Anumudu v. Bennett

• Court: New York Civil Court
• Parties: Blessing Anumudu, Petitioner, v. Darma Bennett, Herman Malcom, Respondents, and Department of Housing Preservation And Development of the City of New York, Co-Respondent.
• Docket Number: L & T Index 300236-21,2021-50805
• Decision Date: 16 August 2021

Blessing Anumudu, Petitioner,
v.
Darma Bennett, Herman Malcom, Respondents, and Department of Housing Preservation And Development of the City of New York, Co-Respondent.

No. 2021-50805

L & T Index No. 300236-21

Civil Court of City of New York, Bronx County

August 16, 2021

Unpublished Opinion

MOTION DECISION

Legal Aid Society, Russell Crane, Esq., of Counsel - for Petitioner

Moss & Tapia Law, LLC, by Jordan Tapia, Esq. - for Respondents

Symone Sylvester Esq., of Counsel to Martha Anne Weithman, Esq., for Co-Respondent-DHPD

Karen May Bacdayan, J.

Recitation, as required by CPLR 2219 (a), of the papers considered in review of these motions, listed by NYSCEF document number: 37, 38, 39, 40, 41, 42, 43, 44, 45, 47, 48, 49, 50, 51, 52, 53, 54, 55, 56, 57, 58, 59.

After oral argument and upon the foregoing cited papers the decision and order on these motions is as follows:

FACTUAL AND PROCEDURAL HISTORY

Petitioner, Blessing Anumudu ("Petitioner"), commenced this Housing Part proceeding against respondents Darma Bennett and Herman Malcolm ("Respondents") seeking, inter alia, an order to correct certain conditions constituting violations of the New York City Housing Maintenance Code. At Petitioner's request as approved by the court, the New York City Department of Housing Preservation and Development ("DHPD") conducted an inspection of the premises on February 18, 2021 and issued 17 violations, including two class "C" (immediately hazardous) violations for positive tests for lead-based paint in the kitchen and the bedroom of the subject premises. Among the remaining 15 violations were those placed for a water leak in the bathroom ceiling (a class "B" violation), for a mold condition in the bedroom closet (a class "A" violation), for an inoperable intercom system (a class "B" violation), and for an illegal drop ceiling in the bathroom (a class "A" violation).

By order of March 3, 2021 (NY St Cts Elec Filing [NYSCEF] Doc No. 25), the court granted Petitioner's request and issued an order requiring correction of the open violations by certain dates and in particularized manners ("Order to Correct"). The Order to Correct also required Petitioner provide access to Respondents and its agents on certain days for the purposes of correcting the violations. With respect to the lead-based paint violations, the Order to Correct required Respondent provide access from 9 am to 5 pm on March 15, 2021 through March 18, 2021 and that, in correcting the violations, Respondents and their agents "remain in compliance with all federal, state, local laws, rules and regulations, including those set out at section 2056.11 of Title 27 of the New York City Administrative Code...." The Order to Correct also provided that:

"Correction of lead paint violations in the premises shall proceed one room at a time so as to contain any hazards, maintain the safety of the premises, and ensure that as much of the premises is accessible to Petitioner as possible at the end of the work day. Work shall commence and continue in one room until completed, and then work shall commence and continue in another room until completed until the lead violations are addressed in their entirety pursuant to this order."

The lead paint violations were required to be corrected within 21 days of the date of service of the Order to Correct. With respect to the remaining violations, the Order to Correct set further access dates for April 7, 2021 through April 9, 2021 and required that any "C" violations be corrected within 10 days of the first access date, that any "B" violations be corrected with 30 days thereof, and that any "A" violations be corrected within 90 days thereof. ^[1]

THE PARTIES' MOTIONS AND ARGUMENTS

Arguing that the Respondents failed to comply with the Order to Correct, Petitioner has now moved to hold Respondents in civil contempt of court and punish them with fines and the possibility of imprisonment, as well as to impose statutory penalties pursuant to the Housing Maintenance Code. Petitioner argues that the Respondents are in default of the Order Correct in that they (1) failed to timely/properly correct the lead paint violations; (2) failed to timely repair the source of the bathroom leak; (3) failed to timely repair the intercom; (3) and failed to do any work whatsoever to address the mold condition in Petitioner's bedroom closet and illegal drop ceiling in the bathroom. (NYSCEF Doc No. 38, Crane affirmation ¶ 2 [1].) At the time of Petitioner's application, only the time to correct the lead paint violations, the remaining class "C" violations, and the class "B" violations had run. (See n 1, supra.) With respect to the lead paint violations, Petitioner specifically alleges that Respondent's lead-paint remediation contractor did not comply with the Order to Correct in that they simultaneously performed work in both affected rooms and failed to completely seal the work area in the bedroom as required by the regulations resulting in possible lead-contaminated dust from their work falling onto Petitioner's bedroom furniture, which Petitioner was left to clean herself. (NYSCEF Doc No. 39, Anumudu aff ¶¶ 13-17.) Petitioner further alleges that although Respondents' agents told her they were done with their work after only just two days on March 16, 2021, they did not perform required dust wipe tests or notify her that she could re-occupy the work areas. (NYSCEF Doc No. 39, Anumudu aff ¶¶ 18-19.) Although Petitioner remained home from work on March 17, 2021 and March 18, 2021, no one came to perform dust wipe tests on those days purportedly causing her to miss work unnecessarily. (Id.) Petitioner argues that because of Respondents' breach, she has suffered actual damages from the diminished value of her apartment. ^[2] (NYSCEF Doc No. 38, Anumudu aff ¶¶ 45.)

