Opinion
No. 1038/14.
08-11-2014
DHPD, Petitioner v. CASHTON, A.S. INC., Leroy Culzac, Richard Maidman, Respondents.
Martine Bass, Esq., New York, Attorneys for Petitioner DHPD. Eliezer A. Cohen, Esq., New York, Attorney for Respondents.
Martine Bass, Esq., New York, Attorneys for Petitioner DHPD.
Eliezer A. Cohen, Esq., New York, Attorney for Respondents.
Opinion
SABRINA B. KRAUS, J.
This HP Proceeding was commenced DHPD(Petitioner) and against CASHTON, AS INC, LEROY CULZAC, RICHARD MAIDMAN(Collectively “Respondents”) Owner, managing agent and officer of the owner of 150 East 83rd Street, New York, New York 10028 (Subject Premises), based on the allegations that Respondents falsely certified violations corrected, and seeking the imposition of civil penalties for said false certifications.
The following facts are uncontested: HPD issued three violations for conditions at the Subject Premises on February 6, 2013. Violation Number 9728055 was issued for failure to provide an adequate supply of heat for apartment 2C and is a Class C violation. Violation number 9728056 was issued the same day for failure to provide hot water to Apartment 2C. Finally, violation number 9728106 a Class C violation was issued for failure to provide ready access to the building's heating system and because the door to the boiler room was locked.
§ 27–2115(a) of the Housing Maintenance Code provides in pertinent part:
A person willfully making a false certification of correction of a violation shall be subject to a civil penalty of not less than fifty dollars nor more than two hundred fifty dollars for each violation falsely certified, in addition to other penalties provided herein.
On February 11, 2013, Eliezer A. Cohen, Esq., who has also appeared as counsel for Respondents herein, certified the first two violations as corrected. Mr. Cohen affirmed under penalty of perjury that he is an officer of the corporation that owns the premises and that the landlord did work to correct the violations on February 6, 2013, the same date the violations were issued.
Mr. Cohen further affirmed that the landlord had the work done by Tony Conte, citing an address for Mr. Conte at 554 Third Avenue, New York, New York, 10016. No proof of payment for the work was annexed to the certification. In his affirmation, Mr. Cohen affirms under penalty of perjury that he is currently registered with HPD in reference to the property. This is a false affirmation. Mr. Cohen is in fact not listed on the property registration.
In his affirmation Mr. Cohen affirmed under penalty of perjury that he has examined the areas containing the violation and based on his personal knowledge from said examination the violation was corrected on February 6, 2014. However, his affirmation herein indicates that he did not visit Apartment 2C and personally examine the heat or hot water, instead he alleges that a monitoring system monitored by an outside company suggests heat and hot water were being provided on the dates of reinspection.
The affirmation in opposition submitted by Mr. Cohen does not in fact address the veracity of his certification in any manner. Mr. Cohen does not tell us why heat and hot water were not being provided on February 6, 2013, and what work was performed by Mr. Conte to address the problem.
On February 14, 2013, Mr. Cohen once again certified the violation for violation number 978106 based on lack of access to the basement as corrected. He asserted it was corrected on February 6, 2013, the same day it was issued, by Elvin Blanco with an address at 304 East 81st Street, New York City, 10028.
Astonishingly, in his affirmation in opposition, Mr. Cohen affirms that there is no boiler in the Subject Building so the fact that the door was locked is irrelevant. Mr. Cohen asserts in his affirmation that there is no boiler at 150 East 83rd Street, and that the boiler that services the building is located at 152 East 83rd Street. This is a de facto admission that Mr. Cohen, an attorney at law, falsely certified the violation as corrected.
Respondents were cited for violating § 27–2033 of the New York City Administrative Code.This provision provides in pertinent part:
The owner of every multiple dwelling shall have the area, where the buildings's heating system is located, readily accessible to members of the department to make inspection pursuant to this chapter. In the event such area is key under lock, a key shall be kept on the premises at all times with such person as the owner shall designate; however, if there is a person residing on the premises who performs janitorial services, such person shall hold the key. The owner shall post a notice in a form approved by he department naming such designated person and his or her location.
The public records regarding both the Subject Building and the neighboring building 152 West 83rd Street, do indicate that one boiler serviced both buildings at times. For example, DOB records show that the Certificate of Occupancy for 152 East 83rd indicates there is a boiler room in the cellar. However, DOB records also indicate the boiler for 152 East 83rd Street is actually located in the basement of the Subject Building and the DOB records for the Subject Building show that the boiler, has a make by Weil McLain, Boiler Number 6455, and status is active, and that DOB has inspected the boiler consistently from 1993 and as recently as June 16, 2014.
