Opinion
6338/19
01-11-2021
Melba MADERA, Petitioner, v. 76-66 AUSTIN OWNERS CORP., Respondent-Corporation, and Elliot Katz, Respondent-Managing Agent, and The Department of Housing and Preservation and Development (DHPD), Respondent.
Samuel Evan Goldberg, Esq., sgoldberg@glnylaw.com, Goldberg & Lindenberg, PC, Attorneys for Petitioner. Edward Hall, Esq., Of Counsel David Brookstone, Esq., edward@brhlawpc.com, Balsamo & Rosenblatt, PC, Brooklyn, Attorneys for Respondents. Helen Lai, Esq., laih@hpd.nyc.gov, Attorney for Respondent- DHPD.
Samuel Evan Goldberg, Esq., sgoldberg@glnylaw.com, Goldberg & Lindenberg, PC, Attorneys for Petitioner.
Edward Hall, Esq., Of Counsel David Brookstone, Esq., edward@brhlawpc.com, Balsamo & Rosenblatt, PC, Brooklyn, Attorneys for Respondents.
Helen Lai, Esq., laih@hpd.nyc.gov, Attorney for Respondent- DHPD.
Enedina Pilar Sanchez, J.
This HP proceeding commenced in October 2019 seeking an order directing the correction of violations, a finding of harassment and a restraining order. The subject premises are located at 76-66 Austin Street, Apartment 2N, Forest Hills, NY 11375. Respondents-owners filed an Affirmation in Opposition. DHPD does not take a position on this harassment claim.
Due to the COVID19 pandemic, the matter was adjourned several times. On August 7, 2020, the parties appeared via Skype teleconferencing pursuant to the protocols established by the Administrative Orders. On August 14, 2020, the Court granted petitioner's order to show cause and the matter was scheduled for pre-trail conference and a trial.
At the pre-trial conference, the Court was advised that the parties reached a settlement. The attorneys were supposed to submit a stipulation of settlement. The settlement fell through and the case was rescheduled for a trial. The trial ensued via Microsoft Teams video conference.
Petitioner's Testimony
Petitioner was provided with a Spanish Interpreter and sworn in. Petitioner was. Petitioner testified that she moved into the apartment 45 years ago with her spouse and daughter. Petitioner testified that she is a rent stabilized tenant and although the building was converted to a "co-op" she remains a rent stabilized tenant.
The Court was asked to take judicial notice of the DHPD website. The Court took judicial notice of the inspection report found on the DHPD website, www.nyc.gov/hpd . The inspection report confirms that conditions in the apartment are in violation of the Housing Maintenance Code (HMC).
Petitioner described the premises. Petitioner testified that Hugo Barrio, the manager of the building, gave her oral permission to replace the kitchen cabinets. Petitioner referred to Mr. Barrio as Hugo throughout her testimony. Petitioner testified that she asked Hugo for permission to change the kitchen cabinets because the cabinets were falling apart. The doors, the drawers, the handles were damaged — she could not open a drawer without it falling out and she could not open the cabinet doors. She testified that Hugo told her that she can change the cabinets but not the bathroom tub. Petitioner testified that this conversation took place sometime during the first week of February 2019. Petitioner testified that sometime on or about March 18, 2019, the superintendent named Alex, came to her apartment and removed the stove from the kitchen. Petitioner believes that the stove was placed in the basement. Petitioner offered into evidence photographs of the kitchen space without the cabinets or a stove.
She testified that after the work in the kitchen commenced, Hugo told her that she needed to stop the work and speak to the "legal department." Thereafter, in November 2019, a "Ten-Day Notice to Cure" was issued by the landlord. The notice was admitted into evidence. The Notice to Cure alleged "you have completely removed the kitchen cabinets, and installed new cabinets." The Notice refers then to Paragraph 5 of the lease. Petitioner testified that contrary to the Notice to Cure, no one came to her apartment on October 2, 2019. She was home all day and waited for someone to arrive.
During cross-examination, petitioner testified that she was not asked to present plans or explain what materials or workers that would be used to replace the kitchen cabinets. Petitioner testified that she usually does not ask the management for repairs except when the bathroom ceiling fell. When questioned, petitioner testified that she called Hugo on the telephone. She knows his voice, so she knows it was Hugo that gave her permission over the telephone.
Petitioner testified that on March 28, 2019, Hugo "stopped the work." After he stopped the work, he would not take her calls. Petitioner testified that she had spoken to Hugo about the stove back in January 2019 when her stove broke. She was given a replacement stove. The replacement stove lasted one month, and this was another time that petitioner spoke to Hugo. The next conversation she had with Hugo was her conversation about the kitchen cabinets.
