Allen v Rosenblatt

[*1] Allen v Rosenblatt 2004 NY Slip Op 51666(U) Decided on December 22, 2004 Civil Court Of The City Of New York, New York County Lebovits, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on December 22, 2004
Civil Court of the City of New York, New York County

MELVIN ALLEN, Petitioner,

against

STACY ROSENBLATT, PETER GOLIA, and 2649 FREDERICK DOUGLASS REALTY CORP., Respondents,



HP 920/2003



New York City Department of Housing Preservation and Development (Abbott Gorin, Lynette P. Parker, and Deborah Rand of counsel).

Stuart A. Klein, New York City, for co-respondents Rosenblatt and 2649 Frederick Douglass Realty Corp.

Lee M. Nigen, New York City, for co-respondent Golia.

Gerald Lebovits, J.

The Motion for Civil Penalties and Contempt

A hearing was held over four days in November and December 2004 on a motion by co-respondent Department of Housing Preservation and Development of the City of New York (DHPD) to hold respondents Stacy Rosenblatt, Peter Golia, and the 2649 Frederick Douglass Realty Corporation in criminal and civil contempt (Judiciary Law §§ 750 [A] [3] [criminal contempt] & 753 [A] [8] [civil contempt]; CPLR 5104 & NYC Admin [Housing Maintenance] Code [HMC] § 27-2124 [contempt in general]; Civ Ct Act § 110 [e] & Judiciary Law § 757 [authorizing Civil Court Housing Part judges to punish for contempts]) and to pay civil penalties under HMC § 27-2115. DHPD seeks monetary penalties and incarceration.

The broad issue before the court is whether Rosenblatt, Golia, and the corporation (collectively, the respondents) violated the Honorable Jerald B. Klein's order and notice of violation of August 5, 2003, directing the three of them to repair "the conditions listed in the DHPD vacate order dated 7/25/03 and the Dept. of Building [DOB] vacate order dated 7/23/03 . . . within 7 days from the date of the signing of this order, so that such vacate orders against the subject premises are removed." (Judge Klein's Order and Notice of August 5, 2003, page 1, attached to Order to Show Cause at Exhibit B.) But the court cannot adjudicate that broad issue. DHPD did not attach the DOB's vacate order to its order to show cause seeking penalties and contempt. Judge Klein's order, moreover, does not unequivocally require respondents to remove the vacate orders. Rather, his order directed respondents to correct conditions.

Accordingly, the limited issue before the court is whether respondents repaired "all those conditions listed in the DHPD vacate order dated 7/25/03," (Judge Klein's Order and Notice of August 5, 2003, page 2, attached to Order to Show Cause at Exhibit B), which Judge Klein "classified as 'C' violations." (Id.) The conditions in the DHPD vacate order are "1. Defective first means of egress, stairs case [sic] in danger of collapse; 2. Cascading water leak all stories public hall; 3. Exposed electrical wires; 4. Accumulation of construction rubbish throughout all stories public hall; 5. Illegal occupancy at cellar; 6. No boiler enclosure at cellar; 7. Defective heating system; 8. Obstruction of secondary means of egress, by rubbish at rear yard; 9. Defective and leaky roof." (Judge Klein's Order and Notice of August 5, 2003, attachment, appended to Order to Show Cause at Exhibit A.)

The evidence proves beyond a reasonable doubt that respondents failed to correct conditions in the DHPD vacate order and, therefore, that respondents violated the court's August 2003 order. Respondents' failure was wilful, contumacious, and undertaken in a manner calculated to and which did impede and prejudice DHPD's right to enforce housing standards to preserve housing free from unsafe and unhealthy conditions. (See HMC § 27-2002.) Respondents are found guilty of civil and criminal contempt, and a judgment for civil penalties is entered against them, all as explained below.

