Opinion
L & T Index No. 300236-21
08-16-2021
Blessing ANUMUDU, Petitioner, v. Darma BENNETT, Herman Malcom, Respondents, and Department of Housing Preservation And Development of the City of New York, Co -Respondent.
Legal Aid Society, Russell Crane, Esq., of Counsel — for Petitioner Moss & Tapia Law, LLC, by Jordan Tapia, Esq. — for Respondents Symone Sylvester Esq., of Counsel to Martha Anne Weithman, Esq., for Co-Respondent-DHPD
Legal Aid Society, Russell Crane, Esq., of Counsel — for Petitioner
Moss & Tapia Law, LLC, by Jordan Tapia, Esq. — for Respondents
Symone Sylvester Esq., of Counsel to Martha Anne Weithman, Esq., for Co-Respondent-DHPD
Karen May Bacdayan, J.
Recitation, as required by CPLR 2219 (a), of the papers considered in review of these motions, listed by NYSCEF document number: 37, 38, 39, 40, 41, 42, 43, 44, 45, 47, 48, 49, 50, 51, 52, 53, 54, 55, 56, 57, 58, 59.
After oral argument and upon the foregoing cited papers the decision and order on these motions is as follows:
FACTUAL AND PROCEDURAL HISTORY
Petitioner, Blessing Anumudu ("Petitioner"), commenced this Housing Part proceeding against respondents Darma Bennett and Herman Malcolm ("Respondents") seeking, inter alia, an order to correct certain conditions constituting violations of the New York City Housing Maintenance Code. At Petitioner's request as approved by the court, the New York City Department of Housing Preservation and Development ("DHPD") conducted an inspection of the premises on February 18, 2021 and issued 17 violations, including two class "C" (immediately hazardous) violations for positive tests for lead-based paint in the kitchen and the bedroom of the subject premises. Among the remaining 15 violations were those placed for a water leak in the bathroom ceiling (a class "B" violation), for a mold condition in the bedroom closet (a class "A" violation), for an inoperable intercom system (a class "B" violation), and for an illegal drop ceiling in the bathroom (a class "A" violation).
By order of March 3, 2021 (NY St Cts Elec Filing [NYSCEF] Doc No. 25), the court granted Petitioner's request and issued an order requiring correction of the open violations by certain dates and in particularized manners ("Order to Correct"). The Order to Correct also required Petitioner provide access to Respondents and its agents on certain days for the purposes of correcting the violations. With respect to the lead-based paint violations, the Order to Correct required Respondent provide access from 9 am to 5 pm on March 15, 2021 through March 18, 2021 and that, in correcting the violations, Respondents and their agents "remain in compliance with all federal, state, local laws, rules and regulations, including those set out at section 2056.11 of Title 27 of the New York City Administrative Code ...." The Order to Correct also provided that:
"Correction of lead paint violations in the premises shall proceed one room at a time so as to contain any hazards, maintain the safety of the premises, and ensure that as much of the premises is accessible to Petitioner as possible at the end of the work day. Work shall commence and continue in one room until completed, and then work shall commence and continue in another room until completed until the lead violations are addressed in their entirety pursuant to this order."
The lead paint violations were required to be corrected within 21 days of the date of service of the Order to Correct. With respect to the remaining violations, the Order to Correct set further access dates for April 7, 2021 through April 9, 2021 and required that any "C" violations be corrected within 10 days of the first access date, that any "B" violations be corrected with 30 days thereof, and that any "A" violations be corrected within 90 days thereof.
