Allen v. 219 24th St. LLC

• Decision Date: 06 May 2020
• Docket Number: Index No. HP 57401/2019
• Citation: 67 Misc.3d 1212 (A),126 N.Y.S.3d 854 (Table)
• Parties: Richard ALLEN, et al., Petitioners, v. 219 24TH STREET LLC, et al., Respondents.
• Court: New York Civil Court

67 Misc.3d 1212 (A)

126 N.Y.S.3d 854 (Table)

Richard ALLEN, et al., Petitioners,

v.219 24TH STREET LLC, et al., Respondents.

Index No. HP 57401/2019

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

Decided on May 6, 2020

For Petitioners: Mobilization for Justice, by Brian Sullivan and Meaghan Whyte

For Respondent-Owners: Belkin Burden and Goldman, by Matthew Brett

For Respondent-HPD: Marti Weithman

For Respondent-DOB: Rachel Rabinowitz and New York City Law Department, by Alan Kleinman, Daniel Whitman, and Cynthia Weaver

Jack Stoller, J.

Richard M. Allen, Ramon Casares, Dru Fitzpatrick, Kenneth J. Robertson, Kenneth A. Vaher, and Mark N. Lulgjuri, the petitioners in this proceeding ("Petitioners"), commenced this Housing Part proceeding ("HP proceeding") against 219 24th Street LLC, Amazon Realty Group LLC, Clara Sokol, and Abraham Lokshin, respondents in this proceeding ("Respondents"), the Department of Housing Preservation and Development of the City of New York ("HPD"), and the New York City Department of Buildings ("DOB"), seeking an order directing Respondents to correct conditions that caused a vacate order to be placed on 219 West 24th Street ("219"), 221 West 24th Street ("221"), and 223 West 24th Street ("223"), New York, New York (collectively, "the subject premises") and seeking relief on a cause of action sounding in harassment pursuant to N.Y.C. Admin. Code § 27-2005(d). DOB interposed a cross-claim against Respondents seeking an order directing Respondents to correct violations of the Building Code that DOB placed on the subject premises. Respondents interposed an answer raising a number of defenses. The Court held a trial of this matter on December 2, 2019, December 4, 2019, December 9, 2019, January 27, 2020, and February 11, 2020, and adjourned the matter for post-trial submissions to April 20, 2020.

Prima facie case on the HP cause of action

The parties stipulated that all of the petitioners except for Mark N. Lulgjuri ("the Super") are proper petitioners and that Respondents are proper respondents. Petitioners' and the Super's unrebutted testimony established that the Super lived in the subject premises as a super. Lawful occupancy of the subject premises establishes standing to commence an HP proceeding or a harassment proceeding. N.Y.C. Admin. Code § 27-2115(h)(1), N.Y.C. Admin. Code § 27-2120(b). Accordingly, the Super is a proper petitioner and the Court dismisses the fourth affirmative defense of Respondents' answer, that the Super is not a proper petitioner.

A deed in evidence dated January 19, 2012 shows that Respondents had purchased the subject premises at that time. The Real Property Tax Transfer report shows that Respondents paid $4,500,000 for the subject premises.

DOB placed a vacate order dated July 2, 2019 ("the Vacate Order") on the subject premises. The grounds stated for the Vacate Order include water damage in various locations, a leaning stair, floors sagging excessively, water-damaged joists, deteriorated stucco on a masonry wall, a deteriorated and sagging roof, a partially-collapsed first floor which caused an interior wall to the cellar to buckle, a bulging wall, and a bowing wall.

Petitioners introduced into evidence the following violations of the New York City Housing Maintenance Code placed on the subject premises by HPD on July 25, 2018, February 16, 2019, and June 20, 2019: "C" violations for doors that do not close by themselves in individual apartments and mice in individual apartments;¹ "B" violations for broken floor tiles, missing smoke detectors, leaky faucets, roaches, bedbugs, sloping wood floors in Apartment 8 at 219, leak damage in ceilings and walls, broken or defective wood floors in individual apartments, a broken wood step in the public hall stairs, loose hand rails, defective wood floors, a defective light fixtures, mice, and roaches in the common areas, inadequate water in the common bathrooms, and broken or defective fire retardant material and leak damage at the ceilings in public hallways of the cellar and the first, second, third, and fourth floors; and an "A" violation for painting the same ceilings and walls.

