Opinion
1303/2020
03-10-2021
Tonia HUCEY, Petitioner, v. John FREZZA, Respondent.
For Petitioner: Alexander Katz For Respondent: Edward Hall
For Petitioner: Alexander Katz
For Respondent: Edward Hall
Jack Stoller, J.
Tonia Hucey, the petitioner in this proceeding ("Petitioner"), commenced this proceeding against John Frezza and IBEC Building Corp. ("Respondents") pursuant to New York City Civil Court Act § 110(c) seeking an order concerning her cause of action fir harassment against Respondents regarding Petitioner's home at 200 Schermerhorn Street, Apt. 401, Brooklyn, New York ("the subject premises"). Respondents interposed an answer. The Court held a trial of this matter on January 27, 2021, January 29, 2021, and February 17, 2021 and adjourned the matter for post-trial submissions to March 3, 2021.
The trial
The parties stipulated that Petitioner and Respondents are in a landlord/tenant relationship with one another.
A neighbor of Petitioner who lives in a different building than Petitioner testified that Petitioner visited her apartment four to five times over the last three years to take a shower because water in the subject premises was brown.
A friend of Petitioner's testified that she has been to the subject premises six to ten times in total, the last of which was in 2018 or 2019, and a few years before that and that every time she was there she noticed, with Petitioner pointing it out to her, that the water in Petitioner's bathroom was brown. Petitioner's friend testified on cross-examination that she has not been to the subject premises in two years.
A former resident of the building in which the subject premises is located ("the Building") testified that he lived at the Building from May of 2014 through September of 2020; that he had brown water, which he first noticed in 2018; that, at any given time, the problem was in the two bathrooms, faucets and the shower; that only hot water was brown; and that the water ran brown at any time of the day and then would go away for a couple of days, sometimes for a month. The former resident testified on cross-examination that he does not live in the subject premises; that there was construction across the street from the Building that had been going on for many years; that the construction wasn't going on when he left; and that the water ran brown from five seconds to five minutes before running clear.
The former resident's spouse testified that she lived at the Building for the same time frame as the former resident; that the water ran brown starting before 2018; that the problem got much worse in March of 2020; that she told Respondents about the brown water as of March of 2018 and maybe before that; that she was told it would be fixed; that it would get better but then the problem would recur; that the brown water came out of hot water faucets in both bathrooms and sometimes the kitchen; that sometimes no doorman staffed the lobby; that sometimes the phone for announcing guests wouldn't work; and that one particular doorman ("the Doorman") was "horrible." The former resident's spouse testified on cross-examination that she was supposed to get a package from Amazon; that the Doorman said that Amazon lied about no one being there when they tried to deliver a package; and that he said he was at the front door the whole time.
Petitioner's brother testified that he lives elsewhere in Brooklyn; that up until April of 2020 he visited the subject premises every month; that he was there in January of 2020; that he saw rusty brown water coming out of the pipes, although not every time he was there; and that Petitioner has keys to his apartment to use when she needed clean water to take a shower or prepare some food. Petitioner's brother testified on cross-examination that he does not live in the Building; that he let the water run for more than a minute; and that the water did not turn clear.
Another former resident of the Building testified that she lived in the Building from April of 2017 through July of 2019; that she experienced brown water starting in January of 2018 in bathrooms and tubs and sinks, usually when they ran hot water; that the problem got worse in 2019, when it was there constantly; that she told Respondents repeatedly; that Respondents said that they would flush the lines; that they said that the source of the problem originated from outside the Building; that she complained to the City; and that Respondents offered to move her to another apartment. Petitioner introduced into evidence a video recording of brown water running in the former resident's bathroom from 2019 and emails showing communications with Respondents. The former resident testified that she did not want to move to a different part of the Building because she understood that it was a problem all over the Building; that there was construction across the street; and that she has not been in the Building in the last eighteen months.
Petitioner's mother testified that she lives elsewhere in Brooklyn; that she visited the subject premises but doesn't remember when she was there last; that maybe she visited every three months; that she experienced brown water there; and that Petitioner has keys to her apartment so Petitioner can take a shower there.
Another resident of the Building testified that she has lived in the Building since it was built; that her tap water was brown; that she never noticed it until October 5, when someone brought it to her attention; that she has filtered every water source in her apartment; and that Respondents said that it was because of construction. The resident testified on cross-examination that water was clear in the month of January and that Respondents respond to repairs in a timely fashion other than this issue.
Petitioner testified that she has lived in the subject premises for fourteen years; that she lives with her son, who is a student; that her only problem now is brown water, which she first noticed in summer of 2017; that the brown water regularly, meaning every morning, went on and off from November of 2017 until maybe January of 2020; that the water looked brown when it ran for five or ten minutes, six minutes into a shower, and not more than ten minutes into a shower; that the brown water only occurred in one bathroom; that she only found out that brown water was a problem in the other bathroom when her son came home from school; that when she noticed that she told Respondents; that the super would flush the water tank; that the night before her testimony she had the same problem although it was very faint; that she notified the individual later identified as a member of the ownership group ("the Landlord") by text in 2017; that the Landlord asked how brown water could be a problem; that in the summer 2018 the problem did not occur as often as it had before; that the problem was continuous in 2020; that she continued to email the Landlord; that the Landlord said that she was the only one complaining about this and that it was construction that was causing the problem; that she called 311 one hundred times; that the super wanted her to sign a letter saying that the brown water had been alleviated; that the Landlord told her that they would have her evicted if she did not stop complaining; that the Landlord said that she would have a bit taken out of rent bill for her troubles; that she was offended by that; that she tried to move; that she found another apartment and that the landlord of that apartment called the Landlord for a reference; that the Landlord said that a good reference was given; that the Landlord then communicated to her that a good reference would not be provided if she continued to complain about the brown water; that the landlord of the other apartment rescinded the offer for her to move there; that every time she took a shower her skin would be burning and itching; that if she couldn't get to another house to shower she would go to work without showering; that she smelled bad when that happened; that for two years she was late to work four out of five days; that she took days off of work to go to the New York City Department of Environmental Protection ("DEP") and the borough president's office; that she was buying bottled water; that the situation made it too hard for her son to stay with her, so he went to his father's house or back to campus; that within a couple of days after Respondents were served, in October of 2020, they put a notice up stating that the brown water will cease and that they were getting an updated water system; and that since that time there has been less brown water.
