Dep't of Hous. Pres. & Dev. of City of New York v. Belmont Ventures LLC

Full title: DEPARTMENT OF HOUSING PRESERVATION AND DEVELOPMENT OF THE CITY OF NEW…

Court: New York Civil Court

Date published: Sep 24, 2024

2024 N.Y. Slip Op. 33507 (N.Y. Civ. Ct. 2024)

Opinion

Index Nos. 306315/2021 306316/2021

09-24-2024

DEPARTMENT OF HOUSING PRESERVATION AND DEVELOPMENT OF THE CITY OF NEW YORK, Petitioner, v. BELMONT VENTURES LLC, DANIEL OHEBSHALOM A/K/A DAN SHALOM, and ROBIN IGNICO, Respondents. DEPARTMENT OF HOUSING PRESERVATION AND DEVELOPMENT OF THE CITY OF NEW YORK, Petitioner, v. BELMONT VENTURES LLC, DANIEL OHEBSHALOM A/K/A DAN SHALOM, and ROBIN IGNICO, Respondents.

HON. JACK STOLLER J.H.C.

Unpublished Opinion

DECISION/ORDER

HON. JACK STOLLER J.H.C.

Recitation, as required by CPLR §2219(a), of the papers considered in the review of this motion:

Pages numbered

Order To Show Cause (sequence #12) and Supplemental Affirmations Annexed, #306315/211,2,3

Affirmations in Opposition (sequence #12) #306315/21 4, 5, 6

Order To Show Cause (sequence #12) and Supplemental Affirmations Annexed, #306316/21 7, 8,9

Affirmations in Opposition (sequence #12) #306316/2110, 11, 12

Upon the foregoing papers, the Decision and Order on this motion are as follows:

The Department of Housing Preservation and Development of the City of New York, the petitioner in this proceeding ("HPD"), commenced these two proceedings against Belmont Ventures LLC ("Respondent"), a respondent in these proceedings, Daniel Ohebshalom a/k/a Dan Shalom ("Co-Respondent"), another respondent in these proceedings, and Robin Ignico ("Second Co-Respondent"), another respondent in these proceedings (collectively, "Respondents"), seeking an order to correct violations, an order finding harassment, and civil penalties regarding the state of 705 West 170^th Street, New York, New York ("705 Building"), and 709 West 170^th Street, New York, New York ("709 Building")(the Court refers to 705 Building and 709 Building collectively as "the subject premises"). By an order dated July 5, 2024 ("the Order"), the Court, inter alia, granted HPD's motion to issue an arrest warrant against Co-Respondent to enforce an order holding Respondents in civil contempt of prior orders to correct violations of the subject premises. Respondents now move to renew.

Respondents support their motion to renew with an affirmation of Aidan Mentech, an account executive at a property management firm ("Mentech Affirmation"). The Mentech Affirmation argues that HPD's violations were duplicative. However, Respondents made this argument in opposition to HPD's motion for an arrest warrant which resulted in the Order. In order to prevail on a motion to renew, Respondents must offer facts not offered on the prior motion that would change the prior motion. CPLR §2221(e)(2), U.S. Bank. N.A. v. Aber, 204 A.D.3d 1069 1070 (2^nd Dept. 2022), Bronson v. Jacobs, 204 A.D.3d 531 (1^st Dept. 2022). Accordingly, the Court cannot grant Respondents' motion on this ground.

The Mentech Affirmation avers that Respondents have made "additional" and "significant" repairs, including corrections of a number of violations that are still outstanding on HPD's violation summary reports ("Disputed Violations"). However, the Order already noted Respondents' argument that they claimed to have corrected a number of the Disputed Violations and found that even without counting the Disputed Violations, at least 125 hazardous and immediately hazardous violations remained outstanding back to November of 2022. The Order already discounted as such a substantial number of the same violations that the Mentech Affirmation now claims Respondents corrected.¹ Accordingly, Respondents fail to offer facts not offered in the prior motion.

1 Specific examples of violations the Mentech Affirmation claimed Respondent corrected that the Court already noted in the Order were violation ##15298624, 14848749, 15252864, 15252866, 14848746, and 15252867. The Mentech Affirmation makes similarly duplicative allegations throughout the affirmation, including 12 of the violations reference in paragraph 71,1 violation referenced in paragraph 77, 3 violations referenced in paragraph 82, 1 violation referenced in paragraph 86, 8 violations referenced in paragraph 89, and 3 violations referenced in paragraph 95. There are 34 such violations in just this sampling.

The Mentech Affirmation alleges that Respondents corrected violations which were not the subject of the Order, including violation #14084223. Paragraph 100 of the Mentech Affirmation makes such an allegation about a violation that was not the subject of the Order. In a similar vein, paragraphs 46, 92, and 108 of the Mentech Affirmation claim that Respondents corrected violations, but the violation numbers have seven digits. HPD violations have eight digits. As these violations were not a part of the reason that the Court granted HPD's motion, an allegation of the correction of those violations does not show a purge of contempt.

Paragraphs 40, 49, 59-62, and 72-75 of the Mentech Affirmation allege that Respondents could not get access to the apartments that had violations. The basis for the affiant's personal knowledge is not apparent from the affidavit. The allegations for the denial of access are conclusory. Notably, the Mentech Affirmation makes similar allegations about access in paragraphs 65-67, 78-80, 104-106, and 116-119 but also alleges that Respondents corrected violations in the apartments from which the tenants ostensibly denied Respondents access, which is not adequately explained. On this record, Respondents do not prove that tenants actionably denied Respondents access.

As Respondents' motion argues that Respondents have corrected violations, a statement that amounts to an argument that Respondent has purged contempt, which Respondents bear the burden of proving by clear and convincing evidence. Matter of Agnew v. N.Y. City Dept, of Coit., 217 A.D.3d 490, 491 (1st Dept. 2023). In advancement of this proposition, the Mentech Affirmation does posit that Respondent has corrected violations that had been the subject of the Order.²

2 Violations that were subject to the Order which the Mentech Affirmation alleges were corrected include violation ##14848700, 14821451, 14548934, 14548938, 14493306, 14360338, 14360349, 14360350, 14360452, 14053332, 14053337, 14360222, 14360230, 14360237, and 15126310. Paragraph 69 of the Mentech Affirmation makes similar allegations.

The motion does not necessarily prove a purge by clear and convincing evidence, given the unclear foundation that the Mentech Affirmation has to aver that violations were corrected or to establish a foundation for the photographs attached to the Mentech Affirmation that are intended to demonstrate a correction of violations. Nevertheless, assuming arguendo that Respondents have corrected the violations that they claim to, the Mentech Affirmation includes apparent concessions that Respondents have not corrected a number of violations,³ including, significantly, a number of lead paint violations.⁴

3 One such example is violation #14848738. Paragraphs 54, 57, 83, 87, 90, 94-98, 110-112, and 113-114 of the Mentech Affirmation additionally concede that Respondent has not corrected violations.

4 Notably, paragraphs 47 and 58 of the Mentech Affirmation concede that Respondent has not corrected lead paint violations.

As the allegations Respondents make claiming a purge are insufficient to prove by clear and convincing evidence that Respondents have corrected the 125 violations that were the subject of the Order, the Court denies Respondents' motion.

This constitutes the decision and order of this Court.