Dole v 106-108 W. 87th St. Owners Inc.

[*1] Dole v 106-108 W. 87th St. Owners Inc. 2006 NY Slip Op 52208(U) [13 Misc 3d 1241(A)] Decided on November 22, 2006 Civil Court Of The City New York, New York County Capella, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on November 22, 2006
Civil Court of the City New York, New York County

Pamela Dole, Petitioner-Tenant,

against

106-108 West 87th Street Owners Inc., Siren Management Corp., Respondent-Owners, NYC Department of Housing Preservation and Development ("HPD"), Co-Respondent.



HP 6004/05

Joseph Capella, J.

On January 19, 2006, the parties to this tenant-initiated HP proceeding entered into a so-ordered stipulation ("stipulation") which provided, inter alia, that:

Respondents shall ensure that all sheetrock removal is accomplished with appropriate safeguards to ensure any mold

in or behind the sheetrock does not further contaminate the apartment (exhibit "1," ¶ 4);

After removal of the sheetrock, the respondents shall further test for mold and, if it does so, will promptly provide the results of such tests to petitioner's counsel (¶ 5);

Respondents shall ensure that the work referred to above is accomplished with appropriate mold remediation safeguards and shall HEPA vacuum and clean all surfaces after work is completed in accordance with industry standards, including New York City Department of Health and Mental Hygiene Bureau of Environmental and Occupational Disease Epidemiology "Guidelines on Assessment and Remediation of Fungi in Indoor Environments" ("DOH Guidelines") (¶ 7);

The inspection and work above shall also include the south wall living room window area and frame from which petitioner asserts active leaks continue. Respondents shall also inspect and repair as necessary outside building areas (including terrace of higher floor apartment and outside of window area) to assure that source of water penetration is corrected. When sheetrock is removed, [r]espondents will also inspect and repair as necessary, any continuing leaks (¶ 9); and

Any ceiling areas removed where soundproofing material is found behind the ceiling, the repair/restoration shall include reinstallation of new similar quality soundproofing material (¶ [*2]11).

By order to show cause dated March 14, 2006, the petitioner seeks civil contempt and civil penalties due to the respondents' alleged failure to comply with the terms of the stipulation, including failure to (1) complete the removal of sheetrock from areas of the premises affected or potentially affected by mold, (2) remove and replace soundproofing behind affected sheetrock, (3) properly test for mold growth in the premises within a reasonable time and disclose such results to the petitioner, (4) inspect the building for sources of water penetration and report results of the inspection to the petitioner, (5) use proper safeguards to protect the premises and the petitioner's personal property and (6) remediate and repair mold conditions in the premises.

In opposition, the respondents allege that they properly removed all sheetrock, conducted a visual inspection for the presence of mold and returned to conduct air testing. The respondents further allege that petitioner failed to grant them access necessary to complete the work required under the stipulation, which they are ready and willing to complete. In addition, the respondents argue that they cannot be held in contempt because of the vague language of the stipulation. A hearing was held on May 31, (digital recorder @ 11:07:21 - 3:16:24), July 11, (digital recorder @ 2:48:36 - 4:48:00), July 12, (digital recorder @ 10:01:12 - 4:18:05), August 2, (digital recorder @ 10:30:00 - 12:33:43), August 9, (digital recorder @ 2:45:04 - 4:12:07), and September 20, 2006, (digital recorder @ 11:25:48 - 4:22:16). Upon completion of same, the court makes the following findings and conclusions.

Some time in January 2005, the petitioner hired a contractor, Alcan Electric Corp., to make certain renovations in her apartment, including the removal of some damaged sheetrock and the creation of a loft. The proposal by Alcan Electric Corporation dated January 7, 2005, (exhibit "O"), provided for, inter alia, removal of "water damaged dry wall at exterior [and] party wall including all affected insulation approx. 40 sq [sic] ceiling; walls 140 sq ft." On February 15, 2005, while the renovation work was still ongoing, the petitioner brought in an environmental consulting firm, Leighton Associates, Inc. ("Leighton Associates"), to inspect for mold. On February 23, 2005, all renovation work ceased and Leighton Associates conducted additional testing. According to a report dated February 28, 2005, by Leighton Associates, (exhibit "D"), "the air quality in the bedroom on the second floor was acceptable"; however, "heavy Chaetomium mold growth as well as the presence of Aspergillus/Penicillium like mold spores" were found along the loft stairwell wall. The report also found that "[t]he bricks as well as the mortar around the window had retained moisture ranging from twenty to forty percent, indicating water intrusion." Leighton Associates also conducted a subsequent inspection on November 16, 2005, and according to their report dated November 21, 2005, (exhibit "E"), "airborne Aspergillus/Penicillium type mold spore levels were elevated on the stairs between the office and upper floor bedroom." This report also provides that a test on the upstairs bedroom ceiling revealed "elevated airborne Aspergillus/Penicillium and slightly elevated airborne Stachybotrys type mold spores."