Petitioner introduced into evidence "B" violations placed by the Department of Housing Preservation and Development of the City of New York ("HPD") dated March 30, 2018 for discoloration in the water; notices from Respondents dated September 29, 2020 and October 5, 2020 that the water in the Building would be shut off; photographs of her sink dated July 3, 2019 depicting brown water coming out of it; and an email from the Landlord dated June 21 2018 stating, "I know what you are up to Toni. Don't play these games after ten years. You are looking to move to another apartment and trying to make a bogus case for skipping out. As a courtesy we gave them a good recommendation, but I hope you do not make me regret my decision. Let [Respondents’ employee] in to make the repair you complained about to HPD or we will take you to court!"
A class "B" violation is "hazardous" pursuant to N.Y.C. Admin. Code § 27-2115(c)(2). Notre Dame Leasing LLC v. Rosario , 2 NY3d 459, 463 n.1 (2004).
Petitioner testified that a door sweep wasn't allowed to close for fire purposes; that Respondents sent someone to the subject premises to fix the door; that the super did not notify her by text of when he was coming even though they had texted each other on previous occasions; that she was not home when the super came; and that the super posted notices on the door.
Petitioner testified that the Doorman had worked at the Building for ten years; that she gets along well with four other doormen who work at the Building, describing them as "really good" and one of them as "awesome;" that, before June of 2020, she had no interaction with the Doorman; that that her first introduction to the Doorman was awkward; that she saw the Doorman act in an aggressive manner toward other people, so she avoided him; that she occasionally asked the Doorman for packages; that in June of 2020 her relationship with the Doorman changed; that in September of 2020, she ordered a delivery of something for her son's birthday; that she received a notification that it was delivered to the Building; that she waited until the following morning to get it; that she was told that there was no package there; that the tracking of the package signed by the Doorman said that she no longer lived at the Building; that she made copies and sent them to the Landlord; that the Landlord did not respond; that she went to the Landlord's office and stated that the Doorman gave her package back to a delivery service and the only response she received was, "yeah"; that the next day, September 17, she was returning to the Building between 7 p.m. and 8:35 p.m. and suddenly as she approached the front of the Building, the Doorman was standing there talking to a younger tenant on the left side of the stairway; that the Doorman was covering the whole front of the doorway; that she didn't know how she would get past him; that the Doorman spread his arm out and crossed his leg so that she could not pass him without touching him; that the Doorman didn't have a mask on; that she did; that she saw two neighbors getting out of a taxicab; that the Doorman referred to her using a sexist slur; that she walked past the Doorman; that she thought that the Doorman was going to hit her; that she felt that the Doorman's breath on her face; that she touched his arm; that the Doorman laughed at her because he saw how scared she was; that after she passed the Doorman, she heard feet shuffling; that she did not want to turn around; that the Doorman immediately moved out of the way of the other people who were entering the Building; that the Doorman rang her intercom and when she answered he used profanity, threatened her son, and said that he had keys to the subject premises; that she is scared of the Doorman because he is a formerly incarcerated person; that the Doorman at one point was supposed to tell her about a food delivery but did not; that the Doorman rebuffed her, using profanity; that the Doorman said that nobody, including neighbors that the Doorman named, likes Petitioner; that the Doorman said that the Landlord does not like Petitioner and that the Landlord wants to get Petitioner out of the Building; that the Doorman would hold his arms and laugh when Petitioner was there and if no one was around he would call her a sexist slur; that in August of 2020 police were involved at least three times between the two of them; and that in November of 2020 she called police because her son went out again, police came, and the Doorman told the police that she only called them to manufacture a case against the Landlord because the Landlord was bringing an eviction case against her.
Petitioner testified that that she told the Landlord about her problems with the Doorman; that the Landlord said that the Doorman had already called the Landlord, saying that Petitioner's son threatened to stab the Doorman and slice his face; that the Landlord said that the Doorman does not have keys to the subject premises; that the Landlord said that the Doorman has a temper; that the Landlord told Petitioner to stay out of the Doorman's way, in part by using the service entrances of the Building; that the Landlord kept offering excuses for the Doorman; that the Landlord warned her to stop complaining; that the Landlord accused her of being racist against the Doorman; that the Landlord said that she does not deserve to live in affordable housing because of that; that he was going to report her to Mayor's Office and "Office of Civil Rights"; that she then used the side entrance to the Building even though she did not want to do that; that her key card only worked until 10:00 p.m.; that the Landlord said she was being frivolous; that she borrowed the key card of a neighbor that worked until midnight; that she sends packages to her neighbor because she cannot get packages and mail; that her son cannot go in and out of the Building without her; that she no longer orders take-out; that she is concerned about her son, as a young Black man, having the police called on him if her son gets into an altercation with the Doorman; that she is a low-income tenant; and that Respondents treat low-income tenants differently.
Petitioner introduced into evidence an email from the Landlord to her dated June 4, 2020 saying that the Doorman accused her son of threatening to slash his face and an email from her to the Landlord dated November 22, 2020 notifying him that the Doorman used a racist and sexist slur against Petitioner's son.
Petitioner testified on cross-examination that her problems with the Doorman started in June of 2020, when the Doorman did not put notes in her mailbox although he put notes on other people's mailboxes; that in June a food delivery person came; that she told the restaurant to call her because she knew that the Doorman would not let her know about the delivery; that she came to the lobby when she did not receive her food within two hours of ordering it; that she heard from the restaurant that the Doorman said he would call her; that she asked the Doorman why he did not call her; that the Doorman responded with profanity; that the Doorman said that that is why no one in the Building likes her; that the Doorman said he would put their conversation on Facebook; and that she did not say that the Doorman is a gang member or a "Latin King."
