Pagan v. 57 Elmhurst LLC, Index No. HP 52/20

CourtNew York Civil Court
Writing for the CourtEnedina Pilar Sanchez, J.
Citation2022 NY Slip Op 50408 (U)
Decision Date08 April 2022
Docket NumberIndex No. HP 52/20

2022 NY Slip Op 50408(U)

Dora Pagan, Petitioner,


Index No. HP 52/20

Civil Court Of The City Of New York, Queens County

April 8, 2022

Unpublished Opinion

For Petitioners: Andrew Lehrer, Esq., Catholic Migration Services

For Respondents: Michael Schnitzer, Esq., of counsel to Curtis Harger, Esq.

For Respondent DHPD: Helen Lai, Esq.

Enedina Pilar Sanchez, J.

Procedural Background:

In January 2020, petitioner filed this HP harassment case by Order to Show Cause. Petitioner alleged that respondents harassed her in violation of the Housing Maintenance Code (NYC Administrative Code). Petitioner seeks a finding of harassment, a restraining order and other relief, including the restoration of the terrace screen and damages. Respondent Department of Housing Preservation and Development (DHPD) took no position on this harassment case.

Petitioner alleged that respondents removed a screen from her terrace. In February 2020, respondents filed an answer. It stated that the screen was removed from the terrace in compliance with NYC Administrative Code §27-2007(c) and that violation number 12980861 required that the screen be removed. They alleged that the screen obstructed access to the fire escapes.

The parties and their respective counsels and witnesses appeared via Microsoft Teams pursuant to the Administrative Orders in place due to the COVID-19 pandemic.

On August 5, 2021, this Court issued a Ruling On Evidentiary Objections During the Trial; hereinafter August 5, 2021 Order. The August 5, 2021 Order is incorporated herein and made a part of this Decision and Order. [1]


Petitioner's Testimony and Evidence

On December 10, 2020, petitioner was provided with a Spanish interpreter and she was sworn in. Petitioner testified that she moved into the building located at 94-25 57th Avenue, Elmhurst, NY 11373 over 30 years ago. Petitioner moved into Apartment 2G with her two sisters. Petitioner has continuously resided in the Apartment 2G. At the time of her testimony, she was 78 years old. Her two sisters are also senior citizens.

Petitioner described the layout of the apartment and the screen that used to be on the terrace. Petitioner described the location of the screen, its approximate size, the materials used to make it, the way it would open and its purpose. Petitioner testified that the screen was installed over 20 years ago to abate the condition with flies, mosquitos and rodents entering the apartment. The screen allowed petitioner to keep the terrace door open for fresh air to enter the apartment, as well as to give her the opportunity to sit outside and not be subjected to insect bites. Petitioner testified that the materials cost about $800.00. The installation cost another $200.00. The total amount paid was about $1, 000.00.

Petitioner testified that she had permission to install the terrace screen. Petitioner testified that before the screen was installed, she went to the management office to request permission. The owner at that time was Mydac Realty. The request was made in writing. She remembers receiving a call from Laura Romero from the management office. She went to the management office to pick up the note granting her permission to install the screen.

Petitioner introduced into evidence the approval note to install the screen. The approval note bears the stamp of the prior owner. (P's 1A). The note, written in Spanish, was officially translated. An Affidavit of Translation was attached thereto.

We want to presently ask your permission to cover the terrace with screens due to the amount of mosquitos that enter the apartment. Attentively, Blanca Lema, Dora Pagan
The landlord will not pay costs incurred for the alteration of the terrace and the tenant promises to pay the rent without a discount. Approved by Laura Ramos 08/08/01 As Agent of Mydac Realty Corp. [2]

The screen was on the terrace for approximately 20 years. Various photographs were entered into evidence which showed the screen, the area around the screen and the location of the nearest fire escape and its proximity to the screen.

Petitioner testified that now the screen is gone; it was removed by the respondents.

