Opinion
31720/2019
01-21-2021
351-359 EAST 163RD STREET TENANTS ASSOC., Candida Carrasquillo, Toshima Gardner, Gudalupe Rojas, Doris Pluas, Jesayna Olivera, Angelica Rojas & Kim Sanchez, Petitioner(s), v. EAST 163 LLC, PD Family Shelter Trust, Manny Stein, Dina Gutfruend, Respondent(s)-Landlord, Department of Housing Preservation and Development of the City of New York & New York City Department of Buildings, Co-Respondent(s).
Boris Lepikh, Esq., Law Office of Todd Rothenberg, Attorney for Respondents, 271 North Avenue, Suite 115, New Rochelle, NY 10801, Email: Boris@trothenbergesq.com. The Legal Aid Society, Attn: Zoe Kheyman, Esq., Attorneys for Petitioners, 260 E. 161st Street, 8th Floor, Bronx, NY 10451, Email: zkheyman@legal-aid.org. DHPD, Attn: Mirta Yurnet-Thomas., Email: Yurnetm@hpd.nyc.gov.
Boris Lepikh, Esq., Law Office of Todd Rothenberg, Attorney for Respondents, 271 North Avenue, Suite 115, New Rochelle, NY 10801, Email: Boris@trothenbergesq.com.
The Legal Aid Society, Attn: Zoe Kheyman, Esq., Attorneys for Petitioners, 260 E. 161st Street, 8th Floor, Bronx, NY 10451, Email: zkheyman@legal-aid.org.
DHPD, Attn: Mirta Yurnet-Thomas., Email: Yurnetm@hpd.nyc.gov.
Shorab Ibrahim, J.
BACKGROUND
This proceeding was commenced by various tenants residing at 351-359 East 163rd Street, Bronx, NY 10451. The tenants sought, inter alia , an order to correct outstanding violations and a finding of harassment under § 27-2004(48) of the NYC Admin. Code, also known as the Housing Maintenance Code ("HMC").
On November 22, 2019, the parties entered a consent order to correct the outstanding violations, but the harassment claim(s) was left unresolved. Despite several conferences with the court, the parties were unable to settle. As such, a virtual trial was held on December 9 and 10, 2020. The court notes that prior to the trial, the harassment claims of all petitioners, except for Angelica Rojas (Apt. 5-A), were discontinued without prejudice.
An oral General Denial was entered for respondents on September 1, 2020.
THE TRIAL
Angelica Rojas's Testimony
Angelica Rojas ("Ms. Rojas") testified first. The court found her testimony entirely credible. Ms. Rojas testified that there was insufficient hot water since 2012. Sometimes the condition lasts a few hours, and sometimes it lasts all day. In October and November 2020, there was insufficient hot water three to four times per week. She called 311 in November 2020. She called DHPD on XX/XX/2020 [her son's birthday] to complain of no hot water and no heat. She tested the water by running it for some time [10 to 15 minutes] and placing her hand in it. The water felt "freezing cold." She had to boil water for her husband to take a bath when he returned from work. She did not have any notice from the landlord that there would be service interruptions. She expressed her frustration [appearing visibly upset] at not having hot water. She has a type of arthritis that is affected by the cold. Not having hot water makes the kids late to school, which leads to bad grades. Not having hot water leads to her being late for work, which leads to her having problems at work. She feels as if no one cares about this problem.
In evidence as petitioner's ‘B’ is an HPD spreadsheet of complaints the Department has received in the last two (2) years.
Ms. Rojas then testified about the landlord's attempts at certifying violations, alleging the landlord has falsely certified that they fixed the roof, fridge, and the heat. Roof/ceiling violations were placed in November 2019. Ms. Rojas then entered into evidence a "CIV-14" form she received from DHPD. This form, the court notes, is sent to an apartment's occupant after a landlord certifies with DHPD that violations have been corrected. The CIV-14 is sent to the tenant to either confirm or dispute the landlord's certification. Ms. Rojas disputed the certifications. She did not believe the landlord had repaired the roof between January 2020 and April 2020. She did not believe the landlord had fixed the roof to date.