Respondents introduced into evidence an email that Petitioner sent the Landlord on June 21, 2020 that stated, in part:
I encourage you to look back at the email you sent me on 6/4/20 at 7:14pm detailing [the Doorman's] claim of "distress" to you that night, which after running to you he would continue his threats and behavior and invited my son to fight earlier then his 11pm invitation and to antagonize and harass me using my apartment intercom after complaining to you this all started because [the Doorman] told a delivery person to leave my food with him and he will call me to come down to get it, but did not do so. In the years that he has worked here and before his "vacation" he has NEVER done his job and picked up an intercom to call me to inform me of ANYTHING ever, not even a visitor. The night I asked him "why he didn't just call me as he told the delivery person he would", he became unhinged from guilt and started to address things that have nothing to do with the conversation. He decided this was the time to tell me "that's why no one likes you in the building" and then proceeded to name names including yours .... Since it is hard to remember a lie, you first say that my son "threatened with slashing in the face". Now, I am puzzled because you now say that my son "has threatened to ‘slit’ [the Doorman]’s throat". Do you know which one it was or does [the Doorman] not know which one it was? The only issues which we were victims of again, was that time that another tenant who still lives in this building stole my son's clothes from the laundry and was caught on video surveillance, after terrorizing the rest of the building with his friends and cousins with burglaries. My son simply wanted to tell [the Doorman] to never speak to me again and in the manner that he did. What my son did say was after [the Doorman] looked at the both of us laughing like an enraged person and said "yea, you better back up! I have keys to your F**cking house" My son said "you are seriously F**cking smiling while saying that? Keep smiling and say that again" Say it again on tape, I bet that will wipe the F**cking smile off of your face". As I witnessed the entire exchange this is the only time my son said the word "FACE". My son's threat to him consisted of recording him. This is what triggered [the Doorman]’s panicking and covering up of his behavior. Knowing that once again a video recording would get him into a mess. This entire time [the Doorman] was coming from the desk and toward us smiling like a crazed person wanting to take this further. [The Doorman], your employee, an admitted braggadocious Latin King, threatened me twice to come into my home using the keys he has access to and then two weeks later continued to harass and antagonize me which I believe is a promise to fulfill his gang affiliated threat. [sic.]
Petitioner testified on cross-examination that the Landlord never asked her to move out; that the Landlord did not cut off her services; and that HPD has been to the subject premises five times and DEP twice. Respondents introduced into evidence a record from HPD showing that Petitioner complained to them about the water on September 11, 2020 and October 22, 2020.
Petitioner's son testified that he lives at the subject premises; that he is a college student; that he has noticed brown water, first in 2017; that the problem got to the point that he could not take a shower or he would stay at school or at his father's house to shower; that the water made his skin prickly and irritated; that while he was away at school he heard about an incident between the Doorman and Petitioner; that on June 4, 2020 he asked the Doorman not to contact Petitioner; that, later that night, the Doorman responded with profanity; that the Doorman said that his shift ends at 10:45 and said that Petitioner's son can come down and fight the Doorman; that on August 9, 2020, he was walking out of the Building looking at his phone, trying to avoid eye contact with the Doorman and that the Doorman directed a racist and sexist slur at Petitioner's son and told him to look up and fight him; that he sent himself a package for his birthday; that on September 16, 2020, they heard from the Post Office that the Doorman said that he and Petitioner do not live in the Building anymore; that on November 22, 2020, he exited the Building and again the Doorman directed a racist and sexist slur at Petitioner's son and asked him why he did not acknowledge or fight the Doorman; and that he tries his best to stay in the subject premises when the Doorman was on duty.
Petitioner's son testified on cross-examination that he had no problems with the Doorman before June; that most of the time he is at school, about four or five months per semester; that the longest stretch of time that he was at the subject premises was three months; and that he has no issues with any other doormen, employees, or the Landlord.
On Respondents’ case, another tenant of the Building testified that she has lived there for about ten years; that she had brown water in her shower and faucet a couple of years ago, through last year; that she told Respondents; that Respondents said that they were looking into that; that they would have the super flush the system; that Respondents took those steps; that a few months ago signs were posted in elevators saying that the system was being replaced; that she has not had a problem since then; that she interacts with Respondents’ employees on several occasions; that she knows the Doorman; that the Doorman gives her packages; that she has seen the Doorman deal with other people; that she never saw the Doorman threaten anyone; that the Doorman is very professional and cordial to people when they come into the Building, that the Doorman helps with packages; that the Doorman's temperament is mild-mannered; and that she has not seen the Doorman act in any other way.
