Ekman v Jo Fra Props.

[*1] Ekman v Jo Fra Props. 2004 NY Slip Op 51359(U) Decided on October 20, 2004 Civil Court Of The City Of New York, New York County 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 October 20, 2004
Civil Court of the City of New York, New York County

JUNE EKMAN, Petitioner,

against

JO FRA PROPERTIES, DENISE MISTRETTA, and DEPARTMENT OF HOUSING PRESERVATION AND DEVELOPMENT OF THE CITY OF NEW YORK, Respondents.



6502/2003



Jeffrey S. Ween & Associates, New York City (Jeffrey S. Ween of counsel), for petitioner.

Rose & Rose, New York City (David P. Haberman of counsel), for respondents.

Gerald Lebovits, J.

Claiming that she had been without gas service in her third-floor loft since August 2003, petitioner commenced this Housing Part (HP) proceeding against respondents Jo Fra Properties and Denise Mistretta in November 2003. In a consent order dated November 24, 2003, the Honorable Kevin C. McClanahan directed respondents to restore petitioner's gas service. On November 25, 2003, Judge McClanahan stayed enforcement of his order until December 3, 2003, for respondents to install electrical lines, electrical heaters, and electrical hot-water heaters in petitioner's loft. On December 5, 2003, the parties entered into a stipulation in which petitioner agreed to extend respondents' time to restore gas services until January 15, 2004, and respondents agreed to give petitioner's attorney weekly written progress reports about the status of restoring petitioner's gas services. On January 16, 2004, a consent order both parties signed required respondents to restore petitioner's gas services by February 15, 2004, and to reimburse petitioner for the expenses she incurred by being displaced from her home. Respondents agreed to pay [*2]petitioner up to $2600 a month for her relocation costs through January 14, 2004, and up to $125 a week for her to rent a business studio. Respondents complied with that part of the agreement that required them to pay petitioner for her relocation and rental expenses.

On March 3, 2004, petitioner brought an order to show cause to restore the case to hold respondents in contempt of court. Petitioner alleged that she received no status reports for the weeks of January 16, 2004, January 23, 2004, and February 6, 2004, and that the weekly reports dated January 30, 2004, and February 13, 20, and 27, 2004, were insufficient to apprise her of the status of the repairs. On April 14, 2004, the parties entered into a stipulation to extend until May 10, 2004, the time for respondents to restore gas services. Under the April 14 stipulation, petitioner withdrew the March 3, 2004, order to show cause to hold respondents in contempt. The April 14 stipulation also required that all the terms of the January 16 consent order continue to be given full force and effect until May 10, 2004. In the April 14 stipulation, respondents further agreed to restore running cold water by April 16, 2004, and to pay $7500 for petitioner's attorney fees, $1162 for petitioner's relocation fees, and $3000 in civil penalties in addition to the amounts agreed to on January 16, 2004. Respondents restored petitioner's running cold water before April 16, 2004. Respondents also paid petitioner the agreed amounts for her attorney fees and relocation costs and for the civil penalties.

Petitioner now argues that respondents and their attorneys failed to comply with the stipulation of April 14, 2004, which required respondents to restore gas services to petitioner's loft by May 10, 2004. Petitioner moves to hold respondents and their attorneys, Rose & Rose, in civil and criminal contempt under CPLR 5104 and Judiciary Law §§ 750 and 753 and to impose $250 a day in civil penalties from April 14, 2004, to the present for respondents' alleged failure to comply with the January 16, 2004, consent order and with the agreements the parties entered into after the November 24, 2003, consent order was issued. The Department of Housing Preservation and Development has not submitted papers and takes no position on petitioner's motion.

The parties disagree about what ultimately caused the delay in restoring petitioner's gas services. Respondents argue that the default is attributable to petitioner because the delay in restoring gas services resulted directly from petitioner's illegally installing an illegal heating system without respondents' knowledge or consent. Respondents allege and petitioner does not deny that petitioner installed a heating system that did not meet with the Housing Maintenance Code (HMC) requirements. Respondents also allege and petitioner does not deny that petitioner installed the heating system without obtaining the proper permits, filing the proper plans, or obtaining the proper authorization from respondents or the Department of Buildings (DOB). Respondents contend that they became aware of the illegal heating system on April 22, 2004, the day the DOB came to inspect the repairs to petitioner's gas lines and to authorize restoration of gas services to petitioner's loft. Respondents state that the lines they installed to restore petitioner's gas services passed the April 22 inspection but that gas services could not be restored by May 10, 2004. Respondents allege in their affirmation in opposition to petitioner's motion that the DOB required them to resubmit plans for the heating system and perform some work to [*3]legalize the heating system after the DOB discovered the illegal heating system. Respondents conclude that gas services was not restored by May 10, because it took time for them to legalize petitioner's illegally installed illegal heating system. Accordingly, respondents argue that they should not be held in contempt or subjected to civil penalties for the delay.