Accordingly, the date for correction of the lead paint violations was March 31, 2021, Petitioner's counsel having served the Order on March 5, 2021 (NYSCEF Doc Nos. 26-27; see also CPLR 2103 [b] [2].) The date for correction of the remaining "C" violations was April 17, 2021; the date for correction of the "B" violations was May 7, 2021; and the date for correction of the "A" violations was July 6, 2021. (Id. )
THE PARTIES’ MOTIONS AND ARGUMENTS
Arguing that the Respondents failed to comply with the Order to Correct, Petitioner has now moved to hold Respondents in civil contempt of court and punish them with fines and the possibility of imprisonment, as well as to impose statutory penalties pursuant to the Housing Maintenance Code. Petitioner argues that the Respondents are in default of the Order Correct in that they (1) failed to timely/properly correct the lead paint violations; (2) failed to timely repair the source of the bathroom leak; (3) failed to timely repair the intercom; (3) and failed to do any work whatsoever to address the mold condition in Petitioner's bedroom closet and illegal drop ceiling in the bathroom. (NYSCEF Doc No. 38, Crane affirmation ¶ 2 [1].) At the time of Petitioner's application, only the time to correct the lead paint violations, the remaining class "C" violations, and the class "B" violations had run. (See n 1, supra. ) With respect to the lead paint violations, Petitioner specifically alleges that Respondent's lead-paint remediation contractor did not comply with the Order to Correct in that they simultaneously performed work in both affected rooms and failed to completely seal the work area in the bedroom as required by the regulations resulting in possible lead-contaminated dust from their work falling onto Petitioner's bedroom furniture, which Petitioner was left to clean herself. (NYSCEF Doc No. 39, Anumudu aff ¶¶ 13-17.) Petitioner further alleges that although Respondents’ agents told her they were done with their work after only just two days on March 16, 2021, they did not perform required dust wipe tests or notify her that she could re-occupy the work areas. (NYSCEF Doc No. 39, Anumudu aff ¶¶ 18-19.) Although Petitioner remained home from work on March 17, 2021 and March 18, 2021, no one came to perform dust wipe tests on those days purportedly causing her to miss work unnecessarily. (Id. ) Petitioner argues that because of Respondents’ breach, she has suffered actual damages from the diminished value of her apartment. (NYSCEF Doc No. 38, Anumudu aff ¶¶ 45.)
Although Petitioner's motion also alleged damages related to emotional distress, counsel withdrew those claims at oral argument held on the record (FTR 320) on July 22, 2021.
In opposition, Respondents argue that they should not be held in civil contempt or face civil penalties as they have been diligently attempting to cure the violations. As evidence of this, counsel points to the fact that many of the violations have been corrected. (NYSCEF Doc No. 52, Tapia affirmation ¶¶ 25-32.) Respondents argue that certain Housing Maintenance Code defenses to the imposition of civil penalties are applicable and should similarly serve to shield from a contempt finding. (NYSCEF Doc No. 52, Tapia affirmation ¶¶ 34.) Specifically, Respondents raise subsections (k) (3) (ii) and (iv) of Section 27-2115 of the Housing Maintenance Code. (NYSCEF Doc No. 52, Tapia affirmation ¶ 34.) The former provides for defense or mitigation of the imposition of civil penalties where an owner:
"[B]egan to correct the condition which constitutes the violation promptly upon discovering it but that full correction could not be completed expeditiously because of technical difficulties, inability to obtain necessary materials, funds or labor, or inability to gain access to the dwelling unit wherein the violation occurs, or such other portion of the building as might be necessary to make the repair." (NY City Housing Maintenance Code [Administrative Code of the City of NY] § 27-2115 [k] [3] [ii].)
The latter provides for the same defense where "the violation giving rise to the action was caused by the act or negligence, neglect or abuse of another not in the employ or subject to the direction of the owner." (NY City Housing Maintenance Code § 27-2115 [k] [3] [iv]; see also Dunbar v 1560 GC LLC , 71 Misc 3d 1205 [A], 2021 NY Slip Op 50291[U] [Civ Ct, Bronx County 2021] [evaluating Housing Maintenance Code defenses as defenses to contempt application].)
Regarding the lead paint violations, Respondents attach a notarized letter of March 16, 2021 from Martin Fleischman of Certified NY Environmental Services LLC certifying that the relevant HPD violations were completely abated as of March 16, 2021 and that the work practices complied with the relevant federal, state, and local rules and regulations is annexed to Respondents papers. (NYSCEF Doc No. 55.) The supporting affidavit of Respondent-Bennett states that she was advised by lead paint remediation contractor that work was complete as of March 18, 2021 and that they attempted to access the premises on March 19, 2021 in order to perform a dust wipe test, but Petitioner was not home. (NYSCEF Doc No. 53, Bennett aff ¶ 4.) When they returned on March 22, 2021, Petitioner denied them access and referred them to her attorney. (NYSCEF Doc No. 53, Bennett aff ¶ 4.) Respondent-Bennett also argues that Respondents were unable to timely certify correction of the lead paint violation because she "believed that [she] would get a package in the mail from the lead contractor so that [she] could submit the certification of correction for the lead violations but [she] did not." (NYSCEF Doc No. 53, Bennett aff ¶ 7.) Bennett states that, as of June 16, 2021, she completed the certification paperwork, but she had yet to provide her attorney with her original notarized signature. (NYSCEF Doc No. 53, Bennett aff ¶ 8.)
