Opinion
L & T 68521/18
01-28-2019
HILLTOP 161 LLC, Petitioner-Landlord, v. Shakema PHILBERT, Respondent-Tenant, "John Doe & Jane Doe," Respondents-Subtenants.
GREEN & COHEN By: Michael Cohen, Esq., 319 East 91st Street, Professional Suite, New York, New York 10128, Attorneys for Petitioner SHAKEMA PHILBERT, DHPD, 100 Gold Street—6th Floor, New York, NY, 10038, Respondent, pro se
GREEN & COHEN By: Michael Cohen, Esq., 319 East 91st Street, Professional Suite, New York, New York 10128, Attorneys for Petitioner
SHAKEMA PHILBERT, DHPD, 100 Gold Street—6th Floor, New York, NY, 10038, Respondent, pro se
Sabrina B. Kraus, J.
BACKGROUND
This summary holdover proceeding was commenced by Hilltop 161 LLC ( Petitioner) against Shakema Philbert(Respondent), the rent stabilized tenant of record of Apartment 3, at 552 West 161st Street, New York, New York 10032(Subject Premises) based on the allegation that Respondent had refused to renew her expired rent stabilized lease.
Almost immediately after the trial commenced, Petitioner made an application to discontinue the proceeding, acknowledging it would be unable to make out a prima facie case. The application was granted by the Court, and trial proceeded only on Respondent's counterclaim of harassment.
PROCEDURAL HISTORY
Petitioner issued a Notice of Termination dated June 25, 2018. Annexed to the Notice of Termination are two unsigned leases. The first is dated April 12, 2018, and is titled: Standard Form Apartment Lease, consisting of six pages, commencing June 1, 2018 for a one year term, at $ 929.48 a month. The second, also dated April 12, 2018, is a rent stabilized renewal lease form, providing for either a one year term at $ 929.48 a month, or a two year term at $ 936.36 per month. Following the second lease, is a twelve (12) page New York City Rider for Rent Stabilized Tenants.
The petition was filed July 31, 2018. Proof of service was filed August 8, 2018.
On September 18, 2018, Respondent appeared, pro se, and orally interposed an answer, which was recorded on the Court file. Respondent asserted she never received an offer to renew her lease, rent overcharge, and the renewal was not on the same terms and conditions as the original lease but sought to include for the first time air conditioning charges on top of the monthly rent. Additionally, Respondent interposed a counterclaim for harassment.
On December 19, 2018, Respondent executed a stipulation agreeing to pay $ 4500.00 in use and occupancy, calculated at $ 900 per month from August though December 2018, by December 28, 2018. Respondent further agreed to continue to pay use and occupancy pendente lite at the same rate. The parties agreed payments would be made and accepted without prejudice to pending claims. The Court sent a letter to DHCR, requesting that the agency expedite a pending overcharge complaint filed by Respondent, and set a trial date for April 4, 2019.
On January 7, 2019, Respondent moved for an order relieving her of the obligation to pay the use occupancy stipulated to. Respondent alleged that she had been deprived of heat or hot water, that she had to stay at a hotel and wished to deduct said sum from the monies she had agreed to pay.
On January 23, 2019, Petitioner cross moved for an order striking Respondent's answer for failing to comply with the December 19, 2018 stipulation and related relief. On said date, the court (Katz, J) issued an order denying Respondent's order to show cause and granting Petitioner's cross-motion to the extent of directing the parties to proceed to trial forthwith.
The proceeding was assigned to Part 118 for trial the same day. The trial commenced and concluded on January 23, 2019. At the conclusion of trial, the Court reserved decision.
FINDINGS OF FACT
Respondent became the rent stabilized tenant of record of the Subject Premises in October 2011, pursuant to a six (6) month lease, with The Michelle and Fred English Corp, a prior owner, for a term through April 1, 2012, at a monthly rent of $ 900 (Ex A5). Respondent entered into eight other leases with the prior owner, all for periods ranging from 30-90 days, at the same rent [Exs A(1)-(4) and a(6)-(8) ]. The last one expired April 30, 2014 (Ex A2).
Petitioner submitted DHCR registrations for the building from 1984 through 2018 (Ex 5). The DHCR registrations are irregular. The filing date for the 1984 registrations is May 15, 2017. The 1984 registrations do not identify any tenants, or lease terms. No registrations were filed for most other years. In November 2017 the Subject Premises was registered listing a rent of $ 918 and identifying Respondent as the tenant.
