Opinion
Index No. 304497/2021
05-19-2022
DEPARTMENT OF HOUSING PRESERVATION AND DEVELOPMENT OF THE CITY OF NEW YORK, Petitioner, v. JIMS REALTY LLC, et al., Respondent.
Unpublished Opinion
Present: Hon. Jack Stoller Judge, Housing Court
DECISION/ORDER
HON. JACK STOLLER J.H.C.
The Department of Housing Preservation and Development of the City of New York ("HPD") commenced this proceeding against JIMS Realty LLC ("Corporate Respondent"), Richard Joseph ("Individual Respondent #1"), and Joseph Popack ("Individual Respondent #2"), the respondents in this proceeding (collectively, "Respondents"), seeking an order directing that Respondents correct violations of the New York City Housing Maintenance Code at the 451 Kingston Avenue, Brooklyn, New York ("the Building") and civil penalties. The Court entered into two orders directing that Respondents correct the violations and set the matter for trial on civil penalties. In addition to that, the Court granted a prior motion for civil and criminal contempt and for additional civil penalties against Respondents. Respondents interposed an answer with affirmative defenses of, inter alia, completion of repairs and denial of access. The Court held a trial on civil penalties jointly with a hearing on the motion for additional civil penalties and contempt on January 13, 2022, January 31, 2022, and March 15, 2022 and adjourned the matter for post-trial submissions to May 6, 2022.
Civil penalties
The petition in this matter, verified on May 25, 2021, sought civil penalties for the following "B" violations: ##13450859, 13452959, 13501195, 13634278, 13634275, 13729398, 12579404, 12970206, and the following "C" violations: #13450833, 12957936, 12957837, 12980048, 13072674, 13096673, 12768880, and 12980088.
A class "A" violation is "non-hazardous" pursuant to N.Y.C. Admin. Code §27-2115(c)(1); class "B" violation is "hazardous" pursuant to N.Y.C. Admin. Code §27-2115(c)(2); and a class "C" violation is "immediately hazardous" pursuant to N.Y.C. Admin. Code §27-2115(c)(3). Notre Dame Leasing LLC v. Rosario, 2 N.Y.3d 459, 463 n.1 (2004).
HPD submitted into evidence notices of violation for the following "B" violations reported September 12, 2018, to be corrected by October 19, 2018 and certified by November 2, 2018: ##12579336, 12579356, 12579369, 12579404; for the following "C" violation reported March 13, 2019, to be corrected by April 8, 2019 and certified by April 13, 2019: #12957837; for the following "C" violation reported March 13, 2019, to be corrected by March 22, 2019 and certified by March 27, 2019: #12957936; for the following "B" violations reported March 20, 2019, to be corrected by April 26, 2019 and certified by May 10, 2019: ##12970189, 12970198, 12970206, 12970224; for the following "C" violation reported March 21, 2019, to be corrected by April 24, 2019 and certified by April 29, 2019: #12980048; for the following "C" violation reported March 21, 2019, to be corrected by April 5, 2019 and certified by April 10, 2019: #12980088; for the following "C" violation reported May 15, 2019, to be corrected by May 25, 2019 and certified by May 30, 2019: #13072674; for the following "C" violation reported May 28, 2019, to be corrected by June 20, 2019 and certified by June 25, 2019: #13096673; for the following "C" violations reported November 13, 2019, to be corrected by December 9, 2019 and certified by December 14, 2019: #13450829, 13450833; for the following "B" violations reported November 13, 2019, to be corrected by December 20, 2019 and certified by January 3, 2020: #13450859; for the following "B violations reported November 13, 2019, to be corrected by December 23, 2019 and certified by January 6, 2020: ##13450878, 13452959; for the following "B" violations reported December 12, 2019, to be corrected by January 20, 2020 and certified by February 3, 2020: #13501175, 13501184, 13501195, 13501197; for the following "B" violations reported March 5, 2020, to be corrected by April 13, 2020 and certified by April 27, 2020: ##13634275, 13634278, 13634285, 13634290, for the following "B" violations reported July 19, 2020, to be corrected by August 26, 2020 and certified by September 9, 2020: ##13729376, 13729379, 13729385, 13729388, 13729395, 13729398; and for the following "C" violation, reported on August 14, 2020, to be corrected by August 27, 2020 and certified by September 3, 2020: #13768880.