Petitioner stated that she has been without a stove since March 2019. On or about November 21, 2019, DHPD issued violations for missing kitchen cabinets, sink, uncapped gas supply line, plaster and paint bathroom ceiling, kitchen ceiling and walls, missing floor tiles and electrical outlet. Petitioner testified that no work has been done in the kitchen since the violations issued. She continues to live without kitchen cabinets, a sink or a stove.
Francia Madera, petitioner's daughter, was called as a witness and was sworn in. She testified that she lives in the apartment with her mother. She testified that Alex, the superintendent, removed the stove in order for the cabinets to be removed. Respondent did not cross-examine this witness.
Respondent's Testimony
Respondent-owners called petitioner as its first witness. Petitioner was asked to identify her lease. Petitioner identified the lease and stated that she has lived in the apartment for the last 45 years. The lease dated March 23, 1977 was admitted into evidence. No further questions were asked of the petitioner regarding the lease.
Respondent-owners called Hugo Barrio as its second witness. Mr. Barrio was sworn in and testified that he is employed by United Management and they are the owners of the apartment. They take care of the apartment for the company. Mr. Barrio testified that "petitioner called many times about cabinets." He stated that he went to the apartment, looked at the cabinets, "believe [sic]them to be ok" and did not believe that they had to be changed. Mr. Barrio testified that he did not give permission to replace the cabinets. Mr. Barrio testified that he did not know about the superintendent removing the stove.
The Court notes that the superintendent is called "Alex" by the petitioner and "Almir" by Hugo Barrio.
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On cross-examination, Mr. Barrio testified that he is not always notified when the superintendent does work because Almir "does many things in the building." Mr. Barrio does not remember what repairs the superintendent has done in petitioner's apartment in the past.
Discussion:
I. Correction of Violations
The violations issued by DHPD have not been corrected. Since November 2019, respondent has been on notice that petitioner is without a kitchen sink, kitchen cabinets and a stove. No steps have been taken by the respondents to correct the violations. No steps have been taken to allow petitioner to correct the conditions. This impasse cannot possibly benefit either side. On the one hand, the respondent is subject to civil penalties that may exceed the cost of doing the repairs. On the other hand, petitioner is denied a basic service required under the Housing Maintenance Code (HMC) and pursuant to her rent stabilized lease.
The violations of record must be corrected. Failure to correct the violations may result in the imposition of civil fines and penalties.
The Court finds that petitioner's testimony was credible. Her account of what happened was clear and believable. Petitioner contacted the building manager and asked for permission to replace the kitchen cabinets. Once she was given verbal permission, petitioner proceeded to have the kitchen cabinets removed so that they can be replaced. After the cabinets were removed, Mr. Barrio informed petitioner that she had to contact the legal department before she continues the work. Petitioner attempted to follow the directives, but she was ignored. The situation was just allowed to fester. No sink, no stove, no kitchen cabinets, no usable kitchen.
Petitioner wanted to replace the kitchen cabinets at her own expense. There was no explanation or reason as to why the permission to replace the cabinets could not be given. There was no testimony that the cabinets were antique, special or that they could not be replaced. Nor was there any testimony as to the value of the cabinets. Mr. Barrio testified that he examined the cabinets, however, there were no notes or pictures showing the condition of the cabinets. Mr. Barrio simply stated that the cabinets were "good." The apartment owner may have benefited by the replacement of the kitchen cabinets at petitioner's expense.
The testimony offered by Mr. Barrio was not credible. He could not remember how many times or when he visited the apartment. He did not have any notes, work orders or any other business record as to the apartment and its condition. There was no testimony about alternations that would change the layout of the apartment. There was no testimony that replacing the kitchen cabinets would impose an economic hardship on the owner. Indeed, the petitioner was ready to foot the bill for replacing the kitchen cabinets and the stove. There was no testimony that replacing the kitchen cabinets would disrupt the functioning of the building, or the daily activities of other tenants or render the apartment unmarketable or uninhabitable.
II. Harassment
Respondents' actions rise to the level of harassment and demonstrate acts that could and would have the effect to cause petitioner, a long-term tenant, to pack up and move out, or worse to be evicted. This is a novel issue, where the petitioner undertakes the cost of repairs and replacement and turns into a harassment claim.
Why would there be such a refusal to address and correct a condition which the petitioner was willing to pay for out of her own pocket? Could better kitchen cabinets make living in the apartment more comfortable and less likely for petitioner to want to move out? Petitioner has a 45-year tenancy. Her adult daughter lives with her, and petitioner may want to stay longer with an improved kitchen. The downside for the owner maybe that this rent stabilized tenant may be more comfortable with working kitchen cabinets. Being more comfortable in the apartment is reason to continue residing in the rent stabilized apartment. While the apartment is rendered habitable at the expense of the rent stabilized tenant. The apartment may not be as attractive in the real estate market because it is occupied. This scenario is unusual to the extent that instead of seeking repairs, petitioner offered to cover the cost to get the job.