Petitioner became the owner of the Subject Building pursuant to a deed dated April 11, 2018 (Ex 1).The Subject Premises is a three story building with 8 SRO units and possibly one additional unit.
On April 12, 2018, Respondent initiated an HP action under Index No L & T 932-18, against Michael Schackett, Petitioner's predecessor in interest.
Respondent alleged a number of conditions including holes in cabinets below the sink in the kitchen, mice, peeling plaster, and defective windows. An inspection was conducted on April 20, 2018, and resulted in: one class "A" violation for paint around the window; and six (6) class "B" violations for defective windows, broken or defective plastered surfaces, defective kitchen cabinet, defective buzzer/intercom, and mice.
Respondent credibly testified to an extremely acrimonious relationship with Petitioner. Respondent testified over the course of the last year, she had been harassed by Petitioner, through a barrage of threatening letters that were taped to the front door of her apartment and sent by certified mail. Respondent submitted twenty-two typed letters and nine handwritten notes Petitioner taped to her front door between May 2018 and January 2019. On some dates, multiple letters were taped to her door, on the same day, for different reasons. Much of the correspondence was also sent by certified mail. Much of the correspondence is threatening and adversarial.
Respondent submitted fifteen (15) certified mail notices, dated between June 2018 and January 2019 (G 1-15). Respondent admitted she only picked up the first certified mail from the post office and after that disregarded the notices.
The first letter submitted by Respondent, (Ex C1) is dated May 6, 2018. Annexed to the letter is a document labeled Individual Apartment Improvement Agreement which projects $ 6000 in costs for proposed "improvements" described as New Sheetrock underneath Kitchen sink and new upgraded kitchen cabinets. The letter provides in pertinent part:
We just purchased the building a couple of weeks ago. Since purchasing the building, we have been attempting to contact you for a number of weeks now regarding the kitchen cabinets in your apartment.... Yesterday May 5, you answered your door and Sam was able to inspect the cabinets to see what is necessary and speak with you regarding your requested repairs ...
We want to remind you that your issues with the previous owner do not apply to us and don't relieve you from your obligation to pay the rent. We want to work with you, but you must help us. We are actively trying to fix any and all issues you have with the apartment and look forward to an amicable relationship together. Please submit the rent immediately so that we can start this relationship off right.
As discussed, to properly repair and improve your apartment, we should replace the sheetrock behind your kitchen cabinets and install new cabinetry. A tenant who refuses access for the landlord to repair their apartment, refuses access to the exterminator and claims that the Landlord won't do repairs or maintain the building will not succeed in court. However, refusing access will allow the Landlord recourse via the court (emphasis added).
In the letter Petitioner admonishes Respondent for refusing to give them the key to the Subject Premises and for refusing to allow them access when she is not there. The letter further states it is improper of Respondent to take off work to go to court but not to provide access. The letter continues to threaten Respondent that "according to DHCR regulations 11.E Tenants who refuse access for repairs or inspection are subject to eviction." Petitioner concludes the letter by stating "Please sign the attached agreement, and return it to us at your earliest convenience so that we can commence the work on your kitchen."
Two days later, on May 8, 2018, Petitioner tapes another letter to the door of the Subject Premises (Ex C2) which seeks access, requests a key to the Subject Premises, accuses Respondent of damaging the cabinets, walls and windows, accuses Respondent of illegally installing an air conditioner without paying an additional $ 26 per month, and warns in bold black letters Respondent again of their "policy" to immediately file eviction papers if the rent isn't paid by the first of any month, and to seek eviction based on refusal to allow access or provide keys. The letter chastises Respondent for not having agreed to the IAI increase.
On May 12, 2018, two letters were taped to Respondent's door one demanded that she provide Petitioner with a key to the Subject Premises and the other again makes accusations against Respondent in relation to an air conditioner in the Subject Premises. It is labeled OFFICIAL AC NOTICE and provides:
Thanks for letting the repairman in to compete the requested repairs. We see that you installed an AC window unit which appears to have damaged the window. If the power rating of the AC unit exceeds the electrical capacity of the wiring it can cause a fire and is a safety hazard. Please provide a letter from a licensed electrician confirming that the AC unit will not overload the circuit and cause a fire or safety hazard to the tenants. You have previously been advised that as the Landlord we will require payment of the $ 26 per month fee as required under NYCHCR Section 2727.11 of the Rent Stabilization Code and Section 2209.8 of the New York City Rent and Eviction Regulations. You are hereby officially advised to pay the rent and pay the fee or immediately remove the AC. You must also repair any damage said AC caused.