Respondents do concede that certain violations remain outstanding and cross-move for a reasonable extension to complete them. They argue that Petitioner admits that only a handful of repairs remain and so she would neither be prejudiced, nor "disrupted for any great length of time to allow access to correct" the repairs. (NYSCEF Doc No. 52, Tapia affirmation ¶ 37.) With respect to the intercom system, Respondents claim that it would be "prohibitively expensive to fix." (NYSCEF Doc No. 53, Bennett aff ¶ 10.) They argue that they relied on their contractors to make the necessary repairs and that it is the contractors — and not them — who should be held responsible for any improper work. (NYSCEF Doc No. 52, Tapia affirmation ¶ 36.)
In reply and in opposition to Respondents’ cross-motion, Petitioner argues that Respondents’ have neither made a sufficient showing of the alleged Housing Maintenance Code defenses under either subsection (NYSCEF Doc No. 56, Crane reply affirmation ¶¶ 4-25) and that the record does not support Respondents’ claim of diligent efforts to correct the violations. (NYSCEF Doc No. 56, Crane reply affirmation ¶¶ 26-38.)
DHPD has neither submitted a brief on this motion, nor taken a position at oral argument on either a finding of contempt or the imposition of fines.
DISCUSSION
Civil Contempt
Section 753 of the Judiciary Law empowers this court punish a party "by fine and imprisonment, or either, a neglect or violation of duty, or other misconduct, by which a right or remedy of a party to a civil action or special proceeding, pending in the court may be defeated, impaired, impeded, or prejudiced, in any of the following cases ... for any other disobedience to a lawful mandate of the court." ( Judiciary Law § 753 [A] [3].) The civil contempt statute is remedial in nature; its primary purpose is compensating an aggrieved party to the litigation, not vindicating the court's authority. (See Rubackin v Rubackin , 62 AD3d 11, 15 [2d Dept 2009], citing Gompers v Buck's Stove & Range Co. , 221 US 418 [1911] ; see also McCain v Dinkins , 84 NY2d 216 [1994].) Accordingly, any penalty imposed must be "designed not to punish, but rather to compensate the injured private party or to coerce compliance with the court's mandate or both." ( Matter of Dept. of Envtl. Protection of City of NY v Dept. of Envtl. Conservation of State of NY , 70 NY2d 233, 239 [1987] ; see also Judiciary Law § 773.) "Applications to punish as a civil contempt the noncompliance with court directives are generally addressed to the sound discretion of the court." ( Matter of Storm , 28 AD2d 290, 292 [1st Dept 1967] ; see also Castillo v Banner Group LLC , 63 Misc 3d 1235[A], 2019 NY Slip Op 50897[U] [Civ Ct, NY County 2019].)
In Matter of McCormick v Axelrod (59 NY2d 574 [1983] ), the Court of Appeals clarified the necessary elements to support a finding of civil contempt. First, "it must be determined that a lawful order of the court, clearly expressing an unequivocal mandate, was in effect"; second, "[i]t must appear, with reasonable certainty, that the order has been disobeyed"; next, "the party to be held in contempt must have had knowledge of the court's order"; and lastly "prejudice to the right of a party to the litigation must be demonstrated." (Matter of McCormick , 59 NY2d at 583-584 [internal citations omitted]; see also El-Dehdan v El-Dehdan , 26 NY3d 19, 29 [2015] ; Karg v Kern , 125 AD3d 527 [1st Dept 2015].) The party moving for contempt bears the burden of establishing its elements by clear and convincing evidence. ( El-Dehdan , 26 NY3d at 29, citing Tener v Cremer , 89 AD3d 175 [1st Dept 2011].) However, "[a] hearing is not mandated in every instance where contempt is sought; it need only be conducted if a factual dispute exists which cannot be resolved on [the motion] papers alone." ( Jaffe v Jaffe , 44 AD3d 825, 826 [2d Dept 2007] [internal quotation marks omitted]; see also Banana Kelly Community Improvement Assn., Inc. v Schur Mgt. Co., Ltd. , 39 Misc 3d 1208 [A], 2013 NY Slip Op 50538 [U] [Sup Ct, Bronx County 2013].)
