Opinion
13461/2020
02-26-2021
Lily JEFFERS, Petitioner, v. RIVER PARK RESIDENCES LP, Reliant Realty Servies LLC, and Fermin Garcia, Respondents, and New Yor City Department of Housing Preservation and Development (DHPD), Co-Respondent.
Alexander Yetwin, Esq., Attorney for Respondents, Via Email: ayetwin@reliantrs.com. Bronx Legal Services NYC, Attn: Johanna Ocana, Attorneys for Petitioners, Via Email: jocana@lsnyc.org. DHPD, Attn: Symone Sylvester Esq., Email: Sylvests@hpd.nyc.gov.
Alexander Yetwin, Esq., Attorney for Respondents, Via Email: ayetwin@reliantrs.com.
Bronx Legal Services NYC, Attn: Johanna Ocana, Attorneys for Petitioners, Via Email: jocana@lsnyc.org.
DHPD, Attn: Symone Sylvester Esq., Email: Sylvests@hpd.nyc.gov.
Shorab Ibrahim, J.
Recitation, as required by C.P.L.R. § 2219(a), of the papers considered in review of this motion.
Papers Numbered
Notice of Motion With Affirmation and Exhibits [NYSCEF No. 4-51
Answering Affirmation and Exhibits [NYSCEF No. 7-112
Reply Memorandum [NYSCEF No. 12]3
After oral argument and upon the foregoing cited papers, the decision and order on this motion is as follows:
BACKGROUND & PROCEDURAL POSTURE
The court assumes familiarity with this case's procedural history and facts, particularly those recited in the October 28, 2020 Trial Decision. It is that Decision which petitioner asks the court to set aside in part and render a new decision as a matter of law, pursuant to CPLR § 4404(b). Specifically, petitioner seeks a new decision on her request for respondents to further investigate and assess her apartment's full bathroom for mold, and a new decision [in her favor] on her harassment claim.
Respondents, unsurprisingly, assert that the court's decision was in accordance with the law and the evidence presented at trial.
DISCUSSION
CPLR § 4404(b) states,
(b) Motion after trial where jury not required. After a trial not triable of right by a jury, upon the motion of any party or on its own initiative, the court may set aside its decision or any judgment entered thereon. It may make new findings of fact or conclusions of law, with or without taking additional testimony, render a new decision and direct entry of judgment, or it may order a new trial of a cause of action or separable issue.
Here, "[b]ecause Petitioner only seeks modification of legal conclusions not any of the Court's fact finding, there is no need to hold a new trial or take additional testimony in order for the Court to make its determination"
Ocana affirmation at par. 25.
Petitioner asks the court to explicitly order respondents to further assess the full bathroom for mold, as recommended by petitioner's expert, to avoid any misunderstanding of the court's decision and to "reverse its finding of no harassment"
As to further assessment of the full bathroom for mold, the court declines to order same. Petitioner presented no independent proof of mold ever having been present in the full bathroom. There was never a mold violation in the full bathroom. Mr. Olmstead, petitioner's expert, found no moisture in the full bathroom. In fact, the entirety of Mr. Olmstead's results for the full bathroom examination were, "there was no evidence of visible mold growth in the bathroom however [sic] it was reported that the lower part of the wall had mold growth that was painted over" [emphasis added]. This "report" was presumably the tenant stating there was mold in the full bathroom. Indeed, petitioner testified there was mold in the full bathroom; however, she failed to provide any details. Michael Jeffers, petitioner's son, offered no testimony or photos of the full bathroom, though he was able to provide both for the bedroom closet.
The court placed violations for mold in the closets based largely on photographs introduced by petitioner's witnesses. No such proof was offered for the full bathroom. The photo of the full bathroom introduced at trial show the area is free of any indication there is or was mold present.
In the absence of proof, the occurrence of mold in the full bathroom is not reasonably foreseeable as petitioner suggests. Thus, any "reasonable measures" respondents would be required to take in that space are not triggered. ( see NYC Admin Code § 27-2017.1 ). Consequently, this court will not order respondents to "cut probes into the bathroom wall to allow inspection inside the wall cavity for the presence of mold growth." To hold otherwise would lead to absurd outcomes where landlords would have to probe walls, ceilings and floors looking for mold based on a tenant's verbal "reports." If that were the intent of the 2018 local laws and Housing Maintenance Code provisions petitioner cites to, the legislation could have been so written. ( see Yaniveth R. ex rel. Ramona S. v LTD Realty Co. , 27 NY3d 186, 192 [2016] ["In the absence of a statutory definition, ‘we construe words of ordinary import with their usual and commonly understood meaning, and in that connection have regarded dictionary definitions as useful guideposts in determining the meaning of a word or phrase’ "]). The presence of mold elsewhere in the apartment does not change this calculation.
