2 Perlman Dr., LLC v Stevens
Annotate this CaseDecided on February 9, 2017
Civil Court of the City of New York, Kings County
2 Perlman Drive, LLC, Petitioner,
against
Debbie Stevens, Respondent.
L & T 74399/14
For Petitioner:
Rosenblum & Bianco, LLP
100 Merrick Road, Suite 306E
Rockville Centre, NY 11570
By: Mark McMillin, Esq.
By: Diana Morgan, Esq.
(516) 225-1800
Ms. Debbie Stevens, Pro se
Susan F. Avery, J.
BRIEF PROCEDURAL HISTORY
Petitioner commenced this holdover summary proceeding based upon the contention that the respondent, Ms. Debbie Stevens, unreasonably refused the landlord access to the subject premises, 7212 Fourth Avenue, Apartment B2, Brooklyn, NY 11209 ("subject premises") in order for the landlord to exterminate to remove the bedbug infestation, therein. Specifically, the Notice of Termination states: "[s]ince you received [the] notice [to cure] you have contacted both the... attorney and the landlord's agent.... seeking to justify your denial of access. You indicated that you could not accept the bedbug treatment for medical reasons. The landlord has offered alternative treatments that, in their determination, would not affect your medical condition. Your refusal to allow the landlord to treat the bedbug condition has caused the infestation to spread into other apartments in your building...."[FN1]
The proceeding was unable to be settled in the resolution part, and was transferred to Trial Part R, so that a trial could be conducted on the issues.
THE INITIAL STIPULATION OF SETTLEMENT
In Trial Part R, the parties, through their attorneys executed a written settlement agreement, dated August 11, 2014, which was "so ordered" by the Court, (Judge Marc [*2]Finkelstein). The stipulation required Ms. Stevens to "provide access to petitioner and petitioner's contractors on September 5, 2014 and September 19, 2014... for an extermination of bedbugs. The type of extermination to be performed is as follows: (a) steam service & cryonite" (sic).[FN2]
By notice of motion dated September 10, 2014, petitioner moved to restore the proceeding to the calendar, and for an immediate hearing to determine whether respondent breached the terms of the stipulation by failing to provide access to the petitioner to exterminate for bedbugs on September 5, 2014, as required by the August 11, 2014 stipulation of settlement. The motion was returnable on September 15, 2014. On that date, the parties entered into a "two-attorney" stipulation of settlement.
THE SECOND STIPULATION OF SETTLEMENT
The parties entered into a "two-attorney" stipulation of settlement on September 15, 2014 which read, in pertinent part as follows: "...landlord's agent shall visit tenant's apartment [on] 9/17/14... to [determine] whether [the] apartment is appropriately prepared for the extermination to be performed [on] 9/19/14....[[FN3] ] Tenant to provide access for the extermination [of bedbugs on] 9/19/14...."[FN4] The stipulation also provided for a second access date of October 2, 2014, as well as, reimbursement to Ms. Stevens for cleaning her belongings prior to returning them to the premises after the extermination.
By notice of motion dated April 14, 2015, petitioner moved to restore the proceeding to the calendar, and for an immediate hearing to determine whether respondent breached the terms of the stipulation dated September 15, 2014 by failing to provide the petitioner "proof that she [Ms. Stevens] had a complete cleaning of her clothing and articles/items by 'a cleaning service' that were placed in storage prior to the extermination of the subject apartment."[FN5] On June 1, 2015 the parties entered into a "two attorney" stipulation of settlement, resolving the motion.
THE THIRD STIPULATION OF SETTLEMENT
The stipulation dated June 1, 2015 reads in pertinent part, as follows: "[r]espondent shall provide access to the petitioner and its agent on June 4, 2015 at (sic) 9AM-1PM for an inspection for bedbugs.[[FN6] ] Respondent to provide access to the petitioner and its agents for an extermination for bedbugs on June 9...."[FN7] Additionally, the stipulation required Ms. Stevens to provide the petitioner with a receipt that her personal items were placed in storage prior to the extermination date and that they were also professionally cleaned prior to returning the previously stored and [*3]professionally cleaned items, back to the subject premises.[FN8] The stipulation also provided that "[i]n the event that the cryonite (same as last time) chemical... is not effective... the petitioner may restore the case to determine if a stronger/more effective method can be used."[FN9]
SUBSEQUENT MOTION PRACTICE
Subsequently, Ms. Stevens filed an Order to Show Cause application dated June 9, 2015. According to the cover page generated by the Court, the application is the second "OSC" application and the fifth "motion sequence." As respondent was represented by counsel, this Court declined to sign the application and granted leave to renew with an application to proceed without her attorney. The case summary which is generated in the office of the Clerk of the Court, shows that later that same day (June 9, 2015) Ms. Stevens filed two (2) additional Order to Show Cause applications, one (1) seeking to proceed without an attorney and the other to compel the petitioner to perform repairs (motion sequences 6 and 7).
In response to the motions filed by Ms. Stevens, petitioner crossed moved for the issuance of a final judgment of possession against the respondent based upon the contention that Ms. Stevens failed to comply with the June 1, 2015 stipulation of settlement (motion sequence 8). The motions were returnable on June 17, 2015. On that date, this Court issued an interim order. The interim order required the petitioner to exterminate for bedbugs on June 25, 2015 and perform follow up treatment on July 9, 2015. Additionally, the interim order required that a Court appointed liaison inspect the premises on July 14, 2015 and the proceeding was adjourned to July 15, 2015.
Additional applications were filed and the case summary report, generated by the Clerk of the Court, shows that on July 15, 2015 this Court issued an Order from the bench addressing the outstanding applications. The order reads as follows: "Based upon the conflicting accounts of the facts and after extensive conferenceing and arguments, respondent agreed to, at her own expense hire a professional company to pre-treat the premises for bedbug extermination and petitioner agreed to exterminate for bedbugs on August 3, 2015... Accordingly, the motions are denied with leave to renew following compliance with the instant decision/order, if necessary."
By notice of motion dated September 10, 2015 and returnable on September 21, 2015, petitioner moved for an Order restoring the proceeding to the calendar and granting "permission [to the petitioner] to use a stronger chemical in the extermination for bedbugs at the subject apartment." On September 21, 2015 the application was adjourned to October 26, 2015.
On October 26, 2015, the parties entered into a Consent Order. The Consent Order required the respondent to provide the petitioner and petitioner's contractors access to the premises to exterminate for bedbugs on November 10, 2015 and November 23, 2015. It was agreed that the exterminator would use chemicals. Additionally, the respondent was to provide an estimate from a professional bedbug preparation company by 5:00 in the post noon on November 3, 2015 and petitioner was required to pay for the preparation in advance of the treatment.
On November 6, 2015, respondent filed an additional Order to Show Cause application [*4]seeking to change the initial access date of November 10, 2015 and for a clarification of "who pays for the second prep[aration] not discussed in the stip[ulation]"[FN10] (Order to Show Cause sequence 8 and Motion sequence 13). This Court declined to sign the application, noting that this proceeding is a "no access" holdover, and there was no basis to sign the application.
By notice of motion dated November 30, 2015 and returnable on December 14, 2015 (motion sequence 14) petitioner sought an Order restoring the proceeding to the calendar and for a hearing on the issue of whether the respondent breached the terms of the October 26, 2015 Consent Order and for other related relief.
On the December 14, 2015 return date of the petitioner's motion, after extensive conferencing and arguments, this Court issued an Interim Order, which was signed by the parties, and adjourned the matter to January 20, 2016 to provide the respondent an additional opportunity to provide access so that the petitioner could exterminate the bedbugs. The Interim Order also required the respondent to prepare the premises for bedbug extermination, noting that the petitioner tendered a check in the amount of $974.21 to the respondent for said service. The Interim Order also required the respondent to provide access on December 22, 2015 and January 6, 2016 to exterminate for bedbugs using an unspecified chemical.
On January 20, 2016, the parties were unable to reach a mutually acceptable resolution and the motion was granted to the extent of restoring the matter to the calendar on February 9, 2016, for the Court to conduct a hearing to determine the issues raised in the petitioner's motion and the respondent's opposition.
THE FEDERAL LAW SUIT
Subsequent to the petitioner filing the motion dated November 30, 2015 (motion sequence 14) and prior to the scheduled hearing date of February 9, 2016, Ms. Stevens, on December 9, 2015, filed a law suit in the United States District Court for the Eastern District of New York claiming that the petitioner in the instant action is violating her rights pursuant to the Fair Housing Act ("FHA") and the American with Disabilities Act ("ADA") (docket number 1:15cv07041-PKC-LB). It is Ms. Stevens' contention in the Federal suit, that because of her unique health situation, the petitioner must make a reasonable accommodation when exterminating for bedbugs in her home, as any use of chemicals will have a negative impact on her health.
FEDERAL COURT REACHED OUT TO THE HOUSING COURT
This Court initially became aware of the Federal law suit filed by Ms. Stevens against the petitioner in late December 2015, when the undersigned received a telephone call from Federal Court Judge Pamela Chen. Judge Chen informed the undersigned of the pendency of the Federal action. Indeed, "the [Federal] Court reached out to Judge Avery... [of] the Housing Court."[FN11] Judge Chen informed the undersigned that Ms. Stevens filed a case in Federal Court against her landlord claiming the landlord was failing to take reasonable measures to accommodate her [*5]disability, and sought a permanent stay of the instant Housing Court proceeding.[FN12] Thereafter, "the [Federal] Court... spoke to Judge Avery on January 20, 2016, in the midst of Judge Avery's conference with the parties that day."[FN13]
The reason "the [Federal] Court reached out to Judge Avery, [was] for the purpose of determining whether plaintiff [Ms. Stevens] would have the opportunity to raise the substance of her FHA and ADA claims in the Housing Court."[FN14]
THE CERTIFIED QUESTION AS PRESENTED BY THE FEDERAL COURT
Based upon the purpose of the above stated communication between Federal Court Judge Pamela Chen and the undersigned Housing Court Judge, it is determined that the certified question presented by the Federal Court to the Housing Court is "whether the Housing Court is equipped to provide Ms. Stevens with the opportunity to litigate the substance of her FHA and ADA claims?"