The Background of this Litigation

The proceeding underlying this motion for penalties and contempt began as a tenant-initiated Housing Part (HP) proceeding for repairs to 2649 Frederick Douglass Boulevard brought by petitioner Melvin Allen by order to show cause returnable on June 10, 2003. While the case was pending, DHPD and DOB issued vacate orders, both dated late July 2003. Judge Klein then held a three-day trial that concluded on August 5, 2003, with an order requiring respondents to correct the violations in seven days. The corporation was not originally a named respondent, but respondent Rosenblatt added it by stipulation on June 10, 2003. Respondent Golia also had not been a respondent named in the original caption, but he was added as a respondent in the body of the August 2003 order to correct. Contending that seven days was not enough to correct the violations, respondent corporation sought in a motion dated August 25, 2003, to renew Judge Klein's August 5 order. Judge Klein denied the motion. (See Decision and Order of Sept. 11, 2003.)

In the meantime, DHPD moved by order to show cause for civil penalties and contempt, returnable on September 11, 2003. The motion was adjourned for lengthy periods and tried over several days when, on May 5, 2004, Judge Klein dismissed the penalties and contempt motion against Golia because of improper service. (See Decision and Order of May 5, 2004.) Judge Klein found that the moving papers were served only on an attorney, Lee M. Nigen, Esq., who did not represent Golia, (id. at 3-4), although Nigen now represents Golia. Judge Klein also dismissed for improper service the motion for criminal contempt against Rosenblatt and the corporation. (See id. at 4.) After finding that DHPD failed to introduce into evidence his underlying order of August 5, 2003, Judge Klein then dismissed without prejudice, in June 2004, the remainder of the civil-penalty and contempt motion. (See Decision and Order of June 4, 2004, at 1-2.)

Respondents' Relitigation of Defenses

Other than submit a motion to dismiss dated July 29, 2004, respondents did not answer this motion for penalties and contempt. Their answer is limited to a general denial. At trial, however, they orally raised a series of objections based on the procedural history of this case.

Golia argues that he is not a party and thus cannot be held in contempt. Significantly, co-respondents Rosenblatt and 2649 Frederick Douglass Realty Corporation disagree; they have argued that Golia is subject to the court's jurisdiction. (See Affirmation of Stuart A. Klein, Esq., of May 17, 2004, at 14, ¶ 13 [asserting that it "is beyond dispute" "[t]hat Golia was, in fact, a party to the proceedings"].) Nonetheless, Golia's argument is based on Judge Klein's decision and order of May 5, 2004, which observed that any penalty or contempt motion against him is defective because Golia was not named as a respondent in the original, underlying proceeding or even in the first contempt motion. But Judge Klein made note of that only in the context of [*2]dismissing the penalty and contempt proceeding against Golia for lack of service of the motion for penalties and contempt on him.

This court does not know how it comes to pass that Golia appeared in Judge Klein's August 2003 order to correct. Neither did Judge Klein, apparently. (See Decision and Order of May 5, 2003, at 1 [remarking that "Curiously Mr. Golia was not a respondent in the original proceeding"].) Appear in the order to correct he does, however. Judge Klein therefore decided more than a year ago that Golia is a party. In response to Mr. Nigen's question "whether Mr. Golia's considered a party or non-party by this court," Judge Klein held that "[i]f Mr. Golia is named in the Order he is a party." (Transcript of Sept. 16, 2003, at 15, in Affirmation of Stuart A. Klein, Esq., of May 17, 2004, at 4, ¶ 13.) Golia's remedy was to have moved before Judge Klein to have himself removed as a respondent subject to the court's order to correct or to have appealed timely, and he did neither. Golia is the managing agent of the subject premises, according to the certified Multiple Dwelling Registration (MDR) Statement of August 1, 2003, which DHPD introduced into evidence in this proceeding at Exhibit 1. He is properly subject to the court's jurisdiction, and he was obliged to comply with any court order of which he had notice.

Lack of notice is Golia's second defense. Although the law requires CPLR 308 service, not personal delivery (e.g. DHPD v 24 W. 132 Equities, Inc., 137 Misc 2d 459, 460 [App Term, 1st Dept 1987, per curiam], affd 150 AD2d 181 [1st Dept 1989, mem]), Golia claimed orally at trial that he was "not served personally" and thus cannot be held in criminal contempt. Having argued this earlier (see Motion to Dismiss, Affidavit of Golia dated July 29, 2004, at 8-9, ¶¶ 19-24), Golia may not relitigate this issue before this court now. The Honorable Kevin C. McClanahan denied it in his decision and order of August 20, 2004. (See Allen v Rosenblatt, NYLJ, Sept. 2, 2004, at 20, col 1 [Hous Part, Civ Ct, NY County] [finding "respondents' assertion of lack of personal jurisdiction to be without merit"].)