According to the notice of violation and violation summary report in evidence, Respondents had to correct violation #13096673, a "C" violation for mold under a kitchen sink cabinet in Apt. A11, by June 20, 2019. As of March 29, 2022, that violation remains on HPD's violation summary report, which compels the legal presumption that Respondents have not yet corrected the violation. MDL §328(3), N.Y.C. Admin. Code §27-2115(f)(7). Respondents may rebut the presumption, although Respondents must do so with more evidentiary support than just testimony. Dep't of Hous. Pres. & Dev. of the City of N.Y. v. Rosenfeld, 2022 N.Y. Slip Op. 22087, ¶ 8 (Civ. Ct. Kings Co.), citing Dep't. of Hous. Preserv. & Dev. of City of NY v. Deka Realty Corp., et. al., N.Y.L.J., June 16, 1992 at 36:6 (App. Term 2nd and 11th Jud. Dists.), Dep't of Hous. Pres. & Dev. v. Knoll, 120 Misc.2d 813, 814 (App. Term 2nd Dept. 1983), Allen v. Rosenblatt, 5 Misc.3d 1032(A)(Civ. Ct. N.Y. Co. 2004).
All designations in this opinion in the format of "Apt." followed by a letter and a number refer to apartments in the Building.
Even though the last day of trial was March 15, 2022, the Court granted a subsequent motion of Respondents' to reopen the record for the purpose of enabling Respondents to submit additional exhibits, conditioned on HPD getting the same privilege. HPD's submission included a violation summary report updated through March 29, 2022.
Zalman Lezell ("the Maintenance Manager") testified that he is a manager of the Building; that he is not the registered managing agent; that he takes care of maintenance, repairs, complaints, and violations; that he does not repair conditions himself; that the super or other workers repair conditions; that he or tenants could tell the super about repairs; that tenants complain to his office; that he sees those complaints; that he gets emails from tenants; that the Building has 151 units; that maybe 40% of the units in the Building are rented out to social services agencies who use the apartments for scattered-site housing for clients of the agencies; and that he does not always know the identity of the actual occupants.
An email dated July 17, 2019 in evidence from the Maintenance Manager to someone who works for an agency shows that the Maintenance Manager was seeking access to Apt. A11 to correct a mold violation. Further email exchanges ensued about access, including an email from a representative of an agency that offered July 31, 2019 for access. Another email in evidence shows an agreement for an access date on August 12, 2019. The Maintenance Manager then emailed the agency again saying that "there was a mix up [sic.]" and that Respondents would need another access date. Respondents submitted into evidence two photographs of the underside of the kitchen sink in Apt. A11 which shows no apparent condition. The Maintenance Manager testified that he took the photograph a few months before his testimony on March 15, 2022, although he could not remember the exact date.
While lack of access is a defense to civil penalties, an owner may only avail itself of such a defense upon a showing that the owner "promptly" begins to correct a violation. N.Y.C. Admin. Code §27-2116(b)(2)(i). With no evidence in the record of an attempt to gain access to correct an immediately hazardous violation until July 17, 2019, almost a month after Respondents had to correct the violation, Petitioner does not satisfy this condition. Moreover, the email exchange in evidence does not actually show that the tenant of Apt. A11 denied access. To the extent that the representative from the agency referenced people in Apt. A11, in fact, the evidence shows that Respondents did in fact gain access.
The photograph in evidence does not reveal any extant mold condition in Apt. A11, and therefore is more probative than bare and conclusory testimony. While the record does not show that Respondents retained a licensed mold assessor, the record also does not show that HPD's violation was based on the judgment of a licensed mold assessor. HPD placed the violation pursuant to N.Y.C. Admin. Code §27-2017.3(a)(5), which refers to "visible" mold. Insofar as the photograph shows nothing that "visibly" appears to be mold, Respondents have proven that they corrected violation #13096673. However, the earliest evidence in the record of such a correction is a photograph taken "a few months" before March 15, 2022. As Respondents bear the burden of rebutting the presumption established by N.Y.C. Admin. Code §27-2115(f)(7), the Court construes this ambiguity against Respondents and finds that Respondents proved a correction of this violation as of January 15, 2022, 930 days after June 20, 2019. Upon such a failure to correct violations as such, the Court shall impose civil penalties of an amount between $50.00 and $150.00 plus $125.00 a day for "C" violations in buildings with five or more units, N.Y.C. Admin. Code §27-2115(a), as is the case with the Building. The Court awards HPD civil penalties of $150.00 plus $125.00 times 930 days for this violation, for a total of $116,400.00.
According to the notice of violation and violation summary report in evidence, Respondents had to correct violation #12957837, a "C" violation for roaches in Apt. C20, by April 8, 2019. As of March 29, 2022, that violation remains on HPD's violation summary report, which compels the legal presumption that Respondents have not yet corrected the violation. MDL §328(3), N.Y.C. Admin. Code §27-2115(f)(7).