The petitioner commenced the instant HP proceeding on/about January 3, 2006, to correct the alleged hazardous mold condition within her apartment, which she also alleges made her so sick that she had to vacate the premises on October 9, 2005. Pursuant to the parties' [*3]stipulation, the petitioner provided access to the respondents [FN1] on January 26, 2006, for "visually inspecting and determining what areas of water damaged (emphasis added) wall and ceiling sheetrock [were] to be removed for repair or remediation." Howard Landman from Siren Management Corporation testified that he hired Erin Contracting to remove any sheetrock and soundproofing material, and GAC Environmental to address the mold. According to Mr. Landman, he gave Erin Construction and GAC Environmental a copy of the stipulation and discussed it with them. He had Brian McClellan from Erin Contracting and Wayne Stock from GAC Environmental attend the inspection of January 26, 2006. During the inspection, Mr. Landman observed that some walls did not have sheetrock but most did, and those that did had some water stains. The petitioner was not in the apartment during the inspection to point out the water damaged sheetrock she sought removed, but instead remained outside the apartment doorway. Mr. Landman directed Erin Contracting to remove any sheetrock with water stains that it had observed that day. According to Mr. Landman, his agreement with Erin Contracting did not require HEPA vacuum or removal of sheetrock pursuant to the DOH Guidelines. A subsequent access date of February 13, 2006, was set by the parties.

Brian McClellan from Erin Contracting testified that he had previously been to the petitioner's apartment to investigate some water damage therein. This occurred some time in January 2005, at which time he observed visible water damage to the ceiling and east wall. According to Mr. McClellan, he is familiar with the DOH Guidelines but has had no training in mold remediation. He was recently retained by Mr. Landman to remove sheetrock, but given no specific instructions as to same. Mr. McClellan attended the inspection of January 26, 2006, and was at the apartment on the subsequent access date of February 13, 2006. In a written proposal dated January 26, 2006, (exhibit "5"), Erin Contracting agreed to, inter alia, remove the sheetrock from the south wall and the upstairs ceiling.[FN2] On January 26, 2006, Mr. McClellan made a hole measuring one foot by one foot in the living room ceiling to look for a possible water leak. He observed a pipe but no leak, and did not look for additional leaks and/or water penetration. Mr. McClellan testified that a HEPA vacuum was not used because it was "not part of job," that no further investigation into mold was done and no moisture meter was used. The sheetrock removed by Erin Contracting on February 13, 2006, was placed into garbage bags and carried directly to the street. Although Mr. McClellan and Mr. Landman both testified that the amount of "water damaged wall and ceiling sheetrock" to be removed was relatively small, neither took measurements of same.

Wayne Stock from GAC Environmental testified that his company is an environmental consulting firm. According to Mr. Stock, he was at the apartment on January 26, 2006, and February 13, 2006, but did not test for mold on either date. Mr. Stock did examine the one foot opening made by Erin Contracting and found no mold or water. Mr. Stock testified that Mr. Landman did not provide him with a copy of the stipulation, nor was he told that DOH [*4]Guidelines were to be followed. Mr. Stock also testified that a HEPA vacuum was not used because Mr. Landman did not request same. On February 13, 2006, after Erin Contracting had completed the sheetrock removal, Mr. Stock inspected a piece of the removed sheetrock and found no mold. He admitted, however, that he did not observe from where this piece of sheetrock was removed. Mr. Stock further testified that he was only at the apartment for a short period of time on February 13, 2006, and did not measure the amount of sheetrock removed.