The Doorman testified that he has worked in the Building for ten to twelve years; that he is supposed to secure the safety of residents coming in and out; that he screens visitors; that he works the front desk; that he receives packages from delivery services even though he is not required to; that he calls for food deliveries although most residents do not have intercoms and do not want to be called for food deliveries; that he works part-time 21 hours a week at the Building, on Wednesdays, Thursdays, and Sundays; that he interacts with two thousand people per day; that he knows Petitioner very well; that Petitioner has lived in the subject premises for about ten years; that they have a rocky relationship; that Petitioner and the tenants of four or five other apartments in the Building have made it a "mission" to make his life impossible; that they wanted him fired; that he complained about them about ten years ago; that he stopped complaining after that; that they complain about everything he does; that they make up charges against him, call police on him, and take pictures of his station when he goes to the bathroom; that Petitioner had stopped talking to him for a number of years; that in June of 2020 there was an incident where Petitioner had an issue with her food delivery; that the delivery came to the Building in a brown paper bag with no name or apartment number on it; that he gets hundreds of deliveries per day; that he asked the deliverer if he wanted to take it up; that the deliverer said that "she" was coming down in ten minutes; that Petitioner came to the lobby cursing at someone; that she noticed that food was on the table; that she was agitated; that she asked if that was her food; that the Doorman said he was not sure; that Petitioner asked him why he did not call her; that he said because there was no name on the bag; that Petitioner left and came back and got rude and he ignored her; that after that he would pull out his phone to record the way that Petitioner was speaking to him; that Petitioner noticed that he was recording her so she went away; that a week later she came into the lobby and he looked at her; that Petitioner called the Landlord and said that he was intimidating her by looking at her; that Petitioner's son came downstairs and threatened his life; that they went back and forth; that after that Petitioner frequently called the police on him; that he was not even at the Building one time when Petitioner called the police to complain about him; that every week Petitioner and her friends from the Building, the same six, file complaints against him; that he otherwise has good relationships with other residents; that he socializes with them; that on another occasion Petitioner called police on him and Petitioner's son pulled a knife on him and Petitioner's son threatened him; that in the second or third week of June the Doorman filed two police reports, to the point that the detective did not want to take complaints anymore; that he told Petitioner to stay away from him; that the Building has 150 apartments; that ninety percent of his stress comes from five families; that Petitioner is the main culprit; that there is always a similar backup complaint from tenants named Robin, the Thompsons, or Beatrice; that they plan out the week; that they linger and wait for him; that they complain about him when he brings food up to a disabled resident; that the Landlord is neutral; that the Landlord tells them to let it go; that one night that the Doormen remembered in particular a series of police officers came to the Building who asked him if he hit or threatened anyone; that he does not have a key to individual apartments, although he would pick up a key from the super's apartment to open a door and return the key to the super; that he works at an expensive building in Manhattan; that he has a normal mindset unless there is a threat; that he would ignore a tenant acting rude; that if a tenant escalates, he calls police; that if they escalate further he defends himself; that Petitioner's son many times made him feel like he had to defend himself, so he had to be stern; that normally he ignores Petitioner and Petitioner's son; and that Petitioner hates that he looks at her.
The Doorman testified on cross-examination that he went to prison for defending his family from a person who tried to burn down his house, although the Doorman originally referred to his incarceration as an "issue" and resisted giving an answer to that question; that ten years ago, when Petitioner's son was young, he was running around with another kid, damaging the Building, using fire escapes, and smoking marijuana; that Petitioner's son was into gangs and got into a fight with another gang member; that he did not defend either one; and that Petitioner got angry at him for that.
The Landlord testified that the Building is a mixed income building, according to which 30% of the units are earmarked for families with income at or below 60% of the area median income; that the Building was completed in 2007; that he is at the Building every day, even throughout the COVID-19 pandemic; that a water problem started in in 2018 when there was a water main replacement in Brooklyn; that he believed that the problem was not in Respondents’ hands; that he took samples from water at a valve where it came into the Building; that he consulted with a plumbing company that installed the system; that there might have been sediment settling in tanks; that he tried to wash it out by flushing the system; that that would help for weeks or a month; that the problem got worse so the next step he took was to place magnesium anodes and one thousand-gallon storage tanks there; that when that did not work they looked at other options and they concluded that they had to replace the whole heating system, which was only ten years old at that point; and that he started process of replacing tanks in July.
Respondents introduced into evidence a contract to replace the hot water system dated August 25, 2020 and photographs of water tanks. The Landlord testified that there was rust and corrosion inside the tank that had been there when they removed it; that the new system turned on on October 1; and that it took a week or two for brown water to wash out.
The Landlord testified that he has received complaints about the Doorman since June; that he attributed the complaints to the fact that people were staying home because of the COVID-19 pandemic and got cabin fever; that the doormen struggled to get to work and need encouragement; that he wanted to defend his workers; that he thinks that they deserve gratitude for showing up to work; that he will see two sides to an issue; that he asked Petitioner to live and let live; that the Doorman is just trying to support his family; that it is not going to end well if they confront each other every day; that he suggested that Petitioner's son come in through side entrance so the Doorman does not have to have a fight; that he told Petitioner that she had to calm her son down and that her son cannot provoke the Doorman; that he made the Doorman take a week leave of absence; that then the Doorman came back and after first incident, during the pandemic, people ordered everything on line; that the lobby of the Building was inundated with hundreds of packages; that delivery services had personnel of sign for 200 packages at the same time and that until you sort everything out you do not know what is there; that they hardly ever have missing packages; that the Doorman enforces a rule against letting delivery people go upstairs since they could carry COVID-19; that he hears complaints about that because the tenants do not want to be inconvenienced; that the doormen have to put up with a lot of abuse; that the Doorman is a professional; that they have a key card system that works twenty-four hours a day; that the side entrances are restricted after 10:00 p.m. as a security measure; that he did not have the Doorman try to drive anyone out of the Building; that he is not trying to clear out low-income tenants from the Building; and that the rent stays the same regardless of whether the tenant stays there or not.
Another resident of the Building testified that he has lived in a three-bedroom regulated apartment there for three years and two months; that in the past there were occasions when he had issues with brown water; that Respondents notified the tenants that they were working on the problem; that the water quality improved afterward; that he knows the Doorman; that he has never had issues with the Doorman; that the Doorman is a good friend of his; and that he has seen the Doorman act in the same way with other tenants, such as grabbing a package for them.
Another resident of the Building testified that he has lived there for seven-and-a-half years; that he has not had issues with water in his apartment; that he knows the Doorman; that the Doorman is always professional and polite; that he has gotten packages from the Doorman; that he has seen other people pass by the Doorman and greet him; and that he has never seen the Doorman act differently toward any other tenant.
