Opinion
HP 6463/03.
Decided September 7, 2005.
Legal Services for New York City (Susan M. Cohen of counsel), New York City, for petitioners.
Belkin Burden Wenig Goldman, LLP (Matthew S. Brett and Joseph Burden of counsel), New York City, for respondents Edward Slinin and East 45th Development LLC.
Housing Litigation Division (Valentine J. Moretti of counsel), New York City, for co-respondent Department of Housing Preservation and Development (DHPD).
After a hearing held on November 3, 17, 23, and 24, 2004, December 1, 2, and 14, 2004, January 6, 12, and 31, 2005, February 8 and 15, 2005, March 8, 11, and 14, 2005, April 1, 13, and 22, 2005, and May 12 and 16, 2005. (Tape 69522, start 1036; tape 69726, start 1506-end; tape 69789, start 0-241; tape 69789, start 240-1350; tape 69824, start 2800-7249; tape 69825, start 0-1387; tape 69961, start 516-1730; tape 70076, start 6800; tape 70183, start 6770-7190; tape 70184, start 0-7187; tape 70227, start 0-807; tape 70343, start 2268-2350; tape 70514, start 2538; tape 70666, start 4340-7187; tape 70667, start 0-721; tape 70698, start 5671-7217; tape 70699, starts 0-2928 and 4891-7210; tape 70977, start 3119-7222; tape 71004, start 0-4062; tape 71055, start 3688-7227; tape 71100, start 0-1820; tape 71233, start 1976; tape 71281, start 500-4650.)
In this Housing Part (HP) proceeding, petitioners seek to hold respondents East 45th Development LLC and Edward Slinin, the LLC's head officer and managing agent, in civil and criminal contempt. The parties entered into a stipulation on February 17, 2004, in which respondents agreed to effect by March 16, 2004, certain repairs in petitioners' apartments and in the subject premises' common areas. Petitioners allege that respondents did not repair fully and timely. For the following reasons, the court agrees with co-respondent DHPD that both respondents should be held in civil contempt for failing to correct violations the stipulation required. The court also agrees with DHPD that neither respondent should be held in criminal contempt. Petitioners did not prove beyond a reasonable doubt that respondents acted with a high degree of willfulness when they violated the stipulation.
I. Procedural History
Petitioners began the underlying HP proceeding with an order to show cause dated October 23, 2003, seeking repairs in apartments and common areas in the subject building, located at 251 East 45th Street, New York, New York. On November 24, 2003, petitioners interposed a notice of appearance and amended petition. The parties entered into a handwritten so-ordered stipulation on February 17, 2004. The LLC was named in the caption, but Slinin was not. Under the stipulation's terms, petitioners agreed to provide access, and respondents agreed to complete all "work as required by law that is set forth in petitioners [sic] repair list." (Stipulation at 1.) Petitioners gave respondents a repair list on February 18, 2004, containing 206 conditions. The stipulation required respondents to complete as required by the stipulation all work in the building by March 16, 2004. Petitioners' counsel, respondents' counsel, Sheldon Shainkowitz — the LLC's Chief Financial Officer (CFO) — and DHPD signed the stipulation.
On March 22, 2004, DHPD reinspected the building and found that violations were still outstanding. Relying on that reinspection and other evidence, petitioners moved on May 19, 2004, to punish respondents for civil and criminal contempt for respondents' alleged failure to effect the repairs under February 2004 stipulation.
The Honorable Kevin C. McClanahan began a contempt hearing but declared a mistrial on August 19, 2004, when he learned he was being rotated from the HP to a different assignment. The current contempt hearing began on November 3, 2004. Once the hearing began, this court heard applications, testimony, and oral argument over the course of 20 days and has received from each litigant two sets of post-hearing memorandums of law.
Since this proceeding commenced, petitioners Karen Schlueter of apartment 4-E and Nina Vig Harris of apartment 3-W settled their claims with respondents. Schlueter and Harris are no longer parties to this proceeding. Only Elizabeth Downs and Mary Bruschi, the additional petitioners, remain as petitioners in this contempt proceeding. Downs resides in apartment 4-W; Bruschi, in 2-E.
Petitioners initially complained that respondents did not correct 86 of 206 conditions on the repair list. After Harris settled her claims, petitioners reduced that number to 78.
II. Findings of Fact
Five witnesses testified at the contempt hearing. Two witnesses testified for petitioners: Downs and John Bruschi, Mary Bruschi's son. Testifying for respondents were Shainkowitz; Ernest Pinkhasov, respondents' general contractor; and Ronald Karp, the premises' building manager.
Bruschi and Downs testified credibly. Bruschi testified to conditions in the apartment of his mother, who is 97 years old. Although he lives elsewhere now, he lived in his mother's apartment for 25 years and went there regularly while this proceeding was ongoing. Among the conditions he said respondents did not repair by the March 2004 deadline were that the entry door to his mother's apartment did not close properly, the bathroom sink was rusty, the plaster behind the toilet had holes, the bathroom ceiling and floor had holes, the water pressure was inadequate, and the tap water warmed slowly. Bruschi testified that respondents did some work in his mother's apartment, such as painting it and replacing the windows.
