DHPD v One 35 W. Corp.
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[*1]
DHPD v One 35 W. Corp.
2015 NY Slip Op 50053(U)
Decided on January 23, 2015
Civil Court Of The City Of New York, New York County
Kraus, 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This opinion is uncorrected and will not be published in the printed Official Reports.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 January 23, 2015
Civil Court of the City of New York, New York County
DHPD, Petitioner
against
One 35 West Corporation, JOE MCKANI, Respondents.
885/2013
MARTINE BASS, ESQ.
Attorney for Petitioner
DHPD
100 Gold Street, 6th Floor
New York NY 10038
212.863.6027
STEVEN J. MASEF, ESQ.
Attorney for Respondents
118-18 Union Turnpike
Kew Gardens, NY 11415
718.575.2925
Sabrina B. Kraus, J.
PROCEDURAL HISTORY
Petitioner commenced this proceeding on or about April 25, 2013, by Order to Show Cause initially returnable in Part B on May 28, 2013. Annexed to the pleadings is a thirty-five page Violation Summary Report detailing class A, B and C violations issued which remain uncorrected.
On May 28, 2013, Respondents appeared by counsel and filed an answer alleging that the repairs were necessitated by "direct acts of vandalism by tenants," denial of access and that repairs had already been completed or were ongoing.
On July 30, 2013, the parties entered into a Consent Order (Consent Order) that was so-ordered by the court (Gonzales, J.), wherein Respondents agreed to repair all outstanding violations of record and comply with the July 10, 2012 AEP Order (AEP Order) within thirty days.
On September 16, 2014, Petitioner moved for an order punishing Respondents for Civil and Criminal contempt and seeking civil penalties. On November 19, 2014, the court held a hearing on the relief sought. The parties were given until January 5, 2015, for post trial submissions, and the Court reserved decision. FINDINGS OF FACT
The AEP Order required Respondents to replace the roof of the Subject Premises, upgrade the electrical system and rewiring, and perform, integrated pest management throughout the building, and directed that the violations and underlying conditions be corrected forthwith.
The Order to Correct required Respondents to correct all class "C' violations within 14 days, class "B" violations within 30 days and class "A" violations within 90 days. Additionally, Respondents agreed to comply with the AEP Order within thirty days.
A subsequent inspection conducted on May 22, 2014 revealed that Respondents were in default of both orders and that 12 class "A" violations, 104 class "B" violations and 11 class "C" violations remained uncorrected.
As of November 19, 2014, there were 134 open violations at the Subject Premises including 16 class "A" violations, 95 class "B" violations and 22 class "C" violations (Ex 1).
Petitioner's first witness, Pradyumna Shah (Shah) is a Construction Project Manager employed by HPD for past ten years, in the AEP unit. Shah is responsible for enforcing compliance with AEP Orders. Generally, an AEP order to correct involves the replacement of a major system. Shah monitors approximately thirty five buildings at a time, and inspects about five or six sites per day as part of his duties.
Shah inspected the Subject Premises in the Summer of 2013 to do a roof to cellar inspection and determine whether the AEP Order had been complied with. Shah took pictures that show the conditions he observed at that time (Exs 3 & 4). The photos show patchwork to parapet walls, air pockets and bubbles, indicating that roof was not properly sealed at the edges, and that the roof was not properly pitched, leading to water accumulation. A skylight had been patched around the edges, and areas of standing accumulated water were depicted in the photos. Shah testified that rather than replace the roof, a layer was added and painted. Shah testified that the failure to replace the roof, was evidenced in part by the air pockets and lack of ventilation.
Shah also found that the Respondents had failed to upgrade the electrical system and do rewiring. Shah noted such work would require filings with Department of Building, and that no such filings had taken place, and no permits were observed posted at the building. Shah testified that Respondents had commenced work on upgrading the electrical system, but had never completed the work. Shah testified that as of October 2014, the electrical system was not up to code, that open wires were hanging, the circuit breaker in the basement was in an unsafe condition, and that the distribution panel was old.
Shah also testified that he had observed mice and roaches at the Subject Premises during his inspections, but the court did not find Shah's testimony regarding extermination to be reliable or detailed enough to draw any conclusions from. Shah did state that Respondents had failed to submit an affidavit to HPD regarding any steps taken to do integrated extermination and that such an affidavit would be required to comply with the AEP Order.