Section 773 of the Judiciary Law provides that where an "actual loss or injury has been caused to a party to an action or special proceeding" by a contempt of a court order, that party may "recover damages for the loss or injury" in the form of "a fine, sufficient to indemnify the aggrieved party." ( Judiciary Law § 773.)
There is no dispute that the Order to Correct in effect was an "unequivocal mandate." The order clearly required correction of the open violations by dates certain and in particularized manners. There is likewise no dispute that the Respondents had knowledge of the order, a copy of which was provided by this court to Respondents’ counsel on March 4, 2021 by email and served by Petitioner via regular mail upon each of the Respondents’ and their counsel, as well as by email on counsel. (See NYSCEF Doc Nos. 26, 27.)
Turning next to the issue of whether the order has been disobeyed, as of the date of Petitioner's application, the conditions allegedly overdue (i.e., the bathroom ceiling leak and intercom) still appeared in the online HPD database as open violations. Such constitutes prima facie evidence that the violations continued to exist. (Housing Maintenance Code § 27-2115 [f] [7]; see also Dept. of Hous. Preserv. & Dev. of City of NY v Living Waters Realty Inc. , 14 Misc 3d, 484, 487 [Civ Ct, NY County 2006], citing Dept. of Hous. Preserv. & Dev. of City of NY v De Bona , 101 AD2d 875 [2d Dept 1984]. See generally Multiple Dwelling Law § 328 [3] [establishing computerized HPD records as "prima facie evidence of any matter states therein" and requiring that courts "shall take judicial notice thereof ....") Despite the Respondents’ belief that their contractor corrected the bathroom ceiling leak (see NYSCEF Doc No. 54, Malcom aff ¶ 7; NYSCEF Doc No. 53, Bennett aff ¶ 10), photographic evidence that the ceiling leak in the bathroom persists is attached to Petitioner's motion papers. (NYSCEF Doc No. 41, Petitioner's exhibit "B".) The defenses set out in the Housing Maintenance Code allow the owner to "negate the existence of any violation, rebut the presumption of a continuing violation, or otherwise present a defense." ( De Bona , 101 AD2d at 875.) However, Respondents have failed to establish either of the defenses they have raised. Their attempt to do so consists entirely of vague and conclusory statements that are unsubstantiated by any records or other documentary evidence.
Specifically, Respondents’ papers do not make any showing that "technical difficulties" preventing the expeditious correction of the violation. (See Housing Maintenance Code § 27-2115 [k] [3] [ii].) There has likewise been no showing that the inability to obtain funds, material, or labor prevented correction of the violations. (See id. ) Respondents’ statements that they were told that the intercom would be "prohibitively expensive to fix" are unsubstantiated by any evidence as to how much the repair would cost, whether other estimates were sought, or any evidence of Respondents’ financial hardship. (NYSCEF Doc No. 53, Bennett aff ¶ 10; NYSCEF Doc No. 54, Malcolm aff ¶ 11.) Also absent from Respondents’ submissions is any proof that the lack of access preventing the correction of the violations. (See Housing Maintenance Code § 27-2115 [k] [3] [iv].) The Order to Correct set out the days on which the Petitioner was required to provide access to Respondents and their agents. (NYSCEF Doc No. 25, Order to Correct ¶¶ [e]-[f].) It also provided that additional access should be provided where necessary but required that Respondents provide Petitioner "notice of at least 48 hours of any further access date requested." (Id. ) Other than vague statements regarding difficulty in obtaining access (NYSCEF Doc No. 54, Malcolm aff ¶¶ 4-5), Respondents have not specifically alleged any occasion that they requested access on 48-hours’ notice and the request was denied by Respondent. Outside of one unsupported sentence, Respondents have also failed to present any evidence that the "violation giving rise to the action was caused by the act or negligence, neglect or abuse of another not in the employ or subject to the direction of the owner." (NYSCEF Doc No. 53, Bennett aff ¶ 5 ["I would like to court to note that Respondent [sic] caused at least some of the violations."].)