Downs testified about the conditions in Schlueter's and Harris's apartments. Given that Schlueter and Harris settled their claims, the court may not consider testimony about conditions in their apartments, except, as explained below, as it pertains to respondents' mental state affecting criminal contempt. The court may, however, consider Downs's testimony about conditions in the common areas.
Among the untimely repaired conditions in the common areas, Downs claimed, were that garbage and construction debris piled up in the hallway and stairs, the outer door was difficult to open, a one-inch gap separated the floor and door to the outside, the hallways were inadequately lit, and commercial staples stuck out of the stairs.
Downs stated that she gave access to respondents' workers whenever work was scheduled but refused access when they sought unscheduled access. Downs further explained that she cooperated with respondents by providing a detailed access schedule each week. But, according to Downs, the workers sought unscheduled access to apartments, worked as scheduled from time to time but only for short periods, and failed to show up on many scheduled access dates.
Shainkowitz, Pinkhasov, and Karp testified for respondents. Shainkowitz stated that he oversaw the repair work and that he helped the tenants arrange access and repairs in their apartments. According to Shainkowitz, respondents corrected most of the violations in the building. Shainkowitz testified that respondents installed a new boiler, arranged for an exterminator, painted apartments and common areas, repaired plumbing fixtures, replaced windows, retreaded the stairs, and fixed the roof. Shainkowitz also alleged that John Bruschi told Slinin that he, Bruschi, was satisfied with the work in his mother's apartment.
Karp testified that it was his job to interact with tenants to resolve complaints, oversee payment for repairs, and address repair problems. Karp stated that he always addressed repairs immediately after receiving a complaint.
Pinkhasov testified that respondents hired his company as the general contractor to repair the building. According to Pinkhasov, respondents paid his company between $20,000 and $30,000 for his efforts. Pinkhasov claimed that the tenants told him they were happy with his company's repairs. Pinkhasov also stated that his company fixed many conditions, including installing a new front door lock, replacing the mailboxes, re-tiling the common areas, retreading the stairs, painting both common areas and apartments, repairing the plumbing, and putting in new windows.
Through Karp and Pinkhasov, respondents offered into evidence dozens of receipts purporting to show work done in the building. Some receipts specify what work was done, such as $420 to install a new sump pump. Other receipts are vague, such as those listing only "repair expenses," or contain a list of supplies purchased without any explanation, such as unitemized receipts from Home Depot. Most receipts are irrelevant or unhelpful, moreover, because they predate the February 2004 stipulation, postdate the March 2004 repair-completion deadline, or are undated. Only a handful are dated between February 17 and March 16, 2004, the relevant period in this proceeding. Still other receipts are indecipherable; they are written in Russian and were not translated at the hearing. From respondents' receipts, it is impossible to tell what work they completed.
In the face of Bruschi's and Down's credible testimony about what work was not completed, the court rejects Pinkhasov's testimony that the tenants were happy with the repairs. The court also rejects Shainkowitz's testimony that John Bruschi told Slinin he was satisfied with the repairs made to his mother's apartment. Shainkowitz overheard Slinin speaking with John Bruschi about a proposed buyout of Mary Bruschi's apartment. The court cannot conclude that Shainkowitz understood the context of the conversation or interpreted John Bruschi's words accurately. Furthermore, Slinin never testified at the hearing to explain his version of the conversation. He never even appeared in court during the contempt hearing. If a witness does not testify in a civil proceeding, the factfinder may draw whatever negative inference the opposing evidence permits. ( Matter of Nassau County Dept. of Soc. Servs. v. Denise J., 87 NY2d 73, 79; Matter of Commr. of Soc. Servs. v. Philip De G., 59 NY2d 137, 141.) That rule has special force when the witness is a litigant. This court draws all inferences against both respondents — about Slinin's conversation with Bruschi and about everything else having to do with Slinin.
Pinkhasov testified without giving specifics like names, dates, and apartment numbers that petitioners often refused to grant access to his workers, whereas Downs stated that respondents did not adhere to the agreed-upon access schedule. The court believes Downs. Petitioners gave respondents an access schedule and, although respondents completed work, they often did not repair as scheduled or worked for only a few hours on many scheduled access dates.
Respondents never gave the court a contemporaneously written punch list or tenant sign-offs to prove they effected repairs. In this regard, respondents never offered into evidence the kinds of repair records or contracts a landlord large enough to have a CFO would be expected to secure and retain.
As opposed to respondents' testimony and evidence, Bruschi's and Down's version of events is corroborated by comparing petitioners' repair list with the DHPD inspection and reinspection reports in evidence. Respondents' lack of evidence further corroborates petitioners' testimony. Respondents corrected many violations, as explained below. But to the extent that the testimony they adduced contradicts petitioners' testimony, the court believes petitioners. Part of the court's reasoning for favoring petitioners is that Shainkowitz and Karp contradicted each on material issues.
Given all the evidence, the court concludes as follows. Petitioners included 206 conditions in their February 2004 repair list. Of those 206, petitioners mentioned at the hearing nothing about 101 conditions but claim that respondents did not correct 78 conditions by the March 2004 deadline. Of the 78, petitioners allege that 28 were or still are DHPD-placed violations. But petitioners count some violations more than once, DHPD placed some violations after the March 2004, deadline, and some violations were in Schlueter's and Harris's apartments. According to DHPD, respondents cured 27 violations during the contempt period.