The president of a commercial installer of boilers and generators ("the Installer") testified that he has been licensed as such since 1991; that he recently became aware through a series of service requests by Respondents that the water tanks for the Building were somehow supplying dirty water to the Building; that he was not clear if issues came from the City piping or from the hot water storage tank system; that he first heard about the problem in March of 2018; that he had the system flushed, which alleviated the problem for a year; that the problem recurred; that he checked anodes, which are a less noble metal, meant to corrode before steel and storage tank corrodes; that the cold water supply from the City is oxygenated, which corrodes metal pipes; that the anodes react with oxygen, extending the life of the tank; that he replaced the anodes around March of 2019; that the old anodes were pretty corroded in line with a fifteen-year-old tank; that he suggested increasing the drain size of a tank and then to waiting to see what the result would be; that he thinks the problem was resolved for six months; that he got another complaint about dirty water; that he checked the new anodes, drained and flushed the tanks, and, in June or July of 2020 he cut open one of the tanks and see what was going on inside it; that he noted that glass lining that is a spray-on corrosion inhibitor was gone; that the tank was heavily corroded to a point that is not normal for a system of that vintage; that he thought debris and abrasive material coming in from street work might have had an effect on the tank; that he had the tanks replaced with new indirect hot water heaters in July or August of 2020; that after that they had some spotty complaints; that in response they increased the size of a domestic hot water return circulator downstream of the tanks, which seemed to have resolved the problem; that Respondents could have replaced the tanks sooner, but there was no way to determine that that was the problem without opening up the tank; and that Respondents were open to all of his suggestions and followed all of his recommendations.
The Installer testified on cross-examination that the problem resumed twelve months after his initial solution. The Installer testified on redirect examination that, based on his experience, when there is a lot of construction, sediment can be dislodged and moved through the system; that he thought that construction was the most likely cause of the problem; that it was reasonable to think that sediment was the cause of the brown water; and that he did not expect that the tank would be as corroded as it was.
Petitioner testified on rebuttal that she asked the police to investigate the Doorman for the first time in September by going to the precinct; that the police said to call them if there were any more attacks; that she called police the day that she found out that the Doorman gave packages back to a delivery service at about 11 a.m. on September 17 or 18; that the third time she called the police was the night of November 22 when the Doorman stood four feet from her son without a mask and directed racial and sexist slurs against him; that she later heard from police that night that the Doorman said that no one by her name lived in the Building and that the Doorman told them that it was just a landlord/tenant dispute and that she frequently calls police on him; that the Doorman's testimony about an incident with her son from ten years ago did not happen; and that her son has been away at school for six years.
Discussion: harassment cause of action with regard to water-related violations
"Harassment" means, inter alia , any act or omission by owners intended to cause tenants to vacate their apartments or to surrender or waive any rights in relation to their tenancy and includes repeated interruptions of essential services or repeated failures to correct "B" violations. N.Y.C. Admin. Code §§ 27-2004(a)(48)(b), 27-2004(a)(48)(b-1), and 27-2004(a)(48)(b-2). Proof of repeated interruptions of essential services and repeated failures to correct "B" violations gives rise to a "rebuttable presumption" that the owner intended that such transgressions cause the tenant to vacate or surrender rights. N.Y.C. Admin. Code § 27-2004(a)(48).
Petitioner did not have proper water service. Not only does the HPD violation in evidence prove that as a prima facie matter, MDL § 328(3), but Respondents essentially conceded the point. As Petitioner experienced interruptions of water, an essential service, the burden shifts to Respondents to rebut the presumption that they intended to cause Petitioner to vacate or to surrender or waive rights related to her tenancy. Cartagena v. Rhodes 2 LLC , 2020 NY Slip Op. 30290(U)(S. Ct. NY Co.), 351-359 E. 163rd St. Tenants Assoc. v. E. 163 LLC, 2021 NY Slip Op. 50055(U), ¶ 7 (Civ. Ct. Bronx Co.). See Also N.Y.C. Admin. Code § 27-2115(m)(2) (an affirmative defense to a harassment allegation is that an owner did not intend to cause a tenant to vacate or waive rights and an owner acted in good faith and in a reasonable manner to promptly correct a condition or service interruption).
Petitioner argues that Respondents’ answer inadequately pleads a rebuttal of the presumption of an intent to cause Petitioner to waive rights. However, Respondents’ answer did plead, inter alia , that they attempted in good faith to correct the conditions and that they corrected the conditions. The primary function of a pleading is to apprise an adverse party of the pleader's claim and to prevent surprise. CPLR § 3018(b), Cole v Mandell Food Stores , 93 NY2d 34, 40 (1999), Giacobbe v. 115 Mulberry, LLC , 2018 NY Slip Op. 30415(U), ¶ 7 (S. Ct. NY Co.). With this purpose in mind, the Court shall liberally construe pleadings, CPLR § 3026, giving the pleader, even an inartistic one, the benefit of whatever can fairly be gathered from the pleading. Rich v. Lefkovits, 56 NY2d 276, 281 (1982). On this standard, Respondents’ pleading, that they attempted in good faith to correct the conditions and then corrected the conditions, gives sufficient notice such that Respondents’ position at trial, that they did not intend to cause Petitioner to vacate or waiver rights, cannot surprise any reasonable reader of Respondents’ answer.
Witnesses who have lived in six apartments in the Building testified to experiencing some degree of dirty tap water. Respondents retained the Installer to replace the water tanks servicing the entirety of a 150-unit building. The preponderance of the evidence therefore shows that the dirty water was a problem throughout the Building. The preponderance of the evidence also shows that the Building was first occupied in or around 2007. The Installer testified that when Respondents first tried to remedy the problem in 2018, he would not have expected that it be necessary to replace the water tanks given their age at the time, an allegation the Court finds credible in light of New York State Division of Housing and Community Renewal ("DHCR") regulations providing that metal water tanks have a useful life of 35 years. 9 N.Y.C.R.R. § 2522.4(a)(2)(i)(d)(13)(a). Given that the age of the water tanks was well within their useful life and that the only way to have inspected the water tanks, as the Installer testified, would have been to take one offline and break it apart, the less drastic measures that Respondents took, particularly flushing the system, were reasonable. When those measures proved insufficient, Respondents took the appropriate step and replaced the water tanks altogether.
