Opinion
Index No. L&T 800486/22
04-23-2024
Esther Minott, Petitioner, v. New York City Housing Authority-Fort Independence Houses, HPD, Respondents.
Esther Minott, Petitioner appearing pro se. Milen Kovandzhiev, Of Counsel to David Rohde, General Counsel for Respondent NYCHA.
Unpublished Opinion
Esther Minott, Petitioner appearing pro se.
Milen Kovandzhiev, Of Counsel to David Rohde, General Counsel for Respondent NYCHA.
Kisha L. Miller, J.
KISHA L. MILLER, J.H.C.
Petitioner commenced this "HP Proceeding" by order to show cause for the correction of violations and for a finding of harassment and a restraining order. Following an inspection of the apartment by New York City Department of Housing Preservation and Development ("HPD") and multiple adjournments, which included Petitioner's request for counsel, Respondent NYCHA agreed to temporarily relocate Petitioner to repair the conditions. The court issued a decision/order dated October 27, 2023, directing NYCHA to restore Petitioner to the subject apartment upon completion of repairs no later than November 30, 2023. The remaining cause of action seeking a finding of harassment pursuant to Administrative Code of the City of New York §27-2005(d) was scheduled for trial.
Petitioner did not retain counsel and remained self-represented throughout the proceeding.
In response to Petitioner's harassment claim, NYCHA filed an answer denying the allegations and interposing three affirmative defenses, including failure to file a notice of claim.
The court conducted a one-day trial. Petitioner, Renee Trifaro, Petitioner's domestic partner, and Morris Erhunmwunse, Housing Assistant Fort Independence Houses, testified.
Petitioner testified as follows: NYCHA has harassed Petitioner and her family for more than six years. In 2018, when other tenants were trying to break Petitioner's door, she changed the lock and notified NYCHA who claimed she breached the lease by changing the locks. In 2018, NYCHA informed Petitioner about noise complaints. From 2020 through 2023, NYCHA told Petitioner to remove personal belongings from the public hallway or they would be discarded. Petitioner testified that she was cleaning the apartment and only temporarily placed items in the hallway.
She further testified that from 2020 through 2023, NYCHA took photographs and videotaped her activities; that a "Ms. Zachary" from management was never available and always told Petitioner to "put in a ticket" when Petitioner requested to speak with her; that NYCHA discarded bikes and scooters owned by Mr. Trifaro; and that NYCHA alleged Petitioner's apartment was overcrowded. Petitioner testified that NYCHA failed to address conditions in the apartment, including a bathtub enclosure with protruding nails and a stove that "blew up in her face," and that her children suffered respiratory infections due to mold and mildew. Petitioner claimed that because of NYCHA's actions, including its failure to recognize Mr. Trifaro as a tenant, she feels ostracized from the community and "demonized."
Mr. Trifaro corroborated Petitioner's testimony, stating that for more than one year, the bathtub enclosure contained a large hole showing the apartment below; that their children suffered bronchial infections due to conditions in the apartment; and that in 2019, NYCHA damaged and discarded multiple scooters he owned for his "registered business" located in the parking lot behind the building. He also testified that despite permission from NYCHA to reside in the apartment, NYCHA sent multiple notices threatening to evict the family, claiming Mr. Tifaro was not authorized to reside in the premises. Mr. Trifaro stated NYCHA never performed a background check but claimed he was a felon.
Mr. Erhunmwunse, testified briefly, stating Petitioner no longer resides in the subject apartment. He testified that she recently signed a lease agreement for a different NYCHA apartment and has been permanently relocated. He did not contest Petitioner's allegations of harassment.
At the close of testimony, Petitioner requested a monetary award of $25,000 so her family could relocate from the premises. NYCHA argued that the court lacks jurisdiction to award the relief requested because Petitioner no longer resides in the subject apartment, and she failed to file a notice of claim prior to commencing this proceeding.
Discussion
Before addressing whether Petitioner satisfied her burden of establishing harassment, the court must address NYCHA's request for dismissal based on Petitioner's failure to serve a notice of claim.
Public Housing Law §157(1) provides as follows:
"In every action or special proceeding, for any cause whatsoever, prosecuted or maintained against an authority, other than a claim arising out of a condemnation proceeding, the complaint or necessary moving papers shall contain an allegation that at least thirty days have elapsed since the demand, claim or claims upon which such action or special proceeding is founded were presented to the authority for adjustment and that it has neglected or refused to make an adjustment or payment thereof for thirty days after such presentment."
