Opinion
No. 1515/14.
02-06-2015
Freda LEPROVOST, Tenant/Petitioner, v. Shirley PITTS, Landlord, Respondent.
DHPD, New York City. Freda Leprevost, Petitioner, Pro Se. Shirley Pitts, Respondent, Pro Se.
DHPD, New York City.
Freda Leprevost, Petitioner, Pro Se.
Shirley Pitts, Respondent, Pro Se.
SABRINA B. KRAUS, J.
BACKGROUND
This summary HP proceeding was commenced by FREDA LEPROVOST (Petitioner) against SHIRLEY PITTS (Respondent) her landlord, and naming DEPARTMENT OF HOUSING PRESERVATION AND DEVELOPMENT (DHPD), as a statutory party, seeking a finding of harassment in connection with her tenancy at 477 WEST 142 STREET, APT 5, NEW YORK, N.Y. 10031 (Subject Premises).
PROCEDURAL HISTORY
Petitioner commenced this proceeding by Order to Show Cause returnable October 2, 2014. Petitioner alleged Respondent was her landlord and harassed Petitioner daily, including by breaking the lock on the entrance door to the Subject Premises on two separate occasions. Respondent appeared pro se, on the initial return date, and the proceeding was adjourned to October 9, 2014, for Respondent to file an answer.
On October 9, 2014, Respondent filed an affidavit, dated October 6, 2014, although the index number on the affidavit is 1275/2014, it was deemed the affidavit to be Respondent's answer in this proceeding. In the answer, Respondent states that she is the roommate of Petitioner. Respondent acknowledging breaking into Petitioner's room and removing the lock she had installed on the door to her room, but asserts that she did so because Petitioner's lock was blocking access to the fire escape for the other occupants in the apartment to whom Respondent was renting out rooms. The answer also references other related proceedings pending between the parties.
On October 9, 2014, the court marked the proceeding decision reserved to determine whether a trial was warranted based on the parties' pleadings.
On October 15, 2014, the court issued a decision setting the matter down for trial. The decision found that Respondent had been illegally renting out rooms in the Subject Apartment as de facto SROs. The decision noted that Respondent is not the owner of the subject building but set it down for a hearing on the issues raised by the parties pleadings including whether Respondent was a proper party herein.
The trial took place on December 2 and concluded on December 5, 2014. On December 5, 2014, the court reserved decision.
RELATED PROCEEDINGS
Holdover Proceeding Index Number 67568/2014
This proceeding was commenced by Respondent against Petitioner pursuant to a Notice of Termination dated February 19, 2014 which purported to terminated Petitioner's month to month tenancy. The proceeding was originally returnable on June 19, 2014.
On that date the parties entered into a stipulation of settlement converting the proceeding to a nonpayment proceeding. Petitioner consented to entry of a judgment in the amount of $8800.00 for rent due from August 2013 through June 2014 at a rate of $800 per month. The stipulation provided for forthwith issuance of the warrant with execution stayed through July 31, 2014 for payment. The stipulation was so-ordered by the Hon. Jack Stoller in Part C.
The warrant of eviction never issued.
On August 12, 2014, Petitioner moved for an extension of time to pay the arrears. The motion was granted by the court (Hahn, J) per an order which provided that Respondent had until August 26, 2014 to pay arrears of $9600.00.
On September 4, 2014, Petitioner again moved by order to show cause for an extension of time to pay the arrears and also bringing to the court's attention the August 2014 vacate order and the illegality of the use of the apartment as multiple SROs. Respondent failed to appear and the court (Wendt, J)vacated the judgment and dismissed the proceeding on default.
On October 2, 2014, Respondent moved to vacate the default and restore the proceeding. The motion was granted on default, the proceeding was restored to the calendar on October 16, 2014 and the court sent Petitioner a post card with the date.
On December 15, 2014 the proceeding was transferred to Part X for assignment to a trial judge on the original holdover grounds as per the order of Judge Hahn.
On January 15, 2015, this court issued a stay of the trial in the holdover proceeding pending, Respondent's compliance with orders to make repairs in the related HP Proceeding under Index Number 1275/2014. That stay remains in effect pending further orders of this court.
HP Index Number 1275/2014
This proceeding was commenced by Petitioner against Respondent and the HDFC for repairs. It was settled per stipulation on August 12, 2014, wherein Petitioner and Respondent were pro se and the HDFC had not otherwise appeared.