The court finds that respondents did not correct 16 violations by the March 2004 deadline: five Housing Maintenance Code (HMC) class "C" violations, seven class "B" violations, three class "A" violations, and one Environmental Control Board (ECB) violation. If the violations in Schlueter's apartment are taken into account to determine respondents' degree of wilfulness, respondents did not correct three more violations: one class "C" and two class "B" violations. DHPD's Emergency Repair Program (ERP) unit corrected another 11 violations. The court also determines retroactively that 10 additional conditions from petitioners' repair list were violations as of February 2004. The total number of violations uncured by the March 2004 deadline, therefore, is 29.
Class "C" violations are the most serious and are classified as "immediately hazardous." (HMC § 27-2115 [c] [3].) A landlord must correct class "C" violations within 24 hours after the violation is placed. ( Id.) Class "B" violations are classified as "hazardous." (HMC § 27-2115 [c] [2].) A landlord must correct class "B" violations within 30 days. ( Id.) Class "A" violations are classified as "not hazardous." (HMC § 27-2115 [c] [1].) A landlord must correct class "A" violations within 90 days. ( Id.)
By the March deadline, respondents, on the other hand, corrected at least 27 violations on the repair list and 29 violations not on the repair list, and perhaps as many as 80 violations. By another calculation, respondents during the contempt period corrected as many as 181 conditions and violations that were on the repair list or were not on the repair list.
III. Scope of Contempt
The February 2004 stipulation provides that "[t]he parties hereby consent to an order whereby petitioner's [sic] agree to give access and respondent E. 45th Street Development will complete the work as required by law that is set forth in petitioners [sic] repair list." Petitioners argue that respondents were required to repair all conditions (1) on the repair list of February 18, 2004, and (2) all recorded violations on the subject premises. The court disagrees. Under the stipulation, respondents were required to correct only those conditions on the repair list that constituted HMC class "A," "B," or "C" violations or violations of another code that regulates the health and safety of occupants of residential premises. ( See e.g. Amsterdam v. Goldstick, 136 Misc 2d 831, 832 [Hous Part, Civ Ct, NY County 1987] [noting difference between "conditions," which statutes and regulations do not require landlords to repair, and "violations," which statutes and regulations require landlords to repair].) For three reasons, respondents were not required to correct any condition or violation not on the repair list, and respondents were not required to correct any condition that was not a violation.
First, a plain reading of the stipulation shows that respondents were not required to repair all the repair list's conditions or to cure all violations placed on the building. The stipulation's phrase "as required by law" is qualified by "as set forth in petitioners [sic] repair list." The stipulation required respondents, by March 16, 2004, to correct conditions that were HMC or like-code violations on petitioners' repair list, and nothing else.
Second, some conditions on the repair list were violations. Respondents fairly assumed that the repair list merely set forth the repairs petitioners wanted respondents to repair most urgently.
Third, the stipulation's language required respondents to repair only conditions constituting violations. By using the repair "as required by law" phraseology, petitioners highlighted the conditions they contended were violations, thereby listing the violations they wanted respondents to repair in the month from mid-February to mid-March 2004 as provided for in the February 2004 stipulation.
Inspect-and-repair "as required by law" language is common in stipulations and orders resolving nonpayment, holdover, and HP proceedings. Litigants in New York City stipulating to "inspect and repair as required by law" can proceed without a trial or hearing or DHPD or Department of Buildings (DOB) inspection or reinspection to determine whether a condition violates the HMC, Building Code, Air Code, Noise Code, Fire Code, or similar enactment designed to protect the health and safety of residential occupants and to preserve the housing stock. ( See Civ Ct Act §§ 110 [a], 203 [k] [giving Civil Court jurisdiction over HMC, Building Code, and like codes]; Shanzer v. Vendome, 7 Misc 3d 1018[A], 2005 NY Slip Op 50658[U], *2, 2005 WL 1035584, at *2 [Hous Part, Civ Ct, NY County, Apr. 27, 2005] [same].) When litigants agree to inspect and repair as required by law, they agree to determine without DHPD, DOB, or court intervention whether a condition is a violation.
Under a stipulation that provides for repairs to be completed "as required by law," the tenant must grant the landlord access, and the landlord must repair conditions that violate a code. If the landlord does not correct an alleged condition, the tenant may move for contempt. At the contempt hearing, the court will determine retroactively whether the condition was a violation. If the court determines that unrepaired violations existed, the landlord may be held in contempt.
As the Court of Appeals explained long ago, "Such expressions as 'required by law,' 'regulated by law,' 'allowed by law,' 'made by law,' 'limited by law,' 'as prescribed by law,' 'a law of the State,' are of frequent occurrence in the Codes and other legislative enactments; and they are always used as referring to statutory provisions only." ( Brinckerhoff v. Bostwick, 99 NY 185, 190-191; accord People v. Dorsey, 176 Misc 932, 936-937 [County Ct, Queens County 1941].) The phrase "as required by law" in a Housing Part stipulation or order concerning repairs refers to conditions constituting HMC and like-code violations. Thus, a landlord that consents to an inspect-and repair-as-required-by-law stipulation waives all statutory or common-law defenses against a motion for an order to correct and must fix the violation as a matter of law.
