Opinion
HP Index No. 67990/2018
04-27-2021
Jaime STEINBERG, Petitioner, v. Ved PARKASH; Parkash 2454 LLC., Respondents, and Department of Housing Preservation and Development of the City of New York, Co-Respondent(s).
Take Root Justice, By: Roni Druks, Esq., Attorneys for Petitioners, (rdruks@takerootjustice.org) Horing Welikson Rosen & Digrugilliers PC, By: Jeffrey M. Hulbert, Esq., Attorneys for Respondents, (jhulbert@hwrpc.com) NYC Department of Housing Preservation and Development, Respondent HPD, Symone Sylvester, of Counsel, (sylvests@hpd.nyc.gov)
Take Root Justice, By: Roni Druks, Esq., Attorneys for Petitioners, (rdruks@takerootjustice.org)
Horing Welikson Rosen & Digrugilliers PC, By: Jeffrey M. Hulbert, Esq., Attorneys for Respondents, (jhulbert@hwrpc.com)
NYC Department of Housing Preservation and Development, Respondent HPD, Symone Sylvester, of Counsel, (sylvests@hpd.nyc.gov)
Shorab Ibrahim, J.
The petition in this "HP proceeding" alleges that Petitioner is the tenant and/or occupant of the subject premises (2454 Tiebout Avenue, Apt. 6B, Bronx, NY 10458), that PARKASH 2454 LLC is the owner of that property and that VED PARKASH is the managing agent of the subject premises ("Respondents").
Petitioner in this proceeding sought, inter alia , correction of all violations of the Housing Maintenance Code ("HMC") and the Building Code, including the elevator system (see amended petition at par. 77).
The parties have now settled the proceeding, except for the elevator claims.
See March 24, 2021 Stipulation.
Violation status reports available on the Department of Buildings website ("DOB"), and admissible pursuant to CPLR § 4518 and MDL § 328(3), show that there are three (4) open Environmental Control Board ("ECB") violations placed by DOB in the subject premises for the elevators. Violation No. 38235381X issued on March 10, 2015 and is classified by DOB as a Class-1 violation; Violation No. 38243349X issued on July 12, 2016 and is classified by DOB as a Class-1 violation; Violation No. 39017651H issued on February 15, 2020 and is classified by DOB as a Class-1 violation; and Violation No. 39024045N issued on June 16, 2020 and is classified by DOB as a Class-1 violation. "Class-1" violations are immediately hazardous violations. Copies of the violation details reports for the elevator violations, printed on April 27, 2021, are annexed hereto.
Respondents have appeared remotely by counsel and have interposed an answer. It is not disputed that petitioner is the tenant of the subject apartment or that respondents are proper parties. As to any dispute as to the existence of the conditions evidenced by the DOB violation status reports, the court notes that they remain open after recent inspections and after the landlord apparently certified them as corrected. ( see 351-359 East 163rd Street Tenants Assoc. v East 163 LLC , 68 Misc 3d 1228[A], fn8 [Civ Ct, Bronx County 2020] [Open violations are prima-facie proof of the conditions' continued existence]).
Each violation is marked "Certificate Disapproved" in April 2021.
At the outset, the court will address the threshold issue of whether this court has jurisdiction to enforce building code violations placed by DOB and ECB.
It is important to note that "§ 110 of the New York City Civil Court Act addresses the Housing Part of the Civil Court. § 110(a) provides ‘(a) part of the court shall be devoted to actions and proceedings involving the enforcement of state and local laws for the establishment and maintenance of housing standards, including but not limited to, the building code’. § 110(a)(4) provides for ‘(p)roceedings for the issuance of injunctions and restraining orders or other orders for the enforcement of housing standards under such laws.’ § 110 (c) provides ‘regardless of the relief originally sought by a party the court may recommend or employ any remedy, program, procedure or sanction authorized by law for the enforcement of housing standards, if it believes they will be more effective to accomplish compliance or to protect and promote the public interest....’. § 110(e) provides that Housing Court judges are ‘... empowered to hear, determine and grant any relief within the powers of the housing part in any action or proceeding except those to be tried by jury’." ( Truglio v VNO 11 E. 68th St. LLC , 35 Misc 3d 1227(A), *30-31, 953 NYS2d 554 [Civ Ct, New York County 2012] ).
