguendo that Respondent's expert witnesses were little more than industry shills, however, no identifiable federal, state, or City statute or regulation addresses EMF levels in a residential setting in any way comparable to the radon, as noted above, or mold, or an indoor health hazard such as, for example, lead. See, e.g., N.Y.C. Admin. Code § 27-2056.1 et seq. Indeed, the NIEHS report in evidence declares that the evidence connecting EMF exposure to health consequences is weak. While the Court does not adopt Respondent's view that the absence of a provision from an applicable code dispositively precludes the Housing Court's jurisdiction, litigants seeking to invoke that jurisdiction still must prove their case. And the absence of regulation weighs against Petitioners in this regard. Couple that absence with — even discounted — testimony of two expert witnesses and the NIEHS report, Petitioners face a formidable hurdle to proving that enforcement of housing standards requires remediation of the EMF levels in the subject premises. Page 19 of the Architect's report says that an investigation firm it used said that EMF exposure in the subject premises rendered it unsafe, but the Architect testified on cross-examination that the investigator who said that is not an EMF expert. Petitioner's EMF expert testified that he would want to see if the EMF levels found in the subject premises could be mitigated, but he also testified that there was no direct link between EMF and a particular illness. Countervailing evidence as qualified as this does not outweigh the absence of government regulation, the NIEHS report, and the testimony, even if discounted, of Respondent's two experts.
Be that as it may, the Court credits Petitioner's evidence that Respondent's prior shielding in the subject premises reduced EMF exposure in the subject premises from 2007 to 2008. Paragraph 18(b) of the proprietary lease in evidence makes Petitioners responsible for remediation of all environmental hazards within the subject premises. While this lease provision does not insulate Petitioner from an order to correct in an HP proceeding, Kahn v. 230-79 Equity, Inc., 2 Misc 3d 140(A)(App. Term 1st Dept. 2004), Farber v. 535 E. 86th St. Corp. , 2002 NY Slip Op. 50064(U), ¶ 3 (App. Term 1st Dept.), nothing in the record shows why Petitioners could not install shielding in the subject premises themselves. Co-Petitioner testified that she knew of the product that Respondent successfully used in in 2007. Respondent's EMF expert testified that there is no harm in installing shielding.
New York City Civil Court Act § 10 confers broad discretion upon the Housing Court. While the Court does not find that Petitioners met their burden of proving by a preponderance of the evidence that EMF exposure in the subject premises implicates housing standards to the extent of entitlement to an order to correct, as an accommodation to Petitioners, the Court can enjoin Respondent from interfering with Petitioner's installation of EMF shielding in the subject premises, so long as it does not interfere with Respondent's remediation of the mold there.
Respondent's defenses
Petitioners having proved an extent of an entitlement to relief sought in the petition, the Court considers Respondent's affirmative defenses. Respondent's First Affirmative Defense is that the petition fails to state a cause of action. However, the Court has determined after a full trial that Petitioners have proven an extent of their cause of action. The Second and Fourth Affirmative Defenses alleged that conditions either did not exist in the first place or do not exist now because Respondent has corrected them, allegations that the record at trial does not bear out as determined herein. The Third and Eleventh Affirmative Defenses allege that conditions for which Petitioners seek an order to correct are not violations under state and local laws, regulations, and codes, which the Court holds for reasons stated above is not necessary. The Fifth Affirmative Defense alleges that the time to correct violations has not yet expired. Any order to correct will provide a time frame running from the date of this order, so this defense is unripe.
The Sixth Affirmative Defense alleges that Petitioners had not complained to HPD prior to the commencement of this proceeding. While the statute requires that HPD have thirty days to place a violation before a tenant initiates an HP proceeding, HPD has waived this requirement for all cases after February 11, 1977. Bing Chung Chan v. 60 Eldridge Corp. , 129 Misc 2d 787, 788 (Civ. Ct. NY Co. 1985). The Seventh Affirmative Defense alleges that Petitioners have not pled that HPD has placed a violation. This is not a defense to an HP proceeding as a lawful occupant may commence an HP proceeding against an owner if HPD "fail[s] to issue a notice of violation upon the request of the lawful occupant." N.Y.C. Admin. Code § 27-2115(h)(1). The Eighth Affirmative Defense alleges a denial of access and the Tenth Affirmative Defense alleges that the petition falsely states that Petitioners have not made a prior application for the relief requested, neither of which are cognizable defenses to an order to correct. 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), Vargas v. 112 Suffolk St. Apt. Corp., 66 Misc 3d 1214(A)(Civ. Ct. NY Co. 2020). The Ninth Affirmative Defense alleges that Petitioners agreed to repair conditions in a prior HP proceeding. Even if this was a cognizable defense to an order to correct, the record on this trial contains no evidence of this proposition. Accordingly, the Court dismisses all of Respondent's affirmative defenses, without prejudice to any defenses to any future motions for contempt and/or civil penalties.