Magdy Hanafy (Hanafy) , a home improvement salesperson, from Top Line Contractors, testified for Respondents regarding repairs he made to the roof of the Subject Building. Hanafy leveled the roof and installed 15 new beams and stated that he obtained no permits for the work done. Hanafy removed one of the skylights from the roof, but left one skylight because it was in good condition. Hanafy testified that the remaining skylight provides sufficient ventilation for the roof.
An invoice was submitted that presumably was for the work done. However, the invoice contemplates $15,000 worth of work, and Hanafy testified that he was only paid $9000. The court finds that Hanafy did not do all of the work contemplated by the invoice.
John Vollino also testified on behalf of Respondents. Vollino is an exterminator who performed extermination services at the building approximately 8 to 10 times between May 2013 and the date of the hearing. Vollino baited for rodents and sprayed for roaches. The last time Vollino was at the Subject Premises was in August 2014, when he was called to treat a bedbug problem on the second floor. Respondents have no ongoing agreement with Vollino to perform extermination services at the building, and Vollino only does so when Respondents specifically call to perform service. Vollino charges Respondents $375 per visit.
Michael Clarke (Clarke) also testified for Respondents. Clarke is currently employed by Metro North Railroad, but he was called by Respondents to do electrical work at the Subject Premises in 2013. Clarke is not a licensed electrician and obtained no permits for any work done. Clarke upgraded a small panel in the basement, replaced some outlets in certain apartments. Clarke did no rewire the building.
DISCUSSION
The Court finds that Respondents defaulted on their obligations under the AEP Order and the Consent Order. The Court finds Respondents failed to install a new roof, failed to upgrade the wiring system for the building and failed to provide for a comprehensive integrated extermination plan for the building.
Petitioner seeks $1,007,805.00 in civil penalties based on the uncorrected violations which remained outstanding as of the date of the hearing. The penalties are set by statute [HMC § 27-2115 (a) and (h)].
Respondents failed to establish any affirmative defense allowing for mitigation of such penalties allowing for remission of any portion of the penalties [HMC § 27-2116(b)(1) & (2)]. While Respondents did establish at the hearing that they made some effort to address the issues in the AEP Order, this is insufficient to establish an affirmative defense under the statute.
As such the court finds Petitioner is entitled to civil penalties for 82 class B violations which remained uncorrected for 444 days past September 1, 2013, in the amount of $25 for each "B" violation (82 x 25 = $2050) and $10 per day per violation (444 x 10 x 82 = $ 364,080), or a total of $ 366,130.00
Petitioner is entitled to civil penalties for 11 class "C" violations which were not [*2]corrected for 461 days past August 15, 2013, in the amount of $50 for each "C" violation (50 x 11 = $550) and $125 per day per violation (461 x 125 x 11= $633,875) or a total of $634,425.00.
The Court finds that there is no basis to hold Respondents in criminal contempt as Petitioner failed to establish beyond a reasonable doubt that Respondents' failure to comply with the orders was willful.
Petitioner need not prove wilful disobedience for a finding of civil contempt. In order to demonstrate civil contempt, Petitioner must establish that a lawful order was in effect expressing an unequivocal mandate, that the contemnor knew about and disobeyed the order, and that Petitioner was prejudiced as a result (McCormick v Axelrod 59 NY2d 574).
The Court finds Petitioner has established all of the necessary elements to find Respondents in civil contempt. The consent order was unequivocal, and was agreed to by Respondents' counsel. The order was not complied with, and as a result Petitioner and the tenants of the Subject Premises have been prejudiced.
The testimony of the witnesses presented by Respondents shows that Respondents did not take seriously their obligations to comply with the order. Respondents did not undertake to replace the roof and instead did an inadequate patch job leaving the roof in disrepair. Respondents did not hire a licensed electrician to do the required work, and never implemented a integrated extermination program for the building.
Based on the foregoing, Petitioner is awarded a judgment for civil penalties in the amount of $1,000,555.00 against Respondents and the Subject Premises, Block Number 1916, lot 17, for failing to correct violations at the Subject Premises.
Respondents are in Civil Contempt of the Consent Order and are fined $250.00 for same.
The Consent Order remains in full force and effect.
This constitutes the decision and order of this court.
Dated: January 23, 2015
____________________
Hon. Sabrina B. Kraus,J.H.C.
Decided on January 23, 2015
Civil Court of the City of New York, New York County
DHPD, Petitioner
against
One 35 West Corporation, JOE MCKANI, Respondents.