The court took notice of the contents of the court file which includes a November 20, 2019 Violation Summary Report. That summary report shows violation numbers 13452424 [Repair the roof so that it will not leak at ceiling in the 5th room from north at west located at apt 5A] placed November 13, 2019 and 13431110 [Repair the roof so that it will not leak ceiling in the entire apartment located at apt 5A], placed on November 6, 2019.
The CIV-14 refers to two violations the landlord had certified, violation number 13668850 [Repair the roof so that it will not leak above ceiling in the 1st room from north located at apt 5A], and 13668852 [Repair the roof so that it will not leak above ceiling in the 3rd room from east at south located at apt 5A], both placed on April 30, 2020.
Ms. Rojas then submitted into evidence a Notice to Occupant of Invalidated Certification sent to her by DHPD. This document clearly states that, pursuant to an inspection on November 6, 2017, five (5) violations that had been certified corrected by the landlord had, in fact, not been corrected. Among the violations were number 11900571 [Repair the roof so that it will not leak over the ceiling in the 5th room from north at west located at apt 5A], 11900587 [Repair the broken or defective plastered surfaced and paint in a uniform color ceiling in the kitchen located at apt 5A], and 11900601 [Repair the broken or defective plastered surfaces and paint in a uniform color ceiling in the 3rd room from north at west located at apt 5A].
In November 2020, DHPD placed three (3) more ceiling leak violations. Ms. Rojas called DHPD because the leaks were so bad the water was running through the walls and electrical outlets. She called 311 and "they" called the fire department. She does not believe the landlord fixed the roof between April 2020 and November 2020. A December 9, 2020 Open Violation Summary Report was entered into evidence. It lists the following violations relevant to ceiling and roof leaks: 13923615 [Repair the roof so that it will not leak over the ceiling in the 4th room from east at north located at apt 5A], 13917697 [Repair the roof so that it will not leak above ceiling in the 1st room from east at north located at apt 5A], 13887756 [Repair the roof so that it will not leak over the ceiling in the 4th room from east at north located at apt 5A], and 13887748 [Repair the roof so that it will not leak over the ceiling in the 1st room from east at south located at apt 5A]. These violations were "reported" between November 10, 2020 and December 3, 2020.
Ms. Rojas also submitted photos into evidence. Among them is a photo of her son's bedroom. Taken in July 2020, the court observed it shows evidence of a water leak--hanging plaster and paint and a black substance Ms. Rojas testified was mold. The water comes down whenever it rains, and the bedroom has looked like it does in the photograph for "years." Another photograph of the same room was taken in August 2020. It looked like that for three (3) months, until the landlord came to repair. However, when it rains, the water leaks through. A photograph of the dining room ceiling was taken in July 2020. The court observed that it shows evidence of water damage—a crack or hole with hanging plaster and paint. The landlord plastered the damage but when it rains the ceiling gets wet again. A photograph of the living room ceiling was taken in November 2020. The court observed it shows the ceiling plaster cracked open. Ms. Rojas stated the damage is from water leaks from the roof. It looks worse at present. A photograph of the living room wall was taken in November 2020. The court observed that it appears to show paint "bubbling" on the wall, likely resulting from water running down wall. Though not currently leaking, the paint looks like "waves" on the wall. A photograph of Ms. Rojas's youngest son's bedroom ceiling was taken in November 2020. The court observed it shows what appears to be a "patch job" plaster and/or paint on the ceiling. Ms. Rojas stated there was mold there and the landlord simply painted over it. She alleges it gets wet and yellow when it rains and currently looks yellowish. A photograph taken in December 2020 shows a bucket in the living room partially filled with yellowish water. Ms. Rojas testified the water is from the ceiling leaking. The bucket is still there to catch water because the ceiling still leaks when it rains.
Petitioner's "I."
Petitioner's "J."
Petitioner's "K."
Petitioner's "L."
Petitioner's "M."
Petitioner's "N."
Petitioner's "Q."
Two other photographs, taken in November 2020, show the floors in a bedroom and the living room. The court observed that the photos show paint stains on the floors, which Ms. Rojas alleges resulted from the landlord not covering the floors when they paint. One of these photos shows the "waves" on the wall apparently caused by water interacting with the paint on the walls.