The Maintenance Manager testified that Respondents have an extermination company that services the building once a month; they try to get as many tenants as possible; that they do monthly exterminations and they have to make special appointments sometimes, if there is a violation or a court order or a special request from a tenant; and that they use a few companies. The efficacy of any purported exterminations, however, is dubious, given that one of Respondents' exhibits seems to indicate that an employee of theirs, rather than a contractor, has been exterminating, and given that HPD has placed violations for roach infestation in a number of different apartments, including Apt. A18, Apt. A22, Apt. A25, Apt. B4, Apt. B8, Apt. C1, Apt. C22, Apt. D14, Apt. D19, Apt. F2, Apt. F3, and Apt. F25. On this record, the sparse documentation that Respondents have introduced is insufficient to rebut the presumption established by the placement and endurance of the violation that the condition continued through March 29, 2022. March 29, 2022 is 1, 086 days after April 8, 2019. The Court therefore awards civil penalties in an amount of $150 plus $125.00 times 1, 086, for a total of $135,900.00.
According to the notice of violation and violation summary report in evidence, Respondents had to correct violation #12980048, a "C" violation for a defective window guard in Apt. E5, by April 5, 2019. As of March 29, 2022, that violation remains on HPD's violation summary report, which compels the legal presumption that Respondents have not yet corrected the violation. MDL §328(3), N.Y.C. Admin. Code §27-2115(f)(7). Respondents did not submit any evidence showing that they had corrected this violation. March 29, 2022 is 1, 089 days after April 5, 2019. The Court therefore awards civil penalties in an amount of $150 plus $125.00 times 1, 089, for a total of $136,275.00.
According to the notice of violation and violation summary report in evidence, Respondents had to correct violation #13072674, a "C" violation for an obstruction in a water closet in Apt. D22, by May 25, 2019. As of March 29, 2022, that violation remains on HPD's violation summary report, which compels the legal presumption that Respondents have not yet corrected the violation. MDL §328(3), N.Y.C. Admin. Code §27-2115(f)(7). Respondents did not submit any evidence showing that they had corrected this violation. March 29, 2022 is 1, 039 days after May 25, 2019. The Court therefore awards civil penalties in an amount of $150 plus $125.00 times 1, 039, for a total of $130,025.00.
According to the notice of violation and violation summary report in evidence, Respondents had to correct violation #12980088, a "C" violation for an illegal fastening on door with a fire escape window in Apt. E10, by April 10, 2019. As of March 29, 2022, that violation remains on HPD's violation summary report, which compels the legal presumption that Respondents have not yet corrected the violation. MDL §328(3), N.Y.C. Admin. Code §27-2115(f)(7). Respondents did not submit evidence rebutting the presumption. March 29, 2022 is 1, 084 days after April 10, 2019. The Court therefore awards civil penalties in an amount of $150 plus $125.00 times 1, 084, for a total of $135,650.00.
According to the notice of violation and violation summary report in evidence, Respondents had to correct violation #12579404, a "B" violation for an illegal fastening on a fire escape window in Apt. A14, by October 19, 2018. As of March 29, 2022, that violation remains on HPD's violation summary report, which compels the legal presumption that Respondents have not yet corrected the violation. MDL §328(3), N.Y.C. Admin. Code §27-2115(f)(7). On their case, Respondents submitted into evidence a photograph of a window by a fire escape. The photograph depicts a gate in front of the window. Any encumbrance before or upon, or obstruction to access to any fire escape, is a violation. N.Y.C. Admin. Code §27-2007(c). While it is possible in theory for the New York City Fire Department to approve the installation of a gate on a fire escape, Giga Greenpoint Realty, LLC v. Mounier, 61 Misc.3d 135(A)(App. Term 2018 2nd Dept.), the photograph in evidence is insufficient to show that. Accordingly, the Court award civil penalties for this violation of $100, plus $10 a day as provided for "B" violations. N.Y.C. Admin. Code §27-2115(a). March 29, 2022 is 1, 257 days after October 19, 2018. The Court therefore awards civil penalties in an amount of $100 plus $10 times 1, 257, for a total of $12,670.00.
According to the notice of violation and violation summary report in evidence, Respondents had to correct violation #13634278, a "B" violation for leaky shower faucets in Apt. D19, by April 16, 2020 and had to correct violation #13634275, a "B" violation for a leaky tub faucet in Apt. D19, by April 13, 2020. As of March 29, 2022, those violations remain on HPD's violation summary report, which compels the legal presumption that Respondents have not yet corrected the violations. MDL §328(3), N.Y.C. Admin. Code §27-2115(f)(7). On their case, Respondents submitted into evidence a photograph of a shower in Apt. D19. The photograph depicts a wall that appears to be free of defects except for some discoloration around the grout. Be that as it may, the photograph does not convey anything information about whether faucets leak.