Petitioner's self-serving claims of existence of mold in the full bathroom, with no evidence of the same and no DHPD violation, are patently insufficient for the court to place a violation or to order further investigation. To the extent that the October 28, 2020 Decision is difficult to interpret because it orders compliance with Mr. Olmstead's recommendations, the court issues the following clarification: Respondents are not required to do anything in regards to alleged mold in the full bathroom because petitioner did not establish that mold was likely present, probably present, or reasonably foreseeable to be there.
As to the harassment, petitioner argues that the claim is established as a matter of law because she presented evidence that she vacated the premises and respondents committed repeated acts or omissions which substantially interfered with her comfort, repose, peace, and quiet enjoyment of the premises.
"The Housing Maintenance Code defines ‘harassment’ in a general way as, inter alia , any omission that substantially interferes with the comfort of any tenant. The Housing Maintenance Code also defines harassment more specifically as, inter alia , a repeated failure to correct violations of the housing maintenance code or construction codes." ( Allen v 219 24th Street LLC , 67 Misc 3d 1212[A] at *20 [Civ Ct, New York County 2020] [internal citations omitted]). However, to the extent that any of the allegations of harassment are based on "physical conditions of a dwelling or dwelling unit, such allegation[s] must be based at least in part on one or more violations of record issued by the [Department of Housing Preservation and Development] or any other agency." [emphasis added]. ( NYC Admin. Code § 27-2115[h][2][i] ; 1068 Winthrop St. LLC v Zimmerman , 65 Misc 3d 1107, 1119 [Civ Ct, Kings County 2019] ).
Here, the alleged harassment is based on the physical condition of the apartment. However, there was never a qualifying hazardous or immediately hazardous violation for mold placed at the subject apartment. Petitioner's argument that this court's subsequently placed violations trigger the statute is unpersuasive.
A plain reading of NYC Admin. Code § 27-2115[h][2][i] informs the court that a violation placed by DHPD or another agency is required. Even if a violation placed by the court qualifies, it would need to be "of record." Merriam Webster defines "of record" as "being documented or attested." Black's Law Dictionary defines "of record" as "recorded in the appropriate records." This must be read with the definition of "record" for a full understanding. "Record" is defined as (1) "A documentary account of past events, usu. designed to memorialize those events, and (2) Information that is inscribed on a tangible medium" This suggests the violation, not merely the condition giving rise to it, must be in place at the time the harassment allegation is made. ( see Yaniveth R. ex rel. Ramona S. v LTD Realty Co. , 27 NY3d 186, 192 [2016] ; Rosner v Metropolitan Property and Liability Ins. Co. , 96 NY2d 475, 489-490 [2001] ; see also Various Tenants of 1058 Bergen Street v 1058 Bergen Street LLC , 12 Misc 3d 1177[A] [Civ Ct, Kings County 2006] and Farber v 535 East 86th Street Corp. , 2002 WL 317987 [App Term, 1st Dept 2002] [referring to violations of record as those already placed by DHPD]).
https://www.merriam-webster.com/dictionary/record. Last viewed February 17, 2021.
Black's Law Dictionary, Abridged 8th Edition, 2005.
The obvious rationale for the "of record" requirement is that the landlord should have notice of a violation and be given the statutory time frames for correction. ( see e.g. NYC Admin Code § 27-2115(h)(1) [ "If the court finds a condition constituting a violation exists, it shall direct the owner to correct the violation 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"]). Under the facts presented in this case, harassment, like civil penalties or contempt based on failure to correct a violation, cannot be found where there is no violation to base such claims on or when the time to correct a violation has not expired.
This is a fact specific determination. If there is evidence of a reoccurring condition and repeated violations for the same issue, for example, harassment might be found prior to the expiration of the correction date for the latest placed violation.
Furthermore, petitioner also did not establish that respondent performed acts "of such significance as to substantially interfere with or disturb the comfort, repose, peace, or quiet" of petitioner. Just as the court cannot place a violation based on a tenant's unsupported claims that a condition is present, the court cannot find harassment based on a tenant's unsupported subjective beliefs.
As to petitioner's actual vacatur of the apartment, she argues she proved she vacated the premises due to the mold in the apartment. Petitioner takes issue with the court's focus on causation in the October 28, 2020 Decision, particularly since the court found petitioner credible. She argues that since she clearly vacated due to the mold in the apartment, it must follow that such vacatur was due to respondents’ failure to properly remediate the mold. The court found petitioner credible because it found she testified truthfully. The court had little doubt that petitioner thought she had to vacate the apartment. Whether she objectively needed to vacate the premises, however, is not established by her good-faith belief, necessitating the causation discussion. It ought to be obvious that a tenant's good-faith belief that she needs to vacate an apartment due to conditions in the apartment must be supported with independent proof; good-faith beliefs can be mistaken. Under the facts presented at trial, petitioner vacated based on her belief she needed to vacate—this does not support a harassment finding.