THE CERTIFIED QUESTION IS ANSWERED IN THE POSITIVE
As any Judge that is sitting in the Housing Part of the Civil Court may conduct a full and fair evidentiary hearing which could include, calling expert medical and chemical witnesses, in order to determine if, Ms. Stevens, because of her condition, is entitled to be reasonably accommodated by her landlord when removing the bedbug infestation in her home, coupled with the broad authority[FN15] that this Court is granted by the legislator in exercising its authority to maintain the housing stock of this City, this Court informed the Federal Court Judge, that the Housing Court is an appropriate forum to provide Ms. Stevens with the opportunity to litigate the substance of her FHA and ADA claims.
THE FEDERAL COURT ACCEPTS THE HOUSING COURT'S ANSWER TO THE CERTIFIED QUESTION
Based upon the undersigned having answered the certified question in the positive, Judge Chen held that "Judge Avery advised the [Federal] Court that an evidentiary hearing was going to be scheduled in the Housing Court to allow [Ms. Stevens] to present evidence on her FHA and ADA claims."[FN16] Judge Chen further determined that "[n]ot only can [Ms. Stevens] raise her FHA and ADA claims in the Housing Court proceedings, but also this Court has been reassured [by Judge Susan Avery] that the Housing Court will conduct an evidentiary hearing on the elements [*6]that would support [Ms. Stevens' F]ederal claims."[FN17]
FEDERAL COURT DENIES REQUEST TO STAY THE INSTANT HOUSING COURT PROCEEDING
In her Federal law suit, Ms. Stevens requested that the Federal Court stay "any [O]rders from... the New York State Housing Court currently pending before Judge Susan Avery in the Civil Court of the City of New York, Kings County, Housing Part."[FN18] Because the request was for relief beyond the scope of the Federal Court's jurisdiction, Judge Chen denied Ms. Stevens application to stay the instant Housing Court proceeding.
Specifically, and as observed by Untied States Supreme Court Justice Sonia Sotomayor:
"it is well settled that [F]ederal [C]ourts do not have subject matter jurisdiction over [S]tate landlord/tenant matters involving eviction proceedings."[FN19]Indeed, the Federal Anti-Injunction Act[FN20] "[a]ct[s a]s an absolute prohibition against any injunction of any State-Court proceedings, unless the injunction falls within one [(1)] of the three [(3)] specifically defined exceptions in the Act."[FN21] The Federal Court is only authorized to grant a stay of a State Court action if: (1) such a stay is specifically authorized by Congress; (2) where necessary in aid of its jurisdiction; or (3) to protect or effectuate its judgments.[FN22]
As the Housing Court has jurisdiction to hear the substance of Ms. Stevens' FHA and ADA claims,[FN23] this Court conducted an evidentiary hearing on "the elements that would support [Ms. Stevens' F]ederal claims,"[FN24] and has provided Ms. Stevens with her right to due process and equal protection under the law.
FEDERAL ACTION STAYED PENDING RESOLUTION OF THE HOUSING COURT ACTION
Similar to the Federal rule, New York State law frowns upon granting a stay of a summary proceeding pending a determination in a separate action. Indeed, "[t]here is a strong rule against staying a summary proceeding pending the determination of an action in another [*7][C]ourt, as a landlord is entitled by statute to an expeditious determination of its claim..."[FN25] Accordingly, Judge Chen stayed the Federal action pending before her filed by Ms. Stevens, in deference to the jurisdiction of the Housing Court "...over [S]tate landlord/tenant matters involving eviction proceedings."[FN26]
THE ISSUES TO BE DETERMINED IN THE CASE AT BAR
Reassured that Ms. Stevens' FHA and ADA claims would be fully and fairly litigated in the instant Housing Court proceeding, and finding the certified question to have been answered in the positive, the instant Court is called upon to conduct an evidentiary hearing to determine the following Federal four (4) questions:[FN27]
(1) Whether Ms. Stevens' condition falls within the definition of a disability; and if yes;
(2) Whether Ms. Stevens, because of her disability, and following a request, is entitled to be reasonably accommodated by her landlord when removing the bedbug infestation in her home, and if she is so entitled;
(3) whether the reasonable accommodation requires that the landlord must use a non chemical treatment method when performing said exterminating services; and
(4) whether the landlord failed to accommodate Ms. Stevens' request for a reasonable accommodation?
Once the Federal four (4) questions are answered, this Court will determine the appropriate remedy to be awarded.
THE HEARING
The hearing commenced on February 9, 2016, and continued on various dates thereafter, and concluded on January 10, 2017 with the submission of post trial briefs.
PETITIONER'S CASE IN CHIEF PETITIONER'S FIRST WITNESS: MR. JACK LEFKOWITZ
Petitioner's first witness was Mr. Jack Lefkowitz, an agent of the petitioner. Mr. Lefkowitz stated that in violation of the October 26, 2015 Consent Order, Ms. Stevens failed to provide the petitioner with a written estimate from a bedbug extermination preparation company by November 3, 2015. Rather, she gave him the estimate for the sum of $947.21 from "Home Clean Home" a bedbug extermination preparation service provider, on November 9, 2016 (which was six (6) days late). Admitted into evidence as petitioner's exhibit 1 was a copy of a check payable to "Home Clean Home" drawn on the plaintiff's bank account in the amount of $947.21.
Mr. Lefkowitz also testified that in compliance with his obligation pursuant to the [*8]October 26, 2015 Consent Order, he arrived at the subject premises on November 10, 2015 and he was not provided access to enter. Additionally, Mr. Lefkowitz testified that in compliance with his obligation pursuant to the October 26, 2015 Consent Order, he arrived at the subject premises on November 23, 2015, and he was not provided access to enter.
PETITIONER'S SECOND WITNESS: MR. CARLOS QUINONES
Petitioner next called Mr. Carlos Quinones. Mr. Quinones stated that he is employed at "Dial-A-Bug" and his responsibilities include inspecting premises for bedbugs and the application of bedbug extermination treatments. He stated that the company at which he is employed was hired by the petitioner to exterminate for bedbugs at the subject premises and he was the individual assigned to conduct the extermination. He stated that on November 10, 2015 he inspected the premises and bedbugs "were visual" and some of the bedbugs he visualized were dead.
Additionally, Mr. Quinones stated that when he arrived at the subject premises on November 23, 2015 he was not provided access to enter to conduct the bedbug extermination process. He also stated that bedbug extermination treatment is a process, there is an initial application of the extermination treatment and then about two (2) weeks later there is a follow-up treatment application. He stated that "Dial-A-Bug" does not carry the treatment known as "cimi-shield."
RESPONDENT'S CASE IN CHIEF
DIRECT EXAMINATION OF RESPONDENT'S FIRST WITNESS[FN28]
Respondent first called Mr. Robert Stevens, her son to testify on her behalf. As Ms. Stevens was self-represented[FN29] this Court permitted Mr. Stevens to testify in the narrative. Mr. Stevens stated that he was at the apartment on November 10, 2015 when Mr. Quinones saw "the dead bedbugs" and that Mr. Quinones was so eager to find bedbugs that he searched the apartment with a "flashlight" and even "lifted up mattresses."
Mr. Stevens also stated that he and his mother were both sick on November 23, 2015 and that is the reason that they could not provide access in accordance with the terms of the Consent Order.
On cross examination of Mr. Stevens, Mr. Stevens repeated that he was present at the premises on November 10, 2015 and that his mother was sick on the second scheduled access date. He stated that his mother suffers with a chronic terminal respiratory illness which flairs up from time to time and she had a fever on the scheduled access date. He stated that he also lives in the subject apartment. He stated that the last time the apartment was treated for bedbugs was in September or October of 2015 and that he slept at the apartment the night before his testimony and he did not see any bedbugs nor has he seen any bedbugs in the apartment since October of 2015.
Because much of Mr. Stevens' other testimony was argumentative, wholly self serving and uncredible it is of no probative value and will not be considered by the Court.[FN30]
RESPONDENT'S MEDICAL WITNESS
Ms. Stevens, through her new counsel[FN31] called her treating physician, Dr. Hossam Amin.[FN32] Dr. Amin testified that he specializes in internal medicine, lung disease, intensive care and pulmonary conditions. He stated that he has been treating Ms. Stevens since November of 2007. Dr. Amin testified that Ms. Stevens came to see him because of a lung condition, which he diagnosed as "pulmonary fibrosis." He stated that pulmonary fibrosis is a lung disease which is medically determined to be a progressive chronic illness. He stated that symptoms of the condition manifest themselves through bouts of coughing and shortness of breath.
He stated that he treats Ms. Stevens when her symptoms flair up and he treats her with steroids and/or inhalers. He stated that causes of flair ups of Ms. Stevens' condition include: infections, changes in the weather and exposure to air-bourne irritants, including odors and fumes. He testified that exposure to "the causes of flair ups" triggers Ms. Stevens to have episodes and worsen her over all health. He stated that Ms. Stevens' condition is not curable and over time will get progressively more severe.
On cross examination, Dr. Amin testified that he last treated Ms. Stevens about "a month and a half ago" at his office. He stated that Ms. Stevens had an infection which he treated with antibiotics. He stated that he treats Ms. Stevens about every other month and when she has a respiratory infection. Dr. Amin testified that the exhaust fumes emitted by an automobile can cause Ms. Stevens to have "bronchial spasms." He stated that he is unfamiliar with extermination processes and has never visited Ms. Stevens in her home.
Dr. Amin also stated in response to respondent's attorney's question that if extermination services are done, without the use of fumes or other chemical irritants, then such a process will "not have a negative effect on Ms. Stevens' pulmonary fibrosis condition."
RESPONDENT'S EXTERMINATION WITNESS
Respondent next called Mr. Steven Moore as a witness. Mr. Moore stated that he is 35 years of age and a co-majority owner in Hubid Moore Pest Control Company and that he has been working at that company for eighteen (18) years. He stated that the company provides extermination services for rodents and other infestations to residential and commercial clients. He stated that there are two (2) additional employees performing exterminating services for the company and he supervisors them both.
Mr. Moore stated that in his experience, to effectively exterminate for bedbugs, the treatment requires the use of cimi-shield, cryonite and vacuuming. He stated that cimi-shield is an element which is odorless and hypo-allergenic and not toxic to human beings. He stated that this method is effective against all known strains of bedbugs. He stated that cryonite is a liquid carbon dioxide, which becomes dry ice that is sprayed throughout the infected premises which kills bedbugs on contact. He testified that occupants can remain at the premises during the treatment process.