Inspect-and-repair language results from a bargained-for exchange. Using that language avoids delay that would otherwise be caused by adjourning the case for the court to determine whether the conditions are violations ( see Mite v. Pipedreams Realty, 190 Misc 2d 543, 544 [Hous Part, Civ Ct, Bronx County 2002] [noting that "an order to correct may issue once a violation is placed by the City, or by the court after a hearing"]) or for a DHPD inspection or reinspection to determine whether the alleged conditions are violations. If a landlord inspects a condition and contends it is not a violation, the landlord need not repair the condition. If the landlord opts not to repair, the tenant may restore the matter to the calendar on a contempt motion for a hearing to determine whether the condition was a violation.
Inspect-and-repair language benefits both parties. A tenant avoids delay and might secure the landlord's consent to repair a condition that was not a violation. The landlord avoids the expense of a hearing, must fix only violations, and avoids a post-trial court order that might place additional violations on the subject premises. But inspect-and-repair language requires a landlord to comply with the law. If, after the landlord inspects the conditions, the parties still disagree about whether a condition constitutes a violation, the tenant will suffer added delay and expense awaiting a contempt hearing. And if the court determines retroactively that any unrepaired condition is a violation — and the court does so below — the landlord may be held in contempt for failing to repair any violation remaining on the premises.
If any unrepaired conditions listed in repair list attached to the February 2004 stipulation were violations and still existed after March 16, 2004 — the contempt period — then respondents violated the stipulation and may be held in civil or criminal contempt, or both. The court held this contempt hearing to adjudicate that question.
IV. Civil Contempt
A court that finds that a litigant disobeyed a court's lawful mandate may hold that litigant in civil contempt. (Judiciary Law § 753 [A] [3]; see also CPLR 5104 [contempt in general]; NYC Admin. Code [HMC] § 27-2124 [same]; Civ Ct Act § 110 [e] [authorizing Civil Court Housing Part judges to punish for contempt].)
The Court of Appeals in Matter of McCormack v. Axelrod ( 59 NY2d 574, 583 [1983, per curiam]) articulated a four-pronged test for civil contempt, which vindicates private rights, as opposed criminal contempt, which vindicates public rights and the court's integrity. Before a court may punish for civil contempt, the movant must prove (1) that a lawful court order that was in effect clearly expressed an unequivocal mandate, (2) to a reasonable certainty that the order was disobeyed, (3) that the contemnor knew about the order (although the contemnor need not have been served with the order), and (4) that the movant was prejudiced. ( Id. at 583.) The court considers each McCormack factor in turn.
A. Was the Stipulation a Lawful Court Order Expressing a Clear and Unequivocal Mandate?
A so-ordered stipulation constitutes the court's lawful order. Violating a so-ordered stipulation is punishable by contempt. ( E.g. Ross v. Congregation B'nai Abraham Mordechai, 8 Misc 3d 136[A], 2005 NY Slip Op 51224[U], *2, 2005 WL 1819388, at * 2 [App Term, 1st Dept, Aug. 2, 2005, per curiam]; Various Tenants of 446-448 W. 167th St. v. DHPD, 153 Misc 2d 221, 222 [App Term, 1st Dept 1992, per curiam], affd on majority opinion below 194 AD2d 311 [1st Dept 1993, mem]; Bill Hotel v. Little, NYLJ, Oct. 15, 1984, at 15, col 3 [App Term, 1st Dept, per curiam]; S. Park Assocs. v. 230 Park S. Apts., Inc., 3 Misc 3d 1111[A], 2004 Slip Op 50569[U] * 3, 2004 WL 1381098, at *3 [Sup Ct, NY County, Apr. 22, 2004].) A litigant may secure contempt based on a violated stipulation that does not contain a provision providing for contempt. The court so-ordered the February 2004 stipulation. It constitutes the court's lawful order.
Respondents argue that the language "as required by law that is set forth in petitioners [sic] repair list" is vague and that the stipulation's ambiguity prevents the court from holding respondents in contempt.
A litigant may not be held in contempt for violating a vague court order. ( Matter of Dept. of Environ. Protect. of City of NY v. Dept. Environ. Conserv. of State of NY, 70 NY2d 233, 241 [1987, per curiam]; McCormack, 59 NY2d at 583; Pereira v. Pereira, 35 NY2d 301, 308.) Respondents had no legal right to disregard the February 2004 stipulation: They never moved to vacate the February 2004 stipulation or sought aid from the court to resolve any supposed ambiguity. But more than that, the February 2004 stipulation is clear. When litigants agree to correct "as required by law," they agree, as explained above, to correct every condition that constitutes an HMC or like-code violation.
The February 2004 stipulation clearly expresses the court's unequivocal mandate. The stipulation lists all the conditions petitioners contended must be repaired by law. If respondents did not make all the repairs the stipulation required, then they violated the stipulation.
