Opinion
Index Nos. 306315/2021 306316/2021 NYSCEF Doc. No. 565
07-05-2024
DEPARTMENT OF HOUSING PRESERVATION AND DEVELOPMENT OF THE CITY OF NEW YORK, Petitioner, v. BELMONT VENTURES LLC, DANIEL OHEBSHALOM A/K/A DAN SHALOM, and ROBIN IGNICO, Respondents. DEPARTMENT OF HOUSING PRESERVATION AND DEVELOPMENT OF THE CITY OF NEW YORK, Petitioner, v. BELMONT VENTURES LLC, DANIEL OHEBSHALOM A/K/A DAN SHALOM, and ROBIN IGNICO, Respondents.
Unpublished Opinion
DECISION/ORDER
HON. JACK STOLLER, J.H.C.
Recitation, as required by CPLR §2219(a), of the papers considered in the review of this motion:
Pages numbered
Notice of Motion (sequence #10) and Supplemental Affirmations Annexed, #306315/211, 2
Notice of Motion (sequence #10) and Supplemental Affirmations Annexed, #306316/21 3, 4
Notice of Motion (sequence #11) and Supplemental Affirmations Annexed, #306315/21 5, 6
Notice of Motion (sequence #11) and Supplemental Affirmations Annexed, #306316/21 7, 8
Affirmations in Opposition (sequence ##10 and 11) #306315/21 9, 10, 11
Affirmations in Opposition (sequence ## 10 and 11) #306316/2112, 13, 14
Affirmations In Reply (sequence ##10 and 11) #306315/2115, 16, 17, 18, 19
Affirmations In Reply (sequence ##10 and 11) #306316/21 20, 21, 22, 23, 24
Upon the foregoing papers, the Decision and Order on this motion are as follows:
The Department of Housing Preservation and Development of the City of New York, the petitioner in this proceeding ("HPD"), commenced these two proceedings against Belmont Ventures LLC ("Respondent"), a respondent in these proceedings, Daniel Ohebshalom a/k/a Dan Shalom ("Co-Respondent"), another respondent in these proceedings, and Robin Ignico ("Second Co-Respondent"), another respondent in these proceedings (collectively, "Respondents"), seeking an order to correct violations, an order finding harassment, and civil penalties regarding the state of 705 West 170th Street, New York, New York ("705 Building"), and 709 West 170th Street, New York, New York ("709 Building")(the Court refers to 705 Building and 709 Building collectively as "the subject premises"). The Court entered into previous orders awarding HPD civil penalties and holding Respondents in contempt and directing Co-Respondent's incarceration. HPD now moves for additional civil penalties, for an additional jail sentence or to compel Co-Respondent to reside at the subject premises or in New York City, and to impose a daily fine of $10,000.
In both proceedings, the Court found Respondents in civil contempt by an order dated February 2, 2023 and civil and criminal contempt by an order dated July 10, 2023, largely for a failure to correct violations of the New York City Housing Maintenance Code. Despite this finding of contempt, the Court did not impose consequences on Respondents until the Court wrote an order dated January 5, 2024 ("the Prior Order"), which gave Respondents until February 8, 2024 - more than a year after finding Respondents in civil contempt - to purge their contempt. On default, Co-Respondent would face arrest and "civil" commitment to "civil" jail (emphasis added). The Prior Order directed, inter alia, that Co-Respondent's incarceration would extend for a period of time not to exceed sixty days or until such time as Co-Respondent purged the contempt, "to coerce Respondents' compliance" with the Court's previous orders. The Prior Order stated that Respondents could purge their contempt by, inter alia, correcting hazardous and immediately hazardous violations issued on or before November 10, 2022 ("Prior Violations"), proof of which would have to consist of affidavits from someone with personal knowledge of the corrections; filing an affidavit from a bona fide registered managing agent for the subject premises; and filing a proposal for pointing from a licensed contractor. The Prior Order specifically reserved the authority to enter such other and further contempt remedies as may be just and proper.
On February 8, 2024, Co-Respondent moved for an extension and the Court stayed an order of commitment pending the resolution of the motion. The Court denied that motion by an order dated March 8, 2024 and issued a warrant for Co-Respondent's arrest. Co-Respondent served out a sixty-day sentence.