The President of 106-108 West 87th Street Owners Inc., Gary Paul, testified that the roof of the building was last repaired in the spring of 2005. According to Mr. Paul, between January 2006 and March 2006, no one was hired to inspect the exterior of the building, including the terraces above and the window area outside of the petitioner's apartment, for possible water penetration. Mr. Paul testified that he had asked Mr. Landman to provide him in writing a detailed description of the areas of sheetrock inside the petitioner's apartment to be removed. This, however, was not done.

The DOH established its Guidelines on Assessment and Remediation of Fungi in Indoor Environments to ensure the removal or cleaning of contaminated materials in a manner that prevents the emission of fungi and dust contaminated with fungi from leaving a work area and entering an occupied or non-abatement area, while protecting the health of workers performing the abatement. (The New York City Department of Health and Mental Hygiene Guidelines on Assessment and Remediation of Fungi in Indoor Environments [accessed May 25, 2006].) According to the DOH Guidelines, a visual inspection is the most important initial step in identifying a possible contamination problem and in determining an appropriate remediation strategy. (§ 2.1.) Although not required, the use of a moisture meter to detect moisture in building materials may be helpful in identifying hidden sources of fungal growth and the extent of water damage. (§ 2.1.) Bulk or surface sampling is not required and remediation of visually identified fungal contamination should proceed without further evaluation. (§ 2.2 (a).) Bulk or surface samples may be needed to identify specific fungal contaminants as part of a medical evaluation, or to identify the presence or absence of mold where the visual inspection is equivocal (e.g., discoloration and staining). (§ 2.2 (b).) Air sampling for fungi should not be part of a routine assessment because decisions about appropriate remediation strategies can usually be made on the basis of a visual inspection and air sampling methods for some fungi are prone to false negative results. (§ 2.3 (a).) Air monitoring may be necessary if an individual has been diagnosed with a disease associated with fungal exposure, (§ 2.3 (b)), if there is evidence from a visual inspection or bulk sampling that the ventilation system may be contaminated, (§ 2.3 (c)), or if the presence of mold is suspected but cannot be identified by a visual inspection or bulk sampling, (§ 2.3 (d)), such as mold growth behind walls.[FN3] Proper remediation requires that the underlying cause of water accumulation be rectified or fungal growth will recur (§ 3).[FN4]

The DOH Guidelines has five levels of remediation, which vary primarily based upon the [*5]size of the contaminated area. For example, Level I applies to small isolated areas of 10

square feet or less, Level II applies to mid-sized isolated areas of 10 to 30 square feet, Level III applies to large isolated areas of 30 to 100 square feet, and Level IV applies to extensive contamination of greater than 100 contiguous square feet. The remediation level dictates the degree of expertise required by the personnel conducting the work and the applicable safety precautions. Level I and II remediation can be done by regular building maintenance staff, and such persons should receive training on proper clean up methods, personal protection (e.g., respiratory protection, gloves and eye protection) and potential health hazards. Unlike Level I and II, a health and safety professional with experience performing microbial investigations should be consulted prior to Level III and IV remediation activities to provide oversight for the project. In addition, the minimum recommendation for anyone engaging in Level III or IV remediation is a person trained in the handling of hazardous materials and equipped with either respiratory protection, gloves and eye protection (Level III), or a full-face respirator with high efficiency particulate air cartridges, gloves and disposable protective clothing covering both head and shoes (Level IV). Under Levels II, III and IV, the work and surrounding areas should be HEPA vacuumed and cleaned with a damp cloth/mop and a detergent solution. All levels of remediation require: 1) that the underlying cause of the water/moisture damage be rectified; 2) that the emission of fungi and dust contaminated with fungi remain contained within the work area; and 3) that the health of the workers performing the remediation be protected.

