Dep't of Hous. Pres. & Dev. v. Jims Realty LLC
| Citation | 2022 NY Slip Op 31430 (U) |
| Decision Date | 19 May 2022 |
| Docket Number | Index No. 304497/2021 |
| Parties | DEPARTMENT OF HOUSING PRESERVATION AND DEVELOPMENT OF THE CITY OF NEW YORK, Petitioner, v. JIMS REALTY LLC, et al., Respondent. |
| Court | New York Civil Court |
2022 NY Slip Op 31430(U)
DEPARTMENT OF HOUSING PRESERVATION AND DEVELOPMENT OF THE CITY OF NEW YORK, Petitioner,
v.
JIMS REALTY LLC, et al., Respondent.
Index No. 304497/2021
Civil Court of the City of New York, Kings County
May 19, 2022
Unpublished Opinion
Present: Hon. Jack Stoller Judge, Housing Court
DECISION/ORDER
HON. JACK STOLLER J.H.C.
The Department of Housing Preservation and Development of the City of New York ("HPD") commenced this proceeding against JIMS Realty LLC ("Corporate Respondent"), Richard Joseph ("Individual Respondent #1"), and Joseph Popack ("Individual Respondent #2"), the respondents in this proceeding (collectively, "Respondents"), seeking an order directing that Respondents correct violations of the New York City Housing Maintenance Code at the 451 Kingston Avenue, Brooklyn, New York ("the Building") and civil penalties. The Court entered into two orders directing that Respondents correct the violations and set the matter for trial on civil penalties. In addition to that, the Court granted a prior motion for civil and criminal contempt and for additional civil penalties against Respondents. Respondents interposed an answer with affirmative defenses of, inter alia, completion of repairs and denial of access. The Court held a trial on civil penalties jointly with a hearing on the motion for additional civil penalties and contempt on January 13, 2022, January 31, 2022, and March 15, 2022 and adjourned the matter for post-trial submissions to May 6, 2022.
Civil penalties
The petition in this matter, verified on May 25, 2021, sought civil penalties for the following "B" violations: ##13450859, 13452959, 13501195, 13634278, 13634275, 13729398, 12579404, 12970206, and the following "C" violations: #13450833, 12957936, 12957837, 12980048, 13072674, 13096673, 12768880, and 12980088.[1]
HPD submitted into evidence notices of violation for the following "B" violations reported September 12, 2018, to be corrected by October 19, 2018 and certified by November 2, 2018: ##12579336, 12579356, 12579369, 12579404; for the following "C" violation reported March 13, 2019, to be corrected by April 8, 2019 and certified by April 13, 2019: #12957837; for the following "C" violation reported March 13, 2019, to be corrected by March 22, 2019 and certified by March 27, 2019: #12957936; for the following "B" violations reported March 20, 2019, to be corrected by April 26, 2019 and certified by May 10, 2019: ##12970189, 12970198, 12970206, 12970224; for the following "C" violation reported March 21, 2019, to be corrected by April 24, 2019 and certified by April 29, 2019: #12980048; for the following "C" violation reported March 21, 2019, to be corrected by April 5, 2019 and certified by April 10, 2019: #12980088; for the following "C" violation reported May 15, 2019, to be corrected by May 25, 2019 and certified by May 30, 2019: #13072674; for the following "C" violation reported May 28, 2019, to be corrected by June 20, 2019 and certified by June 25, 2019: #13096673; for the following "C" violations reported November 13, 2019, to be corrected by December 9, 2019 and certified by December 14, 2019: #13450829, 13450833; for the following "B" violations
reported November 13, 2019, to be corrected by December 20, 2019 and certified by January 3, 2020: #13450859; for the following "B violations reported November 13, 2019, to be corrected by December 23, 2019 and certified by January 6, 2020: ##13450878, 13452959; for the following "B" violations reported December 12, 2019, to be corrected by January 20, 2020 and certified by February 3, 2020: #13501175, 13501184, 13501195, 13501197; for the following "B" violations reported March 5, 2020, to be corrected by April 13, 2020 and certified by April 27, 2020: ##13634275, 13634278, 13634285, 13634290, for the following "B" violations reported July 19, 2020, to be corrected by August 26, 2020 and certified by September 9, 2020: ##13729376, 13729379, 13729385, 13729388, 13729395, 13729398; and for the following "C" violation, reported on August 14, 2020, to be corrected by August 27, 2020 and certified by September 3, 2020: #13768880.