Compliance with the notice requirements of Public Housing Law §157(1) is a condition precedent to an action against the Housing Authority (Matter of Felder v City of New York, 53 A.D.3d 401 [1st Dept 2008] [requirements relating to notices of claim are in the nature of conditions precedent to the right to bring a suit]; J & E Industries of Ossining, Inc. v Peekskill Housing Authority, 128 A.D.3d 638 [2d Dept 2015]). The purpose of the statute is to permit a municipal defendant to investigate the validity of a claim and determine whether it desires to pay or settle the claim without the expense of litigation (J & E Industries of Ossining, Inc. v Peekskill Housing Authority, id.; Matter of Flosar Realty LLC v New York City Housing Authority, 127 A.D.3d 147 [1st Dept 2015]). Failure to satisfy the requirements of Public Housing Law §157(1) warrants dismissal of the claim against the Housing Authority (Potter v Atarien, 31 Misc.3d 846, 2011 NY Slip Op 21110 [Supr Ct, Queens County 2011]; Kovachevich v New York City Housing Authority, 295 A.D.2d 255 [1st Dept 2022]; Leon v New York City Housing Authority, 214 A.D.2d 455 [1st Dept 1995]; Reaves v City of New York, 177 A.D.2d 437 [1st Dept 1991]).
The specific language of Public Housing Law §157(1) requires a notice of claim in "every action or special proceeding" against the Housing Authority. But there are some exceptions. A litigant who commences a CPLR Article 78 mandamus proceeding against NYCHA need not serve a notice of claim (Matter of Flosar Realty LLC v New York City Housing Authority, 127 A.D.3d 147 [1st Dept 2015] [a writ of mandamus seeks only to enforce an already existing legal obligation of which the agency is aware so "there is little need for an investigation or examination"]).
In nonpayment summary eviction proceedings, where a litigant alleges breach of warranty of habitability as a set-off against NYCHA's rent claims instead of a counterclaim seeking an affirmative judgment, service of a notice of claim is not required (City of New York v Jones, NYJL, May 28, 1992 at 24, col 5 [App Term, 2d Dept, 2d & 11 Jud Dists 1992]; City of New York v Candelario, 223 A.D.2d 617 [2d Dept 1996]; New York City Housing Authority v Roberts, 2002 NY Slip Op 50144[U] [App Term, 1st Dept 2002]).
In unlawful entry and detainer proceedings commenced pursuant to RPAPL §713(10), where a petitioner claims they have been evicted by the Housing Authority without due process, NYCHA routinely defends these special proceedings without requiring service of a notice of claim. Since the petitioner alleges they have been ousted from possession, and the central relief sought is immediate restoration to possession, requiring service of a notice of claim prior to commencing these proceedings would be a useless act (see 27 NY Jur. 2d, Notice of Claim or Demand against New York City, §1487 ["the general requirement of presentation of a claim against the City of New York to the comptroller for adjustment is not required where to do so would be a useless act"]).
Housing Part actions, better known as "HP actions," commenced pursuant to Administrative Code of the City of New York §27-2115 are also routinely defended by NYCHA without requiring service of notices of claim. In these tenant-initiated actions, where the Housing Maintenance Code and the New York City Civil Court Act provide the statutory framework, tenants residing in apartments "owned" by the Housing Authority seek correction of conditions they allege violate applicable housing standards. There are no money damages to settle or negotiate, or an amount the Housing Authority needs to adjust or investigate prior to commencement of these proceedings. The main relief sought is to correct existing conditions and, pursuant to New York City Civil Court Act §110(c), the Housing Court may order NYCHA to correct conditions.
Many "HP proceedings" against NYCHA are commenced by self-represented litigants. They utilize court issued verified petition forms, requesting an order directing NYCHA to correct "violations," and upon its failure do so, entering a judgment for civil penalties pursuant to Section 27-2115(a). Generally, HPD, a co-respondent in these proceedings, will not issue notices of violation upon NYCHA upon finding existing conditions since NYCHA is exempt from multiple dwelling registration requirements (Administrative Code of the City of New York §27-2108). Also, HPD will not collect civil penalties awarded against NYCHA.
NYCHA falls within the definition of owner defined as "the owner or owners of the freehold of the premises or lesser estate therein, a mortgagee or vendee in possession, assignee of rents, receiver, executor, trustee, lessee agent, or any other person, firm or corporation , directly or indirectly in control of a dwelling (Administrative Code of the City of New York §27-2004[a][45][emphasis added]).
Here, Petitioner's cause of action seeking correction of violations pursuant to Administrative Code of the City of New York §27-1115 did not require service of a notice of claim. NYCHA agreed to permanently relocate Petitioner because of the conditions in the apartment. There were no money damages to settle or negotiate. However, Petitioner's cause of action sounding in harassment, requesting $25,000 in damages, seeks relief pursuant to a different provision of the statute.
For the reasons stated herein, Petitioner's harassment claim required service of a notice of claim prior to commencement of this proceeding.
In 2008, the New York City Council amended the Administrative Code of the City of New York by enacting Local Law No. 7. The amendment to the Housing Maintenance Code created a cause of action for harassment. An owner may be found liable for harassment by any act or omission that "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" (Administrative Code of the City of New York §27-2004[a][48]). The statute includes a specific list of acts or omissions that constitute harassment (Administrative Code of the City of New York §27-2004[a][48]), and a "catch-all" provision, defining harassment as other repeated acts or omissions that "substantially interfere with or disturb the comfort, repose, peace or quiet of any person lawfully entitled to occupancy..." (Administrative Code of the City of New York §27-2004[a][48-g]).
