Bard v. Glick
| Decision Date | 19 January 2022 |
| Docket Number | Index L & T 2266/2016 |
| Parties | Steven Bard, Petitioner, v. Jason Glick, MAUTNER-GLICK CORP., Respondents, and THE DEPARTMENT OF HOUSING PRESERVATION AND DEVELOPMENT Co-Respondent |
| Court | New York Civil Court |
Unpublished Opinion
For Petitioner: Brandy Beltas
For Respondent: Martin Meltzer and Joshua Zukofsky
Steven Bard, the petitioner in this proceeding ("Petitioner"), commenced this proceeding pursuant to New York City Civil Court Act §110(c) against Jason Glick and Mautner-Glick Corp. ("Respondents") and the Department of Housing Preservation and Development of the City of New York ("HPD"), seeking an order directing Respondents to correct violations of the New York City Housing Maintenance Code at 28 King Street, Apt. 24, New York, New York ("the subject premises"). This matter previously settled. Respondents now move to dismiss the case based on their claim that they complied with the settlement. By an order dated October 9, 2018, ("the Order") the Court granted Respondents' motion to the extent of setting the motion for a hearing. The Court held the hearing on Respondents' motion on September 4, 2019 October 3, 2019, December 20, 2019, January 17, 2020, January 30, 2020, February 14, 2020, August 2, 2021, August 19, 2021 October 15, 2021, and November 15, 2021 and adjourned the matter to January 4, 2022 for post-trial submissions.
Petitioner testified that he has been a tenant of the subject premises for thirty-five years; that he started this proceeding in 2016 because there was chronic water intrusion; that there were high humidity levels; that the parapet was faulty such that water could intrude; that there was damaged plaster in all three rooms of the subject premises; that there were water-damaged window frames in the kitchen and bathroom; that there was microbial growth on walls; that the indoor air quality was terrible; that he tried to have Respondents remedy these problems before starting this proceeding; and that Respondents responded by telling him that Lawrence Env LLC ("the Mold Assessor") needed to do a survey.
Respondents submitted into evidence a mold moisture intrusion survey done by the Mold Assessor of the subject premises dated September 17, 2016 ("the Mold Assessor's First Report"). The Mold Assessor's First Report showed, inter alia, that there was water intrusion and water-damaged surfaces in the bedroom and bathroom walls; that surface samples for mold showed that there were mold spores on all of the samples; that there was only one sample from the bathroom ceiling that showed light levels of mold growth, defined as potential growth; that a structural engineer must assess the roof and exterior brick walls for damage; and that mold should be removed in accordance with the New York City Department of Health and Mental Hygiene ("DOHMH") Guidelines on Assessment and Remediation of Fungi in Indoor Environments, Medium Projects ("the DOHMH Guidelines").
By an inspection done on September 25, 2016, HPD placed violations of the Housing Maintenance Code on the subject premises. As is particularly relevant to this matter, HPD placed violation No.11407133, which directed that Respondents trace and repair the source and abate the nuisance consisting of approximately five square feet of mold at a north wall in the bathroom ("the HPD Violation"). [1] Petitioner then commenced this matter.
The parties settled this matter by a stipulation dated May 9 2017 ("the Stipulation"). The Stipulation obligated Respondents to correct the HPD Violation; to remediate mold conditions that Petitioner had raised in a filing for a rent reduction order pursuant to 9 N.Y.C.R.R. §2523.4 with the New York State Division of Housing and Community Renewal ("DHCR"), to wit, "toxic mold" and water damage in the kitchen, bedroom, and bathroom walls and ceiling; and to "[r]emediate the mold conditions in [the subject premises] so as to meet standards for testing implemented by [the Mold Assessor]" on or before June 30, 2017. The Stipulation further stated that "Respondents shall perform the Remediation Work of professional standard [sic.]." The Stipulation required Respondents to first remediate the exterior of the building in which the subject premises is located ("the Building"), including brick replacement and removal of drywall and plaster in the rear and west exterior walls, work which the Stipulation characterized as "Phase 1," and then remediate conditions in the subject premises, which the Stipulation characterized as "Phase 2." The Stipulation obligated Respondents to pay for Petitioner's stay in a hotel and for the storage of Petitioner's personal property at a storage facility during the Phase 2 work. The Stipulation provided that upon professional completion of the remediation work, Respondents would give Petitioner notice that Petitioner should reoccupy the subject premises. Upon professional completion of the remediation work, the Stipulation obligated Petitioner to discontinue this proceeding against Respondents with prejudice and withdraw the DHCR complaint.