Paragraph three of the stipulation provides that "[r]espondents' counsel will promptly notify [p]etitioner's counsel, in writing, as to the sheetrock removal intended after inspection [of January 26, 2006,] and provide at least 48 hours written notice as to when actual work to remove the sheetrock will begin." According to the petitioner's post-trial memo, the "respondents did not, nor did they claim at trial, to have set forth, in writing, prior to February 13, 2006, the amount and/or location of sheetrock which they intended to remove." Admitted into evidence, however, is an e-mail from respondents' counsel to petitioner's counsel dated February 7, 2006, (exhibit "X2"), stating "[t]he contractor will be there the 13th at 9 am to remove the sheetrock only. After that GAC will inspect to determine what has to be done. The area to be worked in is the same area that Ms. Dole pointed out as having wet sheetrock."[FN5] Given the DOH Guidelines' focus on the amount of square footage, the e-mail's failure to include the amount of sheetrock to be removed is of little assistance in determining the appropriate remediation level. Also providing little assistance is the fact that neither Mr. Landman, Mr. McClellan nor Mr. Stock took measurements on the inspection date (i.e., January 26, 2006) of the amount of sheetrock to be removed.

The petitioner testified that on the morning of February 13, 2006, she was waiting outside of her apartment to provide access to Erin Contracting. Upon their arrival, she "wore a mask to quickly enter [her apartment] for 7 to 10 minutes in order to review the work to be done." With the approval of Siren Management, it was agreed that day that Erin Contracting would remove sheetrock from the living room and bedroom ceiling, and the bedroom's west and east wall. This exceeded the amount of sheetrock removal provided for in Erin Contracting's written proposal [*6]dated January 26, 2006 (exhibit "5"). The petitioner also reminded them that the soundboard also had to be removed. According to the petitioner, each of the agreed to locations had suffered from water damage. Later that day at around 6:00 p.m., after Erin Contracting had left, the petitioner returned to the apartment to measure the amount of sheetrock removed. She came up with the following measurements: nine feet by nine feet of the bedroom ceiling, six feet three inches by four feet one inch of the bedroom west wall, five feet five inches by nine feet of the bedroom east wall, and three inches by four inches of the living room ceiling. The total amount of sheetrock removed exceeds 100 square feet.

On March 1, 2006, GAC Environmental tested for mold, and according to their report dated March 13, 2006, (exhibit "C"), "[w]hile elevated Penicillium spores were detected inside the apartment, the concentration of spores was not high enough to indicate a microbial contamination condition at the project site."[FN6] Three air samples, two outside of the apartment and one inside (i.e., office area), and one surface sample in the office area were taken. The GAC Environmental report provides as follows:

"[r]esults of a visual inspection [FN7] and environmental sampling conducted

at the project site do not indicate a microbial contamination. However,

we recommend that an air purifier utilizing HEPA and carbon filtration be

utilized to reduce and control the concentration of airborne fungal spores

in the apartment. This purifier should run non-stop for two to three weeks.

New air testing is recommended following this time period."

Mr. Stock and Mr. McClellan were not qualified as experts. The only expert to testify was Robert Leighton from Leighton Associates. Mr. Leighton was qualified as an Industrial Hygienist and an expert in mold remediation, and it was his office that prepared the earlier referenced mold reports dated February 28, 2005, (exhibit "D"), and November 21, 2005, (exhibit "E"). It is Mr. Leighton's opinion that water from the exterior of building is responsible for the mold that contaminated the insulation and the sheetrock, and based on the elevated levels of mold, a Level IV remediation is required.[FN8] According to the Leighton Associate reports dated February 28, 2005, (exhibit "D"), and November 21, 2005, (exhibit "E"), testing was done on February 15, 2005, February 23, 2005, and November 16, 2005. Testing inside the apartment was done in the following areas: bedroom, stairwell and living room. Unlike the reports prepared by Leighton Associate, the report by GAC Environmental does not indicate the results of a visual inspection, including whether any water/moisture and/or water damage to the interior surface was observed or whether conditions exist that are favorable for future mold growth. [*7]According to Mr. Leighton, although the GAC Environmental report dated March 13, 2006, properly indicates an acceptable level of mold in the area tested, an insufficient amount of testing was done by GAC Environmental. GAC Environmental took one surface and one air sample on one day at one location inside the apartment. He recommended, inter alia, the use of a HEPA vacuum, which is a regular vacuum cleaner with a HEPA filter to capture dust, and air scrubbers, which are also known as a negative air machine.