Mr. Moore also testified that he has used an element called steri-fab to exterminate for bedbugs, which was not as effective as the cimi-shield method of extermination, because steri-fab is better used to exterminate for mosquitoes.
On cross examination, Mr. Moore stated that the last time he exterminated was yesterday and that he has exterminated for bedbugs three (3) times in the last six (6) months. He stated that he has not been to Ms. Steven's apartment, and that in his experience, the cimi-shield treatment plan has never failed to cure a bedbug infestation, but upon total speculation, if the cimi-shield treatment did not work he would recommend steaming and reapplying the cimi-shield.
Mr. Moore also stated that his company also provides bedbug extermination preparation services, which require placing personal items in a large plastic bag to be treated with cryonite.
On redirect examination, Mr. Moore stated that when his company is hired to exterminate for bedbugs, if the company is not also hired to perform the preparation work, he recommends to his clients, that they launder their clothing. Mr. Moore also stated that the definition of a "bedbug infestation" is the ability to see twenty (20) or more bedbugs in plain sight, "crawling around."
MS. DEBBIE STEVENS AS A WITNESS
Ms. Stevens testified that she first discovered that she had bedbugs in her home in March of 2014. As to her failure to provide access to the petitioner on November 10, 2015, she stated that she was sick on that date, as she was suffering from a severe case of laryngitis which lasted a month. She also stated that on November 23, 2015 she was sick and her son who suffers with epilepsy was also not feeling well on that date and she was taking care of him.
Additionally, Ms. Stevens stated that because she believed that the petitioner planned to use chemical exterminates when exterminating for bedbugs she was afraid for her health and that is an additional reason for her failure to provide access as required by the Consent Order dated October 26, 2015. She also stated that, although the petitioner gave her a check to pay for the bedbug extermination preparation, she did not "use" the check because she was sick. She stated that in the past she had become symptomatic when she had been exposed to extermination chemicals, such as when there was an extermination for roaches or vermin in her apartment.
Ms. Stevens stated that the symptoms she experiences when exposed to chemical irritants include shortness of breath and nausea and she currently takes predezone which is a steroid to treat her symptoms and also uses an inhaler "a couple of times a day" and a nebulizer at least once a month.
Ms. Stevens testified that subsequent to her being diagnosed as suffering with pulmonary fibrosis she had been hospitalized as a result of "flair ups." She stated she did not know the cause of the "flair ups." She also stated that the reason she did not let the landlord into the premises on the scheduled access date, was because she was afraid that the exterminators that the [*9]landlord planned to use to exterminate at her apartment would contain chemicals which would irritate her condition and make her sick. She also stated that she did not let the landlord in to the premises because she was sick on that date.
Additionally, Ms. Stevens stated that she had the names of two (2) bedbug extermination preparation companies and she did not prepare the apartment for the November 10, 2015 extermination, which was in violation of the terms set out in paragraph 8 of the October 26, 2015 Consent Order. Ms. Stevens also testified that prior to November 7, 2015 she disposed of the mattresses that were in the apartment by covering them with plastic and taking them "outside."
Contrary to earlier testimony, Ms. Stevens stated that she suppled the landlord with a bedbug extermination estimate on November 3, 2015. She stated that she was sick on November 10, 2015 and stated that the apartment was not prepared for bedbug extermination from October 26, 2015 through November 30, 2015.
Ms. Stevens stated that she did not contact the landlord or the landlord's attorney to cancel the bedbug extermination which was scheduled for November 10, 2015 and November 23, 2015 even though she had previously communicated with them by email. Ms. Stevens also stated that the landlord is aware of her unique health conditions. She also stated that the landlord offered to pay for her and her family to temporarily relocate to a hotel during the extermination process until it was safe for her and her family to return. She also stated that she did not want to relocate herself or her family to accommodate the landlord's offer to temporarily relocate her and her family during the extermination process.
Much of Ms. Steven's testimony on cross examination was inconsistent and not credible. For example she stated that prior to November 7, 2015, in preparation for the bedbug extermination, she "discarded all the mattresses in her apartment" she then stated that she purchased three (3) new mattresses sometime in late December, then she changed her testimony and stated that she only purchased two (2) new mattresses, at a store "in the 50s and 5th Avenue" however she could not remember the name of the store where she made the purchase, and that a friend gave her the third mattress.[FN33]
Ms. Stevens stated that in June of 2015 the landlord was given access to the apartment and exterminated for bedbugs using cryonite, steam and dust, and the process was repeated four (4) to six (6) times. She stated that in July of 2015 and August of 2015 she still had bedbugs, and to date, there is still an infestation of bedbugs in her apartment. Additionally, Ms. Stevens stated that in 2014 the petitioner exterminated for bedbugs using a steaming and freezing method and "it did not work."
She stated that sometime in 2014, she informed the landlord that she had pulmonary fibrosis and as a result, the use of a chemical exterminate when removing the bedbug infestation, would harm her.
Ms. Stevens also testified that she declined the landlord's offer to relocate her and her family while the extermination process was taking place, because she has a cat with a thyroid condition, that she needs to medicate in her home.
Ms. Stevens stated that, notwithstanding the lengthy conferencing of the matter with the [*10]Court and petitioner and petitioner's attorney, she only signed the October 26, 2015 Consent Order because she was: "under duress, in fear of being evicted and did not know her rights."
PETITIONER'S REBUTTAL CASE
MR. RICHARD BONO AS WITNESS
Petitioner called Mr. Richard Bono as a rebuttal witness. He stated that he is a senior extermination technician at Dial-A-Bug, and he has been employed at that company for about fourteen (14) years. He stated that currently he works six (6) days a week and exterminates in at least eight (8) different locations per day.
Mr. Bono stated that Dial-A-Bug does not provide pretreatment services prior to exterminating for bedbugs. Admitted into evidence, without objection, was petitioner's exhibit 2, which was a bedbug preparation "check-sheet" which Mr. Bono stated is supplied to every residence scheduled for bedbug extermination, prior to the date of extermination. He defined "a bedbug infestation" as a condition when numerous bedbugs are visible to the naked eye.
He stated that the most effective bedbug extermination treatments are "temprid" or "transport" both of which require a license to purchase and apply. He testified that when his company exterminates for bedbugs using temprid or transport, the results are guaranteed for a year (he defined "results" as a guarantee that bedbugs will not return for a year), and that cryonite and steam bedbug extermination, is not as effective as temprid or transport in eliminating a bedbug infestation.
He stated that depending on the method of extermination to be conducted, occupants will be advised not to return to the premises for different periods of time and that some processes require the occupants not to return to the premise for four (4) hours and others much longer. He stated that the amount of time that an occupant is required to remain away from the premises following a bedbug extermination treatment is written on the container which holds the type of treatment to be used during the extermination process.
As for extermination for bedbugs, Mr. Bono stated that there is an initial treatment application and a follow-up treatment application, and each application treats all areas of the premises. He stated that he has read about a treatment called "cimi-shield' and it is not as effective in exterminating for bedbugs as other treatment methods. Additionally, he stated that "cimi-shield" is not approved by the EPA and he has never exterminated using it. He defined "EPA approved" as requiring a license to acquire and dispense the product.
CROSS EXAMINATION OF MR. BONO[FN34]
Mr. Bono testified that when an apartment is not properly prepared for bedbug extermination, the extermination treatment would not be effective. He stated that "steam freeze and cryonite" extermination does not work as effectively as insecticide extermination, because the "steam freeze and cryonite" method does not utilize chemical insecticides. He stated that "steam freeze and cryonite" extermination is mainly used to exterminate for bedbugs on personal items such as fur coats.
Mr. Bono stated that he became familiar with the use of cimi-shield as a result of this case and that, he has never exterminated using cimi-shield and Dial-A-Bug does not use cimi-shield because it is not as effective at eradicating a bedbug infestation as other methods. He stated that part of the bedbug extermination process requires inserting "delta dust" into walls and electrical outlets and the use of "delta dust" along with steam and freeze is not as effective as chemical methods. He stated that if an individual is allergic to exterminates to be used, the individual would be removed during the chemical extermination process.
He stated that he does not know the amount of times that Dial-A-Bug appeared at Ms. Stevens' apartment and he is not personally familiar with the entire history between Ms. Stevens and the petitioner regarding extermination. He also stated that if a premises is properly prepared for bedbug extermination the effects will be positive.
MR. CARLOS QUINONES AS REBUTTAL WITNESS
Mr. Quinones stated that he is licensed by the State of New York to perform extermination treatments in residential and commercial premises. He stated that daily he performs bedbug treatments and averages about twenty-five (25) to thirty (30) bedbug exterminations per week. He stated that when he exterminates for bedbugs he only uses the chemicals transport or temprid. He testified that he also has experience with non chemical bedbug extermination.
Mr. Quinones testified that prior to exterminating for bedbugs, an apartment must be properly prepared for the extermination, which is the occupant's responsibility. He stated that the process of extermination for bedbugs requires spraying all areas that could have had contact with the bedbugs. He stated that the labels on the containers which carry transport or temprid, contain warnings that the occupants must not be inside the apartment for at least four (4) to six (6) hours following the treatment, and if the occupant has a respiratory condition, then the amount of time the occupants are required to remove themselves from the premises increases to twenty-four (24) to forty-eight (48) hours following treatment.
Admitted into evidence as petitioner's exhibit 4 was a document from Dial-A-Bug stating the dates and results of attempted access to Ms. Steven's apartment to exterminate for bedbugs. Mr. Quinones testified that he has been inside Ms. Steven's apartment on several occasion, initially to exterminate for roaches, for which he used a gel treatment as an accommodation to Ms. Stevens because she has a respiratory ailment.
Mr. Quinones stated that he was in Ms. Stevens' apartment on July 9, 2015, and he exterminated for bedbugs, using the non chemical method, cryonite and steam and vacuum (he stated that after the bedbugs are killed, the vacuum cleans them from the premises). He stated that the cryonite and steam and vacuum treatment was not effective to remove the bedbug infestation in Ms. Stevens apartment because the apartment is "too infested with bedbugs." Mr. Quinones testified that non chemical bedbug extermination is only effective in situations where there are very few bedbugs.
Mr. Quinones testified that when he exterminated for bedbugs in Ms. Stevens' apartment he used the cryonite and steam and vacuum method in all three (3) bedrooms and in the living room. He stated that he was in the apartment for (5) hours and the treatment "couldn't scratch the surface" which he knew before he left the apartment because he saw that the bedbugs had survived the treatment. He stated that when he returned to the premises after the July treatment [*11](in August of 2015) he saw live bedbugs. He also stated that after August of 2015, he did not exterminate at the premises.