It is important to note, however, that petitioner had every opportunity to establish her medical condition but failed to do so. The absence of such proof, considering the claims made in the petition, is striking.
"Causation" is discussed in the court's decision because it was clear that petitioner was, at a minimum, inferring that her health forced her to leave the apartment. Indeed, in her present motion, petitioner states that "[t]he decision [to vacate] was further informed by Ms. Jeffers’ experience of her own medical issues and further justified by advice from her medical provider." The failure to establish her "medical issues" or provide any proof of the alleged medical advice was properly considered by the court.
See par. 54 of the amended petition, "Thus, Ms. Jeffers commenced this case to seek the Court's intervention to finally address the mold in her apartment and the Respondent's pattern of neglect which forced her out of her home in order to safeguard her health."
Among the unproven "facts" alleged in the amended petition are (a) there is mold in the full bathroom [par. 42], (b) Ms. Jeffers suffers from respiratory concerns and was diagnosed with asthma [par. 45], (c) Ms. Jeffers’ son's doctor cited mold as a reason for him not to return to the apartment [par. 46], (d) Ms. Jeffers’ doctor cited mold as a reason for her not to return to the apartment [par. 47].
Thus, while petitioner insists in her motion that "[t]he first prong of the harassment statute is satisfied, because Petitioner did indeed vacate the apartment as a result of failure to properly remediate mold throughout the apartment," petitioner failed to prove she vacated because of the mold in the apartment. Indeed, it is petitioner's factual allegations and the wording of the relevant statute which invite a "causation" discussion.
Ocana affirmation at 31.
"The existence of an indoor allergen hazard in any dwelling unit in a multiple dwelling is hereby declared to constitute a condition dangerous to health" and "[a]n owner of a dwelling shall keep the premises free from other indoor allergen hazards and from any condition conducive to indoor allergen hazards, and shall prevent the reasonably foreseeable occurrence of such conditions and shall expeditiously remediate such conditions and any underlying defect, when such underlying defect exists." ( NYC Admin Code § 27-2017.1 ). Among "indoor allergen hazards" is mold. ( id. at § 27-2017). "Indoor mold hazard" is defined as "any condition of mold growth on an indoor surface, building structure or ventilation system, including mold that is within wall cavities, that is likely to cause harm to a person or that has been cited as a violation by the department." [emphasis added] ( id. ).
An "indoor mold hazard" is, according to a plain reading of the statute, one of two things: (1) a violation placed by the department, or (2) one that is likely to cause harm to a person. Since "petitioner does not argue that the per-se declaration that mold is condition dangerous to health would mean that there is a per-se finding of harassment," the discussion regarding whether the alleged condition was " likely to cause harm" [emphasis added] was both appropriate and necessary, and petitioner did not prove why mold, in absence of a violation, was likely to cause her harm.
See Reply Memorandum. Alternatively, however, petitioner also posits that "the Court would have been justified in making a finding of harassment even if Ms. Jeffers did not suffer from respiratory health conditions, particularly in light of mold's inherent hazards to anyone's health." (Ocana affirmation at 40).
Even if petitioner were correct that this court applied a "higher burden of proof imported from personal injury law," petitioner failed to establish she vacated the subject premises due to the mold condition by a preponderance of the evidence.
Ocana affirmation at 39.
Notwithstanding the absence of a predicate violation, petitioner posits that harassment ought to have been found under the statute's "catch-all" provision. ( see NYC Admin Code § 27-2004 (a)(48)(g) [other repeated acts or omissions of such significance as to substantially interfere with or disturb the comfort, repose, peace or quiet of any person lawfully entitled to occupancy]). Again, the court has considered all the credible evidence and disagrees. Petitioner did not establish significant repeated " other acts or omissions" by the respondents [emphasis added] that disturbed petitioner's comfort.
There was no proof presented that petitioner ever requested an inspection by DHPD after the previous "class-A" violation was removed.
The court has considered the balance of the arguments made by petitioner and find them to be without merit.
CONCLUSION
Based on the foregoing, petitioner's motion is denied. The October 28, 2020 Decision is undisturbed, except for the clarification stated herein. This constitutes the Decision of the court.
Copies of this Decision will be emailed to all counsels.
SO ORDERED.