Once again attempting to relitigate, Golia argues that Judge Klein's dismissal of May 5, 2004, was with prejudice. If Golia is correct, this proceeding cannot go forward in its current form. But the law-of-the-case doctrine precludes re-adjudication by a court of coordinate jurisdiction. (Martin v City of Cohoes, 37 NY2d 162, 165 [1975].) As this court wrote on November 9, 2004, "Judge McClanahan twice—in his orders of 8/20/04 and 8/26/04—ruled that Judge Klein's dismissal was without prejudice."

Rosenblatt and the corporation also moved orally to dismiss, they on the ground of improper certifications and defects in DHPD's motion for contempt. This court during the hearing denied the motion. The evidence showed certification compliance on the back of the petition as required by CPLR 5104, and the notices and warnings on the motion fully comply with the Judiciary Law §§ 750 and 753, even though the body of the motion does not include the particular Judiciary Law subdivisions for civil and criminal contempt. Their motion for a Mapp hearing (Mapp v Ohio, 367 US 643 [1961]), though not made on papers as the law requires, was held in abeyance and then denied, and the issue became academic because DHPD never sought to [*3]introduce physical evidence, let alone evidence obtained in violation of any constitutional rights.

All three respondents also raised as a defense that Judge Klein's order of August 5, 2003, was impossible to comply with in the seven days his order contemplated. Put aside the point (with which the court will deal presently) that 16 months have passed and the DOB and DHPD vacate orders have not been lifted, that respondents have not yet obtained certificates of occupancy, that as of December 2004 respondents have not applied for sign-offs (except for plumbing), that 62 pages of violations remain to be certified as corrected, and that Judge Klein's order still has not been complied with fully. Putting all that aside, it is no defense that a validly issued order is defective, misguided, or erroneous. (See e.g. DHPD v Mill River Realty, Inc., 169 AD2d 665, 670 [1st Dept 1991, mem].) The remedy is to challenge an order, not disobey it. (See e.g. Sigmoil Resources N.V. v Fabbri, 228 AD2d 335, 336-337 [1st Dept 1996, mem].) As the procedural history above shows, only the corporate respondent moved to renew Judge Klein's order. Judge Klein thought little of the merits of that motion and denied it. (See Decision and Order of Sept. 11, 2003, at 5 & 7 [noting that respondent's papers were "woefully inadequate to grant any relief" and that "[t]he court is totally dissatisfied with respondent's presentation"].) So did Judge McClanahan, who, rejecting this argument, explained that Judge Klein had already "denied respondents' claims of practical and legal impossibility." (See Allen, NYLJ, Sept. 2, 2004, at 20, col 1, at col 2].)

Respondents raised two other defenses—that they complied with Judge Klein's order to correct and in the alternative that if they did not, it was because the city prevented them from doing so. These defenses of compliance and prevention from compliance can be measured only by reference to the proof at this hearing.

DHPD's Prima Facie Case

DHPD's case on direct was simple. Introduced into evidence was proof the court credits [FN1] [*4]that occupants resided in the premises before the DOB and DHPD issued vacate orders in late July 2003; that Judge Klein issued an order in August 2003 requiring respondents to correct by August 13, 2003, a series of conditions he classified as class "C" violations; that respondents knew about the order, which counsel signed for; that DHPD Inspector Joseph Gagiliardotto inspected the building on August 18, 2003, and determined that dangerous conditions continued to exist at that point; that respondent corporation owns the premises, that Rosenblatt is the corporation's president, and that Golia is the managing agent and site manager; that in existence are 62 pages of violations from a certified DHPD inspection most recently conducted on November 7, 2004, and which were admitted into evidence under MDL 328 (3) & CPLR 4518 (c) (although movant DHPD does not seek civil penalties for any failure to correct these violations); and that respondents were served with this contempt and civil-penalties motion, to which was attached Judge Klein's August 2003 order and the appended DHPD vacate order listing the class "C" immediately hazardous conditions respondents were ordered to correct.