In addition to the photograph, Respondents submitted into evidence a business record that the Maintenance Manager referred to as a "work order." The Maintenance Manager testified that software that Respondents have purchased generates work orders; that someone prints it out; and that the super picks it up. The Maintenance Manager testified on voir dire that whenever HPD places a violation, the company that generates the software directs the violation to Respondents. With regard to the leaky faucets in Apt. D19, Respondents submitted into evidence an undated work order with a signature on it above a line on the work order designated for a tenant. As the Court held the trial for civil penalties jointly with a hearing on a motion for criminal contempt, and as intent is an element of criminal contempt, Savel v. Savel, 153 A.D.3d 872, 873 (2nd Dept. 2017), a signed work order could have an effect on Respondents' state of mind and the signed work order therefore was admissible for that purpose. However, to the extent that such a signature may be construed to be a statement by a tenant that Respondents completed the work, it would be an out-of-Court statement for the truth of the matter asserted, which would be inadmissible hearsay. People v. Huertas, 75 N.Y.2d 487, 491-492 (1990). Accordingly, the signed work order does not rebut the violations in evidence.
The signature was also not authenticated, although the lack of authentication does not affect the admissibility of the work order for purposes of Respondents' state of mind.
Accordingly, the Court awards civil penalties for these two violations of $100 each plus $10 a day. N.Y.C. Admin. Code §27-2115(a). March 29, 2022 is 715 days after April 13, 2020 and 712 days after April 16, 2020. The Court therefore awards civil penalties in an amount of $100 plus $10 times 715, for a total of $7,250.00, and $100 plus $10 times 712, for a total of $7,220.00.
According to the notice of violation and violation summary report in evidence, Respondents had to correct violation #13729398, a "B" violation for a broken light fixture in Apt. F25, by August 26, 2020. As of March 29, 2022, that violation remains on HPD's violation summary report, which compels the legal presumption that Respondents have not yet corrected the violation. MDL §328(3), N.Y.C. Admin. Code §27-2115(f)(7).
Isaac Hager ("the Building Manager") testified that he has managed the Building since July of 1994; that he takes care of violations; that he has worked in Apt. F25 on the sixth floor of the Building; that he received a violation in July; that he told the tenant there that he wanted to fix violations; that the tenant told him that she would let him know what day she would be available for the work to be done and that the work had to be done room by room; that Apt. F25 was full of stuff like furniture and clothing; that they first worked on a room next to bathroom; that they took all the stuff out, put it in plastic bags, and moved it to the living room; that after they were done they finished the whole room; that the tenant wanted nothing done until they fixed the parquet flooring; that he had to plaster and paint the room; that he sent someone there to do the work, including installation of sealant and putty; that he had to wait until it dried; that the tenant said to wait a week and then she said it was okay to continue; that they had to the same thing again as in the first room where the work was done; that they completed the work in October; that it took close to four months to complete the work; that normally this work would take two to three weeks; that there were no other situations like that; and that that was the most complicated case he dealt with.
Denial of access is a defense to civil penalties. N.Y.C. Admin. Code §27-2116(b)(2)(i). See, e.g., Ekman v. Jo Fra Props., 5 Misc.3d 1013(A)(Civ. Ct. N.Y. Co. 2004)(when the actions of a petitioner in an HP Action caused a delay in restoring gas, the landlord had a complete defense). The Building Manager's unrebutted testimony shows that the tenant of Apt. F25 maintained her apartment in such a way and engaged in conduct that hindered Respondents from correcting a violation in Apt. F25. Accordingly, the Court dismisses HPD's cause of action for civil penalties based on violation #13729398.
According to the notice of violation and violation summary report in evidence, Respondents had to correct violation #12970206, a "B" violation regarding a smoke detector in a common area, by May 10, 2019. As of March 29, 2022, that violation remains on HPD's violation summary report, which compels the legal presumption that Respondents have not yet corrected the violation. MDL §328(3), N.Y.C. Admin. Code §27-2115(f)(7). Respondents submitted into evidence a photograph of the smoke alarm. Evidence such as a photograph as such is exactly the kind of non-conclusory evidence that rebuts an HPD violation. Like the other photographs submitted into evidence on the Maintenance Manager's foundation, however, the earliest evidence in the record of such a correction is a photograph taken "a few months" before March 15, 2022. As Respondents bear the burden of rebutting the presumption established by N.Y.C. Admin. Code §27-2115(f)(7), the Court construes this ambiguity against Respondents and finds that Respondents proved a correction of this violation as of January 15, 2022. January 15, 2022 is 891 days after May 10, 2019. The Court therefore awards civil penalties in an amount of $100 plus $10 times 891, for a total of $9,010.00.