Petitioner's "O" and "P."
Petitioner's "P."
Ms. Rojas further testified the intercom has not worked and is not working now, although the landlord has certified it as corrected with DHPD.
Ms. Rojas also testified she feels frustrated when she receives notices that the landlord has fixed something she knows has not been fixed. She has even considered leaving the apartment because of the conditions.
On cross-examination, Ms. Rojas testified that her son's bedroom was fixed in November 2020, so it no longer looks like it does in petitioner's exhibit ‘I." The dining room also no longer looks like it does in petitioner's exhibit "K," as it was fixed in November 2020. The crack in the living room ceiling, as depicted in petitioner's exhibit "L," appeared in November 2020, though the ceiling was "wet" before that. Ms. Rojas reiterated there are still active water leaks in the living room ceiling.
Ms. Rojas also stated her older son's bedroom has water leaking through the windows when it rains, but not at the ceiling currently.
As to roof repair, Ms. Rojas testified she was not aware that any work was done up on the roof because she had not seen any workers. She had been on the roof recently with "Sam," a building manager, and the super when they asked her to go up and show them what she thought the problem was. She showed them cracks and she told them about all the rooms where water was leaking or where the ceiling was getting wet.
As to "Sam," Ms. Rojas testified he had been to the apartment more than once to see about the leaks. The super also went one time with "Sam." Other workers had been sent to the apartment between 2019 to present to address the leaks. Sometimes they painted and sometimes they plastered. On re-direct, Ms. Rojas testified that the living room ceiling had cracked open in November 2020 because the roof was not fixed.
At the end of Ms. Rojas' testimony, DHPD's counsel requested that a "Closed Violations Summary Report" dated December 9, 2020 be admitted into evidence. This report, which lists the closed "class A" and "class B" violations was admitted as petitioner's exhibit "R" without objection. (see Multiple Dwelling Law ("MDL") § 328(3) ; Kingsbrook Jewish Med. Ctr. V Allstate Ins. Co. , 61 AD3d 13, 20, 871 NYS2d 680 [2nd Dept 2009] ).
Shmuel "Sam" Schachter's Testimony
Shmuel Schachter ("Mr. Schachter"), uses the name "Sam." He testified that he is the property manager for "on-site" issues for the subject building. He goes there about four (4) times per week and is familiar with Ms. Rojas' apartment. On December 9, 2020, he took a photograph showing a thermometer he held under a sink in the building [not at the subject apartment]. The court observed that the thermometer shows a temperature of 121.6 degrees.
Admitted, without objection, as respondents' exhibit 3.
As to hot water issues, Mr. Schachter was aware there had been issues, but there was hot water "right now." The landlord installed a new boiler in the last year. During the process of installing a new boiler, which he observed himself, the old boiler was removed, and a temporary boiler was "hooked up." Since then, heat and hot water have been working very well.
As to apartment 5A, Mr. Schachter testified he had visited 5, 6, or more times since 2019. Ms. Rojas had complained about leaks throughout the apartment. In January 2019, respondents sent a roofer who worked on the roof area above the apartment. Yet, the tenant complained of leaks after that. As far as Mr. Schachter knew, the roofer went back [to fix the roof] because "generally, usually we [management?] tell him [the roofer?] and he would go back and fix."
Mr. Schachter testified that that in September 2020 an entirely new roof was installed at the building, yet 5A continues to complain about water leaks. The tenant showed him the living room ceiling and the roofer was sent back to address the situation. Mr. Schachter was last in 5A on or about December 2, 2020. As to evidence of continuing water leaks, he saw peeling paint on the living room ceiling, so he surmised there were still water leaks there. He saw no other evidence of leaks in other rooms.
Mr. Schachter then entered two photographs taken on November 17, 2020 into evidence. Both show the same "bedroom." The court observed that there did not seem to be evidence of an active leak in these two photographs.
Respondent's exhibits 4-1 and 4-2.
On cross-examination, Mr. Schachter could not recall if he had sent a roofer to the building in December 2019, January 2020 or March 2020. He did recall the roofer going to the building in January 2019. He did not know whether there was written proof of when the roofer went because the roofer "guarantees" his work and would just go look at it when called.
