Jeffers v. River Park Residences, LP
| Decision Date | 19 May 2021 |
| Docket Number | 13461/20 |
| Parties | Lily JEFFERS, Petitioner, v. RIVER PARK RESIDENCES, LP, Reliant Realty Services LLC, and Fermin Garcia, Respondents- Owners, and Department of Housing Preservation and Development of the City of New York, Co-Respondents. |
| Court | New York Civil Court |
Bronx Legal Services NYC, Attn: Johanna Ocana, Attorneys for Petitioner, jocana@lsnyc.org
Alexander Yetwin, Esq., Attorney for Respondents, ayetwin@reliantrs.com
DHPD, Attn: Symone Sylvester Esq., Sylvests@hpd.nyc.gov
Recitation, as required by C.P.L.R. § 2219(a), of the papers considered in review of this motion.
Order to Show Cause with Affirmation & Affidavit Annexed
[With Exhibits A-M, NYSCEF No. 14-30]1
Notice of Cross-Motion with Affirmation & Affidavit Annexed
[With Exhibits A-F, NYSCEF No. 31-39]2
After oral argument held on April 27, 2021 and upon the foregoing cited papers, the decision and order on these motions is as follows:
BACKGROUND & PROCEDURAL HISTORY
The court assumes familiarity with this case's procedural history and facts, particularly those recited in the October 28, 2020 Trial Decision and the February 26, 2021 Decision and Order on petitioner's subsequent motion to aside in part the Trial Decision and render a new decision as a matter of law. 1
In the October 28, 2020 Trial Decision, the court issued a Class B violation for mold in the foyer closet and a Class C violation for mold at the walls in the closet in the first room from north. 2 The court also took notice of additional violations at the subject premises issued by DHPD: three (3) Class A violations for the refrigerator gasket, painting throughout and defective bell/buzzer/intercom, as well as a Class C violation to make the front door of the apartment self-closing. 3
The court ordered respondents to correct Class A violations within ninety (90) days, or by January 26, 2021, Class B violations within thirty (30) days, or by November 27, 2020, and Class C violations within fourteen (14) days, or by November 11, 2020. The court also ordered respondents to comply with the New York City Department of Health's ("DOH") guidelines for mold remediation, as well as with the recommendations of Edward Olmsted, petitioner's mold expert. 4
The court now is presented with petitioner's motion to hold respondents in civil contempt pursuant to the Judiciary Law for failing to correct violations as required by the October 28, 2020 Trial Decision. Petitioner also seeks an order for respondents to correct all open violations and awarding damages, civil penalties, and attorneys' fees. Contempt, petitioner argues, should be found as her mold expert, Mr. Olmsted, re-inspected the apartment in February 2021, after respondents completed the mold remediation, and mold was still found in the apartment, including in the areas cited in the Trial Decision. Moreover, respondents did not comply with Mr. Olmsted's recommendations regarding cleaning the items in the closets contaminated by mold, nor with the recommendation that the apartment be re-tested for mold, including air sampling. Finally, petitioner seeks contempt due to the three (3) Class A violations that remain open on the DHPD website.
Respondents, for their part, oppose petitioner's motion in its entirety, arguing that they have completed the mold remediation, all the violations were cleared, and the vendors fully paid. Respondents argue that the items in the closets that were contaminated by mold were not cleaned due to petitioner's conduct, essentially not working with respondents to come up with a viable solution. Respondents argue that petitioner is barred from claiming contempt, as she seeks the same relief here as in her previous motion to set aside the court's trial decision, in part, and render a new decision as a matter of law. Respondents also cross-move for an order sanctioning petitioner and/or her attorneys for frivolous motion practice and unnecessarily causing respondents to expend additional legal fees.
In Matter of McCormack v Axelrod , the Court of Appeals articulated a four-pronged test for civil contempt: (1) that a lawful court order was in effect clearly expressed an unequivocal mandate, (2) the order was disobeyed, (3) the contemnor had knowledge of the order, and (4) that the movant was prejudiced. ( 59 NY2d 574, 583 [1983] ). To succeed on a civil contempt motion, the moving party must establish contempt by clear and convincing evidence. ( see Simens v Darwish , 104 AD3d 465, 466 [1st Dept 2013] ; Denaro v Rosalia , 50 AD3d 727, 727 [2nd Dept 2008] ).
