Opinion
No. 2023-50087 Index No. HP 365/22
02-03-2023
Sara Baker, Petitioner, v. Alfredo Battaglia, Respondent, and NEW YORK CITY DEPARTMENT OF HOUSING PRESERVATION AND DEVELOPMENT (DHPD), Respondent.
Seth Rosenfeld, Esq. Attorney for Petitioner Alex Thomaidis, Esq., Thomaidis & LaGoudis P.C., Attorneys for Respondent Alfredo Battaglia Department of Housing Preservation and Development Housing Litigation Bureau Respondent
Unpublished Opinion
MOTION DECISION
Seth Rosenfeld, Esq. Attorney for Petitioner
Alex Thomaidis, Esq., Thomaidis & LaGoudis P.C., Attorneys for Respondent Alfredo Battaglia Department of Housing Preservation and Development Housing Litigation Bureau Respondent
CLINTON J. GUTHRIE, J.H.C.
Recitation, as required by CPLR § 2219(a), of the papers considered in the review of petitioner's order to show cause for civil and criminal contempt (Seq. 5):
Papers Numbered
Order to Show Cause & Affirmation/Affidavit/Exhibits Annexed. (NYSCEF No.24-32)
Affirmation in Opposition & Affidavit/Exhibit Annexed 2 (NYSCEF #33-35)
Upon the foregoing cited papers, the decision and order on petitioner's order to show cause for civil and criminal contempt is as follows.
DISCUSSION
Petitioner moves for civil and criminal contempt pursuant to the relevant provisions of the Judiciary Law by order to show cause. Petitioner previously moved for civil contempt in September 2022. The court denied that motion by Decision/Order dated November 29, 2022, finding that petitioner had not demonstrated with reasonable certainty respondent's disobedience of the so-ordered July 27, 2022 stipulation nor prejudice to petitioner by clear and convincing evidence. The court heard argument on the instant motion on February 1, 2023 and reserved decision.
The court first disposes of petitioner's request for criminal contempt. Petitioner did not request, and the court did not order, personal service of this order to show cause upon respondent. Since personal service is required for criminal contempt to lie, the court does not find a basis on this record to consider criminal contempt. See e.g. Caiola v. Allcity Ins. Co., 305 A.D.2d 350, 351 [2d Dept 2003]; In re Minter, 132 A.D.3d 701, 703 [2d Dept 1987]. Accordingly, the request for criminal contempt is denied.
Assuming "personal service" includes any permissible service under CPLR § 308 (see Gouiran Holdings, Inc. v. McCormick, 163 A.D.2d 44, 45 [1st Dept 1990]), the service method ordered by this court, namely first-class mail with certificate of mailing, does not satisfy CPLR § 308.
As for civil contempt, the court addresses service of the order to show cause. The order to show cause required filing of the proof of service on or before the return date of the motion. Upon a review of the NYSCEF and UCMS documents filed for this case, there is no record of petitioner's attorney filing proof of service of the order to show cause. Service of an order to show cause for contempt is jurisdictional in nature and must be strictly complied with. See Tzifil Realty Corp. v. Rodriguez, 67 Misc.3d 134 [A], 2020 NY Slip Op 50498[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2020]. When service is challenged and not all components of service are complied with, an order to show cause for contempt will be dismissed. Id. Nonetheless, the court has the power to disregard a service irregularity when no substantial right of the opposing party is prejudiced. See Young v. City of New York, 164 A.D.3d 711, 713 [2d Dept 2018]. Here, while the court stresses the necessity of complying with all service requirements (not least of which is filing proof of service) on this order to show cause, the court will excuse the failure to file proof of service because respondent's attorney submitted opposition to the motion on the merits without raising the service defect and respondent and his attorney had the ability to appear at the motion argument and fully participate in opposing the motion. See Gonzalez v. Haniff, 144 A.D.3d 1087, 1088 [2d Dept 2016]. Therefore, the court does not find any party's substantial rights to be prejudiced by petitioner's failure to timely file proof of service and excuses the infirmity pursuant to CPLR § 2001. See Young, 164 A.D.3d at 713. Nonetheless, petitioner's attorney shall promptly file proof of service of the order to show cause to NYSCEF.