Mr. Schachter reiterated that the landlord had paid a lot of money to "redo" the roof and he thought the problem with leaks from the roof was fixed. He was aware, however, of a December 3, 2020 violation, although he did not believe that was a roof issue.
As to mold violations [the court notes there were (4) closed mold violations for the subject apartment], Mr. Schachter could not recall when he had sent a mold remediator.
As to the certification [of violations], Mr. Schachter testified he does certifications depending on the type of violation. Sometimes he takes photographs and sends them to "the office" and they certify there. He did not agree that the April 11, 2019 violations had been falsely certified because they had been "truthful."
The court notes that for the violations placed April 11, 2019 the landlord certified on or about June 6, 2019. DHPD reinspected on or about November 13, 2019 and found the violation had been falsely certified. Finding a false certification pursuant to an inspection some (5) months after the certification is received by DHPD seems to conflict with department policy. (see https://www1.nyc.gov/assets/hpd/downloads/pdfs/services/Clearing-HPD-Violations.pdf [For non lead-based paint violations, if no reinspection is conducted, the violation is deemed complied 70 days after the receipt of the certification. The violation is closed.]). Last accessed January 14, 2021.
As to violations placed on April 17, 2019, which the landlord certified corrected on or about June 6, 2019, and found falsely certified pursuant to an August 13, 2019 inspection, Mr. Schachter testified "generally" he would have someone go and fix. He did not recall what work was done between April 17, 2019 and June 6, 2019 or if he had checked to see what work was done during that time.
Regarding hot water violations, Mr. Schachter offered non-specific testimony about what the landlord would "generally" do to correct the problem. He stated he "might" send the super or he "might" investigate if there were numerous complaints. He would personally investigate if there was a violation.
As to false certifications of hot water violations, a hot water violation placed on April 15, 2019 was found falsely certified pursuant to an inspection on April 19, 2019. Mr. Schachter testified the landlord certified because the hot water was working then. A hot water violation placed on or about August 27, 2020 was found falsely certified pursuant to an inspection on September 2, 2020. Mr. Schachter did not remember what had been done on August 28, 2020, the certified correction date, to make sure the hot water was working properly.
Mr. Schachter was not aware that Ms. Rojas was still complaining about hot water outages. He was not aware of hot water complaints made to DHPD.
On re-direct, Mr. Schachter explained that although he had not tested the water in apartment 5A on the morning of his testimony, all the hot water comes from the same boiler.
Mr. Schachter also reiterated he had never certified a violation corrected believing the condition had not in fact been corrected.
Garib Taneja Testimony
Garib Taneja ("Mr. Taneja") described himself a "construction" worker. He has been in construction work since 2007. He is familiar with the subject building, where he has done pointing, stucco, sidewalk and roofing work.
As to roofing, Mr. Taneja testified he first did roof work at the building in January 2019 to fix a leak. He also went back in July 2019 and August 2020 and then again at the end of October and early November 2020. Mr. Taneja testified he observed the work done on the roof and was satisfied with it.
Mr. Taneja introduced (3) documents into evidence. His testimony established they were his business records created under his direction after being contacted by "Manny" to fix the roof at the subject building. Each is a proposal/bill for work allegedly done at the roof of the subject building.
On cross-examination, Mr. Taneja testified he has worked at respondents' other buildings. He had been inside apartment 5A or about January 10, 2019 and then again on January 23 and/or 24, 2019 to check the leaks.
As to the reoccurrence of leaks from the roof after he had done repairs to that same roof, Mr. Taneja did not know why there were new violations in April 2019 when he had done repairs in January 2019. He surmised that the November 2019 violations were because of a storm, not because of defects in the roof. He acknowledged it was not normal to have numerous leak violations after he had fixed the roof.
DHPD counsel also asked Mr. Taneja some questions. Mr. Taneja testified he had worked on more than 100 roofs since 2007. He did not check how many layers of roofing there were prior to installing a new roof. He did not know what a "built-up roof" was and had no familiarity with Chapter 15 of the Construction Code.