On September 2, 2014, Petitioner moved to restore the proceeding to the calendar alleging Respondent had violated the stipulation. The motion was granted by the court to the extent of directing Respondent to hire a licensed exterminator for the bedbugs.
On September 19, 2014, Petitioner moved for a compliance hearing. The motion was granted on default and a judgment was entered in the amount of $5130.00 against Respondent and the HDFC.
On October 28, 2014, the HDFC appeared by counsel and moved for an order vacating the judgment entered on default. That motion was denied by the court.
On November 25, 2014, Petitioner again moved for a compliance hearing. Respondent appeared and acknowledged repairs had not been made and a further judgment was entered against Respondent and the HDFC for penalties.
On January 13, 2015, Petitioner moved for an order holding Respondent in contempt. The motion was granted by the court to the extent of issuing a stay on the pending holdover proceeding between the parties.
FINDINGS OF FACT
Petitioner testified at the trial. Petitioner testified that Respondent has never lived in the Subject Premises, but rents out rooms in the Subject Premises at a profit. Respondent rented Petitioner a room and a living room inside apartment 5 in the building on or about March 27, 2013. Respondent lives in apartment 7 in the same building.
When Petitioner initially rented the room from Respondent she gave Respondent a deposit and rent. Respondent told Petitioner she could not issue her a lease right away, but presented her with an unsigned lease (Ex 16). Petitioner waited three days for Respondent to install a lock on the door to the room she had rented. Respondent told Petitioner she had to leave the door to her room unlocked. Respondent and Petitioner agreed on a monthly rental of $800.
There are five bedrooms that Respondent rents out separately in the Subject Premises. Respondent rents to four other individuals besides Petitioner.
At some point in her tenancy, Petitioner began to have problems at work and fell behind in rent payments. Petitioner asked if she could pay the rent each month in two parts and Respondent agreed.
However, Petitioner fell behind in the payment of rent and Respondent told her to leave. Petitioner tried to apply for rental assistance with HRA but was denied because she had no written lease. Petitioner also applied to Homebase for assistance but had problems because the use of the apartment was not legal.
Respondent threatened to ruin Petitioner's reputation, to publicize that Petitioner was a victim of domestic violence if Petitioner refused to move out.
In March 2014, Petitioner went to Indiana for a job interview. When Petitioner returned she found papers on her door for a holdover proceeding returnable June 19.
On August 20, 2014, DOB issued three violations for the Subject Premises (Ex 12). Violation number 3510763P was issued for failure to maintain stairways and label floors in the common areas of the building. Violation number 35107651L was issued for the Subject premises. It reads in pertinent part:
Occupancy contrary to that allowed by building dept. records. Noted: Apt # 5 on 3rd Flr is occupied as 5 SROs. Observed common kitchen & 3 Pv Bath, locked doors, personal effects including: Food, Fridge, toiletries, dishes in S.R.O. units. 2 units closest to apt. entry door, kitchen & bathroom are w/o a secondary means of egress. 3 rooms at far rt of corridor w/o secondary means of egress. 2 rms do have secondary means of egress to fire escape ... vacate of 2 rooms closest to apt. entry door is obligatory.
As a result a partial vacate order was issued. Violation No 35107652 N was also issued on the same date based on the same conditions.
Petitioner stated that Respondent's harassment of her became extreme after DOB issued these orders. Petitioner testified that Respondent had two men harass her and attempt to forcibly enter her apartment. One of the men followed her on the street in a car for six blocks on or about August 22, 2014.
Another man, Akil Rose, entered her room with his own keys before Petitioner had changed the locks on August 27, 2014. He hid in her room and Petitioner had to call the police to forcibly remove him. Rose was removed by the police from the Subject Premises at approximately 3am on August 27.
On or about September 18, 2014, Petitioner left the Subject Premises for approximately 30 minutes, and when she returned the front door to her room has been broken down and removed, and some of Petitioner's property damaged. Petitioner filed a complaint for this with NYPD, which was classified as criminal mischief.
Respondent has also called Petitioner names such as prostitute and denied Petitioner access to the mailbox for the Subject Premises. Petitioner has consistently sought repairs in the premises which Respondent has refused to make.