Respondents have not filed a certification of compliance showing that they corrected the violations appended to the August 2003 order to correct. The court finds in this case that their failure to file establishes a prima facie case that they did not correct the violations timely. (See e.g. DHPD v Deka Realty Corp., 208 AD2d 37, 46 [2d Dept 1995] [holding that presumption is within trial court's discretion that violations continue until landlord proves they were corrected]; DHPD v Knoll, 120 Misc 2d 813, 814 [App Term, 2d Dept, 2d & 11th Jud Dists, mem]; Matter of DHPD, NYLJ Oct. 1, 1992, at 28, col 4 [Civ Ct, Kings County].) No presumption of noncompliance is required here to find that respondents did not correct timely. DHPD proved its case from Inspector Gagiliardotto's testimony that the August 2003 order to correct was not complied with by August 13, 2003. But a presumption of continuing noncompliance arises further from the 62-page Housing Maintenance Code violation report, which also proves prima facie respondents' failure to correct. (See Knoll, 120 Misc 2d at 814.) Required to rebut the presumption of a continuing violation is proof beyond respondents' mere testimony that they removed the violations (see id.) and accordingly complied with the order to correct. Respondents state that they complied, and in the alternative that they could not comply.

Compliance With The Order to Correct

All three respondents contend that they complied with the order to correct. But no respondent testified. The 2649 Frederick Douglass Realty Corporation owns the subject premises. (See MDR Statement at Question 5A [HPD Trial Exhibit 1].) Rosenblatt is the corporation's president (id.) and its "sole shareholder." (Affirmation of Stuart A. Klein, Esq., of May 17, 2004, at ¶ 6, at 3.) Golia is the managing agent—and property's site manager, the "[r]esponsible individual . . . who can be contacted in the event of an emergency . . . ." (MDR Statement at Questions 5C & 5D.) If they made the repairs, as they say they did, they would, or should, have testified to that effect. They did not. Their failure to testify renders them subject to a strong adverse inference. [*5]

Only Golia has an explanation for not testifying. He feared that doing so would affect the outcome of two misdemeanor cases pending against him for unlawfully evicting the occupants of the subject premises. (See People v Golia, Docket Nos. 2003SN037638 & 2003SN078094, Crim Ct, NY County.) He, Rosenblatt, and the corporation had asked for a stay of this proceeding until Criminal Court resolves his misdemeanor cases. This court denied respondents' motion for a stay in its decision and order of November 3, 2004. (See Allen v Rosenblatt, 5 Misc 3d 1014[A], 2004 NY Slip Op 51374[U] [Hous Part, Civ Ct, NY County].) At the hearing on this contempt and civil-penalty matter, Golia therefore pleaded the Fifth Amendment—but only when his attorney called him to testify. Rosenblatt, against whom criminal charges are also pending in some way related to this affair, did not plead the Fifth Amendment; she simply elected not to testify. The court elects to impose a strong adverse inference against Golia and Rosenblatt for their decision not to testify. (See e.g. Marine Midland Bank v Russo, 50 NY2d 31, 42, 45 [1980] [allowing factfinder to impose adverse inference against party who invokes Fifth Amendment in civil case]; Access Capital, Inc. v DeCicco, 302 AD2d 48, 51-52 [1st Dept 2002] [same].)

Instead of Golia's and Rosenblatt's testifying, they called Juan Diaz, Dennie Ebanks, and Walter Maffei to testify that they cured the violations by repairing the subject premises.

Diaz, a real-estate broker interesting in securing a vacant, habitable building to rent, testified that over time the building changed from "a hell hole to something that's livable." In the "first part" of 2003, he explained, the building was in "really bad shape" but that by July 2003 the musty smell was gone, new windows were added, electrical and plumbing work was in progress, wires were no longer exposed, water stopped cascading, and rubbish disappeared from the hallways. By December 2003, he testified, the staircase was in "good condition" and the building was safe. Still to be finished, he conceded, were bathrooms and kitchens.