Mr. Quinones stated that in October of 2015, he again saw live bedbugs Ms. Stevens' apartment from the entry door to the apartment, but Ms. Stevens denied him access. Additionally, he stated that on November 4, 2015 and November 23, 2015 he visited the premises and was denied access and has not been back in the apartment since November of 2015.
Mr. Quinones also stated that cimi-shield is considered a "green product" meaning that it does not contain pesticides. He also stated that unlike chemical methods for bedbug extermination, cimi-shield does not have an EPA rating and can be purchased "over the counter." He stated that when he has exterminated using cryonite, steam and vacuuming, it is supposed to have the effect of killing the bedbugs immediately, which did not work in Ms. Stevens' apartment. He also stated that he performed "drill and dust" treatment at Ms. Stevens' apartment, which is a method where holes are drilled into the walls and shots of powder are used to fill the holes and then the holes are sealed. He stated that the reason he performed this treatment was to contain the bedbugs from entering other apartments.
CROSS EXAMINATION OF MR. CARLOS QUINONES
As Ms. Stevens was self represented, this Court granted Ms. Stevens extended leeway when conducting her cross examination of Mr. Quinones. Mr. Quinones testified that he gets paid by Dial-A-Bug and he has been an exterminator since the year 2004. He stated that apartment preparation for bedbug extermination is very extensive and that kitchens can be exterminated for bedbugs as long as a non-spray nozzle is used to apply the treatment.
Mr. Quinones repeated that cryonite and steam are not pesticides and he did not exterminate in Ms. Stevens' kitchen. He stated that shoes, clothes and hats must be in bags prior to bedbug extermination. He also stated that books must be in plastic bags because bedbugs are attracted to paper and cardboard, and he does not apply bedbug extermination treatments to items in plastic bags. Additionally, Mr. Quinones testified that the "drill and dust" treatment performed at Ms. Stevens' apartment was performed to protect the occupants and apartments surrounding Ms. Stevens' apartment in an effort to contain the bedbugs from entering other apartments.
He stated that he does not know what type of "green" products Dial-A-Bug uses because he does not use them. He stated that treatments can last up to a year and that temprid can be sprayed on mattresses. Some of the questions that he was asked he previously answered, however since Ms. Stevens was now self represented, this Court granted her much leeway.
Mr. Quiones stated that on one (1) occasion, (August 3, 2015) he personally performed steam extermination services at Ms. Steven's apartment and the apartment was properly prepared for the extermination. He stated that steam and cryonite can be effective in small areas with a minimal bedbug infestation, but steam and freeze is not as effective in larger apartments such as Ms. Stevens where there are three (3) bedrooms and the infestation is substantial.[FN35] He stated [*12]that on that date he saw bedbugs at the premises.
Following Mr. Quinones testimony, the trial testimony was concluded, and the proceeding was adjourned for the submission of post trial briefs and oral argument.
POST TRIAL/HEARING SUBMISSIONS
Following the conclusion of the trial testimony, the Court heard oral argument on the parties positions and post trial briefs were submitted on January 10, 2017. On that date, the matter was marked "decision reserved."
UNDISPUTED FACTS
Although much of the testimony at the hearing of petitioner's first two (2) witnesses and respondent's first witness as to whether Mr. Lefkowitz was actually at the subject premises and was denied access on both the scheduled access dates, was inconsistent, and whether Mr. Lefkowitz accompanied Mr. Quinones on his inspection, there is no dispute that Ms. Stevens failed to comply with her obligations to provide access to the landlord and the landlord's exterminators pursuant to the October 26, 2015 Consent Order.
Additionally, it was undisputed that Ms. Stevens failed to timely provide Mr. Lefkowitz with a written estimate for bedbug extermination preparation by November 3, 2015, as required by the Consent Order of October 26, 2015, instead it was provided on November 9, 2015. Additionally, it was undisputed that Ms. Stevens failed to provide access for the bedbug extermination on November 23, 2015.
Also undisputed, was that Ms. Stevens suffers from a respiratory condition[FN36] which "flairs up" when she is exposed to certain environmental elements, such as fumes from an automobile's exhaust and chemicals used in specified extermination treatment methods.
THE APPLICABLE LAW
As Judge Chen specifically referenced Ms. Stevens' FHA and ADA claims[FN37] when posing the certified question, this Court will analyze the facts at bar as they apply to the Federal statutes.[FN38] Additionally, State[FN39] and City[FN40] laws also prohibit discrimination against an individual, based upon the individual's actual or perceived differences, and, because "[S]tate law provides greater disability protection than [F]ederal law and [C]ity law provides even broader disability [*13]protections than the [S]tate law"[FN41] this Court will also analyze Ms. Stevens' reasonable accommodation claims pursuant to the State and City human rights statutes.
The FHA[FN42] states that "[d]iscrimination in the... rental of housing shall be unlawful."[FN43] Analogously, the ADA provides in its policy statement[FN44] that: "[i]t is the policy of the United States to provide, within constitutional limitations, for fair housing throughout the United States."
Indeed, illustrative of the importance of protecting individuals with disabilities, are the words used by President Barack Obama on January 10, 2017 in his farewell address. In his address, President Obama told the world that:
"we need to uphold laws against discrimination — in hiring, and in housing, and in education, and in the criminal justice system. That is what our Constitution and highest ideals require."[FN45]Analogous to the Federal statutes and echoing the importance that President Obama places on our anti discrimination laws, the "Administrative Code of the City of New York §8-107(15)(a) requires certain 'covered entit[ies]' to make 'reasonable accommodation[s]' to enable persons with disabilities to enjoy certain rights"[FN46] which includes "[h]ousing accommodations....."[FN47] Indeed, the code states that:
"[i]n the City of New York, with its great cosmopolitan population, there is no greater danger to the health, morals, safety and welfare of the [C]ity and its inhabitants than the existence of groups prejudiced against one another and antagonistic to each other because of their actual or perceived differences, including those based on... disability...."[FN48]DISABILITY/HANDICAP
Federal law defines a "disability" "with respect to a person [as]... a physical or mental impairment which substantially limits one or more of such person's major life activities[[FN49] or] a record of having such an impairment[[FN50] ] or being regarded as having such an impairment"[FN51] and defines "handicap" "with respect to a person [as]... a physical or mental impairment which substantially limits one or more of such person's major life activities [[FN52] or] a record of having such an impairment[[FN53] ] or being regarded as having such an impairment."[FN54]
The Administrative Code of the City of New York defines a "disability" as "any physical, medical, mental or psychological impairment, or a history or record of such impairment."[FN55] Further, "physical, medical, mental, or psychological impairment" is defined as: "an impairment of any system of the body; including, but not limited to: the neurological system; the musculoskeletal system; the special sense organs and respiratory organs, including, but not limited to, speech organs; the cardiovascular system; the reproductive system; the digestive and genito-urinary systems; the hemic and lymphatic systems; the immunological systems; the skin; and the endocrine system..."[FN56]
Based upon the foregoing, it is for this Court to determine whether Ms. Stevens "..suffers [with] a "... physical [and] medical... impairment"[FN57] "[of her ]... respiratory organs, including... he[r] cardiovascular system..."[FN58] and if she does so suffer, whether the landlord is required to accommodate her by using a non chemical treatment when exterminating for bedbugs in her home as an accommodation to her condition.
WHETHER MS. STEVENS' CONDITION IS A DISABILITY/HANDICAP
As stated above, the initial issue for this Court to determine is whether Ms. Stevens' condition is a disability or a handicap, according to the applicable laws.
In a recent case, a "tenant testified that [because] she has cancer... she cannot be exposed to the chemicals that will be used by the exterminator recommended by the landlord [to exterminate for bedbugs in her home]... The tenant provided a letter from her doctor which states, '[d]ue to her medical conditions and medication.... it is recommended that a non-toxic [*14](non-chemical) form of treatment be use[d] to rid her home of bedbugs.'"[FN59] In that case, "[t]he tenant insist[ed] that the exterminator use a [non chemical] heat method to cure the bedbug infestation."[FN60] There, the Court held "...the fact that the tenant suffers from cancer does not automatically mean she is 'disabled' mandating any further accommodation by the landlord."[FN61]
Similarly, "plaintiff's cancer and attendant surgeries do not constitute a disability within the meaning of the discrimination statutes (42 USC §2112; Executive Law §292 [and] Administrative Code of City of NY §8-107 [15])."[FN62]
However, in the case at bar, at trial, Ms. Stevens' treating physician, Dr. Amin, testified that Ms. Stevens suffers from a lung condition, which was diagnosed as pulmonary fibrosis. He stated that symptoms of the condition manifest themselves through bouts of coughing and shortness of breath, which in Ms. Stevens' circumstance, is often triggered by exposure to air-bourne irritants including odors and fumes. He stated that the effect of exposure to such environmental triggers, has a negative impact on Ms. Stevens' daily life as they cause Ms. Stevens to have episodes which worsen her over all health.
Based upon the foregoing, and adopting the definitions as set forth in the Administrative Code, which provides Ms. Stevens with greater protection than the Federal and State statutes[FN63] on the unique facts here presented[FN64] because Ms. Stevens' body reacts negatively when she is exposed to certain air bourne elements, such as certain chemicals used during an extermination process, and the negative reaction "worsens her overall health" this Court determines that, substantial evidence was demonstrated[FN65] to establish that Ms. Stevens suffers from a "physical and medical... impairment..."[FN66] "[of a] system of the body; including... [her] respiratory organs, including... the cardiovascular system..."[FN67]
Based upon the foregoing, this Court must next determine, whether, Ms. Stevens, because of her disability, is entitled to be reasonably accommodated by the petitioner when removing the bedbug infestation in her home.