After the DOB inspection on April 22, 2004, the DOB required respondents to prepare and file a boiler application for the illegal heating system with the DOB's Boiler Division. Respondents' architect completed certified drawings of the gas system including petitioner's illegal heating system and then filed the drawings with Boiler Division on May 21, 2004. On July 2, 2004, the Boiler Division inspected the boiler petitioner installed and found that additional work was required to legalize the heating system. The Boiler Division required respondents to build a boiler room to enclose the boiler and to install emergency shutoff switches, manual reset devices, and an emergency remote control switch outside the boiler enclosure. Respondents allege that they completed at their own expense and as quickly as they could all the work the Boiler Division required. Respondents also claim that the additional work petitioner's illegal heating system created was unforeseeable when they entered into the stipulation on April 14, 2004.

Petitioner alleges in her affirmation in support for her motion that respondents were aware of the illegal heating system well before the DOB inspection and that respondents should have taken steps to legalize the system before May 10, 2004. Petitioner does not dispute that she did not notify respondents about the illegal heating system when she installed it. She alleges simply that she supplied information to respondents' plumber regarding the heating system sometime after the illegal installation. Petitioner also alleges that respondents' architect was aware of the heating system before the DOB's inspection. Petitioner's Exhibit "A," annexed to her reply affirmation in support of her motion for contempt, is a copy of floor plans with some notation regarding petitioner's heating system. Petitioner claims that respondents' architect made notations on the floor plans before March 2004. Petitioner asserts that this shows that respondents were aware of the illegal heating system.

The court concludes that Exhibit "A" might show that respondents' architect was aware of some part of the heating system that petitioner installed, but it does not prove that respondents knew that the heating system was illegal or that they knew what work was required to legalize it before they signed the April 14 stipulation. Petitioner's Exhibit "B," annexed to her reply affirmation in support of her motion for contempt, is a copy of a printout from the DOB Web site of the file regarding this premises. Among the 28 items the DOB required respondents to submit by March 18, 2004, was a "900A boiler unit approval" form. Exhibit "B" shows that the DOB had not received the form by March 18, 2004. Form 900A is a notice DOB requires before someone installs a new boiler, but Exhibit "B" does not refer specifically to petitioner's illegally installed boiler. Exhibit "B" shows that respondents believed they had to install a boiler in the building. Exhibit "B" does not prove that the respondents knew of petitioner's illegally installed illegal heating system before they agreed to restore gas services to petitioner's loft by May 10. [*4]

Petitioner argues that respondents cannot raise her illegally installing a heating unit as a valid defense to her motion to hold respondents in contempt and to impose civil penalties. Petitioner cites MDL §§ 280 and 284 (1) for the proposition that it is respondents' responsibility to legalize the heating system, regardless whether the condition resulted from her illegal installing the illegal heating system. MDL § 280 is the Legislature's findings that there is a public emergency involving commercial space converted into residential units. MDL § 284 (1) establishes only a statutory time period for a landlord of an interim multiple dwelling to comply with the HMC. These statutes were passed to ensure that newly residential units are renovated safely and quickly so that they comply with the HMC. (MDL § 280; see also Loft Realty Co. v Aky Hat Corp., 123 Misc 2d 440, 444 [Civ Ct, NY County 1984], affd 131 Misc 2d 541 [App Term, 1st Dept 1984, per curiam].) They are inapplicable to resolving petitioner's motion to hold respondents in civil and criminal contempt for respondents' failure to comply with the January 16, 2004, court order to restore gas services by May 10, 2004.

Petitioner does not address her failure to obtain the proper permits, to submit the plans to the DOB, or to obtain authorization for the heating system she installed. Petitioner states that she could not have legally installed the heating system without respondents' permission. Petitioner argues that respondents knew that she did not obtain their permission to install the heating system. Petitioner concludes that when respondents' employees saw the heating system, they should have known or investigated whether the proper documents had been filed and whether petitioner obtained the proper authorization to install the heating system.