At oral argument, Respondents’ counsel reasserted the claim that repairs went uncompleted arguing that Respondents had not been provided "unfettered access" to the premises. (FTR 320.) The court notes that nothing in the Order to Correct or the Housing Maintenance Code requires the Petitioner provide "unfettered access" to the premises. (See Housing Maintenance Code § 27-2008 [granting owner's a right to access for the purpose of correcting violations "at a reasonable time and in a reasonable manner." [emphasis added].)
Although at the time of the oral argument Petitioner's counsel acknowledged the lead-paint abatement had since been completed (FTR 320), insofar as it required correction of the lead paint violations, the Respondents failed to comply with the Order to Correct by failing to provide Petitioner with the results of the dust wipe test until service of its cross-motion and opposition on Petitioner's counsel on June 17, 2021, which is more than two months after the April 15, 2021 date of the letter addressed to Respondents’ counsel from the dust wipe company that is attached to its motion papers and even further after the time for correction of the lead violations in the Order to Correct. (NYSCEF Doc No. 55, Respondents’ exhibit A at 6-10.) The section of the Housing Maintenance Code establishing work practices for the abatement of lead paint hazards requires that "[w]here an owner is performing work pursuant to a [notice of violation or order to correct], all lead-contaminated dust clearance test results shall be filed with the department, and a copy shall be provided by the owner of the occupant of the dwelling unit. " (Housing Maintenance Code § 27-2056.11 [d] [emphasis added].) Respondents’ counsel's claim that Petitioner's attorney frustrated timely dust wipe testing by not allowing access for that purpose until the scheduled April 7, 2021 access date is not supported by the record on this motion. (NYSCEF Doc No. 30.) Attached to Petitioner's reply papers are emails between counsels in which Petitioner's counsel offered any Monday to Friday at 5:30 pm or the upcoming Saturday without time limitation. (NYSCEF Doc No. 59, Petitioner's exhibit "B".) The court cannot say that these offers of access were unreasonable for a working person. (See n 4, supra. ) Contrary to Respondents’ counsel's unsupported contentions, nothing in the law limits Respondents’ obligations to perform work to correct Housing Maintenance Code violations to weekdays or regular business hours. Also clear from those emails is that any prior attempt to access the premises to perform dust-wipe samples was made by the company that performed the remediation itself. (NYSCEF Doc No. 59, Petitioner's exhibit "B".) Pursuant to the applicable regulations, a dust wipe clearance test cannot be performed by the company that did the abatement work, and accordingly, any such dust wipe test would not have complied with the Order to Correct. (See Housing Maintenance Code § 27-2056.11 [b].)
As is described above, Petitioner has also alleged that Respondents’ lead abatement contractor failed to abide by the Order to Correct in the manner it performed its work. However, the court need not address the issue as counsel withdrew its claims for the alleged resultant emotional distress. (See n 2, supra ; see also NYSCEF Doc No. 38, Crane affirmation ¶ 97 ["This Court should also consider the emotional distress as actual damages that Petitioner has suffered from Respondents’ failure to follow the Court's order with respect to the lead paint violations and negligent practices that resulted when the work was performed "] [emphasis added].)
At the time of Petitioner's application, the time to correct the mold violation and violation for an illegal drop ceiling in the bathroom had not yet expired. (See n 1, supra. ) Both of those violations were "A" violations that were required to be corrected by July 6, 2021 pursuant to the Order to Correct. (Id. ) Accordingly, the court cannot at this time hold Respondents in contempt for failing to correct those violations.
Although Petitioner seems to concede that the time to correct the mold violation had not expired, Petitioner's counsel colloquially refers to the mold violation as "hazardous" in the motion papers. (NYSCEF Doc No. 38, Crane affirmation ¶ 38.) However, because the time to correct the visible mold violation initially placed on November 30, 2020 (Violation ID 139818269) had yet to expire either by the date of DHPD's inspection on February 18, 2021, or by the date of the Order to Correct was issued on March 4, 2021, the violation was not "hazardous" within the meaning of the Housing Maintenance Code. (Housing Maintenance Code § 27-2017.3 [3] [a].) Thereafter on March 31, 2021, according the DHPD website, of which this court may take judicial notice, DHPD reinspected the premises and upgraded the November 30, 2021 mold violation to a "B" violation which was required to be corrected by May 19, 2021 — two days after the date of Respondent's application here.