HOUSING ACCOMMODATION
The FHA states that discrimination in the rental of housing includes "a refusal to make reasonable accommodations in rules, policies, practices, or services, when such accommodations may be necessary to afford such person equal opportunity to use and enjoy a dwelling."[FN68] The FHA applies to "any building, structure, or portion thereof which is occupied as, or designed or intended for occupancy as, a residence..."[FN69] in "buildings consisting of 4 or more units"[FN70] and as for the "rental of housing" the definition includes: "to lease, to sublease, to let and otherwise to grant for a consideration the right to occupy premises not owned by the occupant"[FN71] and "discriminatory housing practice" is defined as an act that is unlawful under [cited provisions omitted of] title [24].[FN72]
The Administrative Code of the City of New York defines a "housing accommodation" as including "any building, structure, or portion thereof which is used or occupied or is intended, arranged or designed to be used or occupied, as the home, residence or sleeping place of one or more human beings...."[FN73] And a "covered entity" is "required to comply with any provision of... the code."[FN74]
The Administrative Code provides that "[i]t shall be an unlawful discriminatory practice for the owner, lessor, lessee, sublessee, assignee, or managing agent of, or other person having the right to sell, rent or lease or approve the sale, rental or lease of a housing accommodation, constructed or to be constructed, or an interest therein, or any agency or employee thereof [t]o... deny to or withhold from any person... of... such a housing accommodation or an interest therein because of [an] actual or perceived... disability..."[FN75] to fail to "make reasonable accommodations in their 'rules, practices, or services'... which [a]re necessary so... a disabled person, could have an equal opportunity to use and enjoy a dwelling."[FN76]
Indeed, the Code prohibits "discriminat[ion] against any person because of such person's actual or perceived... disability... in the terms, conditions or privileges of the sale, rental or lease of any such housing accommodation or an interest therein or in the furnishing of facilities or services in connection therewith."[FN77]
WHETHER THE STATUTES APPLY TO THE PREMISES AT ISSUE
Based upon the submissions to the Court, this Court finds that the petitioner is the landlord and owner of the subject premises;[FN78] that the subject premises is a leased housing accommodation,[FN79] occupied by Ms. Stevens and her family as their residence.[FN80]
As "[i]t shall be an unlawful discriminatory practice for the owner... or other person having the right to... lease... a housing accommodation... [to] deny to or withhold from any person... of... such a housing accommodation... an interest therein because of the actual or perceived... disability..."[FN81] the petitioner, in the case at bar, is a "covered entity" and therefore "required to comply with [the] provision[s] of... the code,"[FN82] by reasonably accommodating Ms. Stevens when "furnishing... services in [her home]."[FN83]
REASONABLE ACCOMMODATION: THE LEGAL STANDARD
Because "[t]he Nation's proper goals regarding individuals with disabilities are to assure equality of opportunity, full participation, independent living, and economic self-sufficiency for such individuals..."[FN84] "'reasonable accommodation[s]' to enable persons with disabilities to enjoy certain rights...."[FN85] are required to be implemented.[FN86] "'Reasonable accommodation' is defined as 'such accommodation that can be made that shall not cause undue hardship in the conduct of the [*15]covered entity's business.'"[FN87] "Precedent has held that to prevail on a reasonable accommodation claim, [a claimant] must first provide the... entity an opportunity to accommodate [the claimant] through the entity's established procedures used to adjust the neutral policy in question."[FN88]
Indeed, "a refusal to make reasonable accommodations in rules, policies, practices, or services, when such accommodations may be necessary to afford such person equal opportunity to use and enjoy a dwelling; or enjoyment of the premises... constitute[s] a denial of equal opportunity."[FN89] "A reasonable accommodation is a change, exception, or adjustment to a rule, policy, practice, or service. A person with a disability may need either a reasonable accommodation or a reasonable modification, or both, in order to have an equal opportunity to use and enjoy a dwelling..."[FN90]
"A requested accommodation is reasonable where the cost is modest and it does not pose an undue hardship or substantial burden..."[FN91]
BURDEN OF PROOF
A determination that a covered entity unlawfully discriminated against an individual based upon the individual's disability "shall be... supported by substantial evidence..."[FN92] "Substantial evidence means such relevant proof as a reasonable mind may accept as adequate to support a conclusion or ultimate fact."[FN93] "More than seeming or imaginary, it is less than a preponderance of the evidence, overwhelming evidence or evidence beyond a reasonable doubt."[FN94] "Essential attributes [of substantial evidence] are relevance and a probative character... [m]arked by... substance [a...] solid nature and [an] ability to inspire confidence[.] [S]ubstantial [*16]evidence does not rise from bare surmise, conjecture, speculation or rumor."[FN95]
Where the record does not contain substantial evidence that it would be infeasible to utilize a less restrictive means to accomplish the goal, in order to accommodate an individual's unique circumstance, the special needs of the individual must be accommodated.[FN96] Additionally, "[o]rdinarily, the duty to make reasonable accommodations is framed by the nature of the particular handicap."[FN97]
PROOF DEMONSTRATED AT THE HEARING
As stated, following the hearing, it was clear that Ms. Stevens did not comply with her obligations under the terms of the October 26, 2015 Consent Order. While both Ms. Stevens as well as her son testified that on the scheduled access dates there were family illnesses which prevented Ms. Stevens from providing access, this assertion is wholly disingenuous. Indeed, Ms. Stevens has been clear that she would not have permitted the petitioner access to exterminate the premises on the dates provided for in the October 26, 2015 Consent Order because she feared the negative effect the chemicals that the petitioner planned to use would have on her health. Moreover, as noted above, on November 6, 2015, Ms. Stevens filed an Order to Show Cause application seeking to change the November 10, 2015 access date as required by the October 26, 2015 Consent Order because she needed "clarification" of "who pays for the second prep[aration] not discussed in the stip"[FN98] (Order to Show Cause sequence 8 and Motion sequence 13).
Based upon the foregoing, it is clear to this Court that Ms. Stevens decided prior to November 10, 2015, that she would not be providing access for extermination on that date. Accordingly, it is for this Court to determine, whether Ms. Stevens presented "substantial evidence"[FN99] in admissible form, that the landlord has failed to accommodate her special needs in violation of the rights she is entitled to under applicable anti discrimination laws.
WHETHER MS. STEVENS MET HER BURDEN OF PROOF ON HER REASONABLE ACCOMMODATION CLAIM
As this Court determined that Ms. Stevens suffers from a condition contemplated by the anti discrimination statutes, and this Court also determined that Ms. Stevens is entitled to be reasonably accommodated by her landlord when removing the bedbug infestation in her home because of her health condition, this Court must determine whether the accommodation requires the landlord to use a non chemical treatment method when performing bedbug exterminating services at Ms. Stevens home, and if so, which non chemical treatment method is to be used, or [*17]whether an alternate form of an accommodation is appropriate.
Accordingly, to prevail on her reasonable accommodation claim, Ms. Stevens must demonstrate that she made a reasonable request to the landlord, to accommodate her disability when exterminating for bedbugs, which the landlord refused to accommodate.[FN100]
The evidence supports that in September of 2014 and December of 2014, as an accommodation to Ms. Stevens, because of her health condition, the petitioner's contractors exterminated the subject premises using non chemical methods in an attempt to remedy the bedbug infestation in Ms. Stevens' home. Additionally, the credible testimony supports that the prior non chemical treatment methods were unsuccessful in remedying the bedbug infestation.[FN101] Additionally, following the failure of the non chemical extermination treatment to remove the bedbug infestation in Ms. Stevens' home, the petitioner offered to temporarily relocate Ms. Stevens[FN102] when using a chemical extermination process.[FN103] Ms. Stevens declined the offer.[FN104]
Based upon the foregoing, Ms. Steven's reasonable accommodation claim must fail, as the testimony clearly showed that in response to Ms. Stevens' "request for an accommodation" the petitioner attempted, in two (2) different ways, to accommodate her special needs,[FN105] one (1) [*18]accommodation failed to cure the bedbug infestation and the other, Ms. Stevens declined.[FN106]
The Court notes that barely two (2) months ago, in a case where a tenant requested a "reasonable accommodation" because of her claimed disability, it was noted that "[t]he Court found no case law directly on point relating to a dispute about the method of extermination [to be] used by a landlord or tenant to remedy a [bedbug] infestation code violation."[FN107]
BEDBUG EXTERMINATION
"The Court finds that use of insecticide is a generally accepted practice to treat [a] bedbug problem in [a] tenant's apartment."[FN108] Generally, the "treatment regimen begins with contacting the tenant and advising him or her to wash all of their clothes in very hot water; empty all closets, drawers and cabinets... and envelop their mattresses in plastic covers."[FN109] While both the petitioner's and respondent's expert extermination witnesses testified that the regimen begins with an initial treatment and a follow-up treatment, it has been determined that "at least three [3] service calls would be required for treatment."[FN110] While "there [a]re 'no hard and fast guidelines' relating to the treatment of bedbugs,"[FN111] the experts widely agree that properly preparing a premises for bedbug extermination is critical to effectively remedy the infestation.[FN112]
Indeed, in the case at bar, both the petitioner's and the respondent's expert chemical witnesses agreed, that to properly cure a bedbug infestation, a premises must be properly prepared prior to the scheduled extermination. As it was also argued by the petitioner that Ms. Stevens failed to properly prepare the premises for bedbug extermination[FN113] this Court cannot conclude that the use of a non chemical exterminate to remove the bedbug infestation at the [*19]subject premises following proper preparation will be ineffective.[FN114]
CHEMICAL VERSES NON CHEMICAL BEDBUG EXTERMINATION TREATMENT
The credible testimony at trial was that bedbug extermination methods containing chemical insecticides are more effective at eradicating a bedbug infestation, then non chemical methods. However, the credible testimony also supports that non chemical treatments can be effective. Non chemical or "green methods" which were stated to be effective in eradicating a bedbug infestation include: "spray, freeze and vacuum" and "cimi-shield."[FN115]
Ms. Stevens expert chemical witness, Mr. Moore testified that the use of cimi-shield coupled with cryonite and vacuuming is the most effective method to eradicate bedbugs, and when using this method occupants may remain at the premises. However, Mr. Moore also testified that he has exterminated for bedbugs only three (3) times in the last six (6) months, and has not been to Ms. Steven's apartment to see the degree of bedbug infestation in her apartment.
Additionally, this Court found Mr. Moore's claim that the cimi-shield treatment has "never failed to cure a bedbug infestation" and that if it did fail, he would recommend "steaming and reapplying the cimi-shield" to sound rehearsed and uncredible,[FN116] and found petitioner's expert testimony that the bedbug infestation in Ms. Stevens' home, which he personally observed, is so severe that a non chemical extermination treatment will be less effective in curing the bedbug infestation therein.