On November 13, 2019, HPD placed two "B" violations in Apt. C22, one at #13450859 to "repair the broken or defective plastered surfaces and paint in a uniform color all walls and ceiling in the bathroom...", and another at #13452959 to "repair the broken or defective plastered surfaces and paint in a uniform color ceiling in the bathroom …." Violation #13450859 appears to fully encompass and duplicate violation #13452959. Where there are separate instances of a single condition that constitutes a violation, such separate instances "shall be treated collectively as a single violation with respect to any one dwelling unit …." N.Y.C. Admin. Code §27-2115(g). On this logic, the Court would treat these two violations as one, perhaps but for the following language in the statute, "nothing contained in this subdivision shall limit the number of violations for which a penalty under this section may be collected with respect to each dwelling unit …" Id. While such language may in theory support two violations for essentially the same condition, as appears to be the case here, that proposition rests on the premise that these two conditions are "separate," which they do not appear to be. Accordingly, the Court shall dismiss HPD's cause of action for civil penalties with regard to violation #13452959 and shall consider violation #13450859.
According to the notice of violation and violation summary report in evidence, Respondents had to correct violation #13450859 by December 20, 2019. As of March 29, 2022, that violation remains on HPD's violation summary report, which compels the legal presumption that Respondents have not yet corrected the violation. MDL §328(3), N.Y.C. Admin. Code §27-2115(f)(7). Respondents submitted into evidence a photograph of the bathroom of Apt. C22 that does not depict broken or defective surfaces but rather appears to free of defects. The Maintenance Manager testified that he took the photograph a few months before his testimony which, for reasons stated above, the Court construes to be January 15, 2022. January 15, 2022 is 757 days after December 20, 2019. The Court therefore awards civil penalties in an amount of $100 plus $10 times 757, for a total of $7,670.00.
According to the notice of violation and violation summary report in evidence, Respondents had to correct violation #13501195, a "B" violation regarding a carbon monoxide detector in Apt. B8, by January 20, 2020. As of March 29, 2022, that violation remains on HPD's violation summary report, which compels the legal presumption that Respondents have not yet corrected the violation. MDL §328(3), N.Y.C. Admin. Code §27-2115(f)(7). Respondents did not rebut the evidence of this violation. March 29, 2022 is 799 days after January 20, 2020. The Court therefore awards civil penalties in an amount of $100 plus $10 times 799, for a total of $8,090.00.
HPD's memorandum of law seeks a civil penalty for violation #14638568. By an order dated November 17, 2021, the Court directed Respondents to correct this violation as of November 19, 2021. Respondents submitted into evidence a certification that they had corrected violation #14638568 on October 20, 2021. No countervailing evidence from HPD, such an extant violation, shows otherwise. Accordingly, the Court dismisses HPD's cause of action for civil penalties for violation #14638568.
HPD's memorandum of law stated that HPD was not seeking civil penalties for violation ##13450833 and 13768880. The Court therefore dismisses a cause of action for civil penalties for these violations without prejudice.
The total amount of civil penalties the Court awards HPD is $706,160.00.
Contempt
The Court, by an order dated October 19, 2021 ("the Order To Correct"), granted HPD's motion for summary judgment to the extent of ordering Respondents to correct open "A" violations in the Building at the time of the order on or before December 18, 2021, "B" violations on or before November 18, 2021, and "C" violations on or before October 29, 2021. As per footnote 3, supra, HPD submitted into evidence a violation summary report dated March 29, 2022. Of the violations that were subject to the Order To Correct, the following did not appear on the subsequent violation summary report, compelling the conclusion that Respondents corrected them:
##13450810, a "B" violation for bathroom sink faucets in Apt. A3, 13656596, a "C" violation for an entrance door lock, 13658814, a "C" violation for hot water in Apt. A3, 13676314, a "B" violation for defective glass panel front door, 13698183, a "C" violation for a broken lockset, 13802244, a "C" violation for broken lock entrance door, 14079193, a "B" violation for Co detector in Apt. E18, 14079190, a "B" violation for smoke detector in Apt. E18, 14079186, an "A" violation for a kitchen ceiling in Apt. E18, 14079177, a "B" violation for a bathroom ceiling in Apt. E18, 14313817, an "A" violation for painting the vestibule, 14353793, a "B" violation for a chain lock in Apt. F3, 14368642 an "A" violation for a certificate in a frame, 14434455, a "B" violation for a bathroom ceiling in Apt. A3, 14434458, an "A" violation for a ceiling in Apt. A3, 14439290, a "B" violation for a bathroom ceiling in Apt. A3, 14439286, a "B" violation for bathroom ceiling in Apt. A3, 14439276, a "B" violation for walls and ceiling in Apt. A3, 14439272, a "B" violation for wall and ceiling in Apt. A3, 14447625, a "B" violation for bathroom ceiling in Apt. A3, 14465279, a "B" violation for roaches in Apt. B4, 14465278, a "B" violation for window guards in Apt. B4, 14527129, a "C" violation for lead in Apt. B3, 14525964, a "C" violation for mice in Apt. B3, 14525963, a "C" violation for roaches in Apt. B3, 14564458, a "B" violation for a door lock in Apt. F2, 14564457, a "B" violation for an outlet in Apt. F2, 14564455, a "B" violation for an outlet in Apt. F2, 14564453, a "B" violation for an outlet in Apt. F2, 14569771, a "B" violation for a deadbolt lock in Apt. C2, 14569767, a "B" violation for window in Apt. C1, 14569765 an "A" violation for an entrance door in Apt. C1, and 14613817, a "B" violation for gas.