This court wields the authority to punish a litigant that disobeys its lawful mandate. (Judiciary Law § 753 [A] [3]; see also CPLR 5104 [enforcing a judgment or order by contempt]; Administrative Code of City of NY § 27-2124 [contempt in general]; NY City Civ Ct Act § 110 [e] [granting Housing Part judges the power to punish for contempt].) Before a court may punish for civil contempt, the movant must demonstrate (1) that a lawful court order was in effect that clearly expressed an unequivocal mandate, (2) that the order was disobeyed to a reasonable certainty, (3) that the contemnor knew about the order, and (4) that the movant was prejudiced. (Matter of McCormack v Axelrod, 59 NY2d 574 [1983]; McCain v Dinkins, 84 NY2d 216 [1994].) A so-ordered stipulation constitutes a lawful court order and violation of same is punishable by civil contempt. (Ross v Congregation, 8 Misc 3d 136[A] [App Term, 1st Dept 2005]; Various Tenants v DHPD, 153 Misc 2d 221 [App Term, 1st Dept 1992], affd on majority opinion below 194 AD2d 311 [1st Dept 1993]; South Park v 230 Park, 3 Misc 3d 1111[A] [Sup Ct, NY County, 2004].) The burden of proof is on the party seeking to hold another in civil contempt, (McCain v Dinkins, 84 NY2d 216, 227 [1994]; Rupp v Elmasri, 305 AD2d 394 [2d Dept 2003]), to prove same by clear and convincing evidence. (Vujovic v Vujovic, 16 AD3d 490 [2d Dept 2005]; Green v Green, 288 AD2d 436 [2d Dept 2001].) Here the petitioner seeks civil penalties and civil contempt.

In the typical consent order in a tenant-initiated HP proceeding, an owner agrees to correct a violation(s) issued by the Department of Housing Preservation and Development ("HPD"). The owner's failure to comply may result in contempt and/or the imposition of civil penalties. Every HPD violation receives a hazard classification which dictates the amount of time an owner has to correct the violation and the appropriate civil penalty if same is not corrected. (NYC Housing Maintenance Code [Admin Code] § 27-2115(i).) The instant stipulation is not a consent order and there was no mold violation when the parties entered into same; therefore, the petitioner's request for civil penalties is denied. The stipulation is, however, a lawful court order that provides a clear set of parameters to investigate and resolve the petitioner's alleged mold condition. It provided for access to the petitioner's apartment in order to visually inspect and determine what areas of water damaged wall and ceiling sheetrock were to be removed for repair or remediation. The respondents agreed to provide written notice regarding the sheetrock to be removed. The removal was to be done with appropriate mold remediation safeguards, and once removed, the respondents agreed to test for mold. The respondents agreed to HEPA vacuum and clean all surfaces in accordance with industry standards, including DOH Guidelines. They also agreed to inspect the interior of the apartment and exterior of the building, including the window area and upstair's terrace, for water penetration.

The petitioner established the existence of water damaged sheetrock due to mold, and the need for a Level III or IV remediation. The proposal by Alcan Electric Corporation dated January 7, 2005, described water damaged sheetrock of approximately 180 square feet, and Mr. [*8]McClellan testified that in January 2005, he observed visible water damage to the ceiling and east wall. The respondents only agreed to remove water damaged sheetrock, and according to the Erin Contracting proposal dated January 26, 2006, removal included sheetrock from the south wall and upstairs ceiling. In addition, Mr. Landman testified that on January 26, 2006, he did observe some water damaged sheetrock. Only the petitioner produced an expert, Mr. Leighton, to testify at trial, and it was the opinion of this expert that the elevated levels of mold in the apartment were the result of water from the exterior of building, that the mold contaminated the insulation and sheetrock and that a Level IV remediation is required. As already noted, the DOH Guidelines has five levels of remediation, which vary primarily based upon the size of the contaminated area. Although the initial access date should have resolved the appropriate remediation level, neither Mr. Landman, Mr. McClellan nor Mr. Stock took measurements of the sheetrock to be removed. The petitioner, however, did measure the sheetrock removed, and according to her measurements, the respondents removed in excess of 100 square feet, which is a Level IV remediation.

