656 W. 162nd St. Tenants Ass'n v. Edelstein

• Citation: 73 Misc.3d 820,155 N.Y.S.3d 736
• Decision Date: 08 October 2021
• Docket Number: Index No. LT-301326-21/NY
• Parties: 656 WEST 162ND STREET TENANTS ASSOCIATION, Lucia Ortiz, Santa Naut, Horatio Ortega, Kate Gill, Peter Friedrichs, Lina Rojas, Rose Smith, Lovisa Brown, William Durnell, Deon Durrant, Ysabel De Luna, Iris Lopez, Marvis Martin, Deborah Johnson, Maria Guzman, Chimere Ezuma, Ellen White, Jose Morel, Marino Polanco, Carmen Jerez, and William Ynoa, Petitioners-Tenants, v. Susan EDELSTEIN and 656 Realty, LLC, Respondents-Owners, and Department of Housing Preservation and Development of the City of New York and Department of Buildings of the City of New York, Co-Respondents.
• Court: New York Civil Court

73 Misc.3d 820

155 N.Y.S.3d 736

656 WEST 162ND STREET TENANTS ASSOCIATION, Lucia Ortiz, Santa Naut, Horatio Ortega, Kate Gill, Peter Friedrichs, Lina Rojas, Rose Smith, Lovisa Brown, William Durnell, Deon Durrant, Ysabel De Luna, Iris Lopez, Marvis Martin, Deborah Johnson, Maria Guzman, Chimere Ezuma, Ellen White, Jose Morel, Marino Polanco, Carmen Jerez, and William Ynoa, Petitioners-Tenants,

v.Susan EDELSTEIN and 656 Realty, LLC, Respondents-Owners,andDepartment of Housing Preservation and Development of the City of New York and Department of Buildings of the City of New York, Co-Respondents.

Index No. LT-301326-21/NY

Civil Court, City of New York, New York County.

Decided on October 8, 2021

Attorney for petitioners: Matthew J. Chachere, Esq., Northern Manhattan Improvement Corp. Legal Services, 45 Wadsworth Avenue, New York, NY 10033, (929) 314-3550, matthewchachere@nmic.org

Attorney for respondents Susan Edelstein and another: Leonard R. Kaplain, Esq., Kaplain & Duval, LLP, 647 Franklin Avenue, Suite 202 Garden City, NY 11530, (516) 855-9200, lkaplain@kdlawllp.com

Attorney for respondent HPD: Department of Housing Preservation & Development, Cesar Estrada Esq., 100 Gold Street, New York, NY 10038, (212) 863-8296, estradac@hpd.nyc.gov

Frances A. Ortiz, J.

The Decision/Order of this Court on petitioners’ motion directing Department of Housing Preservation and Development ("HPD") to enforce certain City of New York Administrative Code provisions, directing respondent/owners to produce forthwith to them all records pertaining to compliance with those provisions and imposing penalties against respondent/owners in the event that there is a determination that respondent/owners failed to comply is as follows:

In this Housing Part ("HP") action, petitioner-tenants move the court to compel respondent-owners to abide by the notice and reporting requirements of Local Law No. 1 (2004) of City of NY.¹ Prior to this motion, the court had been familiar with the portion of Local Law 1 relating to HPD investigations of tenant lead paint complaints. The court had not, however, seen any litigation in the HP concerning an owners’ responsibility to notify occupants and investigate for the presence of lead-based paint in dwelling units. These responsibility requirements are specifically detailed in Administrative Code of City of NY § 27-2056.4. As such, a primer into the dangers of lead paint and the legislative response to lead-based paint poisoning is instructive.

History of Lead Paint Regulation

The dangers of lead and lead poisoning

have been known since the early 1900's. Despite the concerns of doctors and other scientists, the United States continued to allow the use of toxic lead in many products including gasoline and paint. Finally, in 1960, New York City banned the use or sale of lead-based paint on interior building surfaces. NY City Health Code § 173.13. The federal government followed suit and banned lead-based paint in 1978. 16 CFR §§ 1303.1 — 1303. 5.

The dangers of lead paint are known more now. High blood lead levels can produce brain damage, coma or death, and even relatively low levels can lead to significant nervous system damage. Juarez by Juarez v. Wavecrest Mgmt. Team Ltd. , 88 N.Y.2d 628, 640—41, 649 N.Y.S.2d 115, 672 N.E.2d 135 (1996), (citing 1995 Report of Lead—Based Paint Hazard Reduction and Financing Task Force, Putting the Pieces Together: Controlling Lead Hazards in the Nation's Housing, at 3; Oct. 1991 Statement by Centers for Disease Control and Prevention, Preventing Lead Poisoning

in Young Children, at 7—10 [4th rev] ). Children under the age of six, whose nervous systems are still developing, are particularly vulnerable to the damage caused by lead poisoning. Id. This damage includes nervous and reproductive system disorders, delays in neurological and physical development, cognitive and behavioral changes, and hypertension, most of which are irreversible. Williamsburg Around the Bridge Block Ass'n v. Giuliani , 167 Misc. 2d 980, 984, 637 N.Y.S.2d 241 (Sup. Ct. 1995), aff'd, 223 A.D.2d 64, 644 N.Y.S.2d 252 (1996),

as modified (Oct. 1, 1996). Children generally contract lead poisoning through ingestion and very young children are particularly vulnerable because they tend to put their hands in their mouths more often than adults. Id.