The parties stipulated that Tom Eng ("Respondents' Mold Expert") was qualified as an expert in mold. Respondents' Mold Expert testified on direct examination that he works for the Mold Assessor; that he is a principal industrial hygienist; that he leads a group of hygienists and scientists; that he evaluates exposure to mold; and that he had joined the Mold Assessor in November of 2016.
Respondents' Mold Expert testified on cross-examination that he was a chemical engineer; that he oversees a staff of four who perform various industrial hygiene surveys from indoor air quality, mold surveys, and a whole variety of occupational hazards; that he is also a New York State-licensed mold assessor; that mold assessment is 90% of his practice; that he was trained in industrial hygiene; that he was certified by the American Board of Industrial Hygiene in 1981; that he personally performed well over 100 mold assessments, meaning he was on site, did the surveys and wrote reports; that of those assessment, less than five were for Respondents; that between ten and twenty of those surveys were for tenants; and that he does not write a report without visiting the premises.
Respondents' Mold Expert testified that mold spores are universal and normal; that what must be remediated is mold growth, which typically is a condition involving wet and/or water-damaged surfaces, where spores can land and grow, and a nutrient source; that typically a nutrient source would be material that is organic in nature, such as gypsum board or cellulose that plaster and brick lack organic matter, so even if plaster gets wet, plaster cannot support mold growth; that the Mold Assessor follows the DOHMH Guidelines for investigating fungi in an indoor environment; that the Mold Assessor recommends visual inspections, followed up with moisture meters to identify wet surfaces and boundaries, and they will at times when necessary collect surface samples to confirm whether or not staining that they observe is mold growth; that sometimes a substrate can be wet, but you may not see the staining, so they will use a moisture meter and they will go across that surface until they get to the lines where it is dry; that a moisture meter is measured in relative percentages, comparing everything to wood moisture that if there are samples that confirm no mold growth, depending on the substrate they would recommend drying the surface; and that they make sure that containment is established, that there is HEPA filtration, and that all of a work area is then done under a controlled environment.
Respondents' Mold Expert testified that the combination of the work in the bedroom and bathroom would amount to an estimated total of 10 to 100 square feet, which the DOHMH Guidelines define as a medium-sized project; that the Mold Assessor recommended that certain surfaces be removed, such as a bathroom ceiling; that they recommended that other surfaces, such as wet walls in bedroom, be scarified (meaning to scrape off the top layer) so they would dry faster, as usually that is what traps in moisture, and opening up the porous surfaces to allow the water to move; that dehumidifiers would be used also; that having a professionally-trained company do the work was all part of that recommendation; that once work is completed by a licensed mold contractor, the Mold Assessor will do a post-wall survey which will check the contractor's work to see if all areas where they recommended removal and drying have been performed; and that "clearance criteria" means that they see if areas are free and clear of visible mold, surfaces are dry, and if all debris has been dried and removed.
The Court granted Respondents' application to qualify Thomas Capobianco ("the Engineer") as an expert in engineering and façade work. The Engineer testified that his responsibilities were to work on construction and bidding documents for restoration work at the building in which the subject premises is located ("the Building"); that he was involved in April and May 2017 that he went to the subject premises; that a field report was issued for an exterior project in 2017; that, upon putting that out for bid, he reviewed work done being done by to verify conformance with industry standards; that after they did work together on the bid documents and the filing documents, there were on-site inspections of scaffolding and a meeting with the contractor; and that his direct role was to review notes, photos, and a field report before they were sent to management. Respondents submitted into evidence a...
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