Petitioner stated that she was informed that respondents needed access to the area where the screen was located to make repairs. Petitioner had agreed to give access and then the screen panels were removed and thrown over the terrace railing onto the courtyard below. Petitioner stated that her plants and planters were also removed and thrown away. Petitioner testified that she had requested that respondents restore the terrace screen. Petitioner referenced a letter addressed to "Mr. Zara" dated March 8, 2019, stating no opposition to remove the screen panels and at the completion of the repairs," that our panels are re-installed in the same manner they were initially found." Petitioner testified that her March 8, 2019 letter was mailed to the respondents. It was included with the response to respondents' March 6, 2019 letter.

On cross examination, petitioner stated that in 1982 she moved into Apartment 2E in the building. In 1992 she moved into Apartment 2G. Petitioner was asked whether obscene language was used by the respondents, and she explained that she was not threatened with obscene language. Instead, she was threatened with an eviction letter. The March 6, 2029 letter stated that an eviction case would be filed if petitioner did not agree to the removal of the screen. Petitioner testified that she was not shown a violation from DHPD. She signed the March 6, 2019 letter presented by the respondents" letting them in."

Sometime in April 2019, the screen was removed. Petitioner testified on cross-examination that respondents did not enter the apartment to remove the screen. Respondents and/or their agents climbed onto the terrace and removed the screen.

Petitioner was questioned at to whether she was familiar with violations issued by DHPD for the screen. She stated that she was not familiar, but that she had prior permission from the landlord to install the screen panels. Petitioner testified that at no time she was told that the screen was a hazard and that after it was installed the prior management office had inspected it.

Respondents' Testimony and Evidence

Respondents called Devanan Subraj as their witness. Mr. Subraj was sworn in and testified that he is the operations manager for the respondent LLC. He testified to his prior experience and degrees. Mr. Subraj testified that on or about March 6, 2019, he was walking around the property. He noticed the screen on petitioner's terrace. He stated that he received a violation from DHPD for the screen on or about March 26, 2019. [3]

Mr. Subraj testified that after receiving the violation, respondents visited the petitioner and explained that "based on the violation" they had to remove the terrace screen. He testified that he knows that the violation concerns petitioner's apartment. Mr. Subraj testified that he told the petitioner that after the repairs were done, the screen would not be restored. The witness testified as to other work being done in other parts of the building and that after that work was done the screen was addressed. The testimony was that respondents purchased the building in February 2018. In April 2019, when the screen was removed, Mr. Subraj testified that they had to do work on the outside to "waterproof" the building.

On cross examination, Mr. Subraj confirmed that he noticed the screen on the terrace in early March 2019 as he was" doing his rounds." He confirmed that petitioner's apartment is about 15 feet above ground.

On further inquiry, Mr. Subraj testified that the DHPD violation was issued on or about March 26, 2019. The witness stated that he did not try to open the screen panel, nor did he walk to the fire escape from the terrace screened area. The cross examination focused on how one would get access to the east side fire escape using the terrace.

Mr. Subraj testified that the fire escape to the left of the terrace is not accessible to the petitioner. For the petitioner to get to the east side fire escape, she would have to climb or jump over two railings. The testimony is that there is a railing between petitioner's terrace and the fire escape. Furthermore, the windows in front of the fire escape do not belong to petitioner's apartment. The witness testified that petitioner's apartment has a fire escape, and that the fire escape for petitioner's apartment is located on the "north side" of the building.

The testimony confirmed that the screened area comprised less than 50% of petitioner's terrace, and then the witness argued that the terrace is a second fire escape. Mr. Subraj was asked to read the violation and whether there was any language describing a screen. The witness confirmed that the violation did not reference a screen. (Remove the Encumbrance Obstructing Egress from Fire Escapes Cleaning Supplies and Household Trash at the Balcony, South Stack at Fire Escape, Section at West). Mr. Subraj denied telling petitioner that if she did not consent to the removal of the screen her lease would not be renewed, or that it would be terminated, or that it was a violation of a lease term. Mr. Subraj admitted that he told petitioner that if the screen was not removed, they would be subject to a fine and that it was an "encumbrance."

On further cross examination, Mr. Subraj was asked to look at the March 6, 2019 letter, and whether that letter related to some steel beam work that was done in the space below the apartment. Mr. Subraj testified that a permit from the Department of Buildings (DOB) was needed to replace the steel beam. DOB permit dated July 11, 2018, was entered as evidence. (P's 26).


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