Even if the mold violation had been a hazardous "B" violation and the time to correct had expired at the time of Petitioner's application, contrary to Petitioner's counsel's position at oral argument and in the reply papers (NYSCEF Doc No. 56, Crane reply affirmation ¶¶ 9, 27), the relevant regulation does not require Respondents to hire a licensed mold contractor to correct the mold condition. (See generally Administrative Code of City of NY § 24-154.) The regulation delineates between when a licensed mold contractor is required and when remediation can be performed by the owner, its agents, or employees, not by Housing Maintenance Code hazard class, but by size of the mold condition itself. (Administrative Code of City of NY § 24-154 [a], [b] [2] [requiring mold remediation and abatement be performed by a licensed contractor for "areas greater than ten square feet."].) Neither does Section 27-2019.9 of the Housing Maintenance Code, cited by Petitioner's attorney at oral argument, require a licensed mold contractor to correct the violations here. That section only provides for minimum work standards that must be follow when a licensed mold remediator is required.
The final prong of a contempt finding — prejudice to the right of a party — is also present here. "When a court requires a landlord to make repairs in a tenant's apartment and the landlord fails to do so, the landlord's failure to effect the repairs necessarily prejudices the tenant." ( Schlueter v E. 45th Dev. LLC , 9 Misc 3d 1105 [A], 2005 NY Slip Op 51405 [U] [Civ Ct, NY County 2005], citing Various Tenants of 446-448 W. 167th St. v New York City Dept. of Hous. Preserv. & Dev. , 153 Misc 2d 221 [App Term, 1st Dept 1992].)
As set forth above, the record on the motion before the court shows no factual dispute as to the elements of civil contempt. Respondents’ submissions are insufficient to raise a triable issue of fact as to any alleged defense. (See Hercules v Bethel Capital, LLC , 70 Misc 3d 1221[A], 2021 NY Slip Op 50185[U] [Civ Ct, Bronx County 2021], citing McCormick v Axelrod , 59 NY2d 574 [1983].) Petitioner has demonstrated by clear and convincing evidence that Respondents are in contempt of the Order to Correct by failing to timely demonstrate to Respondent by providing dust wipes that the affected areas were safe for entry the lead paint violations in accordance with the Housing Maintenance Code, as well as failing to timely correct the violations concerning the bathroom ceiling leak and the intercom system. Where there are no triable issues of fact, the finding of contempt can be made without a hearing. (See Martin v Martin , 163 AD3d 1139, 1141 [3rd Dept 2018] ; Mollah v Mollah , 136 AD3d 992, 994 [2d Dept 2016] ; Hercules , 2021 NY Slip Op 50185[U] ; Castillo v Banner Group LLC , 62 Misc 3d 1235[A], 2019 NY Slip Op 50897[U] [Civ Ct, NY County 2019].)
Respondents remaining arguments that their good faith effort in correcting most of the violations and diligent efforts to correct the outstanding ones serve as justification to either enlarge their time to comply with the Order to Correct or decline to hold them in contempt are also without merit. Neither good faith efforts nor substantial compliance with an order are defenses to contempt. ( McCain v Dinkins , 192 AD2d 217, 219 [1st Dept 1993], affd as mod 84 NY2d 216 [1994] ; see also Hanna v Turner , 289 AD2d 182, 183 [1st Dept 2001] [affirming that there is "no requirement that [a] finding of contempt be supported by a finding that, not only had the judgment been violated in specific instances, but that there had been no substantial compliance therewith."].)