The deputy director of the forensic and hearing unit of DOB ("the DOB director") testified he responds to referrals from other units or requests from DOB regarding compromised buildings if an inspector sees a building that is compromised that might require an engineer; that an engineer looks for occupancy issues that might impact public safety; that he knows the subject premises; that an emergency work order dated February 2, 2018 noted a front wall of the subject premises in a state of disrepair and a deteriorated cornice; that another order dated February 5, 2018 noted that the subject premises was in disrepair, with water entering through the roof, requiring Respondents to engage an engineer to evaluate the entire subject premises; that he went to the subject premises on July 2, 2019 to evaluate occupancy and egress; that he placed the Vacate Order as a result of that inspection; that the front facade was bulging between 221 and 223 from the roof to the first floor; that the front facade had a diagonal crack in the walls from the roof to the first floor; that he did not see evidence of pointing or maintenance of the front or rear facades; that the rear facades of 219 and 223 had diagonal cracks; that a reconstruction of the front facade is required; that there was no proper drainage, to wit, a missing leader;² that a stair was leaning; that roof joists and floors were sagging; that some floor joists that belonged to the first floor framing were rotten and unsupported in the bearing walls; and that plaster inside the subject premises was cracked.

The DOB director testified on Respondents' cross-examination that the facade was stabilized in August 2019; that diagonal cracking he saw in this case warranted repair; that, in February of 2019, he observed a partial collapse of the rear wall; that he thinks that the entire facade needs to be replaced; that factors that lead to a vacate order can be cumulative; that the condition of the facade alone, the condition of the stairs alone, and the sagging floors alone would have been sufficient to warrant a vacate order; that he issued the Vacate Order not knowing the condition of the joists, but he saw that floors were sagging, which is a structural issue; that he could not see a lot of conditions because they are behind finishing; and that the subject premises is 150 years old, which he knows from historic tax maps.

The DOB director testified on redirect examination that DOB did not impose a specific remedy and that the violations do not require the complete replacement of front façade.In response to a question of the Court, the DOB director testified that he has seen a situation before where an issue comes up in remedying a Vacate Order that is different from the original problem. On Respondents' re-cross examination, the DOB director testified that he has never seen a situation where a problem that caused a Vacate Order did not have to be fixed.

As the parties are the proper parties, as the HPD violations are prima facie proof of the underlying conditions, MDL § 328(3), as the Vacate Order and the DOB violations are uncontested, and as the Housing Court has the subject matter jurisdiction to entertain an order to correct conditions that caused a vacate order, Vargas v. 112 Suffolk St. Apt. Corp. , 66 Misc 3d 1214(A)(Civ. Ct. NY Co. 2020), citing Rivellini v. Rolf , 43 Misc 3d 1202(A)(Civ. Ct. NY Co. 2014), Various Tenants of 515 E. 12th St. v. 515 E. 12th St., Inc. , 128 Misc 2d 235, 238 (Civ. Ct. NY Co. 1985), Matter of Miller v. Notre Dame Hotel , N.Y.L.J., December 17, 1980 at 11:3 (Civ. Ct. NY Co.), Petitioners and DOB have proven their prima facie case against Respondents with regard to an order to correct violations and conditions.

Petitioners' evidence regarding claims of harassment, the timing of conditions, and notice

One of the Petitioners, Kenneth Vaher ("the Apartment 8 Tenant"), testified that he lived at apartment 8 in 219 since around 1999 or 2000; that around the time that Respondents bought the subject premises, his entire building was one-third occupied; that the previous owner had neglected the subject premises, which was already slanting and leaning; that there was mold, a tub needed repair, there was rot in the sink, there was a collapse in his room in the wall by the sink, there were floods that caused floors to rot, heat was rarely on, pipes would freeze, a pipe exploded once, the facade of the subject premises was buckling, a trellis at the facade broke away from it, wood behind plaster looked like it was deteriorating, which he saw because plaster broke away, the wood was dark, mildewy, wet, and spongy, his lock was not secure, a water pipe did not connect to sink, floors were sloping, and there was a gigantic crack in the wall of the common bathroom; that he complained to HPD and to a member of the LLC that is one of Respondents ("Respondent"), who cursed at him and told him not to complain to HPD, but to speak to him first; that sometimes when he called nothing would happen and sometimes Respondents would do something cosmetic; and that he and the Super would repair items in the subject premises in part by doing work on a roof.

Petitioner introduced into evidence photographs of a linoleum floor from 2018 with cracks in it, revealing a rotted-looking subfloor; a trellis outside the subject premises from 2018 which depicts bricks that are deteriorated; a lock from 2018 made of metal that looks corroded; and walls from 2018 that are cracking, flaking, spalling, and buckling and separated from the frame of the subject premises.

The Apartment 8 Tenant testified on DOB's cross-examination that when it rained, a big puddle would end up on the roof and water would go down the side of the subject premises instead of through a downspout; that he and the Super tried to fix that; that the...