According to the notice of violation and violation summary report in evidence, Respondents had to correct violation #13096673, a "C" violation for mold under a kitchen sink cabinet in Apt. A11, [2] by June 20, 2019. As of March 29, 2022, [3] that violation remains on HPD's violation summary report, which compels the legal presumption that Respondents have not yet corrected the violation. MDL §328(3), N.Y.C. Admin. Code §27-2115(f)(7). Respondents may rebut the presumption, although Respondents must do so with more evidentiary support than just testimony. Dep't of Hous. Pres. & Dev. of the City of N.Y. v. Rosenfeld, 2022 N.Y. Slip Op. 22087, ¶ 8 (Civ. Ct. Kings Co.), citing Dep't. of Hous. Preserv. & Dev. of City of NY v. Deka Realty Corp., et. al.,
N.Y.L.J., June 16, 1992 at 36:6 (App. Term 2nd and 11th Jud. Dists.), Dep't of Hous. Pres. & Dev. v. Knoll, 120 Misc.2d 813, 814 (App. Term 2nd Dept. 1983), Allen v. Rosenblatt, 5 Misc.3d 1032(A)(Civ. Ct. N.Y. Co. 2004).
Zalman Lezell ("the Maintenance Manager") testified that he is a manager of the Building; that he is not the registered managing agent; that he takes care of maintenance, repairs, complaints, and violations; that he does not repair conditions himself; that the super or other workers repair conditions; that he or tenants could tell the super about repairs; that tenants complain to his office; that he sees those complaints; that he gets emails from tenants; that the Building has 151 units; that maybe 40% of the units in the Building are rented out to social services agencies who use the apartments for scattered-site housing for clients of the agencies; and that he does not always know the identity of the actual occupants.
An email dated July 17, 2019 in evidence from the Maintenance Manager to someone who works for an agency shows that the Maintenance Manager was seeking access to Apt. A11 to correct a mold violation. Further email exchanges ensued about access, including an email from a representative of an agency that offered July 31, 2019 for access. Another email in evidence shows an agreement for an access date on August 12, 2019. The Maintenance Manager then emailed the agency again saying that "there was a mix up [sic.]" and that Respondents would need another access date. Respondents submitted into evidence two photographs of the underside of the kitchen sink in Apt. A11 which shows no apparent condition. The Maintenance Manager testified that he took the photograph a few months before his testimony on March 15, 2022, although he could not remember the exact date.
While lack of access is a defense to civil penalties, an owner may only avail itself of such a defense upon a showing that the owner "promptly" begins to correct a violation. N.Y.C. Admin. Code §27-2116(b)(2)(i).
With no evidence in the record of an attempt to gain access to correct an immediately hazardous violation until July 17, 2019, almost a month after Respondents had to correct the violation, Petitioner does not satisfy this condition. Moreover, the email exchange in evidence does not actually show that the tenant of Apt. A11 denied access. To the extent that the representative from the agency referenced people in Apt. A11, in fact, the evidence shows that Respondents did in fact gain access.
The photograph in evidence does not reveal any extant mold condition in Apt. A11, and therefore is more probative than bare and conclusory testimony. While the record does not show that Respondents retained a licensed mold assessor, the record also does not show that HPD's violation was based on the judgment of a licensed mold assessor. HPD placed the violation pursuant to N.Y.C. Admin. Code §27-2017.3(a)(5), which refers to "visible" mold. Insofar as the photograph shows nothing that "visibly" appears to be mold, Respondents have proven that they corrected violation #13096673. However, the earliest evidence in the record of such a correction is a photograph taken "a few months" before March 15, 2022. As Respondents bear the burden of rebutting the presumption established by N.Y.C. Admin. Code §27-2115(f)(7), the Court construes this ambiguity against Respondents and finds that Respondents proved a correction of this violation as of January 15, 2022, 930 days after June 20, 2019. Upon such a failure to correct violations as such, the Court shall impose civil penalties of an amount between $50.00 and $150.00 plus $125.00 a day for "C" violations in buildings with five or more units, N.Y.C. Admin. Code §27-2115(a), as is the case with the Building. The Court awards HPD civil penalties of $150.00 plus $125.00 times 930 days for this violation, for a total of $116, 400.00.
According to the notice of violation and violation summary report in evidence, Respondents had to correct violation #12957837, a "C" violation for roaches in Apt. C20, by
April 8, 2019. As of March 29, 2022, that violation remains on HPD's violation summary report, which compels the legal presumption that Respondents have not yet corrected the violation. MDL §328(3), N.Y.C. Admin. Code §27-2115(f)(7).
The Maintenance Manager testified that Respondents have an extermination company that services the building once a month; they try to get as many tenants as possible; that they do monthly exterminations and they have to make special appointments sometimes, if there is a violation or a court order or a special request from a tenant; and that they use a few companies. The efficacy of any purported exterminations...
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