HPD argues that Respondents remain in contempt of Court in part because Respondents have failed to correct the Prior Violations. In response, Respondents claim that they have corrected hundreds of violations. HPD annexed to its motion violation summary reports showing the current status of violations in the subject premises. At least 219 violations of the Prior Violations do not appear in the most recent violation summary report, which compels the conclusion that Respondents corrected them.
Violations that Respondents have apparently corrected as such include ##15458439, 15458454, 15458456, 15458457, 15458458, 15425725, 15425728, 15425730, 15425736, 15415466, 15416052, 15416057, 15416062, 15416065, 15416069, 15416077, 15416086, 15415488, 15362444 15362457, 15362460, 15362461, 15300744, 15236494, 15252643, 15252645, 15252652, 15252653, 15252654, 15252655, 15163337, 15163342, 15163343, 15232778, 15179404, 15179415, 15179417, 15170468, 15151751, 15126269, 15043407, 14848770, 14848795, 14848799, and 14802311 from the common areas of the 705 Building, ##15330061, 14848746, and 14848755 from apartment 3 of the 705 Building, ##15362463, 15330065, 15328870, 15043373, 15043391, 14848657, 14848673, and 14794053 from apartment 4 of the 705 Building, ##15183485 and 15183486 from apartment 31 of the 705 Building, ##15330069, 15252867, and 14848682 from apartment 32 of the 705 Building, #15330068 from apartment 33 of the 705 Building, ##15126308, 15126313, 15126316, 14748710, 14848711, 14848718, 14048720, and 14848728 from apartment 52 of the 705 Building; ##15362385 15362406 14818922 from apartment 54 of the 705 Building, ##15453211, 15393738, 15393744, 15393745, 15319376, 15256100,15256102,15256103, 15217806, 15216736, 15187457, 15112488, 15118582, 15086955, 14833661,14848902, 14848908, 14848910, 14848918, 14848923, 14848925, 14848927, 14734463, 14730412, 14722698, 14360594, 14360596, 14360571, 14360575, 14410632, 14410631, 14410630, 14571302, 14586291, 14581840, 14609803, and 14081235 from the common areas of the 709 Building, ##15352679, 15352681, 15352685, 15105616, 14504896, 14504897, and 15105619 from apartment 1 at the 709 Building, ##15437703, 15437702, 15437700, 15437701, 15319381, 14202311, 14227050, 14227051, 14227052, 14215126, 14606991, 14606985, 14606986, 14606987, 14606988, and 15319384 from apartment 2 at the 709 Building, ##15453210, 15319379, 15319380, 15306910, 15299272, 15299275, 15299456, 15299457, 15299458, 15299470, 15038627, 15038628, 15038629, 15038630, 15038631, 15037778, 15037786, 14360560, and 15037788 from apartment 3 at the 709 Building, ##14889467, 14889469, 14780452, 14360532, 14360536, 14360538, 14360542, and 14722696 from apartment 21 at the 709 Building, ##1495977, 14743203, 14743205, 14730415, 14611518, 14611520, 14611521, 14360518, 14360519, 14360521, 14360523, 14360531, 14504881, 14504888, 14504890, 14586293, and 14611524 from apartment 24 at the 709 Building, ##15352688, 15352689, 15319377, 15319378, 15298726, 15187455, 15187461, 15187463, 14410634, 14575590, 14575591, 14575592, and 15187464 from apartment 32 at the 709 Building, ##15389162, 15389163, and 15389164 from apartment 33 at the 709 Building, ##15183177, 15183180, 15183182, 15183183, and 15183184 from apartment 34 at the 709 Building, ##15352692, 15352693, 15039755, 15039756, 15039757, 15039758, 15039759, and 15039760 from apartment 41 at the 709 Building, ##15242911, 15233712, 15233727, 14360483, and 15189599 from apartment 42 at the 709 Building, ##15086943, 15086946, 14360500, 14360501, 14360502, 14360503, 14360504, 14360506, 14360508, and 14360509 from apartment 44 at the 709 Building, and ##15352696, 15352697, 14848892, 14848893, 14848894, 14848896, 14848897, 14848900, 14054961, and 14054962 from apartment 54 at the 709 Building.