This case was commenced before the COVID-19 pandemic. The continuing COVID-19 pandemic makes the necessity of having a working kitchen even more pressing. The ability to stay inside and cook meals at home is more important than ever to prevent COVID-19 exposure. Despite the pandemic and despite the open DHPD violations, no steps have been taken to restore the kitchen. Instead, respondent now seeks to evict the petitioner in a holdover case.
Section 27-2005 of the NYC Admin Code states that "[t]he owner of a dwelling shall not harass any tenants or persons lawfully entitled to occupancy of such dwelling ." Harassment is defined as "any act or omission by or on behalf of an owner that 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 " ( NYC Admin Code § 27-2004 [a][48] ). Harassment includes "repeated interruptions or discontinuances of essential services, or an interruption or discontinuance of an essential service for an extended duration or of such significance as to substantially impair the habitability of such dwelling unit " NYC Admin Code § 27-2004 [a][48][2][b] , and "an interruption or discontinuance of an essential service that (i) affects such dwelling unit and (ii) occurs in a building where repeated interruptions or discontinuances of essential services have occurred" NYC Admin Code § 27-2004 [a][48][2][b-1]. Upon a finding of harassment, tenants may seek an order from a court restraining an owner from engaging in such conduct, and to impose civil penalties of not less than $2,000.00 and not more than $10,000.00 NYC Admin Code § 27-2115 [m][2].
Petitioner does not need to establish intent. NYC Admin Code § 27-2004(a)(48)(ii) states that the term harassment "includes one or more of the following acts or omissions, provided that there shall be a rebuttable presumption that such acts or omissions were intended to cause such a person to vacate such dwelling unit or to surrender or waive any rights."
In Cartagena v. Rhodes 2 LLC , 2020 N.Y. Slip Op. 30290(U), 2020 NY Misc. Lexis 458, 2020 WL 554359, in an analysis of a harassment claim, the Court examined the "repeated interruptions of gas, heat, running water, and hot water. Such interruptions of essential services fit squarely into the definition of harassment." See, Dani Lake LLC v. Torres , 64 Misc 3d 1231(A) (NYC Civ. 2019) ; Butler v. Thomas , 200 NY Slip Op 20230 (NYC Civ. August 2020).
Petitioner has established a prima facie case of harassment. Harassment is not always blatantly manifested; they become evident as insidiously intertwined and tangled with other events. Repairs, lack of repairs or interruption of essential services are a form of harassment. This harassment finding could have been avoided by doing repairs or providing essential services. While petitioner arranged for the removal of the stove and the kitchen cabinets, she did so with the verbal consent and knowledge of the managing agent. Petitioner's testimony that she was given permission to replace the kitchen cabinets was credible and dispositive. The testimony that consent was not given, is not credible.
Respondent is directed to correct the violations and restore the kitchen forthwith. In the alternative, respondent must allow petitioner to proceed with the plan to replace the kitchen cabinets at her expense. All work must follow the NYC Building Code, House Rules and all other applicable rules including COVID-19 safety protocols.
This Court finds that petitioner was granted verbal approval to replace the kitchen cabinets. Rescinding said approval after the cabinets were removed, and the apparent refusal to take any steps to correct the situation, constitutes harassment under the law.
The Court is mindful that during this pandemic all sides have been affected and impacted in ways that we may not fully be able to assess at this time. The complete disregard, however, for essential services recognized under the Housing Maintenance Code cannot be denied. Petitioner has been without a kitchen since March 2019. As such, the Court is required to impose a civil penalty under the harassment law. The law requires a minimum penalty of $2,000. The penalty of $2,000 is imposed against the respondent 76-66 Austin Owners Corp.
It is Ordered that respondent-owner harassed petitioner in violation of NYC Admin Code § 27-2005 and that a "C" violation exist; and it is further
Ordered that the civil penalty of $2,000.00 is assessed against the respondent 76-66 Austin Owners Corp., payable to the New York City Department of Housing Preservation and Development; and it is further
Ordered that respondents are enjoined and restrained from engaging in any acts that constitute harassment as prohibited by the harassment law; and it is further
Ordered that respondents restore essential services and correct the violations; and it is further
Ordered that the imposition of civil penalties for failure to correct the violations will be held in abeyance for 30 days from the date of entry of this Decision/Order to allow respondents an opportunity to correct the violations of record.
Upon default, petitioner may restore this matter to the calendar by order to show cause for all appropriate relief.
This constitutes the Decision/Order of the Court.
So ordered.