HPD's violation summary report showed that the remainder of the violations subject to the Order To Correct remained outstanding as of March 29, 2022. As the Court can take judicial notice of such violations pursuant to MDL §328(3), and as the statute provides that the persistence of the violations is prima facie proof that the conditions remain, the Court reproduces the image of the HPD violations outstanding from the Order To Correct as follows:
Image Omitted
In addition to the evidence above concerning the uncorrected violations from the Order To Correct, HPD also submitted into evidence records of inspections made to follow up on Respondents' certifications of corrections of violations, without countervailing evidence from Respondents. One record found that, based on inspections made on November 22, 2021, the following violations were not corrected: ##13228343, 14502487, 14502505; and another record showed that, based on inspections made on December 22, 2021, the following violations were not corrected: ##14569764, 14569766, 14695226, 14695265, and 14695295.
The record also contains some conflicting evidence regarding Respondents' certifications of corrections of violations. HPD inspections on December 2, 2021 showed that violation ##14525957, 14525958, 14525959, 14525960, 14525961, 14525962, and 14527128 were not corrected. For those violations, Respondents submitted into evidence undated work ordered purported to be signed by tenants over pre-printed language saying "I agree that the above work was completed to my satisfaction".
HPD also submitted into evidence records of inspections made on December 22, 2021, showing that Respondents did not correct violation ##14569769 and 14569770. Respondents submitted into evidence a number of work orders for those violations: one "no answer on 10/13/21 ar 125 pm no number to contact the tenant [sic.]"; another work order saying dated October 20, 2021 that says, "the tenant was home but refuse to let is in me & the super on 10/20/21 at 10:50 am this is a headache tenant [sic.]" and "no answer on 10/19/21 at 11:35 am 2n time [sic.]; and another purported to be signed by a tenant on October 27, 2021 over the same pre-printed language expressing satisfaction and with a notation from someone named "Will" saying that he had completed or supervised the completion of the work on the same date.
HPD also submitted into evidence records of inspections made on December 22, 2021, showing that Respondents did not correct violation ##14697443 and 14697445. Respondents submitted into evidence work orders for those violations that tenants signed on January 4, 2022.
With regard to other violations from the Order To Correct, Respondent also submitted into evidence the following work orders:
•work orders with undated purported signatures from tenants for the following violations from the Order To Correct: ##13634278, 13634275, 13452959, 13643115, 13643116, 13643139, 13633261, 13634275, 13634290, 13634285, 13758406, 13758357, 13758343, 14079175, 14079179, 13691318, 13699761, 13699755, 13699744, 13624799, 13653209, 13450878, 14461298, 14461299, 14334598, 14368659, and 14368663;
•a work order for violation #14353795 with a purported signature from a tenant dated January 4, 2020, a work order for violation #14368681 with a purported signature from a tenant dated June 15, 2021, and a work order for violation #14354132 with a purported signature from a tenant dated January 4, 2022;
•work orders signed by Individual Respondent #1 regarding violation ##13730577, 13730449, 13730478, 13730508, 13730511, and 13696361;
•an unsigned and undated work order for violation ##14502439 and 14502440 that says "no answer on 9/14/21 AT 1:38 pm [sic.]"
•unsigned work orders regarding HPD violation ##13663583, 13663585, 13663586, 13663587, 13663591, 13469321, 13729376, 13729379, 13729385, 13729388, 13729395, 13744799, 13729409, 13729410, 13744884, 13744885, 13744886, 13744888, and 13744889.
As the movant for criminal contempt, HPD bears the burden of proving beyond a reasonable doubt, inter alia, that Respondents willfully disobeyed the Order To Correct. Savel, supra, 153 A.D.3d at 873, People v. Metropolitan, 231 A.D.2d 445 (1st Dept. 1996), Bayamon Steel Processors v. Platt, 191 A.D.2d 249 (1st Dept 1993), Willer v. Dachenhausen, 83 A.D.2d 924 (1st Dept. 1981). A knowing failure to comply with a court order gives rise to an inference of willfulness which may be rebutted with evidence of good cause for noncompliance. Matter of Figueroa-Rolon v. Torres, 121 A.D.3d 684 (2nd Dept. 2014), leave to appeal dismissed, 24 N.Y.3d 1096, 1097 (2015), Dalessio v. Kressler, 6 A.D.3d 57, 66 (2nd Dept. 2004). In addition to this proposition of law, HPD argues that various irregularities in HPD's multiple dwelling registration pursuant to MDL §325 compel a finding that Respondents' failure to obey the Order To Correct was willful.