The current violation summary report, however, also shows that 205 of the Prior Violations remain outstanding, including violation ##15458460, 15330081, 15236462, 15416060, 15416061, 15362330, 15362332, 15362445, 15362447,15274012,15274015, 15179398, 14848772, 14848775, and 14848776 from the common areas of the 705 Building, ##15298624 and 15298629 from apartment 1 of the 705 Building, ##14848738 and 14848749 from apartment 3 at the 705 Building, ##15362455, 15328888, 15328900, 15043343, 14848668, 14848670,14333710, and 14333712 from apartment 4 of the 705 Building, ##15183452, 15330067, 15158198, 15158199, 15158200, and 14360385 from apartment 31 of the 705 Building, ##15330071, 15252867, 15284855, 15252862, 15252864, 15252866, 14848700, 14821451, 14548934, 14548938, 14493306, 14360338, 14360349, and 14360350 from apartment 32 at the 705 Building, ##14716015, 1465300, 14356558, 14356553, 14356555, 14356556, 14356557, 14360452, 14053332, and 14053337 from apartment 33 of the 705 Building, ##14360222, 14360227, 14360230, 14360232, 14360234, 14360237, and 14360243 from apartment 51 of the 705 Building, ##15252647, 15163336, 15126310, 15126318, 14848723, 14848729, 14848730, 14360034, 14360043, 14360053,14360056,and 14360028 from apartment 52 of the 705 Building, ##15362333, 15273829, 15273836, 15273838, 15273840, 15151739, 15151745, 14360180, 14360141, 14360147, 14360164, 14159115, and 14159116 from apartment 54 of the 705 Building, ##15118581, 14833662, 14629756, 14410633, 14360583, 14575595, and 14564153 from the common areas of the 709 Building, ##15246980, 14848831, 14848830, 14848829, 14848826, 14848825, 14848824, 14848828,14848821, 14848817, 14848822, 14848820, 14743191, and 14163463 from apartment 1 of the 709 Building, ##14215127, 14202296, 14496576, 14610410, 14610412, 14606993, and 14610413 from apartment 2 of the 709 Building, ##14360548, 14360549, 14360550 and 14360564 from apartment 3 of the 709 Building, ##15044423, 15044424, 15039371, 15039372, 15039373, 14956978, 14956979, 14743200, 14743204, 14743206, 14743201, 14743202, 14743197, 14743199, 14743198, 14743205, 14730413, 14730414, 14730410, 14611523, 14611519, 14611525,14611522,14360518,14360519, 14360525, 14360526, 14360527, 14360531, 14360520, 14360522,14360524, 14504882, 14504883, 14504892, 14504893, 14504886, 14504894, 14504895, 14504884, 14504885, 14504887, 14504889, 14586294, 14586297, 14586292, 14586295, 14586296, and 14163466 from apartment 24 of the 709 Building, ##15352690, 15352691, 15187456, 15187458, 15187462, 14410623, and 14410628 from apartment 32 of the 709 Building, ##15183181, 15183185, 15183176, and 14848857 from apartment 34 of the 709 Building, ##15232864, 15233712, 15233713, 15216738, 15221570, 15189598, 15172152, 14848837, 14617560, 14360483, 14848833, 14377210, 14377211,and 14377213 from apartment 42 of the 709 Building, ##15086949, 15086951, 14848879, 14848877, 14848871, 14848863, 14848878, 14360500, 14360504, 14360502, 14360506, 14360509, 14360501, and 14360508 from apartment 44 of the 709 Building, and ##15037777, 14848899, 14848898, and 14054963 from apartment 54 of the 709 Building.
This list of uncorrected violations does not include violation #15458451 for the omission of a name on a sign, which does not affect the daily living conditions of tenants sufficient to warrant the remedies HPD seeks and does not include violation #15359385 for the placement of a combination lock on a fire escape window, which the Court draws the inference was caused by a tenant rather than Respondents.