DHCR made this finding to determine whether the replacement of water tanks qualifies for a Major Capital Improvement rent increase.
Good-faith attempts to correct a violation do not constitute a defense to a rent abatement, Leris Realty Corp. v. Robbins, 95 Misc 2d 712, 714 (Civ. Ct. NY Co. 1978), citing Reichick v. Matteo , N.Y.L.J. January 23, 1978, at 13:2 (App. Term 2nd Dept.), McBride v. 218 E. 70th St. Assocs. , 102 Misc 2d 279, 283 (App. Term 1st Dept. 1979), George v. Bd. of Dirs. of One W. 64th St., Inc., 2011 NY Slip Op. 32325(U), ¶ 9 (S. Ct. NY Co.), Dundy v. Hanover River House, Inc., 2008 NY Slip Op. 33227(U), ¶ 24 (S. Ct. NY Co.), Brooks Family Holdings Llc v. Morrison , 2017 N.Y.L.J. LEXIS 657, *5 (Civ. Ct. Queens Co.), Solomon v. Brandy , 1994 N.Y.L.J. LEXIS 9356, *4 (Civ. Ct. Bronx Co.), Tower W. Assocs. v. Derevnuk, 114 Misc 2d 158, 164 (Civ. Ct. NY Co. 1982), or an order to correct. D'Agostino v. Forty-Three E. Equities Corp. , 12 Misc 3d 486, 489-90 (Civ. Ct. NY Co. 2006), aff'd on other grounds , 16 Misc 3d 59 (App. Term 1st Dept. 2007). Harassment, however, is different. Whatever other cause of action Petitioner's lack of consistent clean water gives rise to, the appropriate attempts that Respondents made to correct the service of water rebut the presumption that the intent behind that condition was to cause Petitioner to vacate or waive rights. Moreover, Respondents did not direct this condition at Petitioner, as the condition affected apartments throughout the Building. Respondents having rebutted the statutory presumption that the intent behind their denial of essential services and inability to correct "B" violations was to cause Petitioner to vacate or waive rights, the Court dismisses so much of the harassment petition as seeks relief related to the dirty water Petitioner experienced, without prejudice to other remedies Petitioner may have for those conditions, and without prejudice to defenses that Respondents may have.
Petitioner also seeks an order to correct. While Petitioner did show an HPD violation for discolored water, the violation is dated in 2018 and Respondents amply proved a substantial amount of work since then, including a flushing of the system of pipes in the Building and, more importantly, the drastic undertaking of the replacement of the water tanks. The Installer credibly testified that after such work, some residual sediment may remain in the pipes, but that it would dissipate. Petitioner did not concede that the problem had wholly abated, but the extent to which the problem remains as per her own testimony was that the brown water was "very faint," an improvement consistent with the Installer's testimony and substantial enough that the preponderance of the evidence shows that Respondent have engaged in the corrective action they needed to in order to correct the problem, save for the exhaustion of the remaining sediment. Accordingly, an order to correct is not warranted as of this writing.
Discussion: whether the Doorman engaged in actionable conduct
Some of the testimony between Petitioner, Petitioner's son, and the Doorman conflicted and some of it did not. All agreed that Petitioner was to receive a food delivery on June 4, 2020, that she did not timely receive it, that she came to the lobby to look for it, and that she and the Doorman exchanged contentious words about that. Petitioner's son testified that he then told the Doorman not to speak to Petitioner and that the Doorman responded in an offensive and threatening way. The Doorman testified that Petitioner's son threatened his life. The preponderance of the evidence shows that the Doorman told something to that effect to the Landlord, given a contemporaneous email that the Landlord sent Petitioner referencing the Doorman's allegation.
Petitioner did not take the initiative to present this evidence to the Court on her direct testimony. Respondents brought this evidence out on cross-examination. The Court draws the inference that Petitioner is not presenting the events of June 4, 2020 as a part of her harassment cause of action, even though the Court may consider this evidence as such. Gibson, Dunn & Crutcher LLP v. Glob. Nuclear Servs. & Supply, Ltd. , 280 AD2d 360, 361 (1st Dept. 2001), Aragones v. State , 247 AD2d 657, 658 (3rd Dept. 1998). However, even if Petitioner took the position that the events of June 4, 2020 constituted harassment, the evidence does not support such a conclusion. While Petitioner, Petitioner's son, and the Doorman exchanged vexatious words that day, the exchange was mutual, as demonstrated by Petitioner's email of June 21, 2020 to the Landlord, where she said that her son used profane language with the Doorman. To the extent that the testimony of Petitioner and Petitioner's son otherwise conflicted with the Doorman, the weight of either side of that dispute did not preponderate over the other. Such equipoise operates to deny a finding in favor of the party who bears the burden, Rinaldi & Sons, Inc. v. Wells Fargo Alarm Service, Inc. , 39 NY2d 191, 196 (1976), White v. State of New York. 41 AD3d 1071, 2073-74 (3rd Dept. 2007), which, in this case, is Petitioner.
Petitioner also testified about an incident on September 17, 2020 where the Doorman invaded her space and menaced her as she entered the Building, a day following her complaint to the Landlord about Petitioner's allegation that the Doorman falsely told a delivery service that Petitioner no longer lived in the Building. Despite the specificity — down to the time of day — with which Petitioner testified about this instance, the Doorman did not testify about this incident. Even if the Doorman did not remember specific dates, which can be understandable, the context of this incident, a day after Petitioner's complaint to the Landlord, should make it possible for a witness to remember whatever it was that followed. Nor did the Doorman testify regarding Petitioner's testimony that he had been directing sexist slurs at her.