B. Did Respondents Violate the Stipulation?
According to Petitioners' Summary of the Evidence Post-Trial Memorandum of Law of July 22, 2005, respondents either never fixed or fixed after the March 2004 deadline several violations DHPD placed on the building before or during the contempt period. If respondents violated the February 2004 so-ordered stipulation by failing to correct conditions constituting violations by the March 2004 deadline, then respondents disobeyed a court order.
Petitioners testified that respondents never fixed 11 distinct violations dating from the contempt period, excluding the violations in Schlueter's and Harris's apartments and some violations placed more than once for the same condition. An undated DHPD inspection report annexed as Exhibit "B" to Petitioners' Reply Affirmation of July 12, 2004, confirms petitioners' contention. Petitioners also allege that respondents fixed five distinct violations after the March deadline. The court believes petitioners. Of the violations respondents corrected after the March deadline, respondents repaired them between May 2004 and August 2004, months after the March deadline. Respondents should have corrected the 16 violations petitioners claim were never fixed or fixed late.
Petitioners further claim that respondents never fixed or fixed after the March 16 deadline 20 violations DHPD placed after the contempt period. But DHPD placed these 20 from April through June 2004, after the contempt period ended. Petitioners argue that because DHPD found those violations after the contempt period, the conditions were likely violations during the contempt period and that the court should classify them as such. But because DHPD did not record those conditions as violations before or after March 2004, it is likely that the conditions were not violations when DHPD inspected before the contempt period. Respondents thus benefit from the rebuttable presumption that if DHPD does not place a violation, it is because the alleged violation does not exist. ( Cf. MDL § 328 [3] [b] [imposing rebuttable presumption if DHPD places violation]; Hoya Saxa, Inc. v. Gowan, 149 Misc 2d 191, 192, [App Term 1st Dept 1991, per curiam] [same].) Accordingly, the 20 violations Dhpd placed after March 16 were not violations during the contempt period, and the February 2004 stipulation did not require respondents to repair them.
As explained above, the stipulation's inspect-and-repair language allowed this court to determine retroactively whether the conditions were violations. In addition to the 16 violations above, the court finds that as of February 16, 2004, the following 10 conditions on the repair list were violations that respondents never fixed or which respondents fixed after the March 16 deadline: Respondents did not prominently display in the entryway the manager's contact information, exterminate the waterbugs and roaches throughout apartment 2-E, repair apartment 2-E's entry door jamb, adequately paint the public hallways and stairs above the third floor, remediate the split wood treads on first and second floors, remove large commercial staples sticking out of the stairs between the first and second floors, re-tile floors in the entryway and lobby of the building, re-tile floors in the second floor of the building, repair holes and broken plaster in apartment 2-E's bathroom walls, and straighten uneven floors in the entryway to apartment 2-E. As to these violations, the court finds that respondents have rebutted the presumption that DHPD's not placing a violation means that no violation existed.
The court finds, therefore, that respondents never corrected or did not by March 16 correct from the repair list 26 violations, including the above judicially replaced violations.
Respondents claim they substantially complied with the stipulation. As explained below, they corrected more than half the violations on the repair list. But neither substantial compliance nor a good-faith effort at compliance is a defense to civil contempt. ( McCain v. Dinkins, 84 NY2d 216, 225; Peters v. Sage Group Assocs., 238 AD2d 123, 123 [1st Dept 1997, mem].) And not correcting 26 violations is not substantial compliance or a good-faith effort at compliance in any event.
Respondents did not complete by the March deadline all repairs required by law, as the February 2004 stipulation required. The court finds that respondents disobeyed the court's lawful order. The next issue is whether respondents were aware of the stipulation.
C. Did Respondents Know About the Stipulation?
Both Shainkowitz and respondents' attorney signed the stipulation on respondents' behalf. Respondents knew or should have known about the stipulation when their attorney, acting as their representative, signed the stipulation for the LLC. ( See Hallock v. State of NY, 64 NY2d 224, 231 [holding that attorney has apparent authority to enter into binding settlement]; 1420 Concourse Corp. v. Cruz, 175 AD2d 747, 749 [1st Dept 1991, per curiam] [same]; 346-52nd Realty, LLC v. La Estancia, Ltd., 7 Misc 3d 134[A], 2005 Slip Op 50684[U], *1, 2005 WL 1106593, at *1 [App Term, 1st Dept, May 9, 2005, per curiam] [same].) Additionally, Shainkowitz — the LLC's CFO — had apparent authority to bind respondents to the stipulation. Furthermore, given Slinin's failure to testify, the court infers that as the LLC's principal, he communicated "by words or conduct" his authority to his attorney and his CFO to enter into the stipulation. ( See Hallock, 64 NY2d at 231.)
Respondents' attorney and the LLC's CFO had apparent — if not actual — authority to bind respondents, both the LLC and Slinin, to a stipulation signed in open court. Respondents cannot now claim ignorance of the stipulation.
If, therefore, respondents' noncompliance with the stipulation prejudiced petitioners, the fourth McCormick element, then respondents must be held in civil contempt.
