351-359 E. 163rd St. Tenants Assoc. v. E. 163 LLC
| Decision Date | 24 August 2020 |
| Docket Number | 13412/2019 |
| Citation | 130 N.Y.S.3d 612 (Table),68 Misc.3d 1228 (A) |
| Parties | 351-359 EAST 163RD STREET TENANTS ASSOC., Candida Carrasquillo, Gudalupe Rojas, Doris Pluas, Jesayna Olivera, Toshima Gardner, Angelica Rojas, Petitioner(s), v. EAST 163 LLC, PD Family Shelter Trust, Manny Stein, Respondent(s)-Landlord, Department of Housing Preservation and Development of the City of New York, Co-Respondent(s). |
| Court | New York Civil Court |
Todd Rothenberg, Esq., Attorney for Respondents, 271 North Avenue, Suite 115, New Rochelle, NY 10801, Email: Todd@trothenbergesq.com
The Legal Aid Society, Attn: Zoe Kheyman, Esq., Attorneys for Petitioners, 260 E. 161st Street, 8th Floor, Bronx, NY 10451, Email: zkheyman@legal-aid.org
DHPD, Attn: Emily Veale, Esq., Email: VealeE@hpd.nyc.gov
Recitation, as required by C.P.L.R. § 2219(a), of the papers considered in review of this motion.
Notice of Motion With Affidavit Annexed And Exhibits A-F 1
After hearing held on August 13th and 17th, 2020, and upon the foregoing cited papers, the decision and order on this motion is as follows:
FACTUAL AND PROCEDURAL HISTORY
The within Housing Part proceeding ("HP") was commenced by various tenants residing at 351-359 east 163rd Street, Bronx, NY 10451. The tenants collectively complained that hot water was not being provided as required by law. On June 2, 2020, there being hot water violations placed in apartment 3-G on April 4, 20201 and April 10, 2020, the Hon. Brenda Spears issued an Order to Correct in favor of Toshima Garner ("petitioner"), the tenant of apartment 3-G. The Order required correction of those specific violations "within 72 hours of service by the court, via email " or respondents would be subject to civil penalties.
Toshima Garner ("petitioner") now moves for civil contempt, criminal contempt, civil penalties, actual damages and punitive damages based on respondents' alleged failure to comply with the June 2, 2020 Order to Correct. In addition to the respondents, petitioner seeks relief against a Martin Meyer, a person not named in this proceeding.
Petitioner's June 26, 2020 affidavit in support of the motion alleges "continual lack of hot water," and "periodic outage of hot water" after the Order to Correct, with the last such incident having occurred on June 23, 2020. Petitioner argues that civil contempt is appropriate where there is a lawful, unequivocal court order and where a party is aware of the order, disobeys the order and the other party has been prejudiced. Petitioner also seeks criminal contempt under Judicial Law § 750(A)(3) based on respondents' [and Martin Meyer's] "willful disobedience" of a lawful mandate. Petitioner acknowledges that "[f]or a finding of criminal contempt, Petitioners must demonstrate, beyond a reasonable doubt, that the alleged contemnor willfully disobeyed a court order."
Petitioner also seeks statutory civil penalties be assessed against respondents based on the alleged failure to timely cure the violations. Finally, petitioner seeks actual and punitive damages.
Respondents, for their part, argue that the motion must be denied. Firstly, they claim the motion must be personally served for the court to entertain even a civil contempt motion. Secondly, even if the court were to consider the motion, respondents claim they complied with the underlying Order to Correct.
In order to clarify the issues, and given the seriousness of the requested relief, a hearing was held on August 13, 2020 and August 17, 2020.