The various work orders signed by tenants, particularly to the extent that they contradict HPD's finding regarding violations, are probative that Respondents' failure to obey the Order To Correct may have resulted from a state of mind occasioned by such signed work orders rather than by Respondents' willfulness. To the extent that HPD challenges the reliability of the signed work orders, then, the Court would have to accept the proposition that Respondents would go through the trouble of obtaining the kind of software that generates work orders keyed to violations by the violation number directly and obtain or fabricate signatures of tenants. If this was the only evidence that Respondents had, then argument that the record shows willful noncompliance beyond a reasonable doubt would be stronger. But the record also shows that HPD itself found that Respondents corrected 33 violations, including hazardous and immediately hazardous violations, from the Order To Correct. Respondents' photographic evidence also buttresses the record that Respondents engaged in work to correct violations. The emails in evidence showing efforts made to arrange access demonstrate that Respondents had to coordinate with social services agencies at the same time as coordinating with outside contractors. And with regard to one tenant in particular, there was unrebutted testimonial evidence of obstacles that the tenant interposed toward correcting violations. The totality of this evidence in fact gives rise a doubt that Respondents' failure to obey the Order To Correct was willful. Accordingly, the Court shall deny HPD's argument for criminal contempt.
Civil contempt does not require a showing of willfulness. El-Dehdan v. El-Dehdan, 26 N.Y.3d 19, 29 (2015), Bd. of Dirs. of Windsor Owners Corp. v. Platt, 148 A.D.3d 645, 646 (1st Dept.), leave to appeal dismissed, 30 N.Y.3d 986 (2017). Civil contempt requires a determination that a lawful order of the court, clearly expressing an unequivocal mandate, was in effect; a determination with reasonable certainty that the contemnor disobeyed that order; that the contemnor knew of the Court's order, and the disobedience defeats, impairs, impedes, or prejudices the rights or remedies of a party. El-Dehdan, supra, 26 N.Y.3d at 34-35, Bd. of Dirs. of Windsor Owners Corp., supra, 148 A.D.3d at 646. The Order To Correct was an unequivocal mandate, Respondents never challenged the proposition that they knew of the Order To Correct, and Respondents' failure to correct violations prejudices HPD as a matter of law. Allen v. 219 24th St. LLC, 72 Misc.3d 1223(A)(Civ. Ct. N.Y. Co. 2021), Dep't of Hous. Pres. & Dev. of City of N.Y. v. Living Waters Realty, Inc., 14 Misc.3d 484, (Civ. Ct. N.Y. Co. 2006), Allen v. Rosenblatt, 5 Misc.3d 1032(A)(Civ. Ct. N.Y. Co. 2004). What remains of HPD's civil contempt case is to prove that Respondents did not comply with the Order To Correct.
As a matter of law, the extant violations prove that Respondents did not correct a substantial number of violations from the Order To Correct. MDL §325, N.Y.C. Admin. Code §27-2115(f)(7). Even though the absence of 33 of the violations from the subsequent violation summary report from the time of the Order To Correct compels the conclusion that HPD does not dispute that Respondents corrected some violations, Respondents still bear the burden of proving that they corrected the others. As noted above, Respondents submitted into evidence a number of work orders signed by tenants, some dated and some undated, many of which specifically refer to violations that the Order To Correct directed Respondents to correct. As noted above, those signatures were not authenticated and the extent to which the signatures purport to prove the truth of the proposition that Respondents corrected the violations, they constitute inadmissible hearsay. As the declarants of the signed work orders were tenants, they did not have a business duty to make entries for Respondents and so the signed work orders not admissible under the business records exception to the hearsay rule. In re Leon R.R., 48 N.Y.2d 117, 122-23 (1979), Matter of Martirano, 172 A.D.3d 1610, 1614 n.4 (3rd Dept. 2019), People v. Schlesinger Elec. Contractors, Inc., 143 A.D.3d 516, 518 (1st Dept. 2016), Hochhauser v. Elec. Ins. Co., 46 A.D.3d 174, 181 (2nd Dept. 2007). Accordingly, HPD has proven that Respondents did not correct all the violations from the Order To Correct and has therefore proven every element of civil contempt.
While Respondents asserted that the predominance of social services agencies in the Building subletting to clients presented them with obstacles to access to correct violations, eight of the violations still outstanding as of March 29, 2022 are in the common areas of the Building. Moreover, apartments in the Building that had violations that Respondents appear to have corrected include Apt. E18, Apt. F3, Apt. B4, Apt. F2, and Apt. C1. Respondents had to have had access to the those apartments in order to correct violations there, yet violations remain in each of these apartments as of March 29, 2022. Accordingly, Respondents do not prove a defense to civil contempt for lack of access.