Petitioner's argument is not meritorious. The only way respondents' employees would have known what work had to be done to restore petitioner's gas service would have been if petitioner actually notified respondents of the illegal heating system, which petitioner did not do. Equity requires that the party seeking contempt come to court with clean hands. (See e.g. DHPD v St. Thomas Equities Corp., 128 Misc 2d 645, 651 [App Term, 2d & 11th Jud Dists 1985] [holding that basic precept of American law is that courts not allow wrongdoers to profit from illegal conduct].) Petitioner's installation of the heating system without obtaining respondents' permission is the ultimate cause of the delay in restoring petitioner's gas services. Petitioner's motion to hold respondents in civil and criminal contempt for failure to restore gas services by May 10, 2004, is denied because she, not respondents, is culpable for the delay.

Housing Maintenance (NYC Admin.) Code § 27-2115 (k) (3) (iv) provides a complete defense to imposing civil penalties if the failure to comply with a court order results from the act, negligence, neglect, or abuse of someone not in the owner's employ or subject to the owner's direction. In this case, petitioner's acts caused the delay in restoring gas services. Petitioner's motion to impose civil penalties on respondents for the delay in restoring petitioner's gas services is therefore denied.

Petitioner alleges that under the stipulation of December 5, 2003, respondents' counsel, Rose & Rose, were obliged to give petitioner a weekly report regarding the status of the gas services repairs. Petitioner alleges that Rose & Rose did not comply with the agreement and that [*5]the law firm should be held in criminal contempt. Respondents point to the December 5 stipulation and a consent order dated January 24, 2004, both of which provided that respondents, not respondents' attorneys, were required to provide weekly status reports. Neither the stipulation nor the consent order required respondents' attorneys to do anything. A violation of an existing judicial order is a prerequisite to imposing civil or criminal penalties for contempt. (See McCain v Dinkins, 84 NY2d 216, 226 [1994].) Respondents' attorneys are not subject to any judicial order and cannot be in criminal or civil contempt of court for failure to provide weekly status reports to petitioner.

Respondents, however, had an obligation to provide weekly status reports to petitioner under the December 5 stipulation. Understandably, the parties have focused much of their argument on whether the court should sanction respondents for the delay in restoring gas services to petitioner's loft and little on the weekly status reports. However, the court cannot overlook petitioner's unclean hands in installing an illegal heating system that made complying with the court orders and stipulations much more difficult for respondents. (See e.g. Lacks v City of New York, 156 Misc 2d 749, 754 [Sup Ct, NY County 1992] [holding that defendant must show it had no part in creating conditions from which it seeks relief].) Petitioner's motion to hold respondents in civil or criminal contempt for failing to provide petitioner a status report every week is denied.

Petitioner's motion to hold respondents and their attorneys in civil and criminal contempt and to impose civil penalties is denied. No disputed material issues of fact requiring a hearing remain, and both sides ask that the motion be resolved on the papers, without a hearing. (See e.g. DHPD v Gottlieb, 136 Misc 2d 370, 374 [Hous Part, Civ Ct, NY County 1987] [requiring contempt hearing only to resolve issues of material fact].) Petitioner and respondents agree that the illegal heating system needed to be legalized to restore gas services to petitioner's loft. Petitioner does not dispute that she installed the illegal heating system. Nor does petitioner dispute that she did not follow the proper procedures to install the heating system. Petitioner does not dispute that respondents found out from the DOB after the April 14 stipulation requiring repairs by May 10 that additional work was required to restore gas services to petitioner's loft. And petitioner does not dispute that respondents built an enclosure for the boiler and installed the required safety devices to legalize the heating system or that respondents filed the amended plans with the DOB to restore petitioner's gas services—all of which occurred after the April 14 stipulation and after the respondents discovered petitioner's illegally installed heating system.

This decision is limited to finding that imposing civil penalties on respondents is inappropriate and that respondents have not acted contumaciously in failing to restore petitioner's gas services by May 10, 2004, or in failing to supply petitioner with a status report every week. Respondents still are obligated to restore petitioner's gas services.

The court does not know whether respondents have restored gas services to petitioner's loft by now. Respondents' affirmation in opposition dated September 7, 2004, makes clear that gas services had not been restored to petitioner's loft by September 7. Nor does the understand [*6]why respondents did not return to court to vacate or amend the stipulation when they became aware of petitioner's illegal heating system or when they became aware from the DOB on April 22 of the additional work that became necessary to legalize the system for gas services to be restored to petitioner's loft.

Accordingly, if respondents are responsible henceforth for any delay in restoring gas services immediately (if gas services have not yet been restored), this court will consider vacating this opinion and find respondents in contempt and impose civil penalties.

This opinion is the court's decision and order.

Dated: October 20, 2004

J.H.C.