Respondents aver that they corrected an additional 74 violations by an affidavit from Respondent's "account executive." The foundation for this affiant's knowledge is unclear. He references an unsworn letter from a contractor stating which violations they purport to have corrected. Specifically, the letter claims that Respondents corrected violation ##15298624 from apartment 1 of the 705 Building, #14848749 from apartment 3 at the 705 Building, ##15362455 and 15328900 from apartment 4 of the 705 Building, ##15284855, 15252862, 15252864, 15252866, 14493306, 14360338, 14360349, and 14360350 from apartment 32 at the 705 Building, #14716015 from apartment 33 at the 705 Building, ##15252647, 15163336, 15126318, 14848723, 14848729, and 14848730 from apartment 52 at the 705 Building, ##15273829, 15273840, 14360164, and 14159116 from apartment 54 of the 705 Building, ##14848830, 14848829, 14848825, 14848828, 14848821, 14848817, 14848822, 14848820, and 14163463 from apartment 1 of the 709 Building, ##15044423, 15044424, 15039371, 15039373, 14743200, 14743204, 14743206, 14730414, 14360518, 14360525, 14360526, 14360527, 14360520, 14504893, 14504894, 14504887, 14504889, and 14586296 from apartment 24 of the 709 Building, ##15352691, 15187456, 15187458, and 15187462 from apartment 32 of the 709 Building, ##15232864, 15216738, 15221570, 15189598, 14848837, and 14377213 from apartment 42 of the 709 Building, ##15086949, 15086951, 14848879, 14848877, 14848871, 14848863, 14360500, 14360502, 14360506, 14360509, and 14360508 from apartment 44 of the 709 Building, and ##14848899, 14054963, and 14848898 from apartment 54 of the 709 Building.
This letter is filed as #396 in the NYSCEF file for #306316/2021.
Respondents further assert that they could not get access to the apartment 31 at the 705 Building to correct violation ##15183452, 15330067, 15158198, 15158199, and 15158200, because the tenant of that apartment is not one of the tenants represented by counsel. Respondents also assert that they could not get access to apartment 33 of the 705 Building to correct violation #14716015, although Respondents admit that counsel for the tenant of apartment 33 of the 705 Building was responsive to requests for access.
Respondents' contentions that they corrected violations and could not get access to apartments to correct other violations suffer from problems. Respondents have not supplied a sworn statement from a deponent with personal knowledge of correction of purportedly corrected violations. Respondents appear to concede that counsel for the tenants of apartments with ostensible access issues were actually responsive to requests for access. Moreover, other violations from apartments 31 and 33 of the 705 Building were corrected, which compels the conclusion that Respondents had to have gained access there at some point.
Even if the Court were to disregard these problems and credit all of Respondents' submissions concerning corrections of violations and denial of access, Respondents still do not account for a minimum of 125 uncorrected hazardous and immediately hazardous of the Prior Violations. To be repetitive, these are violations that date back more than nineteen months from this writing. Giving Respondents undue credit for the correction of over 200 violations would perversely reward a landlord for neglecting its responsibilities to the point of accumulating such a large number of violations in the first place. Accordingly, the record on this motion practice reveals no dispute that Respondent remain in contempt of court for failure to correct the Prior Violations.
Respondents argue that the completion of Co-Respondent's sentence effectively disposed of prior contempt proceedings and that HPD therefore cannot obtain the relief it seeks without moving anew for a finding of contempt, complete with the warning required by Judiciary Law §756. To the extent that Respondents posit that the Court punished Co-Respondent by criminal contempt and therefore Respondent's sentence is complete, Respondents do not address that the Prior Order provided that Co-Respondent would face "civil" commitment to "civil" jail for sentence that would last, inter alia, until Co-Respondent purged the contempt, and that the Court intended that the commitment coerce Respondents' compliance with the Court's previous orders. Civil contempt aims to coerce compliance with an order of the Court. Dep't of Hous. Pres. & Dev, v. Deka Realty Corp., 208 A.D.2d 37, 42 (2nd Dept. 1995). The Prior Order therefore committed Co-Respondent to prison on a basis consistent with civil contempt, not criminal contempt. Avraham v. Avraham, 155 A.D.3d 931 (2nd Dept. 2017).