Mercy Awah (Awah) also testified on behalf of Petitioner and is renting out a different room from Respondent in the same apartment. Awah moved in on February 14, 2013 and rented one room from respondent. Awah pays Respondent $600 per month for said room. Awah was told she was renting a furnished room but only a bed and mattress were provided. The room rented by Awah was infested with bedbugs. When Awah reported the bed bugs to Respondent, Respondent threatened Awah.
Awah testified that the refrigerator in the Subject Premises doe not operate properly, that the toilet does not flush well and that tiles are falling off the walls.
When Awah first moved in there were 4 other people living in the apartment renting rooms from Respondent. Awah had no hot water when she moved in until April or May and the heat is sporadic. Awah reported all conditions to Respondent. Awah pays Respondent rent with bank checks.
On the morning of September 8, 2014, Awah heard Respondent, Akil Rose, and one other man break into the Subject Premises by first using a key, and then breaking the chain holding the door shut.
On September 19, 2014, when the locksmith came to install new locks on Petitioner's room, Respondent's son came in and called the police. Respondent's son and another man demanded that Petitioner move out and asked why Petitioner was giving Respondent problems.
After the second set of police arrived the new locks were installed.
Respondent testified on her own behalf. Respondent testified that she has organized the building since the 1970–s and that since that time she has rented out rooms in the subject apartment. Respondent rented a room to Petitioner but Petitioner was not consistent with timely payment of rent, and insisted on repairs. Respondent testified that it is her building and it is Petitioner who is harassing her. Respondent testified that she pays $1200 per month rent for the apartment, and collects $2600 per month from tenants when she has rented out 4 of the rooms. Respondent testified that Petitioner is trying to take over her “business.”
Respondent submitted a lease in evidence dated February 1, 2013, for the Subject Premises, but listing Respondents's address as Apartment 7 at the Subject P, and thereafter renewable for additional five year terms. remises. The lease purports to be for a five year term through January 30, 2018. The lease is purportedly signed by Margaret Callender on behalf of 477 West 142nd Street HDFC (Ex F).
While Respondent denied receiving previous vacate orders for illegally renting out the rooms in the Subject Premises, she has done so not only with the Subject Premises, but also with other units in the building. For example, DOB records indicate a partial vacate order was issued for Apartment 8 on the fifth floor which was illegally being rented as 5 separate SRO units (DOB Violation # 102512CO9MT01, 02, 03; ECD Violation # s 34993598Y 34993350K) on October 25, 2012. Respondent claims she is the tenant of record not only of the Subject premises but also apartments 7 & 8 in the Subject Building.
Respondent also charged Petitioner a “fee” for renting the room. Respondent testified that she collected this “fee” on behalf of an agent for the building. Respondent acknowledged that she refused to provide Petitioner with a key to the mailbox as Petitioner was only renting one room, Respondent does not believe she is entitled to a key. Respondent claims she no longer has a key to the mailbox for the Subject Premises.
Respondent acknowledged that she has refused to make any repairs since Petitioner moved in because she does not feel Petitioner is entitled to repairs.
Respondent testified that she is not familiar with the entity known as Family Mgt Realty but that she has seen that name on document related to the building. Respondent had heard of Solomon and Roth Holdings Inc and understood that they were “Jewish men” interested in purchasing the building in 2013.
Rent registrations for the Subject Premises show an initial registration in 1984 lisiting Delois Blakely as the tenant of record. Blakely was listed as tenant receiving Section 8 subsidy on and off through 1994. There was no registration filed for the premises from 1995 through 2006. In 2007 the premises was registered as temporarily exempt. No registration was filed for the premises from 2008 through 2013 (Ex 5).
The Subject Building is in the AEP Program. A deed dated December 7, 1982 conveys title in the Subject Premises to 477 West 142nd Street HDFC (Ex H).
DOCUMENTATION REGARDING OWNERSHIP
The identity of the owner of the Subject Building is not easily discerned.
On December 7, 1982, a deed was issued from the City of New York to 477 West 142nd Street HDFC. The deed included a covenant on the part of the HDFC not to sell exchange or otherwise dispose of the premises for the next ten years.