Turning to the merits of petitioner's motion, under Judiciary Law § 753, a court of record has the power to punish, by fine and imprisonment, or either, "a neglect or violation of duty, or other misconduct, by which a right or remedy of a party to a civil action or special proceeding, pending in the court may be defeated, impaired, impeded, or prejudiced." See generally El-Dehdan v. El-Dehdan, 26 N.Y.3d 19, 28-29 [2015]. A civil contempt is "one where the rights of an individual have been harmed by the contemnor's failure to obey a court order." Dept. of Envtl. Protection v. Dept. of Envtl. Conservation, 70 N.Y.2d 233, 239 [1987]. For civil contempt to lie, "it must be established that the rights of a party to the litigation have been prejudiced." Id. at 239. Furthermore, "[t]o sustain a finding of civil or criminal contempt based on an alleged violation of a court order it is necessary to establish that a lawful order of the court clearly expressing an unequivocal mandate was in effect [and] appear with reasonable certainty that the order has been disobeyed." Id. at 240. Finally, "the party charged must have had knowledge of the court's order." Id. at 240. The elements of civil contempt must be demonstrated by clear and convincing evidence. See El-Dehdan, 26 N.Y.3d at 29.
As the court found in its November 29, 2022 Decision/Order, the July 27, 2022 so-ordered stipulation clearly expressed an "unequivocal mandate" of the court. The stipulation provided that "landlord will not tamper with any circuit breakers at the rear of the house" and "[l]andlord will maintain all essential services as legally required." Furthermore, respondent Alfredo Battaglia had imputed knowledge of the court order, as his attorney executed the stipulation at issue. See Dept. of Envtl. Protection, 70 N.Y.2d at 242.
A so-ordered stipulation is a court order. See Will v. County of Nassau, 90 A.D.2d 795 [2d Dept 1982].
As for whether July 27, 2022 order was disobeyed with reasonable certainty, petitioner's motion includes a list of open DHPD violations. The court takes judicial notice of the open violations for the subject premises on the DHPD website pursuant to Multiple Dwelling Law (MDL) § 328(3). See Dept. of Hous. Preserv. & Dev. v. Knoll, 120 Misc.2d 813, 814 [App Term, 2d Dept 1983]. The open violations report includes multiple violations related to electric service, hot water, and heat at the subject premises since the July 27, 2022 order was issued. These violations, which are uncertified as corrected according to the DHPD website, are prima facie evidence that the conditions related thereto exist. See Knoll, 120 Misc.2d at 814; see also Dept. of Hous. Preerv. & Dev. v. De Bona, 101 A.D.2d 875, 875 [2d Dept 1984] ["The enactment of the presumption of a continuing violation protects the tenants' rights by removing the onerous burden of proof that the violation existed on every date in question."]. The motion is also supported by an affidavit from petitioner, Sara Baker, which details multiple outages of heat, hot water, and electricity in the subject premises after the July 27, 2022 order (including specific dates and times). In addition, the affidavit describes prejudice to petitioner, including having to live without electricity, heat, and hot water in an "uninhabitable unit."
In opposition, respondent Alfredo Battaglia states in an affidavit that an air-conditioning circuit breaker repair was delayed because parts needed were on back-order but that the circuit breaker was repaired after the parts arrived. As for the essential services, he states that he did not turn off hot water or shut off the electricity. He also references the fact that petitioner's attorney acknowledged that essential services were functioning in the apartment in court on November 29, 2022. Additionally, he states that he made attempts to access petitioner's apartment after December 15, 2022 for repairs, but that he could not gain access (including an attempt on January 9, 2023 at 8:56 AM). Finally, the affidavit describes a repair of a conduit pole that was affecting the electrical current to the subject building on January 11, 2023 and annexes a purported receipt from an electrician for the work on that date as respondent's Exhibit A.
Upon consideration of the motion record, the court finds that there are issues of fact that require a hearing on petitioner's motion for civil contempt. While petitioner has made a prima facie showing that respondent disobeyed the court's order insofar as DHPD violations relating to electric service, hot water, and heat remain open and uncertified, respondent's submissions in opposition are sufficient to raise an issue of fact as to whether the disobedience can be determined "with reasonable certainty" and by clear and convincing evidence. See El-Dehdan, 26 N.Y.3d at 29; see also Lundgren v. Lundgren, 127 A.D.3d 938, 940-941 [2d Dept 2015] [Supreme Court erred in holding party in contempt without a hearing where a factual dispute existed]; Coyle v. Coyle, 63 A.D.3d 657, 658 [2d Dept 2009].
CONCLUSION
Accordingly, for the reasons stated herein, petitioner's motion is granted to the extent of setting it down for an evidentiary hearing on the portion seeking civil contempt. The portion of the motion seeking criminal contempt is denied. The hearing will be scheduled for March 6, 2023 at 2:30 PM in Part C, Room 407, 89-17 Sutphin Boulevard, Jamaica, New York 11435. Any pre-marked exhibits shall be emailed to the court on or before March 2, 2023 (qn-housing-407@nycourts.gov). This Decision/Order will be filed to NYSCEF and a copy will be emailed to the attorneys for DHPD.