The respondents did not consult a health and safety professional experienced in microbial investigations to provide oversight of the remediation. The individuals engaged by the respondents were not trained in the handling of hazardous materials and equipped with appropriate respiratory protection, gloves and eye protection. And the work and surrounding areas were not HEPA vacuumed and cleaned with a damp cloth/mop and a detergent solution. The respondents failed to establish that their remediation company, GAC Environmental, was qualified to do the work, and to the extent that said company tested for mold, the tests were inadequate. The testimony by Mr. Landman, which was contradicted by Mr. McClellan and Mr. Stock, was not credible. In addition, the testimony by Mr. McClellan and Mr. Stock, both of whom did not measure the amount of sheetrock removed, was of little value in determining the appropriate remediation level. Proper written notice regarding the sheetrock to be removed was not provided by the respondents, and their attempts to inspect the interior of the apartment and exterior of the building was inadequate. Overall, the work was not done with appropriate mold remediation safeguards or with any thought to the DOH Guidelines. Based on the aforementioned, the court is satisfied that the respondents disobeyed the clear terms of a lawful court order warranting a finding of civil contempt.

The petitioner is entitled to an award of costs and expenses incurred due to the respondents' behavior. (Judiciary Law § 773.) According to the petitioner, the mold condition made her so ill that she was forced to find several temporary residences. She seeks expenses associated with same, including moving and broker fees, and the rent and utilities at the temporary residences. There was no medical testimony to establish the petitioner's alleged illness, nor was there expert testimony to establish a causal link between the mold condition and the alleged illness, and that same required the petitioner to relocate. (Driscoll v Tower Assoc, 16 AD3d 311 [1st Dept 2005]; Fraser v 301-52 Townhouse, NYLJ, October 23, 2006, at 22, col 1 [Sup Ct, NY County, Kornreich, J.]. ) Therefore, the petitioner's request for relocation expenses is denied. Given the inability to establish actual damages, the court hereby awards the petitioner $250.00, (Judiciary Law § 773), which the respondents are directed to pay within 30 days after service of a copy of this decision/order with notice of entry. This award is without prejudice to the petitioner seeking an abatement in a separate proceeding and/or action, and is in addition to the petitioner's entitlement to attorney fees for the instant contempt motion. [*9]

The respondents have not established that the mold condition, which the court hereby deems to be a "B" violation, has been properly remediated. The respondents are ordered to correct this violation within 30 days of receipt of this decision/order with notice of entry. Upon default, this proceeding may be restored for appropriate relief, including civil penalties and/or contempt. The petitioner is directed to serve a copy of this decision with notice of entry upon all parties by first class mail on/before December 15, 2006, and the proceeding is adjourned to January 9, 2007, at 2:30 p.m., part B, room 526, for an attorney fees hearing. This constitutes the decision and order of this court, copies of which are being mailed by the Court to the parties' attorneys.

___11/22/06___________/S/_________________

DateJudge, Housing Court Footnotes

Footnote 1: Access was provided to Howard Landman from Siren Management, Alesa Strauss from 106-108 West 87 Street Owners, Brian McClellan from Erin Contracting, and Wayne Stock from GAC Environmental.

Footnote 2: Erin Contracting's proposal to remove sheetrock from the upstairs ceiling contradicts the argument set forth in the respondents' post-trial memo that this was additional work beyond what was agreed to on January 26, 2006, and only done at the petitioner's request on February 13, 2006.

Footnote 3: Where the presence of mold is suspected but cannot be identified by a visual inspection or bulk sampling, air monitoring is used to determine the location and/or extent of contamination. (§ 2.3 (d).)

Footnote 4: If the source of water is elevated humidity, relative humidity should be maintained at levels below 60% to inhibit mold growth. (§ 3.)

Footnote 5: The e-mail's reference to the "area that Ms. Dole pointed out" is inconsistent with the testimony by all of the witnesses (i.e., that Ms. Dole did not enter the subject apartment on January 26, 2006).

Footnote 6: Although Mr. Stock was not qualified as an expert, the petitioner did consent to the admission of the GAC Environmental report.

Footnote 7: The GAC Environmental report merely makes reference to an alleged visual inspection. It is completely devoid of any facts, such as whether any water damage to the interior surface(s) and/or water/moisture was observed or whether conditions exist that are favorable for future mold growth, that describe this alleged visual inspection.

Footnote 8: Mr. Leighton conceded that some of his testing (i.e., spore testing) and recommendations (i.e., biocide treatment) go beyond the requirements set forth in the DOH Guidelines.