Manny Stein Testimony
Manny Stein ("Mr. Stein") testified he signed the three (3) "contracts" introduced by Mr. Taneja.
Closing Statements
In closing, petitioner argued she established through testimony and records that the landlord had repeatedly interrupted services and failed to correct hazardous conditions over a long period of time. She alleges the record established a pattern of false certifications for many years.
Petitioner points out that there was no independent proof that roof work was ever paid for. Regardless, she posits that the roof had not been fixed properly, if at all, since leaks had been reoccurring since 2012.
Petitioner seeks a finding of harassment, an injunction barring respondents from further harassing her, civil penalties pursuant to HMC 27-2115[A] and damages, including punitive damages.
Respondents argue that they rebutted the presumption that their acts or omissions were in any way intended to cause the petitioner to vacate the premises. They note they made numerous attempts at fixing the roof and that there were no present hot water violations in the apartment. Lastly, they argue petitioner provided no evidence of actual damages.
DISCUSSION
HMC § 27-2004(48) defines "harassment" as any or omission by or on behalf of an owner that (i) causes or intended to cause any person lawfully entitled to occupancy of a dwelling unit to vacate such dwelling unit or to surrender or waive any rights in relation to such occupancy and (ii) includes one or more of the following acts or omissions b-1. an interruption or discontinuance of an essential service that (i) affects such dwelling unit and (ii) occurs in a building where repeated interruptions or discontinuances of essential services have occurred; b-2. repeated failures to correct hazardous or immediately hazardous violations of this code or major or immediately hazardous violations of the New York city construction codes, relating to the dwelling unit or the common areas of the building containing such dwelling unit, within the time required for such corrections; b-3. repeated false certifications that a violation of this code or the New York city construction codes, relating to the building containing such dwelling unit, has been corrected.
Class "B" violations are "hazardous" pursuant to NYC Admin. Code § 27-2115(c)(2) ; and Class "C" violations are "immediately hazardous" pursuant to NYC Admin. Code § 27-2115(c)(3). (Notre Dame Leasing LLC v Rosario , 2 NY3d 459, 463 n.1 [2004] ).
A tenant need not prove that the landlord intends to have them vacate the premises because the statute creates a "rebuttable presumption that such acts or omissions were intended to cause such person to vacate such dwelling unit or to surrender or waive any rights in relation to such occupancy" (HMC § 27-2004(48)(ii) ).
Ms. Rojas established the harassment claim by a clear preponderance of the evidence. (see 133 W 145 LLC v Davis , 63 Misc 3d 158[A], 2019 NY Slip Op 50850[U] [App Term, 1st Dept 2019] ; 3657 Realty Co. LLC v Jones , 52 AD3d 272, 859 NYS2d 434 [1st Dept 2008] ). Through her credible, unrebutted testimony and other documents in evidence, she established ceiling leaks throughout her apartment dating back to at least 2015. The Closed Violation Summary Report dated December 9, 2020 lists hazardous "class B" roof and ceiling [relating to leaks] violations reported in March 2015, September 2016, July 2017, November 2017, April 2019, July 2019, and April 2020. The Open Violation Summary Report dated December 9, 2020 lists similar violations placed in April 2020, November 2020, and December 2020.
Respondents failed to prove that the conditions related to the roof had ever been corrected or corrected properly. Any testimony or evidence to the contrary is belied by the fact that DHPD continued to place violations arising out of a defective roof. For example, the July 27, 2017 violations [no. 11900571 and no. 11900586], both directing the landlord to fix the roof, were certified as corrected on or about September 13, 2017. DHPD, however, found those certifications were false, after an inspection on November 6, 2017. Mr. Taneja, for his part, testified he fixed the roof on four (4) separate occasions, including installing a new roof by early November 2020. Even if Mr. Taneja performed such work, respondents "repeatedly failed to correct" the violations. The repairs allegedly made in January 2019 were followed by the April 2019 violations. Repairs made in July 2019 were followed by violations placed on or about July 29, 2019 and then again in November 2019. Violations for the same issues were again placed in March 2020 and April 2020. Repairs made in August 2020 were followed by violations placed on November 10, 2020. The new roof allegedly installed by early November 2020 did not resolve the problem, as more violations followed on November 30, 2020 [no. 13917697—repair the roof so that it will not leak above the ceiling in the 1st room from east at north located at apt 5A] and December 3, 2020 [no. 13923615—repair the roof so that it will not leak over the ceiling in the 4th room from east at north located at apt. 5A]. The court also accessed the DHPD website on January 20, 2021 and found a "new" class "C" violation for the roof leak placed on January 7, 2021.