On May 21, 2008, Petitioner taped three different documents to Respondent's door, each purporting to be a notice to cure.
One was labeled OFFICIAL NOTICE TO CURE . It accuses Respondent of damaging the Subject Premises and causing the repairs that are necessary. It alleges that the damages were caused on dates that were prior to Petitioner's ownership of the building, it demands that Respondent make the necessary repairs and again demands a key to her apartment. Finally it instructs that she make any future requests for repairs in writing. A second document is labeled 10 DAY NOTICE TO CURE—PROVIDE KEY and again demands a key to the Subject Premises. The third is labeled NOTICE TO CURE—ALLOW EXTERMINATOR IN and advises that to cure Respondent must allow access for the exterminator on Wednesday June 6 and the first Wednesday of every month.
The letters continue in this manner. Many more were issued in May and they continue through the following months. While some portions of the written communications may have a legitimate basis, much of the communications make accusations, threaten eviction proceedings and sometimes ask Respondent to execute documents as with the IAI agreement or a proposed stipulation acknowledging all repairs are done (Ex C-2).
On June 7, 2018, Respondent restored the HP proceeding and substituted Petitioner as a named party in the HP action. The Court (Schreiber, J) issued an order on default directing Petitioner to correct the violations. Petitioner taped another series of letters on Respondent's door in June (Ex C4 & E) two were dated on June 7, 2018, the return date of the HP Action. Again the letters purport to document Respondent's refusal to provide access, continue to demand that she provide a key, make accusations and purport to be a notice to cure defaults in her tenancy.
On July 19, 2018, Petitioner moved for an order vacating its default in the HP action, and for an order holding Respondent in contempt for failure to provide access. HPD submitted opposition, and the parties stipulated to adjourn the motion to September 20, 2018, and for interim access to be provided on July 24 and 25, 2018. Petitioner withdrew the portion of the motion seeking contempt (Court Ex 1). Petitioner's letter writing campaign seemed to die down for a while.
On September 20, 2018, the parities settled the HP action and Petitioner's pursuant to a stipulation providing for additional access dates for the correction of violations. The stipulation further provided Petitioner would send "Tito" as its representative to observe the work in progress and that the owner, Richard Taller (Taller), a principal of Petitioner, would only visit the Subject Premises at the end of the day when the work was completed.
In November the letter writing commenced again. 9 letters were taped to Respondent's door by Petitioner in the month of November.
A November 2, 2108 letter, (Ex C5) accused Respondent of slander and libel, and threatened legal action against her. A November 7, 2018 letter demand payment of the rent, a key (Ex C6).A November 19 letter accuses Respondent of making false complaints about lack of heat to avoid paying the rent and again demands payment of the rent (Ex C7). On November 28, a letter was taped labeled Unfounded Heating Complaints . Most of the November letters purport to confirm that the heat in the hallway outside Respondent's apartment is sufficient.
Respondent filed a rent overcharge complaint and a failure to offer a renewal lease complaint with DHCR in November 2018 (Ex B 1-3). As of the time of the trial, those clims remain pending.
Petitioner's letters continue through December and January.
A December 9, 2018, (C10) accused Respondent of harassment because she was making inadequate heat complaints. A January 8, 2019 letter (C12), states Respondent is engaging in "criminal activity" by filing "false" heat complaints and DHCR complaints for not receiving lease renewals. The letter accuses Respondent of impersonating other tenants in the building, claiming there is no heat. The letter threatens Respondent that if she makes another "false" complaint, they will contact the police.
On January 8, 2019, Petitioner taped a letter to Respondent's door labeled Warning against Criminal Acts (Ex C 12). The letter threatens Respondent with criminal prosecution if she makes a further complaint of lack of heat.
On January 4, 2019, Respondent commenced a second HP action, under index number HP 2089/18. An HPD inspection on December 10, 2018 resulted in: two class "A" violations for minor issues in the building's common areas four (4) class "B" violations for broken or defective sprinkler head, leaky defective faucet in the kitchen, broken or defective plastered surfaces, and mice; and a class "C" violation for broken or defective radiator valve. The parties appeared in court on January 4, 2019, and entered into a consent order, allowing for access to the Subject Premises on January 21 and 28, 2019, for the correction of the violations.