In 2004, the City commenced in rem tax foreclosure in Supreme Court, New York County, Index Number 580001/04, which resulted in a judgment of foreclosure and sale dated June 26, 2007. However that judgment provided in penitent part:
in the event the Parcel is not conveyed to the City or to a third party deemed qualified by the Commissioner of HPD within the statutory eight-month period, plus a 45–day toll for City Council review for transfer to a third party ... the Commissioner of Finance shall direct the Corporation Counsel of the City of New York to prepare and cause to be entered an order discontinuing the instant in re tax foreclosure ... and vacating and setting aside the final judgment....
In September 2007 a mortgage for the building was recorded lasting the HDFC as the mortgagor and Madison Park Investors LLC and E.R. Holdings LLC as the mortgagees. The mortgage is signed by Respondent as President of the HDFC.
There are subsequent recorded deeds. One where an individual named James Gaskin deeds the building to himself that is dated November 3, 2011, and another where Gaskin deeds the premises to Solomon and Roth Holding LLC dated July 29, 2013. Both appear invalid on their face.
It appears that the HDFC remains the legal owner of the building and that Respondent is an officer, of the HDFC. Respondent submitted Board minutes from 2013 purporting to recognize her as President to the HDFC (Ex B).
Respondent has been a party to various litigations as an agent for the owner in Blakely v. Pitts et al, Supreme Court, New York County, Index Number 115368/2007. In that case Judge Tingling issued a decision recognizing Respondent as a board member entitled to act on behalf of the HDFC (see transcript from October 7, 2010 in court file).
Additionally Respondent has illegally rented out apartment 8 in the Subject Building as SROs and commended a holdover proceeding where she alleges she is a roommate of the tenants in that apartment as well. The court takes judicial notice of Index Number 67567–2014. Thus Respondent has acted not only as if she is acting on behalf of the owner in converting various apartments in this building into unlawful SROs for her own profit, but almost as if she individually was the owner of the building.
DISCUSSION
The Administrative Code of the City of New York, Housing Maintenance Code Section 27–2004[a][48] defines “harassment” as: any act or omission by or on behalf of an owner that (i) causes or is intended to cause any person lawfully entitled to occupancy of a dwelling unit to vacate such dwelling unit or to surrender or waive any rights in relation to such occupancy, and (ii) includes one or more of the following: (a) the use or threatened use of force; (b) repeated interruption or discontinuance of essential services; (c) failing to comply with a HPD issued vacate order; (d) commencing repeated baseless or frivolous court proceedings against the tenant; (e) removing the tenants's possessions; (f) removing the entrance door to the tenant's apartment, or removing, plugging or disabling the lock to such entrance door, or changing the lock on such entrance door without supplying the tenant a new key; or (g) other repeated acts or omissions of such significance as to substantially interfere with or disturb the tenant's comfort, repose, peace or quiet and that causes or is intended to cause the tenant to vacate or surrender or waive any rights in relation to such occupancy.
The Administrative Code provides a finding of harassment may be made against someone acting “by or on behalf of an owner ...”.
“The term owner' shall mean and include ... lessee, agent, or any other person, firm or corporation, directly or indirectly in control of a dwelling [NYC Admin Cod § 27–2005(a)(45) ].” Owner has been held to include a managing agent (DHPD v. 849 St. Nicholas 141 Misc.2d 258 ), a condominium association (Smith v. Parkchester North 163 Misc.2d 66 ) and an officer of a corporate landlord (DHPD v. Livingston NYLJ July 9, 1996, p. 29, col. 4).
Based on the foregoing, the court finds that Respondent meets the statutory definition of owner and is a proper party herein.
Respondent has harassed Petitioner by breaking down her door, breaking into her room, destroying her property, having other intimidate her, and denying Petitioner essential services.Respondent has tampered with and withheld mail for Petitioner. These acts have been intended to illegally force Petitioner out of possession of the Subject Premises, and to allow Respondent to individually profiteer on what is intended to be low income housing by creating unlawful SRO units within apartments meant to be a single family residence.
Respondent has intentionally and admittedly failed to make repairs and correct outstanding violations.
Based on the foregoing the court finds that Respondent has harassed Petitioner pursuant to Section 27–2005(d) of the Administrative Code of the City of New York and a Class “C” violation existed at the time the harassment occurred.
Respondent is restrained from violating Section 27–2005[d] and directed to ensure that no further violations occur. Respondent is hereby fined $5000 for said violation. Respondent is directed to provide Petitioner with a mailbox key forthwith.
This constitutes the decision and order of this Court.