Opinion
Index No. 17593/2020
10-22-2021
Sharon WILSON, Petitioner, v. Noel STERLING and Sharon Sterling, Respondents, and New York City Department of Housing Preservation and Development (DHPD), Co-Respondent.
Law Office of Brian Stark, for Respondents NAICA, for Petitioner
Law Office of Brian Stark, for Respondents
NAICA, for Petitioner
Shorab Ibrahim, J.
HISTORY
In this harassment claim under NYC Admin Code § 27-2005[d] the tenant-petitioner (petitioner) alleges there was a "toxic odor invading" the apartment as of June 2020 and that the owners-landlords (respondents) did nothing about it.
Respondents interposed an answer which, inter alia , denies petitioner's allegations and noting there are no violations at the subject apartment.
A trial was held on October 4, 2021. After petitioner testified, respondent orally moved to dismiss the proceeding for the failure of petitioner to state a cause of action. The court reserved decision on the motion and respondents rested without calling any witnesses.
DISCUSSION
Based on the pleadings, testimony and evidence submitted, judgment shall enter in respondents’ favor dismissing the case.
Firstly, to the extent that any of the allegations of harassment are based on "physical conditions of a dwelling or dwelling unit, such allegation[s] must be based at least in part on one or more violations of record issued by the [Department of Housing Preservation and Development] or any other agency." [emphasis added]. (see Jeffers v River Park Residences, LP , 70 Misc 3d 1225[A], 2, 2021 NY Slip Op 50218[U] [Civ Ct, Bronx County 2021], citing NYC Admin. Code § 27-2115[h][2][i] ; 1068 Winthrop St. LLC v Zimmerman , 65 Misc 3d 1107, 1119 [Civ Ct, Kings County 2019] ).
Because the violation must be "of record," this court has previously held a violation must be present at the time the harassment claim is made. (see Jeffers v River Park Residences, LP , 70 Misc 3d 1225[A], 2-3 ).
Also see the pro-se petition, which is a pre-printed form provided by the clerks of the court. CIV-LT-27 states, in relevant part, "if the acts or omissions involve physical conditions in the unit or the building, a violation of record was issued."
Here, there is no violation for odors in or around the apartment and, as such, harassment based on failure of the landlord to cure a toxic odor condition does not lie.
Regardless, petitioner attempted to prove the toxic odor condition existed in the apartment which, together with other allegations, constitute harassment under the statute's "catch-all" provision. (see NYC Admin Code § 27-2004 (a)(48)(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]).
Here is where these proceedings became increasingly vexing to the court.
Petitioner testified she experienced dizzy spells, choking, feeling faint, and lack of sleep because of the alleged toxic odor. She is sure the odor came from inside the house. She insisted the odor was coming from above and from below and she laid blame on the other tenants’ cooking.
Although petitioner called the fire department to the home, they did not find anything amiss. Petitioner purchased a "combustible gas detector" with the brand name Yeezou. Petitioner introduced a video of her using the device and the device allegedly detecting some form of combustible gas in one of the rooms in the apartment. Petitioner believed it was relevant that the Yeezou has a website.
Petitioner testified that the FDNY did not smell anything in her apartment.
Until informed otherwise, the normal rules of evidence continue to apply in Housing Court. (see 22 NYCRR § 208.43(h) ).
Evidence obtained through use of scientific devices is generally not admissible until the device has been judicially accepted as reliable. (Richardson, Modern Scientific Evidence §§ 6.1 et seq.). Courts usually consider whether the device has gained general acceptance in the field in which it belongs. (see Frye v United States , 54 App DC 46, 29 F. 1013 [Court of Appeals, District of Columbia 1923] [holding lie-detector tests inadmissible]).
Breathalyzer results, for example, are admissible if foundational requirements are met ["that the testing device (1) is of a type that, when operated correctly, ordinarily produces scientifically reliable results and (2) was both in good working order and properly used on the date in question."] ( People v Jones , 33 Misc 3d 181, 183, 927 NYS2d 586 [Crim Ct, New York County 2011]citing People v Mertz , 68 NY2d 136, 148, 506 NYS2d 290 [1986] ).