Attorneys’ fees
Both the petition and Petitioner's closing memorandum seek a judgment for attorneys’ fees. Each side in litigation in New York State bears its own litigation costs in the absence of a statute or an agreement to the contrary. Flemming v. Barnwell Nursing Home & Health Facilities, Inc. , 15 NY3d 375, 379 (2010). The relevant agreement in the trial record is the proprietary lease between the parties.
Paragraph 28 of the proprietary lease says if Co-Petitioner shall at any time be in default and Respondent shall incur any expense in, inter alia , instituting a proceeding based on such default, then Co-Petitioner shall pay Respondent's reasonable attorneys’ fees. RPL § 234 implies onto residential leases with such clauses a reciprocal obligation on the lessor to pay for a lessee's attorneys’ fees when, inter alia , a lessor's failure to perform a covenant according to the lease occasions a lessee's expenditure of attorneys’ fees. RPL § 234 applies to proprietary leases that cooperatives enter into with shareholders. See , e.g. , 433 Sutton Corp. v. Broder , 107 AD3d 623 (1st Dept. 2013), rev'd on other grounds , 22 NY3d 1161 (2014), Sperling v. 145 E. 15th St. Tenants’ Corp. , 174 AD2d 498, 499 (1st Dept. 1991), including when such shareholders prevail in an HP proceeding they commenced against their cooperatives. Sondhi v. 69 W. 9 Owners Corp. , 46 Misc 3d 1209(A)(Civ. Ct. NY Co. 2015).
The central relief sought in an HP proceeding is an order to correct. N.Y.C. Admin. Code § 27-2115(h)(1). As this order will contain an order to correct the mold, Petitioners therefore have a good argument that they are the prevailing party in this litigation. However, in light of the Court's holding in abeyance Petitioners’ application for an order to correct a radon condition and the Court's denial of an order to correct EMF, the parties have not had a fair opportunity to develop argument regarding their prevailing party status. See 12-14 E. 64th Owners Corp. v. Hixon , 38 Misc 3d 135(A)(App. Term 1st Dept. 2013), 339-347 E. 12th St. LLC v. Ling , 31 Misc 3d 48, 49 (App. Term 1st Dept. 2011), Pelli v. Connors , 7 AD3d 464 (1st Dept. 2004). Accordingly, a determination of claims for attorneys’ fees awaits post-trial motion practice.
Accordingly it is
ORDERED that the Court directs that HPD place a hazardous violations on the kitchen cabinet and the floors of the kitchen, living room, and bedrooms of the subject premises, and it is further
ORDERED that the Court directs Respondent to correct these hazardous mold violations on or before April 30, 2021 with access to be arranged between attorneys for the parties, and by correct the violations, the Court means not just undergoing mold remediation in the kitchen cabinet and in the floors of the kitchen, living room, and bathrooms, but also abating the water intrusion that caused the mold violations, without prejudice to any cause of action and/or defense of either party in any other litigation between them, and it is further
ORDERED that, on default of the order to correct, Petitioners and/or HPD may move for civil penalties or contempt, without prejudice to any defenses to such a motion that Respondent has, and it is further
ORDERED that Respondent may move for an extension of the date by which to correct the violation on good cause shown, without prejudice to any opposition to such a motion, and it is further
ORDERED that the Court directs Respondent to correct the compromised concrete slab beneath the subject premises and the Court otherwise holds so much of the petition as seeks an order to correct a radon condition in abeyance pending the correction of the defect in the slab, the correction the water intrusion and further testing, and any party may restore this case for relief as may be appropriate, and it is further
ORDERED that the Court dismisses so much of the petition as seeks an order to correct for EMF exposure, except the Court enjoins Respondent from preventing Petitioners from taking ameliorative measures themselves to shield the subject premises from EMF, so long as such efforts do not interfere with Respondent's correction of the aforementioned violations, and it is further
ORDERED that the Court dismisses Respondent's defenses, without prejudice to Respondent's defenses and/or causes of action in other litigation between the parties and without prejudice to any defenses to any motion for civil penalties and/or contempt, and it is further
ORDERED that the Court holds so much of the petition as seeks a judgment for attorneys’ fees in abeyance pending appropriate motion practice.
The parties are directed to pick up their exhibits within thirty days or they will either be sent to the parties or destroyed at the Court's discretion in compliance with DRP-185.
This constitutes the decision and order of this Court.