Indeed, it is well-settled that the Housing Part has the power and jurisdiction to enforce building code violations issued by DOB and ECB. "The statutory framework which created the Housing Part of the Civil Court explicitly gave this court jurisdiction to grant injunctive relief to enforce ‘state and local laws for the establishment and maintenance of housing standards, including, but not limited to, the building code’." ( Various Tenants of 515 East 12th Street v 515 East 12th Street, Inc. , 128 Misc 2d 235, 236, 489 NYS2d 830 [Civ Ct, New York County 1985] [internal citations omitted]; see also Robertson v Jones , 66 Misc 3d 1219(A), *3, 120 NYS3d 724 [Civ Ct, New York County 2020] ["The Civil Court Act ("CCA") explicitly gives HP jurisdiction to grant injunctive relief to enforce ‘state and local laws for the establishment and maintenance of housing standards, including, but not limited to the Building Code’ HP has jurisdiction to enforce Building Code"] [internal citations omitted]; Rivellini v Rolf , 43 Misc 3d 1202(A), *4, 992 NYS2d 160 [Civ Ct, New York County 2014] ["Housing Court has jurisdiction in an HP proceeding over violations issued by DOB, ECB"]; Schanzer v Vendome , 7 Misc 3d 1018(A), *5-6, 801 NYS2d 242 [Civ Ct, New York County 2005] ["The Civil Court Act further gives this court the jurisdiction to issue ‘an injunction, restraining orders or other orders’ to enforce Building Code violations the court must exercise its authority so that it can fulfill its mission: to protect and preserve housing stock."] [internal citations omitted]).
Given that this court has the jurisdiction to enforce building code violations issued by DOB and ECB, and indeed a mandate to enforce such violations, the court now considers whether an order to correct the ECB elevator violations is proper.
The answer, in this court's view, does not raise any defense to an Order to Correct as a matter of law. ( see D'Agostino v Forty-Three E. Equities Corp. , 12 Misc 3d 486, 489-490 [Civ Ct, New York County 2006]aff'd on other grounds , 16 Misc 3d 59 [App Term, 1st Dept 2007] ; Vargas v 112 Suffolk St. Apt. Corp. , 66 Misc 3d 1214[A] at *3 [Civ Ct, New York County 2020] ["[t]he few defenses to an order to correct include lack of standing or jurisdiction, completed repairs, that conditions are not code violations, that a notice of violation is facially insufficient, that the respondent is no longer the owner, and economic infeasibility"] [internal citations omitted]; Allen v 219 24th St. LLC , 67 Misc 3d 1212(A), *17, 126 NYS3d 854 [Civ Ct, New York County 2020] ; Morales v Balsam , 69 Misc 3d 1204(A), *1-2, 2020 NY Slip Op 51176(U) [Civ Ct, Bronx County 2020] ).
The court notes that, pursuant to CPLR 409(b), it is required to "make a summary determination upon the pleadings, papers and admissions to the extent that no triable issues of fact are raised." ( Brusco v Braun , 199 AD2d 27, 31-32, 605 NYS2d 13 [1st Dept 1993] ; FR Holdings, FLP v Homapour , 154 AD3d 936, 938, 63 NYS3d 89 [2nd Dept 2017] ; 1646 Union LLC v Simpson , 62 Misc 3d 142[A], 2019 NY Slip Op 50089[U] [App Term, 2nd Dept 2019] ).
In view of the foregoing, pursuant to CPLR 409(b), it is hereby ORDERED that respondents shall correct the open ECB elevator violations [referenced by violation numbers above], within thirty (30) days of service of this Order upon respondents' counsel via email.
All parties are directed to comply with all appropriate safety protocols in light of the COVID-19 pandemic, including but not limited to: wearing gloves and face masks, complying with all rules, regulations, and orders related to social distancing, and following the recommendations of the Centers for Disease Control ("CDC"), the NYS and NYC Departments of Health and other health officials, and to take into consideration the health and safety vulnerabilities of the petitioner and members of her household to the extent the landlord and/or its agents have knowledge.
Failure to comply with this order shall subject respondents to the contempt powers of the court and civil penalties, as appropriate under NYC Admin Code § 27-2115 and § 28-202.1.
This constitutes the Order of the court. Copies will be emailed to respective counsel.
SO ORDERED.