Three (3) relevant violations were placed on March 3, 2020. Each directs repair of plaster and paint of ceilings in different rooms.
The Closed Violation Summary Report indicates similar violations placed March 2015 and September 2016.
[no. 13963596—repair the roof so that it will not leak at the ceiling and east wall in the 2nd room from north at east located at apt 5A]. https://hpdonline.hpdnyc.org/HPDonline/select_application.aspx. Last accessed January 20, 2021
In any case, Mr. Taneja was not credible. Not only were new violations for the same or similar conditions placed after he fixed the roof, his testimony was bare and unsupported. For example, though Mr. Taneja produced the purported contracts for the roof work, neither he nor Mr. Stein produced any proof the work was paid for. Mr. Taneja produced no proof of materials he purchased, particularly for when he replaced the entire roof of this forty-four-unit building. Unsurprisingly, Mr. Taneja could not explain why violations continued to be placed after his "guaranteed" work was done. Additionally, Mr. Taneja's total lack of knowledge about the New York City Construction Code as it relates to roofing was concerning, given the approximately one hundred (100) roofs he alleged having repaired. (see NYC Construction Code § 1510.3).
https://www1.nyc.gov/assets/buildings/apps/pdf_viewer/viewer.html?file=2014CC_BC_Chapter_15_Roof_Assemblies_and_Rooftop_Structures.pdf & section=conscode_2014. Last accessed January 19, 2021.
Respondents' other witnesses were likewise not credible. Mr. Schachter, for example, testified that a new boiler had been installed at the subject building. Given the expected cost, the court expected proof of the purchase and installation of a new boiler. None was offered. This omission is particularly striking as the court has previously commented on its absence in another proceeding between these parties. (see 351-359 East 163rd St. Tenants Assoc., et. al. v East 163 LLC , et. al., 2020 NY Slip Op 51096[U] at *3, 68 Misc 3d 1228[A] [Civ Ct, Bronx County 2020] ["Mr. Schachter alleged a new boiler was being installed but did not concede that a new boiler meant that anything had been wrong with the old one. Though the court surmises that the cost of a temporary boiler and of a new boiler for a forty-four (44) unit building would be considerable and such proof would be reasonably offered to mitigate against potential fines, no proof was offered."].
Petitioner also established that she has been harassed because the landlord repeatedly failed to provide an essential service—hot water. Ms. Rojas testified she has suffered without hot water at various times since 2012. The record supports the conclusion that Ms. Rojas has suffered through consistent lack of hot water since at least April 2019. In addition to numerous complaints made to DHPD, violations have been placed. Since April 2019, DHPD has placed at least three (3) hot water violations in apartment 5A. This court placed another on July 15, 2020, after a hearing in another proceeding between these parties. (see 351-359 East 163rd Street Tenants Assoc., et. al. v East 163 LLC , et. al., 2020 NY Slip Op 50877[U] [Civ Ct, Bronx County 2020] ). The April 2019 violation was reported on April 11, 2019. The landlord certified it as corrected. However, that certification was found false pursuant to an inspection on April 19, 2019. The August 2020 violation was reported on August 25, 2020. The landlord certified is as corrected. However, that certification was also found to be false pursuant to an inspection on September 2, 2020. The violation placed September 2, 2020 was, according to Ms. Rojas, corrected. Ms. Rojas testified, however, that hot water outages continued in September 2020.
See DHCR Office of Rent Administration Fact Sheet # 3 for a list of "essential services."
All "hot water" violations are Class "C" violations.
Ms. Rojas testified that in October, November, and December 2020 she continued to suffer without hot water up to three or four times per week. Her testimony that she made numerous calls to DHPD to complain about the lack of hot water is supported by the record. Her testimony established she did not have hot water on December 7, 2020. (see Mite v Pipedreams Realty , 190 Misc 2d 543, 740 NYS2d 564 [Civ Ct, Bronx County 2002] ).