Respondent also submitted text messages between herself and Taller (Ex H), wherein they disagreed as to when access could be provided and when the repair people were able to work at the Subject Premises.
Mohr testified for Petitioner. Mohr is the managing agent and stated he personally introduced himself to each tenant and provided his contact information. Mohr testified Respondent did not have a lease when they purchased the Subject Building, that he personally offered her a renewal lease, but Respondent refused to execute the lease. Mohr testified Respondent refused to pay for an individual apartment improvement, that she refused to allow access for the exterminator and that she refused to provide a key to the Subject Premises.
Mohr testified that about a week after the purchase of the building he personally took a lease renewal to Respondent for her to sign it. Respondent denies this ever took place and testified the first lease renewal she received was annexed to the Notice of Termination served as a predicate for this proceeding. The Court credit's Respondent's testimony of Mohr's testimony in regards to the lease renewal offer.
Mohr changed the lock to the building after Petitioner became the owner. Mohr testified that he left the new key folded in a letter and under the mat in front of Respondent's door. Respondent testified that Petitioner did not give her a new key that she notified Petitioner she had no key and that she only eventually obtained the key from another tenant in the building. The court credits Respondent's testimony over Mohr as regards Petitioner's failure to give her a key after it change the locks to the building entrance.
DISCUSSION
The Administrative Code of the City of New York, § 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... (g) other repeated acts or omissions of such significance as to substantially interfere with or disturb the comfort, repose, peace or quiet of any person lawfully entitled to occupancy of such dwelling unit and that causes or are intended to cause any person lawfully entitled to occupancy of a dwelling unit to vacate or surrender or waive any rights in relation to such occupancy."
The Court finds Petitioner engaged in an ongoing course of conduct meant to "interfere with or disturb the comfort, repose, peace or quiet" of Respondent in the Subject Premises and intending to deprive Respondent of her rights as a rent stabilized tenant of the Subject Premises. Petitioner purchased the Subject Building in April 2018 and their very first written communication with Respondent was adversarial and threatening. Petitioner's position that Respondent continually refused access does not permit them to engage in a constant barrage of letters posted to Respondent's door, threatening eviction, or criminal action.
Most egregious were Petitioner's attempt to have Respondent sign an agreement for an IAI for repairs they were obligated to perform, and Petitioner's attempt to have Respondent sign a lease renewal with a $ 26 monthly fee for an air conditioner which Petitioner did not provide to her in a building where electricity is not included in Respondent's rent. As far as the request for Respondent to agree to a rent increase, the correspondence from Petitioner may it seem that the repairs would be contingent on signing the IAI document and the conditions related to outstanding HPD violations for the Subject Premises. Both these behaviors constitute action by Petitioner designed to deprive Respondent of her rights as a rent stablest tenant. In connection with the other conduct of Petitioner the court finds that a violation for harassment is warranted.
DHCR Fact Sheet #27 would allow for a $ 5 surcharge where Tenant has provided the air conditioner and electricity is not included in the rent. If the owner installs the AC, a higher amount would be due, but it must charge tenant at the time the AC is installed or within a reasonable period of time after its installation or the owner waives the right to collect the charge.
In addition, the court finds that Petitioner changed the lock to the building and did not provide Respondent with a new key and brought the underlying holdover for failure to renew without having made Respondent a proper renewal offer.
Accordingly, the Court finds that Petitioner has harassed Respondent pursuant to Section 27-2005(d) of the Administrative Code of the City of New York, and determines that a class "C" violation existed at the time the harassment occurred. Further, Petitioner is restrained from further violating Section 27-2005[d] of the Administrative Code of the City of New York, and may not make further demands for Respondent to agree to IAI increase in connection with making repairs, may not tape notes on Respondent's door other than in connection with service of process or a bona fide emergency and may not threaten Respondent for refusing to sign an improper lease renewal.
The court imposes civil penalties upon each Petitioner in the amount of $ 2000.00 payable to DHPD at 100 Gold Street, 6th Floor, New York, NY 10038.
This constitutes the decision and order of this Court.
Parties may pick up trial exhibits from clerk's office on the second floor of 111 Centre Street, New York, NY 10013, at window 9, within thirty days of the date of this decision. After said period, exhibits may be disposed of in accordance with Administrative Directives.
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