Based upon the foregoing, this Court cannot determine that the use of a non chemical extermination treatment, where a premises is properly prepared for bedbug extermination, which also includes an extermination of the kitchen, will be ineffective to remove the bedbug infestation in Ms. Stevens' home[FN117] or whether the only method of bedbug extermination that will be effective to cure the bedbug infestation in Ms. Stevens' home must contain a chemical.
As this Court finds that the petitioner's expert chemical witnesses were more credible than the respondent's expert witness, this Court holds that the landlord is entitled to rely on the expertise of his exterminators when determining the type of extermination services to provide to his tenants.[FN118]
ENFORCEMENT OF THE TERMS OF THE STIPULATION
PETITIONER'S MOTION FOR FINAL JUDGMENT
As stated throughout the instant decision/order, the Consent Order at issue required Ms. Stevens to provide access to the petitioner's contractors on November 10, 2015 and November 23, 2015 in order to exterminate for bedbugs, which she failed to do. The default provision contained within the Consent Order at paragraph 6 reads as follows:
"In the event of default, either party may restore for appropriate relief. Upon restoration, the petitioner may seek a final judgment of possession....."Ms. Stevens argues that in the instant action, as she alleged in her Federal law suit, that because of her unique health situation, the petitioner must reasonably accommodate her when exterminating for bedbugs in her home by using a non chemical extermination method, as any use of chemicals will have a negative impact on her health. Moreover, at trial, it was Ms. Stevens' position, that the landlord is required to use the non chemical cimi-shield treatment to exterminate for bedbugs in her home, as any other non chemical treatment will not be effective to remove the bedbug infestation in her home. It is Ms. Stevens position that as a result of the petitioner's failure to accommodate her, she was not obligated to provide access to the landlord on the dates specified in the Consent Order.
Petitioner argues that the Consent Order is a stipulation of settlement, and stipulations of settlement are favored by the Courts[FN119] and not lightly set aside.[FN120] Indeed, "if the agreement on its face is reasonably susceptible of only one meaning, a [C]ourt is not free to alter the contract to reflect its personal notions of fairness and equity"[FN121] and "evidence outside the four [4] corners of a document as to what was really intended but unstated or misstated is generally inadmissible to add or vary the writing."[FN122]
Indeed, the Housing Court Judge "properly construed [the stipulation]... under settled contract principles[[FN123] ] according to the plain meaning of its terms[[FN124] which] reveals that its aim was to cure the 'Collyer'-type condition in tenant's residential unit.... [the tenant] breached the stipulation... and affording proper effect to the plain terms of the stipulation, which expressly provided for 'no further stays,' Civil Court properly declined to stay execution of the warrant[[FN125] ]" 222 E. 12 Realty v Yuk Kwan So, 2017 NY Slip Op 27000 ([App Term 1st Dept]).
Similarly, where "[t]he stipulation also provided that in the event of a breach, landlord may restore the matter to the calendar and, if a "breach is proven at a hearing,'landlord is entitled [*20]to a judgment of possession and warrant of eviction'" the Court held "strict enforcement of the parties' stipulation... is warranted based upon the principle that the parties to a civil dispute are free to chart their own litigation course."[FN126]
However, unlike the stipulation at issue in 222 East 12 Realty, which expressly provided that upon the tenants default, there would be no further stays of execution of the warrant of eviction, and the stipulation in Trio 90 LLC, where the stipulation specifically provided that upon proof of a breach of the stipulation at a hearing, the "landlord is entitled to a judgment of possession..." the stipulation in the case at bar, provided that in the event of the tenants default, the petitioner may restore the case to the calendar and "may seek a final judgment of possession."
Based upon the foregoing, in the interest of justice, this Court declines to issue a judgment of possession at this stage of the litigation.
BROAD AUTHORITY OF THE HOUSING PART OF THE CIVIL COURT
The Housing Part of the Civil Court has broad authority when executing its constitutional mandate of enforcing the housing standards in this City in order to protect and promote the public interest.[FN127] Indeed, "[w]hile the Civil Court is a Court of limited jurisdiction and has only those equity powers specifically conferred upon it by statute... [CCA §110] grants the Civil Court broad powers in landlord-tenant proceedings... [to] employ 'any remedy, program, procedure or sanction... for the enforcement of housing standards....
"It is clear that the legislature envisioned the [H]ousing [P]art of the Civil Court to be the appropriate forum in which to enforce housing standards"[FN128] by any means the Court "believes... will be more effective to accomplish compliance or to protect and promote the public interest."[FN129] Moreover, "a [C]ourt may, 'at any time, on its own initiative... make an order denying, limiting, conditioning, regulating, extending or modifying the use of any enforcement procedure.'"[FN130]
ANSWERS TO THE FEDERAL FOUR (4) QUESTIONS
As stated, the certified question was answered in the positive, and based on the unique facts here presented, the Federal four (4) questions are answered as follows:
(1) Ms. Stevens' medical condition falls within the definition of a disability;(2) Ms. Stevens, because of her disability, which her landlord was aware of is entitled to request of her landlord a reasonable accommodation by her landlord when removing the bedbug infestation in her home;(3) testimony was inconclusive to determine whether the use of a nonchemical bedbug extermination treatment, in Ms. Stevens' home, if properly prepared, will be ineffective or if the infestation at Ms. Stevens premises is so severe that chemical bedbug extermination treatments must be utilized); and(4) the landlord reasonably accommodated Ms. Stevens by exterminating for bedbugs by using a non chemical treatment, which failed to cure the bedbug infestation; and the landlord also reasonably accommodated Ms. Stevens by offering to temporarily relocate her and her family during the chemical bedbug extermination process.Accordingly, this Court issues the following Order:
ORDER OF THE COURT
Based upon the foregoing, in compliance with this Court's mandate to protect and preserve the housing stock of this City, coupled with the broad powers to accomplish that goal as granted by the Civil Court Act, and in the spirit of upholding the laws against discrimination in accordance with our constitution and highest ideals, it is hereby:
ORDERED, that the petitioner shall exterminate for bedbugs in Ms. Stevens' home; and it is further;
ORDERED, that Ms. Stevens shall provide access to the landlord and the landlord's contractors to perform said extermination and follow-up exterminations and inspections; and it is further;
ORDERED, that Ms. Stevens shall ensure that the premises is properly prepared for bedbug extermination; and it is further;
ORDERED, that the petitioner's contractors shall perform the bedbug extermination services by using any non chemical method (which may include cryonite, steam and freeze, which in the past posed no health risks to Ms. Stevens, or any other non chemical treatment) that the petitioner's contractors deem will be the most effective to eradicate the bedbug infestation at the subject premises; or if Ms. Stevens so chooses, the contractors may use a chemical treatment of petitioner's contractors choice, as long as the petitioner relocates Ms. Stevens and her family, until it is safe for them to return to the premises; and it is further;
ORDERED, that access dates are to be arranged between the parties within thirty (30) days of the date of service of a copy of this decision/order with notice of entry; and it is further;
ORDERED, that if access dates are not arranged between the parties within thirty (30) days of the date of service of a copy of this decision/order with notice of entry, the proceeding may be restored to the Court calendar, for an Order seeking appropriate relief; and it is further;
ORDERED, that, should Ms. Stevens decide that she wants the landlord to use a non chemical method of extermination, and should the non chemical method of extermination that the petitioner determined would be best to eradicate the bedbug infestation in Ms. Stevens' home, fail to eradicate the bedbug infestation at the subject premises, the proceeding may be restored to the Court calendar, for appropriate relief, including the issuance of an Order for authority to use chemicals when exterminating for bedbugs at the subject premises, with the understanding that Ms. Stevens and her family will be relocated during the process and until it is safe for them to return.
CONCLUSION
Based upon the foregoing, the certified question, as posed by the Federal Court is answered in the positive and the Federal four (4) questions having been answered as above determined, the respondent's reasonable accommodations claims are decided in accordance with the instant decision/order and the petitioner's motion for a final judgment of possession is denied without prejudice.
The foregoing constitutes the decision and order of the Court.
Dated: February 9, 2017
Brooklyn, NY
Hon. Susan F. Avery
JHC Footnotes
Footnote 1: See the "Notice of Termination" dated April 29, 2014 at paragraph g.
Footnote 2: See the stipulation of settlement, dated August 11, 2014 at paragraph 2.
Footnote 3: See the stipulation of settlement, dated September 15, 2014 at paragraph 2.
Footnote 4: See the stipulation of settlement, dated September 15, 2014 at paragraph 3.
Footnote 5: See Affirmation of Dianna Morgan, Esq., dated April 14, 2015 and the stipulation of settlement, dated September 15, 2014 at paragraph 5.
Footnote 6: See the stipulation of settlement, dated June 1, 2015 at paragraph A.
Footnote 7: See the stipulation of settlement, dated June 1, 2015 at paragraph B.
Footnote 8: See the stipulation of settlement, dated June 1, 2015 at paragraph E.
Footnote 9: See the stipulation of settlement, dated June 1, 2015 at paragraph I.
Footnote 10: See Affidavit in Support of Order to Show Cause, sworn to on November 6, 2015 by Ms. Debbie Stevens at ¶4.
Footnote 11: Stevens v 2 Perlman Drive, LLC, 15CV7041 (PKC) (US Dist Ct ED NY "Memorandum and Order" decided January 22, 2016 ([Chen, J.]) at page 3, fn 6.
Footnote 12: The "Eastern District of New York LIVE Database" printout which was supplied to this Court on the January 20, 2016 return date of petitioner's motion. It shows that on December 21, 2015, Ms. Stevens requested Federal Court Judge Pamela Chen, to issue a stay of the instant Housing Court proceeding.
Footnote 13: Stevens v 2 Perlman Drive, LLC, 15CV7041 (PKC) (US Dist Ct ED NY "Memorandum and Order" decided January 22, 2016 ([Chen, J.]) at page 3, fn 6.
Footnote 14: Stevens v 2 Perlman Drive, LLC, 15CV7041 (PKC) (US Dist Ct ED NY "Memorandum and Order" decided January 22, 2016 ([Chen, J.]) at page 3, fn 6.
Footnote 15: "[T]he [Housing] Court may recommend or employ any remedy... authorized by law for the enforcement of housing standards... to protect and promote the public interest" Civil Court Act ("CCA") §110.
Footnote 16: Stevens v 2 Perlman Drive, LLC, 15CV7041 (PKC) (US Dist Ct ED NY "Memorandum and Order" decided January 22, 2016 ([Chen, J.]) at page 3, fn 6.