Petitioner's "B."
Mr. Schachter's testimony about the lack of hot water was short on detail and unsupported. His testimony about what he would "normally" or "usually" do to address a repair cannot be given weight. Furthermore, respondents provided no proof that they ever undertook a serious repair to resolve the hot water issues at the building. They provided no proof that the hot water interruptions were on notice or due to maintenance of the building's boiler. (see e.g. Toomer v Higgins, 161 AD2d 347, 554 NYS2d 921 [1st Dept 1991] ; NYC Admin. Code § 27-2005(e)(1) ).
Finally, petitioner established harassment under HMC § 27-2004(48)(b-3) as the record clearly shows respondents repeatedly submitted false certifications to DHPD. The Closed Violation Summary Report alone lists twenty-three (23) separate violations in Ms. Rojas' apartment that were falsely certified since March 2015.
The court notes that respondents did not interpose a written answer in this matter and that a general denial was entered. They never sought to amend the answer. As such, any potential affirmative defense(s) under HMC § 27-2115(M)(2) is unavailable to them. In any case, the record does not support any defense to this action.
Thus, the court finds that respondents have engaged in harassment as defined by HMC § 27-2004(48), subsections (b-1), (b-2) and (b-3).
Upon a finding of harassment, tenants may seek an order from a court restraining an owner from engaging in such conduct. The court is mandated to impose civil penalties of not less than $2,000.00 and not more than $10,000.00 ( NYC Admin Code § 27-2115 (m)(2) ; see Cartagena v Rhodes 2 LLC , 2020 WL 554359 at *5, 2020 NY Slip Op 30290[U] [Sup Ct, New York County 2020].
Here, the record establishes egregious actions and/or omissions by respondents. As such, civil penalties of $9,000 payable to the New York City Commissioner of Finance are appropriate. (see ABJ Milano v Howell , 61 Misc 3d 1037, 1042, 86 NYS3d 389 [Civ Ct, New York County 2018] ). This relatively high assessment is supported by the record. The consistent failure to correct hazardous conditions and to provide essential services, as well as numerous false certifications, cannot be sanctioned by the court. Stated another way, the record leaves no doubt that respondents' actions and omissions have substantially interfered with and disturbed Ms. Rojas' comfort, repose, peace and quiet. Omitting maintenance, while also certifying that the repairs have been lawfully completed constitutes exactly the kind of conduct the Legislature sought to curb by its enactment of NYC Admin. Code § 27-2005(d). ( Allen v 219 24th Street LLC , 67 Misc 3d 1212[A] at *20, 2020 NY Slip Op 50513[U] [Civ Ct, New York County 2020] ).
In assessing a $9,000.00 civil penalty, the court is mindful that each of the three (3) harassing acts or omissions [failure to correct hazardous conditions, failure to provide essential services, and repeated false certifications] would support a minimum penalty of $2,000.00 each.
As to compensatory damages, Ms. Rojas is awarded $1,000.00 pursuant to HMC § 27-2115(o). No actual damages were proven. (see Allen v 219 24th Street LLC, supra at *20, citing E.J. Brooks Company v Cambridge Security Seals , 31 NY3d 441, 80 NYS3d 162 [2018] ).
As to punitive damages, the court notes that HMC § 27-2115(o) leaves an award of punitive damages to the court's sole discretion. The purpose of assessing punitive damages is to punish the individual wrongdoer and to deter others from engaging in similar conduct. ( Smart Coffee, Inc. v Sprauer , 2021 NY Slip Op 21004 at *8 [Civ Ct, Queens County 2021] citing Walker v Sheldon ,10 NY2d 401, 405, 223 NYS2d 488, 491 [1961] ). Punitive damages have been awarded when a landlord has failed to adhere to housing code standards. ( Minjak v Randolph , 140 AD2d 245, 249, 528 NYS2d 554 [1st Dept 1988] ["With respect to this State's strict housing code standards and statutes, made enforceable through civil and criminal sanctions and other statutory remedies, it is within the public interest to deter conduct which undermines those standards when that conduct rises to the level of high moral culpability or indifference to a landlord's civil obligations."]; Kingsborough Realty Corp v Goldbetter , 81 Misc 2d 1054, 1058, 367 NYS2d 916 [Civ Ct, New York County 1975] ).