Petitioner's son testified to two occasions where the Doorman threatened him and directed racist and sexist slurs at him. The Doorman's testimony addressed Petitioner's son's testimony by averring that he and Petitioner's son had had occasions to go "back and forth," that he "defends himself" if a tenant "escalates," and that Petitioner's son many times made him feel like he had to defend himself, so that he had to be "stern." This testimony can actually conceivably be consistent with Petitioner's son's testimony, even if it implies that the broader context of the relationship between the Doorman and Petitioner's son mitigates the Doorman's conduct.
Be that as it may, the extent that the testimony between the Doorman and Petitioner's son conflicts occasions an examination of their credibility.
The Doorman testified that he talks to two thousand people a day. The multiple dwelling registration of the Building pursuant to MDL § 325 is included on the HPD violation in evidence, and it shows that the Building contains 158 units. If the Doorman talked to two thousand people per day, that would be the equivalent of talking to a bit more than twelve-and-a-half people per apartment per day. The Doorman testified that he works twenty-one hours per week, broken up over three days, which the Court infers to be three seven-hour shifts. If the Doorman talked to two thousand people per day, he would be talking to an average of 285 people an hour. In evaluating testimony the Court should not discard common sense. People v. Garafolo , 44 AD2d 86, 88 (2nd Dept. 1974). See Also People v. Jones , 19 Misc 3d 1143(A)(S. Ct. NY Co. 2008) (common sense and the lessons of human experience should not be strangers to the decision-making process). As a matter of common sense, the Doorman was not testifying accurately when he testified that he talks to two thousand people a day.
The Court recognizes that people use figures of speech in everyday language that are not necessarily literally true. But sworn testimony in Court is still sworn testimony in Court and, more importantly, the Court finds that the Doorman means to convey an impression. The Doorman's testimony that he talks to two thousand people appears intended to paint himself in a favorable light by illustrating how busy he is and the number of people that he talks to without incident. The problem is that the Doorman's attempts to convey impressions, using exaggeration, betray an attempt to substitute a positive image of himself over the literal truth. The number of people that the Doorman daily speaks to is not a collateral matter, either, but relevant to the disputes between Petitioner's family and the Doorman over how he treats them.
The Doorman's testimony that he receives "hundreds" of packages a day is in this same problematic vein. Assuming arguendo that the lowest possible amount the Doorman could mean by "hundreds" is two hundred, then every single apartment in the Building would receive at least one package in the course of one seven-hour shift, and about one-third of the apartments would receive two packages in that seven-hour shift. Given the disputes between the parties that originate in the way that the Doorman handled Petitioner's deliveries, the Doorman's clear exaggeration in sworn testimony as to the number of packages he receives again speaks to his truthfulness on a relevant issue before the Court.
The Doorman also testified that tenants in a certain number of apartments, ranging from four to six, made it their "mission" to make his job impossible, fabricated charges against him, planned out the week with a focus on how to entrap the Doorman, and "lingered" in wait for him in advancement of their agenda. In order for this testimony to be accurate, tenants from at least four separate households would coincidentally have to be irrationally scheming against the Doorman for no cause, a proposition that, besides sounding defensive and pre-emptive, defies common sense and bespeaks a witness whose motivation to put himself in the best possible light prevails over his giving the Court an accurate account of the facts.
Finally, the Doorman's initial characterization as the reason why he did not work for two years as a non-specific "issue" rather than the real reason, his incarceration, further bespeaks his prioritization of projecting a favorable image of himself over testifying to the truth. Accordingly, the Court discounts the weight it accords the Doorman's testimony. Cf. Washington Mut. Bank v. Holt , 113 AD3d 755, 756-757 (2nd Dept. 2014) (where a witness has given testimony that is demonstrably false, the Court may, in accordance with the maxim falsus in uno falsus in omnibus , choose to discredit or disbelieve other testimony given by that witness).
Petitioner's son did not present comparable issues affecting his credibility.
Accordingly, the Court credits Petitioner's son's testimony and makes the following findings of fact: on two occasions, one in August of 2020 and one in November of 2020, the Doorman attempted to provoke Petitioner's son into an altercation and directed racist and sexist slurs at him. On separate occasions, the Doorman called Petitioner a sexist slur and, in September of 2020, invaded her space and physically menaced her as she entered the Building.
Discussion: whether the Doorman's conduct amounted to harassment
In addition to the statutory definition of harassment noted above, "harassment" also means, inter alia , any act or omission by or on behalf of an owner that is intended to cause a tenant to vacate or to surrender or waive any rights and includes an act or omission consisting of using force or making threats against a tenant or other repeated acts or omissions of such significance as to substantially interfere with or disturb the comfort, repose, peace or quiet of a tenant. N.Y.C. Admin. Code §§ 27-2004(a)(48)(a), 27-2004(a)(48)(g). As with the aforementioned provisions of the statute, the use of force, making of threats, or other repeated acts give rise to a rebuttable presumption that they were done to cause a tenant to vacate or waive rights. The definition of harassment encompasses the conduct of the Doorman, including not only his use of slurs and his threats but also his physical menacing of Petitioner, which constitutes a use of force.
A tenant has a cause of action for harassment against an "owner." An "owner" means a "lessee, agent, or any other person, firm or corporation, directly or indirectly in control of a dwelling...." N.Y.C. Admin. Code § 27-2004(a)(45). While the Landlord is an "owner" for the purposes of the statute, a doorman does not have the requisite level of control of a dwelling to be an owner. Respondents are therefore liable for harassment only if the Doorman engaged in his conduct on behalf of an owner or if Respondents’ failure to take some measure against the Doorman amounts to an "omission" as provided by the statute.
Petitioner's testimony that the other doormen at the Building were "really good" and even "awesome" belies the proposition that Respondents engaged in any type of concerted campaign to force Petitioner from her home. Rather, the Doorman himself initiated the conduct Petitioner experienced, thus raising a question: if an owner who otherwise had no design to harass a tenant had an employee who engaged in objectionable conduct, what would a response that would not constitute an actionable "omission" — and therefore harassment — look like?