885/2013
MARTINE BASS, ESQ.
Attorney for Petitioner
DHPD
100 Gold Street, 6th Floor
New York NY 10038
212.863.6027
STEVEN J. MASEF, ESQ.
Attorney for Respondents
118-18 Union Turnpike
Kew Gardens, NY 11415
718.575.2925
Sabrina B. Kraus, J.
BACKGROUNDThis HP Proceeding was commenced DHPD(Petitioner) and against ONE 35 WEST CORPORATION and JOE MCKANI(collectively "Respondents") the registered owner and managing agent of 135 West 131st Street, New York, NY 10027 (Subject Premises), seeking an order: directing the correction of outstanding violations; directing Respondents to comply wit the Alternative Enforcement Order to Correct dated July 10, 2010; and entering judgment against Respondents for failure to timely correct outstanding violations.
PROCEDURAL HISTORY
Petitioner commenced this proceeding on or about April 25, 2013, by Order to Show Cause initially returnable in Part B on May 28, 2013. Annexed to the pleadings is a thirty-five page Violation Summary Report detailing class A, B and C violations issued which remain uncorrected.
On May 28, 2013, Respondents appeared by counsel and filed an answer alleging that the repairs were necessitated by "direct acts of vandalism by tenants," denial of access and that repairs had already been completed or were ongoing.
On July 30, 2013, the parties entered into a Consent Order (Consent Order) that was so-ordered by the court (Gonzales, J.), wherein Respondents agreed to repair all outstanding violations of record and comply with the July 10, 2012 AEP Order (AEP Order) within thirty days.
On September 16, 2014, Petitioner moved for an order punishing Respondents for Civil and Criminal contempt and seeking civil penalties. On November 19, 2014, the court held a hearing on the relief sought. The parties were given until January 5, 2015, for post trial submissions, and the Court reserved decision. FINDINGS OF FACT
The AEP Order required Respondents to replace the roof of the Subject Premises, upgrade the electrical system and rewiring, and perform, integrated pest management throughout the building, and directed that the violations and underlying conditions be corrected forthwith.
The Order to Correct required Respondents to correct all class "C' violations within 14 days, class "B" violations within 30 days and class "A" violations within 90 days. Additionally, Respondents agreed to comply with the AEP Order within thirty days.
A subsequent inspection conducted on May 22, 2014 revealed that Respondents were in default of both orders and that 12 class "A" violations, 104 class "B" violations and 11 class "C" violations remained uncorrected.
As of November 19, 2014, there were 134 open violations at the Subject Premises including 16 class "A" violations, 95 class "B" violations and 22 class "C" violations (Ex 1).
Petitioner's first witness, Pradyumna Shah (Shah) is a Construction Project Manager employed by HPD for past ten years, in the AEP unit. Shah is responsible for enforcing compliance with AEP Orders. Generally, an AEP order to correct involves the replacement of a major system. Shah monitors approximately thirty five buildings at a time, and inspects about five or six sites per day as part of his duties.
Shah inspected the Subject Premises in the Summer of 2013 to do a roof to cellar inspection and determine whether the AEP Order had been complied with. Shah took pictures that show the conditions he observed at that time (Exs 3 & 4). The photos show patchwork to parapet walls, air pockets and bubbles, indicating that roof was not properly sealed at the edges, and that the roof was not properly pitched, leading to water accumulation. A skylight had been patched around the edges, and areas of standing accumulated water were depicted in the photos. Shah testified that rather than replace the roof, a layer was added and painted. Shah testified that the failure to replace the roof, was evidenced in part by the air pockets and lack of ventilation.
Shah also found that the Respondents had failed to upgrade the electrical system and do rewiring. Shah noted such work would require filings with Department of Building, and that no such filings had taken place, and no permits were observed posted at the building. Shah testified that Respondents had commenced work on upgrading the electrical system, but had never completed the work. Shah testified that as of October 2014, the electrical system was not up to code, that open wires were hanging, the circuit breaker in the basement was in an unsafe condition, and that the distribution panel was old.
Shah also testified that he had observed mice and roaches at the Subject Premises during his inspections, but the court did not find Shah's testimony regarding extermination to be reliable or detailed enough to draw any conclusions from. Shah did state that Respondents had failed to submit an affidavit to HPD regarding any steps taken to do integrated extermination and that such an affidavit would be required to comply with the AEP Order.