Whether the boiler is located in the Subject Building or the next door building, Respondents have an obligation to comply with § 27–2033 by posting an approved notice as to the location of the boiler and the ready method of access to the boiler by the inspectors. Not only have Respondents repeatedly failed to comply with this provision, but also Mr. Cohen falsely certified on more than one occasion that he hired an individual to correct a violation, he now claims doesn't exist.
HPD reinspected the two violations in Apartment 2C on March 14, 2013. The inspector found that heat was being provided, and that the violation for same had been properly certified as corrected, however the inspector also found the violation for failure to provide hot water had not been corrected.
Similarly, on April 1, 2014, an HPD inspector reinspected the violation for access to the boiler room and found that said violation had also not been corrected.
Pursuant to § 28–211.1.1 of the New York City Administrative Code:
In any proceeding that relates to a false statement in a certification of correction of a violation ... if an inspection made within six months after the filing of the certification finds a condition constituting a violation that is the same as the condition described in the notice of violation with respect to which such certification was filed, there shall be a rebuttable presumption that the condition described in such notice of violation continued and is the same condition found in the inspection.
On March 14, 2013, HPD issued a Class “C” violation, number 9769788 for failure to provide ready access to the buildings heating system, and noting that the door to the basement was locked. Once again, Mr. Cohen personally affirmed under penalty of perjury that on the very same day the violation was issued it was corrected by Leroy Culzac and listing Mr. Culzac's address. Culzac is in fact a named party in this proceeding and represented by Mr. Cohen herein. Again, based on Mr. Cohen's current statement that there was no correction to be made he is admitting that his certification that he had Mr. Culzac correct the violation is false.
Based on the foregoing, the affirmation in opposition submitted by Mr. Cohen fails to raise any triable issue of fact, or rebut the presumption of false certifications established by the reinspection of the violations. The only issue he submitted any evidence on was the issue of heat. This was the only violation that was not falsely certified as corrected. As such the court finds that Petitioner is entitled to a judgment against Respondents of $750.00, based on a fine of $250 per violation. Petitioner may submit a judgment for this court's signature in accordance with his decision.
Moreover, this court is extremely disturbed by the cavalier attitude Mr. Cohen exhibited in falsely certifying the corrections and in responding to those claims in this court. Further inquiry into Mr. Cohen's record as an attorney reveals that Mr. Cohen was suspended from the practice of law by the Appellate Division, First Department (In the matter of Eliezer A. Cohen 264 A.D.2d 94) on January 18, 2000. The decision notes that Mr. Cohen was cited for irregularities in reference to his escrow account, the referee found Mr. Cohen's conduct to be “... reprehensible ... and ... far short of the standards demanded of attorneys (Id).” The decision further noted that Mr. Cohen had violated multiple disciplinary rules, that Mr. Cohen had previously been admonished in 1995 for abusing the legal system to advance a baseless claim, and that he had engaged in representing clients despite a conflict of interest.
Mr. Cohen remained suspended from the practice of law for approximately fourteen years, through and including January 28, 2014, when he was reinstated pursuant to a order issued without opinion, by the Appellate Division, First Department, on January 28, 2014 [2014 N.Y. Slip Op 62240(U) ].
Based on what appears to be further unethical conduct by Mr. Cohen in this case, the court directs Mr. Cohen to show cause before this court on August 25, 2014 at 2pm, in Room 1166, why an order should not be entered pursuant to Rule 130–1 sanctioning Mr. Cohen for his frivolous conduct herein. Petitioner is expected to appear at and participate in said hearing. Petitioner is directed to produce at said hearing, to the extent practicable, any other certifications submitted by Mr. Cohen for violations issued since January 2014.
Mr. Cohen is directed to produce as witnesses at said hearing the three individuals he certified he had correct the three violations at issue, namely Elvin Blanco, Tony Conte, and Leroy Culzac, as well as any and all documentation related to said alleged repairs including invoices and proof of payment.
Mr. Cohen is further directed to produce at said hearing records for the boiler that services the Subject Premises, specifying the location of said boiler, and any repairs done to correct violation or otherwise repair said boiler from January 1, 2013 forward.
This constitutes the decision and order of this court.