Petitioner credibly testified that she experienced periodic loss of hot water, including last on August 10, 2020. Although she claimed thirty (30) such occurrences, which could last from a few hours to days, since the entry of the Order to Correct, she specifically testified only about the August 10, 2020 occurrence. Petitioner introduced a photo, taken on August 10, showing a thermometer under the kitchen sink with a temperature reading of 83.6 Celsius. Petitioner testified she runs the water from seven (7) minutes for the kitchen sink, as she did on August 10, to thirty (30) minutes for the shower, to see if the water will become warm. On cross-examination, petitioner acknowledged she did not "calibrate" the thermometer, but deduced its accuracy based on the fact the water was cold to the touch.2
Petitioner alleged she called DHPD seventeen (17) times since the Order to Correct was issued. She claimed, on cross examination, that the thirty (30) instances of inadequate hot water is a number based on her recollection of "311" calls, emails and notes she kept. When asked specifically about the days immediately after the June 2 Order, petitioner testified she had hot water on June 3 and June 4 but not on June 5 or June 6. Though petitioner referred to emails and notes, including that she had documented a complaint number for an alleged June 5, 2020 call to DHPD, none of these items were offered into evidence. The court was asked to and does take notice of DHPD website's record of complaints emanating from the subject apartment and building. The complaint history shows eleven (11) relevant complaints from apartment 3-G after June 2, 2020, with the first complaint on June 5, 2020.3
Regarding the April 4, 2020 and April 10, 2020 hot water violations, petitioner believes they were not corrected. While she testified that she responded to the CIV-14 form4 she received from DHPD on or about April 19, 2020 and noted that the April 6, 2020 violation had not been corrected, she did not offer any further testimony regarding the April 10, 2020 violation. As it turns out, both violations under which petitioner seeks contempt and penalties were closed by DHPD on or about June 24, 2020 after the landlord self-certified with the department.5
Petitioner further testified that the lack of hot water has impacted her life in various ways. When she cannot bathe at home, she must either go to her mother's home, or go to work without bathing. It is often the latter because her mom is immunocompromised. She testified she has severe psoriasis
and uses medicated soaps. Without hot water, she's had to increase her steroid prescriptions.
Respondent presented one witness, Sam Schachter, the "managing agent" of the property for three (3) years. He testified he is familiar with the subject building as he goes there three to four times per week. He is familiar with petitioner and her apartment and with the April 2020 violations. He knew they concerned hot water, that they had been corrected and testified there were no further violations for hot water after June 2, 2020. On cross-examination, Mr. Schachter testified that there were no ongoing hot water issues. He testified he had not sent a plumber to apartment 3-G. He testified he would ask the tenant if the condition had been corrected or go and check it himself. He clarified that the process was that he would first check the hot water, then send the super, and then the plumber, as required.
Mr. Schachter testified he was aware of the June 2, 2020 Order and that he knew the landlord had 72 hours to comply. He was also aware that a new hot water violation had been placed in apartment 4-A on August 4, 2020. He went to the apartment to check and later certified he had corrected the condition. He did not recall a July 2, 2020 violation for hot water for apartment 4-A.6 He thought August 4 may have been a day a temporary boiler was being installed. Mr. Schachter alleged a new boiler was being installed but did not concede that a new boiler meant that anything had been wrong with the old one. Though the court surmises that the cost of a temporary boiler and of a new boiler for a forty-four (44) unit building would be considerable and such proof would be reasonably offered to mitigate against potential fines, no proof was offered.
As an initial matter, the court finds that service of the within motion upon the named respondents and upon the non-party was proper. Mr. Mayer, who is listed as Head Officer on the DHPD registration, was personally served at the registered address within the meaning of CPLR 308. (see Hampton v. Annal Management Co., LTD , 168 Misc 2d 138, 139, 646 NYS2d 227 [1st Dept 1996] ). The named respondents were similarly served.
In Matter of McCormack v. Axelrod , the Court of Appeals articulated a four-pronged test for civil contempt: (1) that a lawful court order was in effect clearly expressed an unequivocal mandate, (2) the order was disobeyed, (3) the contemnor had knowledge of the order, and (4) that the movant was prejudiced. ( 59 NY2d 574, 583, 466 NYS2d 279 [1983] ). To succeed on a civil contempt motion, the moving party must establish contempt by clear and convincing evidence. ( Simens v. Darwish , 104 AD3d 465, 466, 960 NYS2d 120 [1st Dept 2013] ; Denaro v. Rosalia , 52 AD3d 727, 855 NYS2d 601 [2nd Dept 2008]).
Here, the respondents do not dispute that they had knowledge of a lawful and unequivocal court order.7 As such, the court discusses the remaining prongs.
Based on the papers and evidence adduced at the hearing, petitioner failed to establish that the order was disobeyed by clear and convincing evidence. The violations, according to respondents, had been corrected in April. They were removed from the DHPD database on or about June 24, 2020. While petitioner disputed that the violations had been corrected as required by the Order to Correct, it was her affirmative burden to prove non-compliance by clear and convincing evidence.8 Though tenants' testimony might establish a violation in absence of any material opposition, (see 351-359 E. 163rd Street Tenants Assoc. et. al. v. East 163 LLC, et al , 68 Misc 3d 1206[A], 2020 NY Slip Op 50877[U] [Civ Ct, Bronx County 2020] ), because the burden of proof is only preponderance of the evidence, (see Department...
To continue reading
Request your trial