Magdy Hanafy (Hanafy) , a home improvement salesperson, from Top Line Contractors, testified for Respondents regarding repairs he made to the roof of the Subject Building. Hanafy leveled the roof and installed 15 new beams and stated that he obtained no permits for the work done. Hanafy removed one of the skylights from the roof, but left one skylight because it was in good condition. Hanafy testified that the remaining skylight provides sufficient ventilation for the roof.
An invoice was submitted that presumably was for the work done. However, the invoice contemplates $15,000 worth of work, and Hanafy testified that he was only paid $9000. The court finds that Hanafy did not do all of the work contemplated by the invoice.
John Vollino also testified on behalf of Respondents. Vollino is an exterminator who performed extermination services at the building approximately 8 to 10 times between May 2013 and the date of the hearing. Vollino baited for rodents and sprayed for roaches. The last time Vollino was at the Subject Premises was in August 2014, when he was called to treat a bedbug problem on the second floor. Respondents have no ongoing agreement with Vollino to perform extermination services at the building, and Vollino only does so when Respondents specifically call to perform service. Vollino charges Respondents $375 per visit.
Michael Clarke (Clarke) also testified for Respondents. Clarke is currently employed by Metro North Railroad, but he was called by Respondents to do electrical work at the Subject Premises in 2013. Clarke is not a licensed electrician and obtained no permits for any work done. Clarke upgraded a small panel in the basement, replaced some outlets in certain apartments. Clarke did no rewire the building.
DISCUSSION
The Court finds that Respondents defaulted on their obligations under the AEP Order and the Consent Order. The Court finds Respondents failed to install a new roof, failed to upgrade the wiring system for the building and failed to provide for a comprehensive integrated extermination plan for the building.
Petitioner seeks $1,007,805.00 in civil penalties based on the uncorrected violations which remained outstanding as of the date of the hearing. The penalties are set by statute [HMC § 27-2115 (a) and (h)].
Respondents failed to establish any affirmative defense allowing for mitigation of such penalties allowing for remission of any portion of the penalties [HMC § 27-2116(b)(1) & (2)]. While Respondents did establish at the hearing that they made some effort to address the issues in the AEP Order, this is insufficient to establish an affirmative defense under the statute.
As such the court finds Petitioner is entitled to civil penalties for 82 class B violations which remained uncorrected for 444 days past September 1, 2013, in the amount of $25 for each "B" violation (82 x 25 = $2050) and $10 per day per violation (444 x 10 x 82 = $ 364,080), or a total of $ 366,130.00
Petitioner is entitled to civil penalties for 11 class "C" violations which were not [*2]corrected for 461 days past August 15, 2013, in the amount of $50 for each "C" violation (50 x 11 = $550) and $125 per day per violation (461 x 125 x 11= $633,875) or a total of $634,425.00.
The Court finds that there is no basis to hold Respondents in criminal contempt as Petitioner failed to establish beyond a reasonable doubt that Respondents' failure to comply with the orders was willful.
Petitioner need not prove wilful disobedience for a finding of civil contempt. In order to demonstrate civil contempt, Petitioner must establish that a lawful order was in effect expressing an unequivocal mandate, that the contemnor knew about and disobeyed the order, and that Petitioner was prejudiced as a result (McCormick v Axelrod 59 NY2d 574).
The Court finds Petitioner has established all of the necessary elements to find Respondents in civil contempt. The consent order was unequivocal, and was agreed to by Respondents' counsel. The order was not complied with, and as a result Petitioner and the tenants of the Subject Premises have been prejudiced.
The testimony of the witnesses presented by Respondents shows that Respondents did not take seriously their obligations to comply with the order. Respondents did not undertake to replace the roof and instead did an inadequate patch job leaving the roof in disrepair. Respondents did not hire a licensed electrician to do the required work, and never implemented a integrated extermination program for the building.
CONCLUSION
Based on the foregoing, Petitioner is awarded a judgment for civil penalties in the amount of $1,000,555.00 against Respondents and the Subject Premises, Block Number 1916, lot 17, for failing to correct violations at the Subject Premises.
Respondents are in Civil Contempt of the Consent Order and are fined $250.00 for same.
The Consent Order remains in full force and effect.
This constitutes the decision and order of this court.
Dated: January 23, 2015
New York, NY
____________________
Hon. Sabrina B. Kraus,J.H.C.
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