D. Did Respondents' Non-Compliance With the Stipulation Prejudice Petitioners?
When a court requires a landlord to make repairs in a tenant's apartment and the landlord fails to do so, the landlord's failure to effect the repairs necessarily prejudices the tenant. ( Various Tenants of 446-448 W. 167th St., 153 Misc 2d at 222 [finding that if repairs are not completed according to stipulation, "tenants' rights in the litigation [are] necessarily and significantly impaired"], citing Judiciary Law § 753 [a].) Respondents did not correct all the violations in the repair list that forms part of the February 2004 stipulation. Their failure to correct them all as required by that stipulation prejudiced petitioners' rights.
All the elements of civil contempt have been met. The court finds respondent East 45th Development LLC in civil contempt. If Slinin knew about the stipulation, then he, too, must be held in civil contempt.
V. May Slinin Personally Be Held in Civil Contempt?
Slinin argues that because he was not listed in the caption to the stipulation, he was not a party to it. Because he was not a party to the stipulation, he contends, he may not be held in contempt even if his LLC is found in contempt.
According to petitioners, the designation "Shlueter/Vig against E. 45th Street Development" in the stipulation's caption was merely an abbreviation that nevertheless was meant to bind all parties to the proceeding. Petitioners further urge that even if Slinin was not a party to the stipulation, the stipulation still bound him because he is listed in the Multiple Dwelling Registration (MDR) statement as East 45th Development LLC's head officer and registered managing agent. The court agrees.
All agree that Slinin is a party to this proceeding. This proceeding was never dismissed against him, and he was never removed from the proceeding. Litigants commonly use a shorthand caption to substitute for a full caption when entering into a handwritten stipulation. Unless the stipulation so states, using a shorthand designation in a stipulation's caption does not exempt a party not named in the stipulation from being bound by it.
To be held in contempt, the contemnor must know about the order but need not be served with it. ( McCormack, 59 NY2d at 583.) Although they were not served with it, respondents' authorized representatives signed the stipulation. Both respondent LLC and Slinin are imputed with knowledge of the stipulation.
Slinin also knew about the stipulation. He was actively involved in the repair process, such as it was. Slinin himself acknowledged intimate familiarity with the February 2004 repair list. Annexed to Respondents' Affirmation in Opposition to Petitioners' Contempt Motion of June 21, 2004, is Slinin's 19-page affidavit, which details the repair work his LLC allegedly did on the building during the contempt period. In paragraph six of his affidavit, Slinin averred, "I have personally overseen the construction, maintenance, improvements and repair of . . . 251 E. 45th Street. . . ." Slinin's supposed repair efforts shows not only that he knew about the stipulation but also that he knew he was bound by it.
Even if Slinin were not a party to this proceeding, this court still find Slinin in contempt. In McCormack, the Court of Appeals found the New York Department of Health's commissioner in contempt, even though he was not personally involved in the contemptuous behavior. ( See 59 NY2d at 586-587.) The Court held that "[t]he commissioner is being held in contempt, not personally, but solely in his representative capacity as head of a very large State agency. Although we recognize the difficult position the commissioner is placed in when his staff fails to comply with a court order properly, nevertheless, this court cannot be expected to name every one of the commissioner's employees in its order to ensure its effectiveness. The commissioner having chosen to act through his subordinates may not escape the consequences of their contumacious conduct." ( Id. at 586 n. 2.)
It is undisputed that Slinin controlled the building. He is listed in the MDR as East 45 Development LLC's head officer and managing agent. Slinin's position before this court is similar to the commissioner's position before the McCormack Court. In McCormack, the Department of Health employees' failure to comply with the court order became the commissioner's failure. Similarly, Slinin's employees' failure to complete the repairs by the March deadline became his failure. And that assumes it was his employees' failure — an assumption this court rejects.
Slinin never testified during the hearing. Nor did respondents' witnesses testify that Slinin was unaware of the stipulation. Because the court draws a negative inference from Slinin's lack of testimony ( see Philip De G., 59 NY2d at 141), the court finds that Slinin knew about the stipulation, meant to be bound by it, and is directly responsible for the failure to complete the repairs. But the court need not infer anything about him. He is inculpated by his 19-page affidavit detailing his involvement in what DHPD called respondents' "pusillanimous" repair process. ( See DHPD's Supplementary Post-Trial Statement of Aug. 9, 2005, at 3.) And he cannot defend on the ground that he was absent from court when the stipulation was signed. His was absent by his own volition, and his counsel represented him. ( See DHPD v. Half Moon Real Est., NYLJ, Apr. 10, at 26, col 6 [Hous Part, Civ Ct, NY County] [finding that "respondent may not . . . raise a due process claim as a result of his failure to appear, because his absence was due to his own volition and he was represented by counsel throughout the proceedings"].)
The court finds Slinin in civil contempt for respondents' failure to comply with the February 2004 stipulation. The remaining issue is whether he and his LLC are guilty of criminal contempt.
VI. Criminal Contempt
Petitioners seek to hold respondents not only in civil contempt but also in criminal contempt. The court does not find beyond a reasonable doubt that respondents had a high degree of wilfulness when they disobeyed the stipulation and therefore does not hold them in criminal contempt.
A. The Standard for Criminal Contempt
A court may hold a party to a special proceeding in criminal contempt if it finds that the party disobeyed the court's lawful mandate. (Judiciary Law § 750 [A] [3] see also CPLR 5104 [contempt in general]; NYC Admin. Code [HMC] § 27-2124 [same]; Civ Ct Act § 110 [e] [authorizing Civil Court Housing Part judges to punish for contempt].)