Here, punitive damages are appropriate given respondents' conduct. (see Allen v 219 24th Street LLC, supra at *21 ["If punitive damages would not apply to Respondents under these circumstances, deferral of maintenance could potentially be a rational course of conduct for a property owner."]). The court also considers the effect respondents' conduct has had on Ms. Rojas' and her family's life.
As to the amount of punitive damages, they should bear some reasonable relation to the harm done and the flagrancy of the conduct causing it. The record establishes the landlord's failure to correct pervasive leaks into Ms. Rojas' apartment over at least five (5) years. It establishes the landlord's failure to provide adequate hot water over the last several years. Finally, it establishes the respondents' consistent efforts to undermine the Housing Maintenance Code by submitting false certifications. The record established that these acts and/or omissions continued unabated. For these reasons, the court awards Ms. Rojas $10,000.00 as punitive damages.
From March 2015 through the trial date, the court counts forty-one (41) open or closed "Class B" violations relating to the roof or damage likely caused by water leaks to the apartment ceiling. There are an additional thirteen (13) "Class A" violations relating to the same issues. The court did not count mold violations, which were likely caused by water penetration from the roof. Nor did the court count any violation for plaster and paint, which there were many, those that did not include the word "ceiling" although there was testimony, supported by photographs, that water would run down the walls when the ceiling leaked. The court also does not include electrical outlets violations in this count although Ms. Rojas testified the leaks were severe enough to cause water to run through the outlets, causing her to call the Fire Department.
The court notes that many other hot water violations have been placed in other apartments in the subject building over the last several years (see closed hot water violations list provided by DHPD). To the extent that Mr. Schachter offered that the same water goes to all the apartments, the court surmises that when one apartment has insufficient hot water, it is likely that all the apartments have insufficient hot water. (see 351-359 Tenants Assoc., et. al. v East 163 LLC, et. al. , 68 Misc, 3d 1206[A] at *3 [Civ Ct, Bronx County 2020] ).
For instance, violation no. 13887756 [Repair the roof so that it will not leak over the ceiling in the 4th room from east at north located at apt 5A] was reported on November 10, 2020, with a notice of violation issued on November 13, 2020. By November 17, 2020, DHPD has received a certification that the violation was corrected. However, on December 3, 2020, viol. No 13923615 was reported [Repair the roof so that it will not leak over the ceiling in the 4th room from east at north located at apt 5A]. In other words, a violation the landlord certified corrected between November 13, 2020 and November 17, 2020 was still a violation some three (3) weeks after the landlord certified it was corrected. Ms. Rojas' testimony reflects that hot water shortages continue to be a problem. Finally, the record suggests respondents routinely certify violations without having corrected the underlying condition.
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Petitioner also seeks attorneys' fees. Such fees are available under § 27-2115(o). As the prevailing party herein, Ms. Rojas is entitled to an award of attorney's fees, to be determined at a hearing.
CONCLUSION
Based on the foregoing, it is
ORDERED, a class "C" violation for harassment shall be placed at the subject premises by DHPD; and it is further
ORDERED, that respondents are enjoined from engaging in any harassment conduct prohibited by NYC Admin. Code § 27-2005(d) and defined in NYC Admin. Code § 27-2004(a)(48), and it is further
ORDERED, that DHPD is awarded a final judgment in the amount of $9,000.00, which may be enforced as a lien against Block 2424, Lot 8, in the borough of the Bronx, NY; and it is further
ORDERED, that the Court awards Angelica Rojas, residing in apartment 5A, a judgment against respondents, jointly and severally, in the amount of $11,000.00; and it is further
ORDERED, that the petitioner's prayer for attorney's fees is granted to the extent of calendaring the matter for a hearing on March 8, 2021 at 10 A.M. via Microsoft Teams.
This constitutes the Decision and Order of the court. The court will email copies to counsel.