To the extent that Respondents argue that the Court has not permitted further contempt remedies herein, Respondents do not address that the Prior Order expressly put Respondents on notice that the Court could impose further contempt remedies. To the extent that Respondents argue that the Court cannot adjust remedies for contempt as such, Respondents appear to argue that the Court is bound to impose all of its remedies at one time in just one order of the Court. The law does not restrain the Court as such. The Court retains broad discretion as regards punishment for a civil contempt and appropriate conditions upon which contempt may be purged, Midlarsky v. D'Urso, 133 A.D.2d 616, 617 (2nd Dept. 1987), discretion wide enough to inflict or not inflict punishment, and to exercise discretion as to the length of the imprisonment. In re Hildreth, 28 A.D.2d 290, 293 (1st Dept. 1967). Accordingly, the Court in this proceeding imposed a sentence of sixty days or until such time as Respondents purged contempt, while putting Respondents on notice that the Court could impose further contempt remedies. See Kruszczynski v. Charlap, 124 A.D.2d 1073, 1073-1074 (4th Dept. 1986)(the Court had the discretion to impose intermittent and periodic incarceration). As Respondents have not met their burden of proving by clear and convincing evidence that they have purged contempt, Matter of Agnew V. N.Y. City Dept, of Corr., 217 A.D.3d 490, 491 (1st Dept.), leave to appeal dismissed, 40 N.Y.3d 1061 (2023), further contempt remedies remain available to the Court, without the need for a renewed finding of contempt. Compare Matter of Goetz Fitzpatrick LLP v. OTR Media Group, Inc., 210 A.D.3d 568, 570 (1st Dept 2022)(no "new contempt" finding is required when a contemnor continues to disobey a Court order when an additional order issues after the one the contemnor failed to abide).
As Respondents remain in contempt, law of the case therefore bars consideration of Respondents' other arguments against the finding of contempt herein, such as regards Respondents' ability to call witnesses or concerning Respondents' entitlement to a jury trial.
An alleged contemnor only raises a fact issue necessitating a hearing if the papers in opposition raise a factual dispute that was unresolvable from the papers on the motion. Wei-Made Enters., Inc, v. Mid Island Redi-Mix, Inc., 81 A.D.3d 717, 718 (2nd Dept. 2011). A hearing is not necessary even to find criminal contempt when the record on the motion practice does not reveal any factual dispute. Madigan v. Berkeley Capital LLC, 205 A.D.3d 900, 906 (2nd Dept. 2022), appeal dismissed, 39 N.Y.3d 1056 (2023). The Court has already held that Respondents failed to raise a fact issue requiring a hearing as to Respondents' contempt. See NYSCEF No. 240, 306315/2021, NYSCEF No. 228, 306316/2021.
Respondents' novel argument that Housing Court's inability to preside over a jury trial precludes Housing Court's entertainment of a contempt application directly contradicts New York City Civil Court Act §110(e), which expressly empowers Housing Court to punish for contempt. See Lu v. Betancourt, 116 A.D.2d 492, 493 (1st Dept. 1986)(a landlord's argument that Housing Court had no jurisdiction to issue an order finding the landlord in contempt and ordering incarceration is “meritless”). The Court's practice for reconciling this authority with a litigant's entitlement to a jury is to transfer a proceeding to a Civil Court Part upon an interposition of a jury demand. A jury demand as such is part of a procedure for obtaining a jury trial in Civil Court. New York City Civil Court Act § 1303(a). This practice is consistent with the proposition that the rules of civil procedure apply to a civil special proceeding for a criminal contempt. Dep't of Hous. Pres. & Dev, v. Deka Realty Corp., 208 A.D.2d 37, 51 (1st Dept. 1995), Dep't of Hous. Pres. & Dev, v. 24 W. 132 Equities, Inc., 137 Misc.2d 459, 461 (App. Term 1st Dept. 1987), aff'd without opinion, 150 A.D.2d 181 (1st Dept.), appeal dismissed, 74 N.Y.2d 841 (1989), cert denied sub nom. Morfesis v. Department of Hous. Preservation & Dev., 493 U.S. 1078, 110 S.Ct. 1130 (1990), N.Y.C. Health & Hosp. Corp, v. Local 2507 of Dist. Council 37 of Am. Fed'n of State, etc., 139 Misc.2d 67, 69 (S.Ct. N.Y. Co. 1988). Respondents, who had been represented counsel throughout these contempt proceedings, never demanded a jury.