The standard for criminal contempt is the same as the standard for civil contempt, except that there need be no prejudice to any litigant ( Dept. of Environ. Protect. of City of NY, 70 NY2d at 239-240) and that the movant must prove beyond a reasonable doubt that the respondents willfully disobeyed the court's order ( McCormack, 59 NY2d at 583; N.Y.C. Coalition to End Lead Poisoning v. Giuliani, 245 AD2d 49, 50 [1st Dept 1997, mem].) To convict a litigant of criminal contempt, moreover, "the contemnor . . . must be shown to have violated the order with a higher degree of willfulness than is required in a civil contempt proceeding." ( Dept. of Environ. Protect. Of City of NY, 70 NY2d at 240.) For this court to find that respondents acted with that higher degree of willfulness, they must have flouted the stipulation. ( See e.g. Bayamon Steel Processors, Inc. v. Platt, 191 AD2d 249, 249 [1st Dept 1993, mem].) All the elements of civil contempt are met. The remaining issue is whether petitioners proved beyond a reasonable doubt that respondents' misfeasance or nonfeasance allows the court to conclude that they had the degree of willfulness necessary to find them in criminal contempt.
B. May the Court Consider Violations More Than Once?
For certain conditions, petitioners ask the court to turn one condition into multiple violations. Doing so would unfairly increase the number of violations at issue. For example, petitioners complain about inadequate hot water in the bathroom sink and inadequate hot water in the bathroom shower, both of which are assigned a single class "C" violation, No. 4748088. Petitioners ask the court to count each condition as a separate violation: one class "C" violation for inadequate hot water in the bathroom sink and another class "C" violation for inadequate hot water in the bathroom shower. In other words, petitioners ask this court to count a single violation twice — and sometimes three or more times. Petitioners prepared the repair list without respondents' input. They cannot take advantage of their draftsmanship to hold respondents accountable for failing to repair two or more conditions with the same violation. If respondents restored hot water to the bathroom shower, respondents would necessarily restore hot water to the bathroom sink also. The court can count a violation only once, even if it applies to more than one condition.
C. Does Respondents' Alleged Confusion Exempt Them from Criminal Contempt?
Respondents contend that they were confused about which conditions they were required to repair. The court rejects that contention. They should have been able to figure it out. DHPD inspected the building in January 2004, well before the March 2004 stipulated deadline for repairs. Respondents could have easily compared the DHPD inspection report with petitioners' repair list to determine which conditions were violations. Respondents could, and should, also have repaired other conditions — like trip hazards, protruding nails, inadequate lighting, or peeling paint — serious enough to threaten the occupants' health, safety, and welfare.
If respondents were unsure about which conditions they were required to repair, they should have removed all the violations placed against the building — not just the violations on the repair list. And if respondents could not determine which conditions were violations, they should have fixed all the conditions on the repair list.
Respondents' receipts recite their repair efforts. The receipts range from October 2003 to June 2004. The receipts are consistent — in kind and number — throughout that period. They show no increased repair activity during the contempt period. Respondents' receipts evince their continuous repair plan October 2003 to June 2004, unaffected by the stipulation. Respondents were, in other words, making repairs at their own convenience and by their own schedule during the contempt period, irrespective of the court's order. Respondents were confused about nothing.
D. Are the Conditions and Violations in Schlueter's and Harris's Apartments Admissible to Determine Whether Respondents Acted With a High Degree of Willfulness?
The original repair list contained 206 conditions. Of the 206, 115 were in Schlueter's and Harris's apartments. Respondents argue that because they settled their claims with Schlueter and Harris, the court may not consider the conditions in their apartments. Until now, the court has not considered conditions in Schlueter's and Harris's apartments. But a large number of conditions included in the repair list — and much completed work — were in their apartments. The court's considering work done and not done in their apartments benefits respondents more than petitioners.
Because intent "is the secret and silent operation of the mind," ( People v. Conroy, 97 NY 62, 77-78), the way to determine a person's intent is through that person's conduct. Respondents' conduct — including effecting or not repairs made in Schlueter's and Harris's apartments — is relevant to ascertain their state of mind about their failure to comply with the stipulation. Schlueter's and Harris's apartments may be considered because the court may take into account otherwise inadmissible evidence for the limited purpose of determining respondents' state of mind. ( See generally People v. Alvino, 71 NY2d 233, 242 [upholding admission of other-act evidence whose probative value exceeds its prejudicial effect]; People v. Ventimiglia, 52 NY2d 350, 355-356, 360 [allowing admission of other-act evidence on direct case]; People v. Molineux, 168 NY 264 [finding other-act evidence admissible to prove motive, intent, common scheme or plan, identity, and absence of mistake or accident].)
Although petitioners now complain about 78 conditions only, all 206 conditions on the repair list are probative of respondents' mental state.
