Morales v. 1160 Cromwell Crown LLC

• Decision Date: 03 August 2021
• Citation: 2021 NY Slip Op 50748 (U)
• Parties: Milagros Morales, Petitioner, v. 1160 Cromwell Crown LLC, ROGER TATE, RICHARD TIMBERGER & STEVEN FINKELSTEIN, Respondents, and New York City Department of Housing Preservation and Development (DHPD), Co-Respondents.
• Court: New York Civil Court

2021 NY Slip Op 50748(U)

Milagros Morales, Petitioner,
v.
1160 Cromwell Crown LLC, ROGER TATE, RICHARD TIMBERGER & STEVEN FINKELSTEIN, Respondents, and New York City Department of Housing Preservation and Development (DHPD), Co-Respondents.

Civil Court of the City of New York, Bronx County

August 3, 2021

Unpublished Opinion

Rob Farina, Esq., For Respondents rfarina@gmail.com

& Ezinwany Ukegbu, Esq., For Petitioner, eukegbu@lsnyc.org

& Emelia Johnson, Law Graduate, ejohnson@lsnyc.org

& Symone Sylvester, For DHPD, sylvests@hpd.nyc.gov

Shorab Ibrahim, J.

The petition in this "HP proceeding" alleges that petitioner is the tenant and/or occupant of the subject premises (1160 Cromwell Avenue, Apt. 6J, Bronx, NY 10452), that the named respondents are owners under the Housing Maintenance Code ("HMC") and that there are conditions in need of repair in the subject apartment.

At issue is whether the alleged sloping floors in petitioner's apartment warrant the issuance of an order to correct.

To support the issuance of the order to correct petitioner submits an order from the Division of Housing and Community Renewal Order ("DHCR"), dated May 13, 2021, denying respondents-landlords' Petition for Administrative Review ("PAR") of a prior rent-reduction order issued by the agency. The PAR order notes that an inspection was conducted on April 22, 2021. That inspection "revealed that the floors in the living room, hallway, bedroom 1, and bedroom 2 are slightly uneven." ^[1] However, it is uncontested that the Department of Housing Preservation and Development ("DHPD"), the agency tasked with enforcing the HMC, can place violations for a sloping floor, but did not do so after inspecting the apartment in December 2019.

Respondents urge this court to dismiss the proceeding because DHPD did not issue a violation for the condition.

But, dismissal is not appropriate under the facts presented here. Although the existence of conditions which may rise to the level of a violation of the HMC may be proved by inspection reports, such conditions may also be established through DHPD or other governmental computerized records, photographs, or witness testimony. (see Scherer and Fisher, Residential Landlord-Tenant Law in New York § 19:65 [2019 Update]; Mite v Pipedreams Realty, 190 Misc.2d 543, 740 N.Y.S.2d 564 [Civ Ct, Bronx County 2002]; see also NYC Admin Code § 27-2115(h)(1)). Ordinarily, DHPD's failure to place a violation is material because the refusal of DHPD to issue a violation creates the presumption that the condition does not exist. (Schlueter v East 45th Development LLC, 9 Misc.3d 1105 [A] at *8, 2005 NY Slip Op 51405[U] [Civ Ct, New York County 2005]). Here, however, such a presumption is inappropriate since DHCR, another governmental agency, not only found that the condition exists some sixteen (16) months later, but also found that the condition supports a rent-reduction.

The court begins with the premise that it may order correction of certain conditions found by DHCR. Although the court has not found any published decisions directly on point, ^[2] established precedent leads to the same conclusion.

To begin, § 110 of the New York City Civil Court Act ("CCA") addresses the Housing Part of the Civil Court. Section 110 (c) provides that "regardless of the relief originally sought by a party the court may recommend or employ any remedy, program, procedure or sanction authorized by law for the enforcement of housing standards, if it believes they will be more effective to accomplish compliance or to protect and promote the public interest... § 110(e) provides that Housing Court judges are '... empowered to hear, determine and grant any relief within the powers of the housing part in any action or proceeding except those to be tried by jury.'" (see Truglio v VNO 11 E. 68th St. LLC, 35 Misc.3d 1227 (A), *30-31, 953 N.Y.S.2d 554 [Civ Ct, New York County 2012]).

The statutory framework which created the Housing Part of the Civil Court explicitly gives this court jurisdiction to grant injunctive relief to enforce "state and local laws for the establishment and maintenance of housing standards, including, but not limited to, the multiple dwelling law and the housing maintenance code, building code and health code." (CCA § 110[a] [4] [emphasis added]).

The term "housing standards" as used in the CCA should be given as broad a meaning as possible. (see Various Tenants of 515 East 12th Street v 515 East 12th Street, Inc., 128 Misc.2d 235, 236, 489 N.Y.S.2d 830 [Civ Ct, New York County 1985]).

Indeed, it is well-settled that the Housing Part has the power and jurisdiction to enforce correction of conditions found by agencies other than DHPD. (see Various Tenants of 515 East 12th Street v 515 East 12th Street, Inc., 128 Misc.2d at 236); see also Robertson v Jones, 66 Misc.3d 1219 (A), *3, 120 N.Y.S.3d 724 [Civ Ct, New York County 2020]; Schanzer v Vendome, 7 Misc.3d 1018 (A), *5-6, 801 N.Y.S.2d 242 [Civ Ct, New York County 2005] ["The Civil Court Act further gives this court the jurisdiction to issue 'an injunction, restraining orders or other orders' to enforce Building Code violations the court must exercise its authority so that it can fulfill its mission: to protect and preserve housing stock."] [internal citations omitted]).

This court sees little difference in enforcing, for example, violations issued by the Department of Buildings versus conditions that result in a rent...