Footnote 17: Stevens v 2 Perlman Drive, LLC, 15CV7041 (PKC) (US Dist Ct ED NY "Memorandum and Order" decided January 22, 2016 ([Chen, J.]) at page 4.
Footnote 18: Stevens v 2 Perlman Drive, LLC, 15CV7041 (PKC) (US Dist Ct, ED NY "Memorandum and Order" decided January 22, 2016 ([Chen, J.]) at page 1.
Footnote 19: Dinapoli v Dinapoli, 1995 WL 555740 (US Dist Ct SD NY [Sotomayor, J.]).
Footnote 20: 28 USC §2283.
Footnote 21: see Vendo Company v Lektro, 433 US 623 ([1977]).
Footnote 22: 28 USC §2283.
Footnote 23: "An aggrieved person may commence a civil action in an appropriate United States [D]istrict [C]ourt or State [C]ourt" 42 USCA §3613 (a) (1) (A) (emphasis added).
Footnote 24: Stevens v 2 Perlman Drive, LLC, 15CV7041 (PKC) (US Dist Ct ED NY "Memorandum and Order" decided January 22, 2016 ([Chen, J.]) at page 4.
Footnote 25: 2094-2096 Boston Post Rd., LLC v Mackies Am. Grill, Inc., 51 Misc 3d 150(A) (App Term 2nd Dept [2016]) citing to RPAPL article 7; Scheff v 230 E. 73rd Owners Corp., 203 AD2d 151 (1st Dept [1994]); All 4 Sports & Fitness, Inc. v Hamilton, Kane, Martin Enters., Inc., 22 AD3d 512 (2nd Dept [2005]); and 44-46 W. 65th Apt. Corp. v Stvan, 3 AD3d 440 (1st Dept [2004]).
Footnote 26: Dinapoli v Dinapoli, 1995 WL 555740 (US Dist Ct SD NY [Sotomayor, J.]).
Footnote 27: "A prima facie case of failure to accommodate requires a showing that (1) plaintiff was disabled within the meaning of the statutes; (2) the employer had notice of the disability; (3) plaintiff could perform the essential functions of his or her job, with a reasonable accommodation; and (4) the employer refused to make a reasonable accommodation" Miloscia v B.R. Guest Holdings LLC, 33 Misc 3d 466 (Sup Ct NY County [Stallman, J., 2011]) (emphasis added).
Footnote 28: Admitted into evidence as respondent's exhibits 1and 2 were copies of "Discharge Instructions" from "RJ Medical and Urgent Care" dated November 5, 2015, relating to the discharge of Mr. Michael Kneeter, a son of the respondent, from the facility.
Footnote 29: The law firm of Thomas & Spikes previously represented Ms. Stevens. On April 29, 2015 Ms. Stevens' application to appear in this proceeding as a self-represented litigant, was granted.
Footnote 30: "we nevertheless accord great deference to the [trier of fact]'s opportunity to view the witnesses, hear the testimony, and observe demeanor... Upon reviewing the record here, we are satisfied that the verdict... was not against the weight of the evidence" People v Mullings, 2017 NY Slip Op 00194 ([App Div 2nd Dept]).
Footnote 31: After filing a notice of appearance, dated April 5, 2016, W. Marilyn Pierre, Esq., appeared on behalf of Ms. Stevens, until July 25, 2016, when Ms. Stevens relieved Ms. Pierre of her services.
Footnote 32: This Court determined that Ms. Stevens' treating physical was competent to testify, see Ramjit v Motor Veh. Acc. Indem. Corp., 52 Misc 3d 15 (App Term 2nd Dept [2016]) "[p]laintiff's examining doctor testified that his... testing revealed restrictions... in plaintiff's cervical spine. However, he expressly stated that his diagnosis.... 'was based upon the... reports... that he had not performed.... Thus, contrary to the Civil Court's finding, the... test reports should not have been admitted [into evidence]" citing Wagman v Bradshaw, 292 AD2d 84 (2nd Dept [2002]).
Footnote 33: The Court notes that this testimony is in direct conflict with Mr. Robert Stevens' testimony as he testified that "Mr. Quionnes was so eager to find bedbugs that he... even lifted up the mattresses."
Footnote 34: On the date cross examination of Mr. Bono was to commence, Ms. Stevens appeared in Court with a notice from her attorney stating that she had been relieved as Ms. Stevens' counsel. When questioned on the record, Ms. Stevens stated that she discharged her attorney and wished to proceed as a self represented litigant. She declined the opportunity to adjourn the matter to seek alternate counsel.
Footnote 35: Much of Ms. Stevens' questions to Mr. Quinones during cross examination were repetitive ("asked and answered") or irrelevant to the issue to be determined at the hearing, and the proceeding was adjourned for Ms. Stevens to submit questions to the Court prior to resuming Mr. Quinones' cross examination, which was determined to be unnecessary, as the questions that Ms. Stevens planned to pose to Mr. Quinones were either previously asked and answered or irrelevant.
Footnote 36: Although the petitioner's attorney challenged Ms. Stevens' medical condition because it was not supported by documentary evidence, there is no dispute that Ms. Stevens suffers with respiratory health issues.
Footnote 37: 42 USCA §12101 et seq.; and 42 USCA §3601 et seq.
Footnote 38: "The FHA and the ADA impose similar anti[]discrimination standards for persons who suffer from disabilities and, due to their similarities, can be analyzed 'in tandem'" Tsombanidis v West Haven Fire Dept, 352 F3d 565 n. 4 (2nd Cir [2003]).
Footnote 39: New York State Executive Law §296 et seq.
Footnote 40: Administrative Code of City of New York §8-101 et seq.
Footnote 41: Edwards v Nicola, Index # 160830/2013, Sup Ct NY County, Part 17, Hagler, J., decided May 11, 2016; see also Cruz v Schriro, 51 Misc 3d 1203(A) (Sup Ct NY County [Stallman, J., 2016]) "[a]s is now well recognized, the NYCHRL explicitly requires that its provisions be construed liberally to accomplish the statute's 'uniquely broad and remedial' purposes, which go beyond those of counterpart State or [F]ederal civil rights law[s];" and Pasaturo v Home Sewing Ass'n, 2006 WL 6651623 (Sup Ct NY County [Gammerman, J.]).
Footnote 42: The Court notes that "[i]n 1988, Congress amended the Fair Housing Act of 1968 to extend its coverage to housing discrimination based on an individual's disability" Austin v Town of Farmington, 15-2238-cv, US Court of Appeals (2nd Cir [Decided June 21, 2016]).
Footnote 43: 42 USCA §3604.
Footnote 44: See, 42 USCA §3601.
Footnote 45: https://www.nytimes.com/2017/01/10/us/politics/obama-farewell-address-speech.html
Footnote 46: Matter of Marine Holdings, LLC v New York City Commn. on Human Rights, 137 AD3d 1284 (2nd Dept [2016]) lv denied 2016 NY Slip Op 83113(u).
Footnote 47: Administrative Code of the City of New York §8-107(5).
Footnote 48: Administrative Code of the City of New York §8-101.
Footnote 49: 42 USCA §3602 (h)(1).
Footnote 50: 42 USCA §3602 (h)(2).
Footnote 51: 42 USCA §3602 (h)(3).
Footnote 52: 42 USCA §3602 (h)(1).
Footnote 53: 42 USCA §3602 (h)(2).
Footnote 54: 42 USCA §3602 (h)(3).
Footnote 55: Administrative Code of the City of New York §8-101(16) (a).
Footnote 56: Administrative Code of the City of New York §8-101(16) (b) (1).
Footnote 57: LaCourt v Shenanigans Knits, Ltd, 38 Misc 3d 1206(A) (Sup Ct NY County [Mills, J., 2012]).
Footnote 58: Administrative Code of the City of New York §8-101(16) (b) (1).
Footnote 59: People v LMA Associates LLC, 42 NYS3d 577 (City Ct Mount Vernon [Seiden, J., 2016]).
Footnote 60: People v LMA Associates LLC, 42 NYS3d 577 (City Ct Mount Vernon [Seiden, J., 2016]).
Footnote 61: People v LMA Associates LLC, 42 NYS3d 577 (City Ct Mount Vernon [Seiden, J., 2016]).
Footnote 62: Sirota v New York City Board of Education, et al., 283 AD2d 369 (1st Dept [2001]).
Footnote 63: Romanello v Intesa Sanpaolo, SPA, 22 NY3d 881([2013]) "unlike the State HRL... [and the Federal] ADA... there is no accommodation... that is categorically excluded from the universe of reasonable accommodation under the City HRL."
Footnote 64: "The need for individualized inquiry when making a determination of reasonable accommodation is deeply embedded in the fabric of disability rights law" Martin v United Parcel Service of America, Inc., 104 AD3d 1173 (4 Dept [2013]).
Footnote 65: see Matter of Leibowitz v Westchester County Human Rights Commn., 145 AD3d 1008 (App Div 2nd Dept [2016]) "...the determination of the... Human Rights Commission... that the petitioner was not disabled within the meaning of the... [local] Fair Housing Law... and that he was not handicapped within the meaning of the [F]ederal Fair Housing Act, was supported by substantial evidence...."
Footnote 66: Administrative Code of the City of New York §8-101(16) (a).
Footnote 67: Administrative Code of the City of New York §8-101(16) (b) (1).
Footnote 68: 42 USCA §3604 (f)(3)(A).
Footnote 69: 42 USCA §3602 (b).
Footnote 70: 42 USCA §3604 (f)(7)(A).
Footnote 71: 42 USCA §3602 (e).
Footnote 72: 42 USCA §3602 (f).
Footnote 73: Administrative Code of the City of New York §8-101(10).
Footnote 74: Administrative Code of the City of New York §8-101(17) (b) (1).
Footnote 75: Administrative Code of the City of New York §8-107(5) (a) (1).
Footnote 76: Wilson v Phoenix House, 42 Misc 3d 677 (Sup Ct Kings County [Silber, J., 2013]) citing to the NYC Administrative Code §8—107(15).
Footnote 77: Administrative Code of the City of New York §8-107(5) (a) (2).
Footnote 78: see, petition dated June 3, 2014 at ¶1 "Petitioner is... the landlord and owner of the premises."
Footnote 79: see, Petition dated June 3, 2014 at ¶¶2, 6 and Administrative Code of the City of New York §8-101(10) "[a] housing accommodation [is]... any building, structure, or portion thereof which is used or occupied.... as the home, residence or sleeping place of one or more human beings..."