Judiciary Law § 773 provides for two types of awards: one where actual damage has resulted from the contemptuous act in which case an award sufficient to indemnify the aggrieved party is imposed, and one where the complainant's rights have been prejudiced but an actual loss or injury is incapable of being established, in which case, the fine is limited to $250, plus the complainant's costs and expenses. Dunn v. Dunn, 78 A.D.3d 649, 650 (2nd Dept. 2010), Jamie v. Jamie, 19 A.D.3d 330 (1st Dept. 2005). When tenants, rather than a municipal agency, incurred actual damages, a statutory fine for each violation of the Housing Maintenance Code does not accord with the purposes of the statute. Dep't of Hous. Pres. & Dev. v. Deka Realty Corp., 208 A.D.2d 37, 43 (2nd Dept. 1995). Accordingly, the Court shall fine Respondents $250.00 for contempt.
HPD also seeks incarceration for Respondents. The Court's power to punish a person for civil contempt is discretionary and the Court should exercise that discretion in light of the facts and circumstances in each particular case. In re Hildreth, 28 A.D.2d 290, 292 (1st Dept. 1967), Telephone Dynamics Corp. v. Morrisey, 2009 N.Y. Misc. LEXIS 4519 (S.Ct. N.Y. Co. 2009). In part for the reason stated above as to why the Court is not holding Respondents in criminal contempt and in part because of the substantial civil penalties award the Court enters into by this order, the Court shall exercise its authority to hold a request for imprisonment in abeyance. However, the Court shall calendar this proceeding for a conference to find out what plan that Respondents have to effectuate a completion of the correction of the outstanding violations, in particular the hazardous and immediately hazardous violations.
Order To Correct
Subsequent to the Order To Correct, HPD inspectors found additional violations, which the Court reproduces here from the HPD website:
Image Omitted
A dispute over whether the violations actually exist is a colorable defense to an order to correct. D'Agostino v. Forty-Three E. Equities Corp., 12 Misc.3d 486, 489-90 (Civ. Ct. N.Y. Co. 2006), aff'd on other grounds, 16 Misc.3d 59 (App. Term 1st Dept. 2007). Respondents submitted into evidence work orders, similar to the work orders submitted in defense of the contempt and civil penalties motions, concerning corrections of these new violations, including violation ##14715295, 14715309, 14697472, 14697420, 14697432 14697418, 14697413, 14697414, 14697415, 14697416, 14697418, 14697419, 14697443, 14697445, 14697420, 14697424, 14697425, 14697426, 14749058, 14749056, 14712877, 14749061, 14749062, 14749076, 14715265, 14715233, 14712885, 14741006, 14741007, 14741008, 14741009, 14712881, 14712880, 14749057, 14749058, and 14749059. Be that as it may, the work orders suffer from the same problems in this context as they do in defense of civil penalties or contempt: they are either hearsay statements of tenants who do not have a business duty to report anything, or they are arguably business records but of little probative value, often terse and often undated. They do not rebut the government records that are admissible as a matter of law. Accordingly, the Court will enter an order to correct with regard to these violations.
Accordingly, it is
ORDERED that the Court grants HPD's petition for civil penalties to the extent of awarding HPD a judgment in the amount of $706,160.00, which may be enforced against block 1326, lot 1 in the borough of Brooklyn, and it is further
ORDERED that the Court denies HPD's motion to hold Respondents in criminal contempt, and it is further
ORDERED that the Court grants HPD's motion to hold Respondents in civil contempt, and it is further
ORDERED that the Court awards HPD a judgment against Respondents in the amount of $250.00 for civil contempt, and it is further
ORDERED the Court grants HPD's motion to direct Respondent to correct the New Violations, as follows: "C" violations on or before May 24, 2022; "B" violations on or before June 21, 2022, and "A" violations on or before August 18, 2022, and it is further
ORDERED that upon default in the order to correct that HPD may move for contempt and/or civil penalties, without prejudice to any defense that Respondents may have to such a motion, including but not limited to a defense that the violations have been corrected, and it is further
ORDERED that the Court will entertain a motion to extend the time to correct violations, but such a motion must be supported by a showing of good cause, and it is further
ORDERED that the Court holds so much of HPD's motion seeking imprisonment as a result of civil contempt in abeyance pending the Court's review of Respondents' plan to correct the outstanding violations, which the Court will review at a conference with counsel for the parties on June 8, 2022 at 11:30 a.m. in part Q, Room 405 of the Courthouse located at 141 Livingston Street, Brooklyn, New York, or virtually, whichever counsel prefers or, if counsel is engaged on that date, another date to be chosen with the Court and counsel over email.
This constitutes the decision and order of this Court.