The Local Law 1 Amendment of 2004

Since New York City banned lead paint in 1960, it has been confronted with the vexing problem of how to eradicate the lead paint that had already been used in residences up to that point. Finding that lead poisoning

from lead paint is a preventable childhood disease and a public health crisis, the New York City Council enacted the New York City Childhood Lead Poisoning Prevention Act of 20003 ("CLPPA") in 2004 to attempt to eradicate lead poisoning

by 2010. Statement of Findings and Purpose to CLPPA at Admin. Code § 27-2056.1. Portions of the CLPPA functioned as an amendment to the terms of Local Law 1.

To eliminate childhood lead poisoning

, the legislature included more stringent reporting and notice requirements for landlords. Before the 2004 amendments to Local Law 1, lead paint remediation was triggered when tenants complained about the possibility of lead paint inside of an apartment where a child under the age of six resides. Once notified by a tenant, landlords would have an affirmative obligation to investigate the apartment for lead paint and remediate if necessary. No obligation existed, however, unless the tenant raised the issue with the landlord. The 2004 amendment to Local Law 1² forced landlords to proactively determine whether children under the age of 6 reside in an apartment built before 1960³ and to investigate for the presence of lead if such child is present in the apartment.

Local Law 1 creates two means by which a landlord must ask a tenant if a child under six years resides in the apartment. First, landlords must present riders with every lease or lease renewal inquiring whether a child under the age of six resides in the dwelling being rented. Admin. Code § 27-2056.4(d). Second, Local Law 1 forces landlords to write to any occupants of pre-1960 apartments every January and inquire whether any children under the age of six reside in the unit. Admin. Code § 27-2056.4(e). If a tenant or occupant indicates a child under six years of age lives in the apartment, the owner must commence an investigation for peeling paint, chewable surfaces, deteriorated subsurfaces, friction surfaces and impact surfaces.⁴ Admin. Code § 27-2056.4 (a). The landlord has an obligation to complete this investigation at least once a year so long as a child under six years resides in the apartment. Id. Upon the completion of the investigation, Local Law 1 mandates that the owner prepare a report as to the findings of the investigation and deliver that report to the tenant or occupant of the dwelling. Admin. Code § 27-2056.4(f). The landlords also have an obligation to retain these reports for ten years and to make them available to HPD on request. If the investigation indicates that there is lead paint present in the apartment, the owner has a responsibility to remediate the lead paint consistent with work practices established by the city. Admin. Code § 27-2056.3.

Here, the petitioners in the verified petition allege that the respondent/owners failed to abide by Administrative Code of City of NY § 27-2056.4 which requires the owners to notify and investigate for the presence of lead-based paint in dwelling units. According to petitioners, respondent/owners failed to give them the yearly notices required by Local Law 1, failed to attach a lead paint rider to their leases, and failed to send them the required lead paint inquiry every January. Moreover, the petitioners allege that the respondent-landlord failed to do any lead paint investigation as required under Local Law 1 or, if they did such an investigation, failed to notify them of the results of the investigation or give them the report created after the investigation was completed. In this motion, petitioners ask the court to order the respondent-owner to produce all records that Local Law 1 dictates the owner must give to tenants.⁵ If the respondent-owner is unable to produce such records, then the petitioners ask that the court impose penalties established by Local Law 1 for violations of such provisions. Such penalties include a fine of $500 or imprisonment for up to six months, or both and civil penalties of not more than $1,500 per violation. Admin. Code § 27-2056.4(g).

Respondent-landlords in opposition argue that the court should not grant the motion for several reasons: the court lacks subject matter jurisdiction, it would violate their 5th Amendment rights, and it is impermissible discovery.⁶

Discussion

Local Law 1 specifically obligates landlords of apartments built before 1960 to turn over certain documents to tenants and to maintain those documents for 10 years. The question, therefore, is not whether the tenants are entitled to the documents they seek but whether the court should order the respondents to produce these documents in the context of this litigation.

Respondent-landlord insists that the court lacks subject matter jurisdiction to grant the relief requested. The court disagrees. New York City Civil Court Act § 110 (a) and (a) (4) explicitly bestows subject matter jurisdiction to the Housing Part of the Civil Court to...