To the extent that those arguments are addressed to the court's discretion on a contempt application, the court declines to exercise such discretion on the record before it. It is noteworthy that, although DHPD conducted a February 2021 inspection of the premises upon Petitioner's filing of the order to show cause and petition and placed violations, with the sole exception of the intercom system, all the violations at issue here are duplicative of those previously placed following a November 30, 2020 DHPD inspection. (See NYSCEF Doc No. 25, Order to Correct at 5-10.) Respondents have had notice of the conditions in the premises since DHPD's original notices of violation issued on December 1, 2020. (Id. ) The court has already decided that Respondents have failed to set out sufficient facts to establish the defenses at Section 27-2115 (k) (3) (ii) and (iv) of the Housing Maintenance Code and, accordingly, neither do they serve as grounds to expand Respondents’ time to comply with the court's order. Finally, to the extent that CPLR 2004 is applicable to the enlargement request in this matter, such a request requires a showing of "good cause" and lack of prejudice to the non-moving party. Petitioner has necessarily been prejudiced by Respondents’ failure to comply with the Order to Correct. (See Various Tenants of 446-448 W. 167th St. v New York City Dept. of Hous. Preserv. & Dev. , 153 Misc 2d 221 [App Term, 1st Dept 1992].) Accordingly, Respondents’ cross-motion is denied.
CPLR 2004 provides that "[e]xcept where otherwise expressly prescribed by law, the court may extend the time fixed by any statute, rule or order for doing any act, upon such terms as may be just and upon good cause shown, whether the application for extension is made before or after the expiration of the time fixed."
Respondents are in contempt of the Order to Correct as set forth above. The court's authority — and discretion — to punish for civil contempt includes the power to impose fines designed to coerce compliance with the court's order, so long as the contemnor is given an opportunity to purge the contempt and fines. ( Castillo v Banner Group LLC, 2019 NY Slip Op 50897[U], *3, citing Ruesch v Ruesch , 106 AD3d 976 [2d Dept 2013] ; see also New York City Tr. Auth. v Transport Workers Union of Am., AFL-CIO , 35 AD3d 73 [2d Dept 2006] ["Where a fine is involved, it is considered civil and remedial if it either coerces the recalcitrant party into compliance with a court order, or compensates the claimant for some loss. If a fine is not compensatory, it is civil only if the contemnor is given an opportunity to purge." (internal citations omitted)]; see also Judiciary Law § 753.)
Accordingly, the court will impose a daily fine of $350.00 on Respondents, payable to Petitioner, for every day after the date of this order commencing August 17, 2021 that Respondents do not (1) complete repairs to the bathroom ceiling leak violation and (2) complete repairs to the building intercom violation. Respondent may purge both the fines and contempt by correcting the violations on or before August 30, 2021. Petitioner shall provide access to Respondents and their agents on Friday, August 20, 2021 and Saturday, August 21, 2021 from 9 am to 5 pm (workers must arrive before noon or Petitioner is free to leave) for the purpose correcting the conditions. If any further access is necessary, Petitioner shall provide it on 48-hours’ written notice to her or her counsel. Counsels, of course, are not to contact the represented parties themselves. DHPD shall re-inspect for compliance on August 31, 2021. Petitioner shall provide access to DHPD's inspectors on that date between 9 am and 5 pm. DHPD shall file the results of the inspection on NYSCEF within five (5) days thereafter.
The court will issue a form DHPD re-inspection order contemporaneous with this decision.
In the event the contempt here is purged by correction on or before August 30, 2021, the court will make no findings as to Petitioner's claims for actual damages which shall be severed without prejudice to any cause of action Petitioner may have against Respondent related to the lead paint, bathroom ceiling leak, and building intercom violations. In the event Respondents fail to purge the contempt, the fines will remain due and owing to Respondents and the court will hold a hearing on Petitioner's actual damages and attorneys’ fees.
Civil Penalties
Unlike contempt, the court is without discretion to refrain from imposing statutory civil penalties where a respondent has failed to comply with an order to correct. Instead, statute requires that, when a court finds a violation of the Housing Maintenance Code exists, it "shall direct the owner to correct [ ] violation[s] and, upon failure to do so within the time set for certifying the correction of such violation pursuant to subdivision (c) of this section, it shall impose a penalty in accordance with subdivision (a) of this section." (Housing Maintenance Code § 27-2115 [h] [1] [emphasis added].) Instead, the defenses to the imposition of penalties are contained within the code itself. As discussed above, Respondents’ have failed to establish the raised defenses. Thus, the court must award civil penalties calculated as follows:
The first lead paint violation (ID 14032106) was required by the Order to Correct to be corrected on or before April 1, 2021 and the court must assess a daily penalty of $250.00 per day for every day it goes uncorrected. At the time of Petitioner's application, forty-four (44) days passed. $250.00 x 44 = $11,000.00. However, the maximum penalty for this violation is $10,000.00. (See Housing Maintenance Code § 27-2115 [l] [6].)