Accordingly, HPD has proven an entitlement to further contempt remedies. The Court shall enter into another warrant for Co-Respondent's arrest, although in consideration for the number of violations that Respondents have corrected, the Court shall stay the issuance of the warrant through August 5, 2024, at which time the Court will conference the matter with the parties.
HPD also seeks an order directing specifically the location that Co-Respondent shall reside. Correction of violations of the housing maintenance code is the Court's focus. Enforcement of an order directing Co-Respondent to reside in one place or another bears the risk that the Court's limited resources would be consumed with issues other than the correction of violations. Accordingly, the Court will deny HPD's motion for this relief without prejudice, depending on the course of the litigation.
HPD also seeks an order directing daily fines at a rate of $10,000 being placed on Respondents pending compliance. Such a fine would amount to $3,650,000 a year. HPD does not set forth proof of damages in that amount. Accordingly, the amount appears to the Court to be punitive, which would be the province of the criminal contempt finding that the Court has already rendered against Respondents. However, a criminal contempt finding warrants a fine not to exceed $1,000. Judiciary Law §751, Kozel v. Kozel, 161 A.D.3d 700, 701 (1st Dept.), leave to appeal dismissed, 32 N.Y.3d 1089 (2018). To the extent that civil contempt can yield a different result, that proposition appears to apply to scenarios in which a factfinding is made of the kind not shown on this motion practice. Cf. Pac. Alliance Asia Opportunity Fund L.P, v. Wan, 199 A.D.3d 423 (1st Dept. 2021)(daily fine of $500,000 imposed for disobedience of a Court order to bring a $27 million yacht into the Court's jurisdiction), Castillo v. Banner Group LLC, 63 Misc.3d 1235(A) (Civ. Ct. N.Y. Co. 2019)(daily fine imposed was $250).
Respondents' contempt, however, does entitle HPD to relief on its application for attorneys' fees. East End Hangars, Inc, v. Town of E. Hampton, N.Y., 225 A.D.3d 861 (2ndDept. 2024), Jewish Press, Inc, v. New York City Police Dept., 225 A.D.3d 483, 494 (1st Dept. 2024). However, a prima facie entitlement to a judgment sounding in attorneys' fees requires contemporaneous time records. Bankers Trust Co. of Cal., N.A. v. W. Shore Apt. Corp., 281 A.D.2d 351, 351-352 (1st Dept.), leave to appeal dismissed, 97 N.Y.2d 638 (2001). While HPD's attorney states the amounts of time that he spent on this matter, the affirmation in support does not lay a foundation for contemporaneous time records or come in that form. Accordingly, further factfinding is required as regards time records.
With regard to HPD's motion for civil penalties, the Court last opined on civil penalties on August 14, 2023. HPD's assertion that the law of the case provides that Respondents have not corrected violations yet is accurate. Respondents' opposition does not raise a bona fide dispute as to the outstanding violations. Rather, Respondents asserts that "substantial steps have been taken" to correct the violations. N.Y.C. Admin. Code §27-2116(b)(2) provides for defenses to civil penalties, none of which Respondents make out in their opposition.
Accordingly, it is
ORDERED that the Court grants so much of HPD's motion as seeks issuance of a warrant for the arrest of Co-Respondent, and it is further
ORDERED that the Court stays issuance of the warrant through August 5, 2024 at 3 p.m. in part R, Room 851 of the Courthouse located at 111 Centre Street, New York, New York, at which time the Court will conference this matter for all purposes with counsel for all parties in both cases, and it is further
ORDERED that the Court denies so much of HPD's motion as seeks the imposition of a daily fine on Respondents, without prejudice, and it is further
ORDERED that the Court denies so much of HPD's motion as seeks to enjoin Co-Respondent to reside at a specific location, and it is further
ORDERED that the Court grants so much of HPD's motion as seeks an award of attorneys' fees to the extent of finding HPD's entitlement to attorneys' fees, with an amount to be determined at a hearing, and it is further
ORDERED that the Court grants HPD's motion for civil penalties, and it is further
ORDERED that the Court offers any party, including but not limited to HPD, the opportunity to draft an order resolving the motion for civil penalties, including but not limited to detailed amounts therein.
This constitutes the decision and order of this Court.