If a petitioner establishes harassment, as defined by the statute, several remedies are available. An owner will be subject to a civil penalty in an amount not less than $2,000 and not more than $10,000 (Administrative Code of the City of New York §27-2115 [m][2]). Additionally, the court must award the petitioner compensatory damages, the purpose of which is to restore the petitioner "to the position that would have been occupied had the wrong not occurred" (EJ Brooks Company v Cambridge Security Seals, 31 N.Y.3d 441 [2018]). The statute specifically states the housing part shall, in addition to any other appropriate relief, "award to each occupant compensatory damages or, at the election of such occupant, one thousand dollars and attorneys' fees (Administrative Code of the City of New York §27-2115[o]).
Punitive damages are the only discretionary remedy (Administrative Code of the City of New York §27-2115[o]). Punitive damages, which differ in purpose and nature from compensatory damages, are intended not only to punish the wrongdoer, but to deter future reprehensible conduct (Chauca v Abraham, 30 N.Y.3d 325 [2017]). Unlike other sections of the Housing Maintenance Code, a petitioner who successfully establishes a harassment cause of action will be awarded an affirmative judgment against an owner (Allen v 219 24th Street, LLC, 67 Misc.3d 1212 [A], 2020 NY Slip Op 50513[U] [Civ Ct, NY County 2020] [court awarded the petitioner $1,000 in compensatory damages and $20,000 in punitive damages]; 351-359 East 163rd Street Tenants Assoc v East 163 LLC, 70 Misc.3d 1212 [A], 2021 NY Slip Op 50055[U] [Civ Ct, Bronx County 2021] [court awarded the petitioner a judgment against the respondents in the amount of $11,000 in compensatory and punitive damages]; Roach v 215 Sterling LLC, 74 Misc.3d 1221 [A], 2022 NY Slip Op 50193[U] [Civ Ct, Kings County 2022] [court awarded the petitioner a judgment in the amount of $3,000 in compensatory and punitive damages]).
NYCHA is not exempt from the provisions of the harassment statute (Wiles v NYCHA-Pomonok Houses, 75 Misc.3d 846, 2022 NY Slip Op 22161 [Civ Ct, Queens County 2022]). If this court were to find that Petitioner established a harassment claim by a preponderance of the credible evidence, she would be entitled to an affirmative judgment for money damages against NYCHA, which could include punitive damages. Since money damages are amenable to adjustment by the Housing Authority, NYCHA is entitled to an opportunity to investigate the validity of Petitioner's harassment claim and decide whether to pay, settle, or litigate the $25,000 in damages she demands as relief (Devon Estates v City of New York, 92 Misc.2d 1077 [App Term, 1st Dept 1977]).
Petitioner should have complied with Public Housing Law §157(1), a condition precedent to filing the instant cause of action for harassment against NYCHA. Her failure to do so warrants dismissal of the cause of action.
While this court makes no determination on the merits of Petitioner's harassment cause of action, it is worth noting that NYCHA's failure to correct conditions, and complaints about NYCHA's policies and procedures, including treatment by management, are the substance of Petitioner's claim.
The primary goal of the public housing authority is to provide housing for low-income tenants in New York City (Public Housing Law §§2, 401). As an owner, NYCHA has an obligation to keep the premises in good repair, and its agents (including housing assistants, assistant managers, and managers) must not engage in any acts (or omissions) that may constitute harassment, as defined by the statute. Numerous litigants appearing in Housing Court who reside in apartments owned by NYCHA allege that NYCHA fails to abate immediately hazardous conditions, including mold throughout walls and ceilings and asbestos within floor tiles; that NYCHA has an arduous process to schedule repairs, which litigants describe as highly ineffective and rife with repeated and unexplained "closed ticket" requests; and that NYCHA causes inordinate delays in approving apartment transfers, including requests based on conditions like missing kitchen cabinets and persistent leaks. Depending on the facts, these types of allegations, including NYCHA's repeated failure to correct hazardous or immediately hazardous conditions, to name a few, could rise to the level of harassment (Administrative Code of the City of New York §27-2004[a][48][b-2]).
Effective January 1, 2023, the Administrative Code of the City of New York was amended, adding Section §27-2154. HPD and the Department of Buildings are now required to maintain data on their respective websites recording open code violations in public housing developments owned by NYCHA "in the same manner as such departments maintain data recording open code violations of private entities." The purpose of this amendment is to shed light on the conditions of public housing in the city (NY State Senate Bill 2021-S72A (nysenate.gov).
NYCHA's investigation of harassment claims prior to litigation may likely incentivize the housing authority to thoroughly examine it policies, procedures, and practices, and address these issues.
Accordingly, it is
ORDERED that Petitioner's harassment claim against NYCHA is dismissed for failure to serve a notice of claim pursuant to Public Housing Law §157(1).
This constitutes the decision and order of the court. Copy emailed to both sides.
Petitioner may visit 851 Grand Concourse, Room 105, for guidance on filing a notice of claim.