Footnote 80: see, petition dated June 3, 2014 at ¶¶2, 6 and 7.
Footnote 81: Administrative Code of the City of New York §8-107(5) (a) (1).
Footnote 82: Administrative Code of the City of New York §8-101(17) (b) (1).
Footnote 83: Administrative Code of the City of New York §8-107(5) (a) (2).
Footnote 84: 42 USCA §12101(7).
Footnote 85: Matter of Marine Holdings, LLC v New York City Commn. on Human Rights, 137 AD3d 1284 (2nd Dept [2016]) lv denied 2016 NY Slip Op 83113(u).
Footnote 86: 42 USC §3604(f)(3).
Footnote 87: Matter of Marine Holdings, LLC v New York City Commn. on Human Rights, 137 AD3d 1284 (2nd Dept [2016]) lv denied 2016 NY Slip Op 83113(u) citing to Administrative Code of City of NY §8-102(18).
Footnote 88: "Smith is unable to proceed on a reasonable accommodation claim because she has not alleged that she requested an accommodation that was denied...." Smith v NYCHA, 410 Fed Appx, 404 (US Court of Appeals 2nd Cir [2011]).
Footnote 89: Austin v Town of Farmington, 15-2238-cv, US Ct of Appeals 2nd Cir, Decided, June 21, 2016, citing to 42 USC §3604(f)(3).
Footnote 90: See Joint Statement of the Department of Housing and Urban Development and the Department of Justice, Reasonable Modifications Under the Fair Housing Act (March 5, 2008) at www.hud.gov/offices/fheo/disabilities/reasonable_modifications_mar08.pdf
Footnote 91: See Olson v Stark Homes, Inc., 759 F3d 140 at 156 (2nd Cir [2014]); see also Joint Statement on Reasonable Accommodations, id., at 7; and Salute v Stratford Greens Garden Apartments, 136 F3d 293 (2nd Cir [1998]).
Footnote 92: "In a proceeding to review a determination of the Commission finding that a covered entity unlawfully discriminated against a complainant, the Commission's finding 'shall be conclusive if supported by substantial evidence on the record considered as a whole'" Matter of Marine Holdings, LLC v New York City Commn. on Human Rights, 137 AD3d 1284 (2nd Dept [2016]) lv denied 2016 NY Slip Op 83113(u) citing to Administrative Code of City of NY §8-123; and Matter of ISS Action Sec. v New York City Commn. on Human Rights, 114 AD3d 943 (2nd Dept [2014]); Matter of Brooklyn Hosp. Med. Ctr. v DeLeon, 208 AD2d 624 (2nd Dept [1994]).
Footnote 93: Matter of Bottom v Annucci, 26 NY3d 983 ([2015]) [internal quotation marks omitted]).
Footnote 94: 300 Grataman Ave. Assoc. v State Div. of Human Rights, 45 NY2d 176 ([1978]).
Footnote 95: 300 Grataman Ave. Assoc. v State Div. of Human Rights, 45 NY2d at 180 (citations omitted).
Footnote 96: See, Matter of Marine Holdings, LLC v New York City Commn. on Human Rights, 137 AD3d 1284 (2nd Dept [2016]) lv denied 2016 NY Slip Op 83113(u) "[h]ere, the record did not contain any substantial evidence rebutting the petitioners' showing that it would be structurally infeasible to install a handicapped accessible entrance to the complainant's apartment" (and cases cited therein).
Footnote 97: See, United States v Salvation Army, 1999 WL 756199 (SDNY [Pauley, J.]).
Footnote 98: See Affidavit in Support of Order to Show Cause, sworn to on November 6, 2015 by Ms. Debbie Stevens at ¶4.
Footnote 99: 300 Grataman Ave. Assoc. v State Div. of Human Rights, 45 NY2d 176 ([1978]).
Footnote 100: "In response to petitioner's request for an accommodation, the agency attempted, at length, and for years, to engage... her, in an effort to find a way to accommodate her disability..... [however the] [p]etitioner... failed to carry out her own obligation to 'act reasonably' in response to the agency's accommodation overtures In re KJ, v New York City Housing Authority, 2017 NY Slip Op 00564 (App Div [1st Dept]).
Footnote 101: Ms. Stevens' contention in her post trial brief at pages 4 through 5 that the non chemical bedbug extermination which the landlord performed was successful in her apartment "however they did not get rid of [the bedbugs] in other parts of the building and they [the bedbugs] came back to us [from] the apartment upstairs as well as other apartments..." is not supported by the credible trial testimony.
Footnote 102: "[R]espondent's temporary relocation is analogous to the [mere] inconvenience ordinarily caused to tenants having repairs completed in their apartment" 207-211 West 144th Street Tenant Ass'n. v Alberta Cosgrove, 2003 WL 22518446 (Civ Ct NY County [Lebovits, J.]); additionally, "the equities weigh in favor of plaintiff [landlord] given that defendants [tenants] will only be temporarily inconvenienced by [the relocation]... so that the licensed professional may properly treat [the tenant's a]partment... for bed bugs" 730 West 183rd Street LLC v Khaddidi, 2013 NY Slip Op 32298 (Sup Ct NY County [James, J.,]).
Footnote 103: Petitioner's extermination witness testified that the chemicals used to exterminate for bedbugs, kills the bedbugs on contact and that the container holding the chemicals used for such extermination contains a statement of the amount of time the apartment is to remain vacant following it's use, and certain chemicals are contained in containers with tables of the duration that an individual should stay out of the premises following their use, depending on the individuals age and health condition and whether the individual suffers from a respiratory ailment.
Footnote 104: "In response to petitioner's request for an accommodation, the agency attempted, at length, and for years, to engage... her, in an effort to find a way to accommodate her disability..... [however the] [p]etitioner... failed to carry out her own obligation to 'act reasonably' in response to the agency's accommodation overtures In re KJ, v New York City Housing Authority, 2017 NY Slip Op 00564 (App Div [1st Dept])
Footnote 105: Smith v NYCHA, 410 Fed Appx, 404 (US Ct of Appeals 2nd Cir [2011]).
Footnote 106: see Fantauzzi v New York State Div. of Human Rights, 113 AD3d 518 (1st Dept [2014]) "[s]ubstantial evidence supports [the] determination that [the landlord]'s offer of a first-floor apartment in their apartment building during the three-week period when the building's lone elevator would be out of commission for repairs was a reasonable accommodation to petitioner's disability."
Footnote 107: People v LMA Associates LLC, 42 NYS3d 577 (City Ct City of Mount Vernon [Seiden, J., 2016] decided on November 30, 2016).
Footnote 108: People v LMA Associates LLC, 42 NYS3d 577 (City Ct Mount Vernon [Seiden, J., 2016]).
Footnote 109: Assoc. v CW, 24 Misc 3d 1225(A) (Civ Ct Bx County [Madhaven, J., 2009]).
Footnote 110: Bender v Green, 24 Misc 3d 174 (Civ Ct NY County [Kraus, J., 2009]).
Footnote 111: Assoc. v CW, 24 Misc 3d 1225(A) (Civ Ct Bx County [Madhaven, J., 2009]).
Footnote 112: "Like Mr. Kanaragan [petitioner's first expert witness exterminator], Mr. Eisenberg [petitioner's second expert witness exterminator] too, stressed that a key factor in bedbug treatment is tenant compliance with pre-treatment guidelines" Assoc. v CW, 24 Misc 3d 1225(A) ([Madhaven, J., 2009]).
Footnote 113: Mr. Quinones testified that on only one (1) occasion was Ms. Stevens' apartment properly prepared for bedbug extermination.
Footnote 114: It is noteworthy that in London Terrace Associates v Perykaz, 35 Misc 3d 130(A) (App Term 2nd Dept [2011]) the Court found that a final judgment of possession was properly granted to the landlord in "failure to provide access" holdover summary proceeding, where the tenant granted the landlord access for bedbug extermination but did not prepare her apartment for the extermination.
Footnote 115: Petitioner's expert exterminator "...testified as to a variety of techniques being employed to treat[] bedbugs ranging from dry heat to freezing to bedbug sniffing dogs" Assoc. v CW, 24 Misc 3d 1225(A) (Civ Ct Bx County [Madhaven, J., 2009]).
Footnote 116: "[T]he [trier of fact] is entitled to reject the opinion of an expert witness, particularly where such testimony is contrary to the testimony of another expert witness whom the [trier of fact] finds more credible" Wentland v E.A. Granchelli Developers, Inc., 145 AD3d 1623 (4th Dept [2016]).
Footnote 117: See petitioner's post trial memoranda of law at page 2 ¶2.
Footnote 118: see, e.g., Gallagher v New York Dock Co., 19 NYS2d 789 (Sup Ct Kings County [Hallinan, J., 1940]).
Footnote 119: Hotel Cameron, Inc. v Purcell, 35 AD3d 153, 155 (1st Dept [2006]).
Footnote 120: Hallock v State of NY, 64 NY2d 224 ([1984]).
Footnote 121: Greenfield v Philles Records, Inc., 98 NY2d 562, 569 ([2002]).
Footnote 122: W.W.W. Associates, Inc. v Frank Giancontieri, 77 NY2d 157, 162 ([1990]).
Footnote 123: citing Hotel Cameron, Inc. v Purcell, 35 AD3d 153, 155 (1st Dept [2006]).
Footnote 124: citing Greenfield v Philles Records, 98 NY2d 562, 569 [2002]).
Footnote 125: citing 565 Tenants Corp. v Adams, 54 AD3d 602 (1st Dept [2008]) and 521 East 72nd St. Realty Co., LLC v Borovicka, 26 Misc 3d 139 [A] (App Term 1st Dept [2010]).
Footnote 126: Trio 90 LLC v Williamson, 53 Misc 3d 149(A) (App Term 1st Dept [2016]).
Footnote 127: CCA §110 (c).
Footnote 128: Missionary Sisters of the Sacred Heart v Meer, 131 AD2d 393 (1st Dept [1987]).
Footnote 129: D'Agostino v Forty-Three E. Equities Corp., 16 Misc 3d 59 (App Term 1st Dept [2007]) citing to CCA §110 (c).
Footnote 130: Brown v Wilson, 51 Misc 3d 145(A), (App Term 2nd Dept [2016]) citing CPLR §5240.
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