It is essential, therefore, that a proper foundation be laid showing the device's reliability. ( People v Jones , 33 Misc 3d at 184, citing People v Thomas , 121 AD2d 73, 76, 509 NYS2d 668 [4th Dept 1986] ("No expert testimony was submitted as to the accuracy of this device and the scientific principles on which it is based. The record is completely barren of scientific evidence which would establish the reliability of the test.")).
Of course, expert testimony is not always required. ( Lahey v Kelly , 71 NY2d 135, 144, 524 NYS2d 30 [1987], citing People v Middleton , 54 NY2d 42, 49-50, 444 NYS2d 581 [1981] ). For example, thermometer readings may be introduced if the thermometer is shown to be in good working order. (see People v Brown , 115 Misc 2d 277, 280-281, 454 NYS2d 174 [City Ct, Mount Vernon 1982] ("Thermometers are items of daily and common use. They are used equally by professionals, such as doctors and scientists and laymen. While it is an instrument which is scientific, in nature, it is a simple and uncomplicated device. Any person, of ordinary intelligence, may testify as to the readings from a thermometer.") [internal citations omitted]).
Here, even assuming arguendo that the Yeezou is a "scientific device," the Yeezou is not an item of daily and common use and its reliability is not common knowledge. The court does not know if it is a simple and uncomplicated device. Petitioner did not attempt to establish any of these things. Indeed, petitioner did not offer any evidence that the Yeezou was operated correctly, was in good working order, or produces scientifically reliable results. (see People v Jones , 33 Misc 3d at 183 ). As such, the Yeezou "evidence" cannot be given any weight.
As for the balance of the harassment allegations, the court notes that harassment petitions must specify the facts constituting harassment. They cannot simply restate language used in the relevant statute. ( CPLR § 3013 ; see also, Acosta v 202 South 2nd Street LLC , 62 Misc 3d 1209[A], 2019 NY Slip Op 50040[U] [Civ Ct, Kings County 2019] ). As such, respondent's [pre-printed] claim that she was harassed, as defined by NYC Admin Code § 27-2004(a)(48)(f-1) - (f-3) are improperly pled. In any event, petitioner did not offer any credible or relevant testimony that she was offered something of value to vacate the apartment. Similarly, petitioner's [pre-printed] allegation that she was harassed because she belonged to a protected class, as stated in § 27-2004(a)(48)(f-5), is improperly pled and she did not offer any evidence, testimonial or otherwise, to support the allegation.
As to the allegation that force was used or threatened against her, (see § 27-2004(a)(48)(a) ), petitioner did not offer any credible testimony she had been attacked or threatened. In any event, the alleged attack and threats came from other occupants in the building and petitioner offered no proof the landlord had anything to do with those alleged attacks or threats. (see Robinson v Taube , 63 Misc 3d 1224[A] at 2, 2019 NY Slip Op 50666[U] [Civ Ct, New York County 2019] ).
The court notes that petitioner only testimony on this allegation was that respondents’ sister-in-law tried to attack her one time. Petitioner did not provide any further details.
Finally, the allegation that the respondents sought to increase the rent does not constitute harassment. If respondents offered a renewal lease at all, when they had no obligation to do so, militates against the notion that they intended petitioner to vacate the unit. (see § 27-2004(48) which defines "harassment" as "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").
Given all the above, petitioner failed to establish harassment based on "other repeated acts or omissions of such significance as to substantially interfere with or disturb the comfort, repose, peace or quiet" of petitioner. (see § 27-2004(a)(48)(g) ).
CONCLUSION
Based on the foregoing, the petition is dismissed after trial. Judgment shall enter in respondents’ favor. The respondents’ oral motion to dismiss the case is rendered moot. This constitutes the decision and order of the court. A copy of this decision will be emailed to the parties.
SO ORDERED.