The burdens that the current COVID-19 pandemic have been laying upon the Building's staff clearly weighed on the Landlord. The Court credits the Landlord's testimony that tenants during the pandemic relied much more on delivery of food and packages than they had before, incurring deliveries at a volume that stretched the Building staff's resources, and moreover that the Building's staff did not have the option of working from home and had to put themselves at a greater risk. Be that as it may, Petitioner's positive experiences with Building staff other than the Doorman illustrate how a stressful pandemic does not have to cause objectionable conduct. Nor does a stressful pandemic relieve the Landlord from the task of taking serious charges against his employees seriously.
The Court grants that Petitioner and the Doorman conveyed conflicting accounts of what they experienced to the Landlord, which can be difficult to deal with. But if dealing with conflicts had not already come with the territory of the management of multiple dwellings, the enactment of the harassment statute made it so.
And so a good faith response to the conflicting accounts that the Landlord received could have consisted of hearing out Petitioner and the Doorman, or an installation of security cameras with protocols to resolve ongoing conflicts by reviewing security camera footage. The Landlord testified about the large scale of his operations, spread across some number of developments in New York City. That scale gave the Landlord the flexibility to do what smaller landlords cannot do, such as, for example, relocate the Doorman to give him a fresh start somewhere else.
The Court takes judicial notice that security cameras are common in buildings of comparable size and of comparative vintage in New York City and indeed would be surprised if Respondents’ insurance carrier did not insist on security camera placement in common areas of the Building.
If Respondents had, say, conducted a good-faith investigation and concluded that the Doorman was telling the truth and Petitioner was not, Petitioner would have a harder time proving that Respondents had committed an actionable omission. But Respondents did not do any of that. The Landlord trivialized complaints — not just from Petitioner, but also from other tenants — as a product of pandemic-induced "cabin fever" or of the inconvenience tenants experienced at having to come to the lobby to retrieve food deliveries. The Landlord's cavalier approach is consistent with the Landlord's dismissive tone in his email to Petitioner on June 21, 2018, chalking up her complaints about brown water to "games" and to Petitioner making a "bogus case for skipping out."
Petitioner and Petitioner's son testified as to the effect of the Doorman's conduct on their ability to freely come and go from their home, a fairly substantial aspect of the "comfort, repose, peace or quiet" that comes with any residence. The Landlord's suggestion that Petitioner and Petitioner's son use a side entrance only exacerbated this infringement, particularly when the key card that unlocked the side entrance stopped working at a certain time of night.
Accordingly, the Court finds that Respondents’ failure to take appropriate action regarding the Doorman's conduct amounted to an omission pursuant to N.Y.C. Admin. Code § 27-2004(a)(48) and therefore constituted harassment.
Petitioner's remedies
Tenants who prove harassment may obtain placement of housing maintenance code violations, an injunction restraining a landlord from engaging in such conduct, civil penalties payable to the New York City Commissioner of Finance, N.Y.C. Admin. Code § 27-2115(m)(2), compensatory damages, punitive damages, and attorneys’ fees. N.Y.C. Admin. Code § 27-2115(o). The petition seeks all of this relief. Having found that Respondents have harassed Petitioner as defined by the statute, the Court will direct HPD to place a violation and enjoin Respondents from future harassment.
The civil penalties awarded shall be payable to HPD and shall not be less than $2,000 nor more than $10,000. N.Y.C. Admin. Code § 27-2115(m)(2). As Respondents did not plot to force Petitioner to vacate or surrender rights, but instead failed to appropriately respond to the dispute placed before them, the Court awards penalties at the minimum of $2,000.
Compensatory damages cannot be contingent or speculative, but ascertainable to a degree of reasonable certainty. E.J. Brooks Co. v. Cambridge Sec. Seals , 31 NY3d 441, 448-49 (2018). Petitioner did not prove compensatory damages as such. In the absence of such proof, the Court can award Petitioner compensatory damages of $1,000.00. N.Y.C. Admin. Code § 27-2115(o).
Petitioner has not proven that Respondents’ omission regarding the Doorman rose to a level of intent or malice required to support the imposition of punitive damages. 2301 7th Ave. HDFC v. Hudgen-Grace , 29 Misc 3d 130(A)(App. Term 1st Dept. 2010).
Given the mixed outcome of this proceeding, the Court does not award attorneys’ fees at this time, without prejudice to a separately-filed application for the same.
Accordingly, it is
ORDERED that the Court dismisses so much of the petition as seeks harassment on the basis of violations of the New York City Housing Maintenance Code, without prejudice to any other remedy Petitioner may obtain for the interruption of her water service, and it is further
ORDERED that the Court denies Petitioner's application for an order to correct, without prejudice to renewal upon a placement of a new violation for dirty tap water, and it is further
ORDERED that the Court makes a finding that Respondents have engaged in harassment of Petitioner by Respondents’ omission in responding to the conduct of the Doorman in violation of N.Y.C. Admin. Code §§ 27-2004(a)(48)(a), and 27-2004(a)(48)(g), and it is further
ORDERED that HPD place a "C" violation for harassment on the subject premises, upon service of a copy of this order together with notice of entry by any party on HPD, and it is further
ORDERED that the Court directs Respondents to cease all harassment against Petitioner, including but not limited to harassment by omission in response to any objectionable conduct that the Doorman may engage in, and it is further
ORDERED that the Court awards Petitioner a judgment in the amount of $1,000.00 as against Respondents, jointly and severally, and it is further
ORDERED that the Court awards HPD civil penalties against Respondents in the amount of $2,000.00, to be enforced as against the Building, at Block 171, Lot 1 of the borough of Brooklyn, and it is further
ORDERED that the Court dismisses Petitioner's cause of action for punitive damages, and it is further
ORDERED that the Court denies Petitioner's application for attorneys’ fees, without prejudice to renewal.
This constitutes an order of this Court.