It is not disputed that at the time of Petitioner's motion for contempt was filed the certification had neither been filed with DHPD, nor had the violations been certified as corrected by DHPD. (See n 5, supra. )
The second lead paint violation (ID 14032107) was required by the Order to Correct to be corrected on or before April 1, 2021 and the court must assess a daily penalty of $250.00 per day for every day it goes uncorrected. At the time of Petitioner's application, forty-four (44) days passed. $250.00 x 44 = $11,000.00. However, the maximum penalty for this violation is $10,000.00. (See Housing Maintenance Code § 27-2115 [l] [6].)
The violation for the leak in the bathroom ceiling (ID 14031881) was required by the Order to Correct to be corrected on or before May 7, 2021 and the court must assess a penalty between $25.00 and $100.00, plus $10.00 per day thereafter. Seven (7) days passed between the time to correct and Petitioner's application. (See Housing Maintenance Code § 27-2115 [a].) The court will assess a penalty of $170.00.
The violation for the broken intercom (ID 14031873) was required by the Order to Correct to be corrected on or before May 7, 2021 and the court must assess a penalty between $25.00 and $100.00, plus $10.00 per day thereafter. Seven (7) days passed between the time to correct and Petitioner's application. (See Housing Maintenance Code § 27-2115 [a].) The court will assess a penalty of $125.00.
CONCLUSION
Respondents’ cross-motion is denied and the Petitioner's motion is granted to the extent set forth above. Accordingly, it is hereby:
ORDERED that DHPD shall have a final judgment in the amount of $20,295.00 against Respondents; and it is further
ORDERED that the court will impose a daily fine of $350.00 on Respondents, payable to Petitioner, for every day after the date of this order that Respondents do not (1) complete repairs to the bathroom ceiling leak violation and (2) complete repairs to the building intercom violation; and it is further
ORDERED that Respondents may purge both the fines by and contempt by correcting the relevant violations on or before August 30, 2021; and it is further
ORDERED that Petitioner shall provide access to Respondents’ and/or its agents for the purpose of correcting the bathroom ceiling leak and intercom violations on August 20, 2021, and August 21, 2021 from 9 am to 5 pm (workers must arrive before noon or Petitioner is free to leave); and it is further
ORDERED that Petitioner shall provide further access to Respondents’ and/or its agents for the purpose correcting the relevant violations on 48-hours’ written notice to her or to her counsel; and it is further
ORDERED that DHPD shall re-inspect for compliance on August 31, 2021 between 9 am. to 5 pm. Petitioner shall provide access to DHPD's inspectors on that date and time; and it is further
ORDERED that DHPD shall file the results of the inspection on NYSCEF within five (5) days thereafter; and it is further
ORDERED that, in the event the contempt is purged by correction on or before August 30, 2021, the court will make no findings as to Petitioner's claims for actual damages which shall be severed without prejudice to any cause of action Petitioner may have against Respondent related to the lead paint, bathroom ceiling leak, and building intercom violations; and it is further
ORDERED that the parties shall appear before this court on October 13, 2021 at 10:00 a.m. by Microsoft Teams for a hearing on Petitioner's harassment claims; and it is further
ORDERED that should the Respondents fail to purge their contempt, the court will retain jurisdiction over Petitioner's claim of actual damages and attorneys’ fees and the October 13, 2021 hearing will include those claims; and it is further
ORDERED that the parties shall email one another and the court (at bx-housing-320@nycourts.gov) the names and email addresses of any witnesses, as well as any documentary or photographic evidence (in PDF form and marked for identification) that they wish to introduce at the hearing on or before September 20, 2021. The parties shall thereafter meet and confer and make best efforts to stipulate to the admissibility of proposed evidence. Said stipulation should be filed via NYSCEF on or before September 30, 2021. Any objections to the admissibility of evidence should be noted in the parties’ stipulation. The failure to timely comply with the September 20, 2021 and September 30, 2021 deadlines may, in the court's discretion, result in postponement of the hearing.
The foregoing constitutes the decision and order of this court.