In opposition, Respondents argue that they should not be held in civil contempt or face civil penalties as they have been diligently attempting to cure the violations. As evidence of this, counsel points to the fact that many of the violations have been corrected. (NYSCEF Doc No. 52, Tapia affirmation ¶¶ 25-32.) Respondents argue that certain Housing Maintenance Code defenses to the imposition of civil penalties are applicable and should similarly serve to shield from a contempt finding. (NYSCEF Doc No. 52, Tapia affirmation ¶¶ 34.) Specifically, Respondents raise subsections (k) (3) (ii) and (iv) of Section 27-2115 of the Housing Maintenance Code. (NYSCEF Doc No. 52, Tapia affirmation ¶ 34.) The former provides for defense or mitigation of the imposition of civil penalties where an owner:

"[B]egan to correct the condition which constitutes the violation promptly upon discovering it but that full correction could not be completed expeditiously because of technical difficulties, inability to obtain necessary materials, funds or labor, or inability to gain access to the dwelling unit wherein the violation occurs, or such other portion of the building as might be necessary to make the repair." (NY City Housing Maintenance Code [Administrative Code of the City of NY] § 27-2115 [k] [3] [ii].)

The latter provides for the same defense where "the violation giving rise to the action was caused by the act or negligence, neglect or abuse of another not in the employ or subject to the direction of the owner." (NY City Housing Maintenance Code § 27-2115 [k] [3] [iv]; see also Dunbar v 1560 GC LLC, 71 Misc.3d 1205 [A], 2021 NY Slip Op 50291[U] [Civ Ct, Bronx County 2021] [evaluating Housing Maintenance Code defenses as defenses to contempt application].)

Regarding the lead paint violations, Respondents attach a notarized letter of March 16, 2021 from Martin Fleischman of Certified NY Environmental Services LLC certifying that the relevant HPD violations were completely abated as of March 16, 2021 and that the work practices complied with the relevant federal, state, and local rules and regulations is annexed to Respondents papers. (NYSCEF Doc No. 55.) The supporting affidavit of Respondent-Bennett states that she was advised by lead paint remediation contractor that work was complete as of March 18, 2021 and that they attempted to access the premises on March 19, 2021 in order to perform a dust wipe test, but Petitioner was not home. (NYSCEF Doc No. 53, Bennett aff ¶ 4.) When they returned on March 22, 2021, Petitioner denied them access and referred them to her attorney. (NYSCEF Doc No. 53, Bennett aff ¶ 4.) Respondent-Bennett also argues that Respondents were unable to timely certify correction of the lead paint violation because she "believed that [she] would get a package in the mail from the lead contractor so that [she] could submit the certification of correction for the lead violations but [she] did not." (NYSCEF Doc No. 53, Bennett aff ¶ 7.) Bennett states that, as of June 16, 2021, she completed the certification paperwork, but she had yet to provide her attorney with her original notarized signature. (NYSCEF Doc No. 53, Bennett aff ¶ 8.)

Respondents do concede that certain violations remain outstanding and cross-move for a reasonable extension to complete them. They argue that Petitioner admits that only a handful of repairs remain and so she would neither be prejudiced, nor "disrupted for any great length of time to allow access to correct" the repairs. (NYSCEF Doc No. 52, Tapia affirmation ¶ 37.) With respect to the intercom system, Respondents claim that it would be "prohibitively expensive to fix." (NYSCEF Doc No. 53, Bennett aff ¶ 10.) They argue that they relied on their contractors to make the necessary repairs and that it is the contractors - and not them - who should be held responsible for any improper work. (NYSCEF Doc No. 52, Tapia affirmation ¶ 36.)

In reply and in opposition to Respondents' cross-motion, Petitioner argues that Respondents' have neither made a sufficient showing of the alleged...