Opinion
Index No. 301626/21
10-18-2022
DEPARTMENT OF HOUSING, PRESERVATION AND DEVELOPMENT OF THE CITY OF NEW YORK. Petitioner, v. LAMAR JONES, GILMER HOLDING CORP., and LYNNE CALLENDER, Respondents.
Department of Housing, Preservation and Development Attn: Michael Paul Gdanski, Esq. Attorneys for Petitioner Lamar Jones Respondent Gilmer Holding Corp. Respondent Lynne Callender Respondent
Unpublished Opinion
Department of Housing, Preservation and Development Attn: Michael Paul Gdanski, Esq. Attorneys for Petitioner
Lamar Jones Respondent
Gilmer Holding Corp. Respondent
Lynne Callender Respondent
Present: Hon. Sergio Jimenez Judge, Housing Court
DECISION AND ORDER
SERGIO JIMENEZ, JHC
Recitation, as required by CPLR § 2219(a), of the papers considered in the review of petitioner's motion (Seq. 3) for contempt any other relief as the court may find appropriate:
Papers Numbered
Notice of Motion with affidavits and exhibits (Seq. 3)............................1 (NYSCEF #39-51)
In this Housing Part (HP) proceeding, the parties settled the dispute with a consent order dated June 15. 2021. which required the fixing of DHPD violations within a certain time frame. On November 10, 2021. the parties entered into a second consent order, which required the fixing of DHPD violations within a certain time frame and awarded DHPD $12,000.00 in civil penalties. Petitioner, in the instant motion seeking civil contempt, alleges that the conditions remain. On August 23, 2022, DHPD, through counsel, and respondent pro se, appeared, and the court heard argument. Upon hearing argument, the court reserved decision.
Motion for Contempt
Petitioner now moves for contempt and costs/fees against the respondent pursuant to Judiciary Law §774, the Housing Maintenance Code §27-2124 and CPLR §5104. The moving party bears the prima facie burden of proof to obtain the relief sought (See Gravel v. Cicola, 297 A.D.2d 620 [App Div 2d Dep't. 2002]; Matter of Stop & Shop Cos. Inc. v. Assessor of the City of New Rochelle, 32 Misc.3d 496 |Sup Ct Westchester County 2011]). Civil contempt has four elements. "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. Third, the party to be held in contempt must have had knowledge of the court's order, although it is not necessary that the order actually have been served upon the party. Fourth, prejudice to the right of a part to the litigation must be demonstrated" (El-Dehdan v. El-Dehdan, 26 N.Y.3d 19 [2015]; citing, Matter of McCormick v. Axelrod 466 N.Y.S.2d 279 [1983]). The movant bears the burden of establishing contempt with clear and convincing evidence. (El-Dehdan, 26 N.Y.3d 19 at 29; citing, Graham v. Graham, 543 N.Y.S.2d 735 [A.D.2d Dept 1989]; Tener v. Cremer, 931 N.Y.S.2d 552 [App. Div. 1st Dept 2011]; Town of Copake v. 13 Lackawanna Props., LLC, 900 N.Y.S.2d 508 [A.D.3d 2010]).
The court accepted the consent order to correct in June 2021. The court subsequently accepted a second consent order to correct in November 2021. It was not disputed that both orders were lawful, gave an unequivocal mandate, and were in effect. Respondents knowledge of the orders are not disputed as both consent orders were entered into while respondents had counsel. Respondents now pro se did not submit opposition to DHPD's motion for contempt and civil penalties. Petitioner has attached DHPD's violation report showing 182 outstanding violations.11 Petitioner's Exhibit 1. See NYSCEF #49.
Petitioner has met their burden to show actual prejudice as the continued existence of HPD violations constitutes prejudice as a matter of law. (See Various Tenants of 446-448 W. 167th St. v. N.Y.C. Dep't of Hous. Pres. & Dev., 153 Misc.2d 221, 222, [App. Term 1st Dept. 1992]). The court finds that petitioner has made a prima facie showing that service of the instant motion was appropriate, and respondent did not challenge service nor submit opposition papers.
The court finds that the repairs have not been completed, that the conditions remain as per DHPD's current violation report, of which the court is authorized to take judicial notice. The time frame for the violations have run since the consent orders from June and November 2021.
Conclusion
The motion is granted to the extent of finding respondent in civil contempt of this court's order. Each respondent to pay petitioner $250.00 by November 30, 2022. Upon default, petitioner may restore by order to show cause for appropriate relief, including moving for a judgment. Petitioner, through counsel, did request legal fees but did not present any proof/testimony as to this request. As such, the request is denied without prejudice.
The court credits DHPD's math calculation and grants a $2,045,390.00 judgment consisting of 262 days of the forty-eight (48) C violations for $125 each day; 87 days of the twenty-two (22) C violations for $125 each day; 239 days of the eighty-six (86) B violations at $10 per day; and 110 days of the twenty-six (26) B violations at $10 per day. Judgment is to be entered in favor of DHPD against Lamar Jones, Gilmer Holding Corp., and Lynne Callender in the amount of $2,045,390.00. The amount to be paid by January 31, 2023. Respondent may seek an extension of time to pay by order to show cause, which the court will entertain on good cause. If respondent fails to do so within the allocated time frame, the judgment may be taken by DI IPD as a lien against the subject premises at Block 1851/Lot 63.
The previous orders remain in effect, and this is without prejudice to seeking further civil penalties as well as further contempt. This constitutes the Decision and Order of the Court.