E. What Effect Does Respondents' Removal of Violations Have on Respondents' Willfulness?
Petitioners selected for respondents' correction 206 conditions in the repair list that forms part of the February 2004 stipulation, but Downs and Bruschi testified at the contempt hearing only to the 78 conditions listed in Exhibit "C" of Petitioners' Amended Notice of Motion to Punish for Contempt of May 19, 2004. To determine whether respondents should be held in criminal contempt, the court must determine when respondents corrected the conditions, the type of violations remaining in the premises after the March deadline for correction, and how many conditions and violations respondents corrected in all — not just from the 78 conditions from the repair list about which petitioners now complain.
If respondents corrected a significant number of violations the stipulation required them to correct, then respondents showed an effort to comply with the stipulation and did not with criminal willfulness violate the stipulation.
Excluding violations in Schlueter's and Harris's apartments, respondents did not correct 16 violations by the deadline of March 16, 2004, as determined above. Including the three violations petitioners testified still existed in Schlueter's apartment, respondents did not correct 19 violations: six class "C" violations, nine class "B" violations, three "A" violations, and one ECB violation. Counting the 10 conditions the court determines were violations as of February 2004, respondents did not correct 29 violations by the deadline. Respondents corrected 27 violations from the repair list. DHPD removed an additional 11 violations. But respondents cannot claim credit for their removal. DHPD's ERP unit corrected them, a fact that reflects poorly on respondents.
Nevertheless, respondents took affirmative steps to remove violations. From the original 206 conditions in the repair list, petitioners complain about 78 conditions and respondents repaired 27 violations. Petitioners do not address the remaining 101 conditions from the repair list or explain why they do not address them. Petitioners' decision not to address them leads the court to conclude that respondents corrected all 101 conditions. That means that respondents completed a good deal of work they were not required to complete under the stipulation, which required them to correct only violations. For that reason, a finding of criminal contempt would be contrary to the evidence.
According to DHPD's records, respondents corrected 24 violations in Harris's apartment. Because the parties do not discuss Harris's conditions — she settled her claims — the court does not know whether the 24 violations are part of the 101 conditions petitioners do not address. If the 24 violations were part of the 101 conditions, then respondents corrected 51 violations, not merely 27. If the 24 violations in Harris's apartment are not part of the 101 conditions, then respondents repaired 154 conditions and violations they were not required to repair (24 violations in Harris's apartment, 29 violations respondents cured but which were not on the repair list, and 101 conditions that might or might not be violations but about which respondents no longer complain). The possibility that respondents repaired 154 conditions and violations shows, again, that respondents might have performed a good amount work on the building. That, too, would militate against criminal contempt.
Furthermore, respondents corrected 29 in the building violations not included on petitioners' repair list. Thus, respondents cured as many as 80 violations by the end of the contempt period (24 violations in Harris's apartment, 27 violations from the repair list, plus 29 violations respondents cured but which were not on the repair list).
Assuming the best-case scenario for respondents, respondents corrected 181 conditions and violations during the contempt period (24 violations perhaps on the repair list in Harris's apartment, 27 violations from the repair list, 29 violations not from the repair list, plus the 101 conditions about which petitioners no longer complain). Assuming the worst for them, they corrected 56 violations during the contempt period (27 from the repair list plus 29 not from the repair list). Either way, respondents corrected substantially more conditions in the building than the 29 violations they failed to correct. Given that respondents corrected many violations and conditions they were not required to correct and that they and corrected many more than they ignored, the court cannot conclude that they willfully flouted the court order to the extent required for criminal contempt. Respondents ignored the stipulation's particulars but, fortuitously for them, they effected repairs consistent with the stipulation.
Accordingly, the court agrees with co-respondent DHPD's recommendation against a finding of criminal contempt. As DHPD wrote, "arguably unsuccessful as the repair efforts were by the subject contemnors, the proof at trial did not rise to the 'level of willfulness' beyond [a] reasonable doubt to support a finding of contumacious conduct warranting a criminal contempt holding." (DHPD's Supplementary Post-Trial Statement of Aug. 9, 2005, at 2.)
Petitioners did not prove beyond a reasonable doubt that respondents' conduct rose to the level of willfulness necessary for criminal contempt. The motion for criminal contempt is overruled.
V. Conclusion
Because all the elements of civil contempt are met, respondent East 45th Development LLC is in civil contempt for violating the stipulation of February 17, 2004. Respondent Slinin, the LLC's head officer and managing agent during the contempt period, is also in civil contempt for violating that stipulation. Petitioners do not seek compensatory damages. The court therefore awards petitioners the sum they seek: a money judgment of $250. ( See Judiciary Law § 773.) Petitioners also seek incarceration. But jail for civil contempt is an inappropriate coercive mechanism in this proceeding. The contempt period, which totaled only 28 days, ended 18 months ago.
Petitioners did not prove beyond a reasonable doubt that respondents possessed the requisite high degree of willfulness necessary to be convicted of criminal contempt. Both the LLC and Slinin are found not guilty of that charge.
Despite the passage of time since the February 2004 stipulation, violations remain outstanding in the subject building. Under Civil Court Act §§ 110 (c) and 203 (n), this court exercises its jurisdiction to direct respondents to cure by October 7, 2005, all DHPD-recorded violations placed on the building through September 7, 2005. If respondents do not do so, petitioners may restore this proceeding to the calendar by order to show cause to seek civil and criminal contempt once again.
This opinion is the court's decision and order.