Regardless of whether each element of civil contempt can be established by clear and convincing evidence, "[t]he Court's power to punish a party for civil contempt is discretionary and the Court should exercise that discretion in light of the facts and circumstances in each particular case." ( Castillo v Banner Group LLC , 63 Misc 3d 1235[A] at *3, 2019 NY Slip Op 50897[U] [Civ Ct, New York County 2019]citing In Re Hildreth , 28 AD2d 290, 292 [1st Dept 1967] ).
Petitioner here moves for civil contempt on a simple premise: respondents have failed to comply with the October 28, 2020 Trial Decision. Admittedly, prejudice to petitioner will be obvious if respondents did not comply with the October 28, 2020 Trial Decision to correct, especially as petitioner alleges she has been unable to return to her home due to the continued presence of mold.
There is no dispute that the October 28, 2020 Trial Decision is a lawful court order expressing an unequivocal mandate and that respondents had knowledge of it. ( see Matter of McCormick v Axelrod , 59 NY2d at 583 ). As such, the court's analysis will focus on whether respondents disobeyed the October 28, 2020 Trial Decision.
Petitioner argues that under the circumstances here, contempt must be found where the three (3) Class A violations issued by DHPD remain open, where petitioner's experts' reports show mold is still present in the apartment after respondents completed the mold remediation work, and where respondents failed to comply with Mr. Olmsted's recommendations regarding cleaning items contaminated by mold and post-remediation testing, including air samples. Petitioner, in her affidavit in support of the motion, concludes by asking the court to order respondents "to correctly remediate all of the mold at the subject premises."
Petitioner attaches as Exhibit H to her motion a report dated January 8, 2021, which alleges that mold is present in the bathroom. This report, while it may be relevant to petitioner's request for an order to fully correct the alleged mold condition in her apartment (see pg. 17-18 of the affirmation in support), is not relevant in the context of contempt. The court's October 28, 2020 Trial Decision did not find that mold existed in the bathroom at that time and, therefore, petitioner cannot seek contempt for respondents' claimed failure to abate mold in the bathroom.
Petitioner also attaches as Exhibit K a new report from Mr. Olmsted, dated February 28, 2021, alleging that, based on a visual inspection and tape lift samples, mold is present on a wall in the corner bedroom, on the wall in the bedroom closet, and on the wall in the hallway. The report further alleges that, based on air samples, mold is present in the foyer closet, bathroom and corner bedroom.
Again, although the findings in the report that there is mold in the bedroom, bathroom and hallway may be relevant to petitioner's request for an order to fully correct the alleged mold condition in her apartment, they are irrelevant to contempt. Petitioner cannot seek contempt for mold found in these areas, as the October 28, 2020 Trial Decision did not place violations for mold in these locations.
The report is relevant, however, to the extent that mold was found in the foyer closet and bedroom closet, where the court placed Class B and Class C violations for mold, respectively, after the deadline for respondents to correct said violations. Petitioner can seek contempt for mold that has not been abated pursuant to the October 28, 2020 Trial Decision.
Finally, Petitioner attaches as Exhibit L to her motion an Open Violation report from DHPD, dated March 2, 2021, showing that the three Class A violations in her apartment remain open.
In opposition, respondents claim they completed all mold remediation in accordance with Mr. Olmsted's recommendations, and therefore contempt cannot be found. Respondents attach their own expert reports. Attached as Exhibit C to the cross motion is the first report, dated November 10, 2020. This report alleges that mold is present in the foyer and bedroom closets. The report also set out a scope of work to remediate the mold, similar to Mr. Olmsted's recommendations in his July 2020 report.
The second report attached by respondents as Exhibit D to the cross motion is dated December 11, 2020, after respondents finished the mold abatement work. This report, using visual inspection, infrared cameras and a moisture meter, alleged that no mold is present either in the foyer closet or the bedroom closet, the sole two areas where the court issued mold violations. Neither of respondents' reports used air sampling, which the July 2020 Olmsted report recommended.
Although respondents do not address the open Class A violations issued by DHPD, a more recent DHPD Open Violation report, dated April 23, 2021, shows that no access was provided to DHPD on or about April 8, 2021 when DHPD attempted to inspect whether the Class A violations had been corrected.
Though petitioner seeks a finding of contempt on the papers, respondents' submissions create an issue of fact.
Consequently, a hearing must be held to determine if, in fact, respondents fulfilled their obligations under the October 28, 2020 Trial Decision.
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