Although Diaz made every effort to recount events honestly, some of what he testified to is impossible. By his account, the building was well under way by July 2003 to a total transformation from a fire-gutted, demolished, uninhabitable disaster to House Beautiful—just in time for the DOB and DHPD to issue vacate orders in July 2003, the same month. Introduced into evidence in this proceeding were photographs respondents also admitted into evidence during the September 2003 contempt hearing. (See e.g. Respondents' L-1, L-2, and L-3.) The photographs show work needing to be done as opposed to corrections made. Respondents' photographs do not corroborate that they or anyone cured any violations. They corroborate the fact of an uninhabitable building.

Ebanks's testimony is especially unreliable. A carpenter, he works for Rosenblatt. He testified that with six people laboring under his supervision, he replaced the roof and the fire-burned roof and ceiling beams by July 2003, that an electrician fixed the wiring by July 2003, and that a contractor built a new steel interior staircase and made it functional by mid-August 2003, although he agreed that concrete had not been poured or treads placed on the stairs through June 2004. His testimony, like Diaz's, is uncorroborated by photographs or evidence from the electrician who repaired the wiring or the contractor who re-built the stairs—or by bills they [*6]submitted or which anyone paid. Ebanks's testimony is contradicted by a letter from Rosenblatt's engineer dated August 5, 2003 (introduced into evidence with a packet of documents she subpoenaed from the DOB). The engineer, Issam M. Abourafeh, wrote as part of his DOB alteration application that "the core stairs . . . were deteriorated beyond safe usage," that the "60-70% of the existing ceiling beams at the fifth floor, which act as the roof beams, were fire damaged," and that "numerous inhuman situations from vermin's [sic], garbage and other debris" made the building "not suitable for a habitable space." Contradicting Ebanks, too, is that if he were accurate, the building would long ago have earned a certificate of occupancy and been rented out, making a profit. And contradicting Ebanks was Walter Maffei.

Maffei, an architect Rosenblatt hired, did not testify that heating has been restored or that the boiler is up and running. But he testified that the roof was repaired by November 2003 (meaning also that the leaks emanating from the roof stopped by then), that rubbish was removed by January 2004, that BX wiring (armored cable enclosed in a metallic sheathing) was secured in the framed walls by January 2004, and that stairs went from the first floor to the roof by January 2004. Nothing—like photographs or bills or other extrinsic evidence offered to satisfy Knoll and its progeny that a violation is presumed to continue and not be abated until a respondent proves otherwise—corroborates Maffei's testimony about when this work was completed. Still, DHPD in summation asked the court to impose civil penalties only up to the date he stated repairs were effected. The court will follow DHPD's recommendation about imposing penalties only until the date Maffei stated that the work was done, and the court will grant respondents the benefit of any doubt on the question what Maffei meant when he said "by January 2004" by assuming compliance by January 1, not January 31, for the purposes of assessing civil penalties. On the other hand, the court rejects the implication of his testimony on another issue: that the City of New York itself rendered respondents unable to comply with Judge Klein's August 2003 order to correct.

Inability to Comply With Order to Correct

Respondents argue that if they did not comply timely with the August 2003 order to correct it was because the City of New York Department of Buildings unfairly prevented them from doing so. If they are right, respondents may not be held in contempt; neither may civil penalties be imposed. Right, however, they are not.

Architect Maffei's theme was that the DOB played politics in obstinately rebuffing his and Engineer Abourafeh's diligent attempts to obtain approvals to rehabilitate the building. Maffei complained, for example, that the DOB should not have erected an obstacle around Abourafeh's alteration plans. DOB's list of objections, he said, were "miner," and Abourafeh's firm, IMA Engineering, P.C., could easily have made its plans "compliant." But Maffei later stated that Abourafeh's plans failed to included, among other things, a fire escape, a matter he conceded was not miner. Maffei also complained that the alteration proposals were being audited. But he also stated that the DOB audits 20 percent of alteration applications, thus contradicting his point that respondents were being singled out unfairly. Maffei further objected [*7]that the files were missing from time to time, a problem that led to delays, he said. But Maffei also testified to talking in October 2003 to DOB Borough Commissioner Laura Osorio, who had the files in her office.

Maffei additionally testified to what respondent urges is a Catch-22: If respondents complied with Judge Klein's order, Maffei suggested, they would violate the DOB's stop-work orders. (See Sept. 25, 2003, Stop Work Order [Respondents' V]; Sept. 26, 2003, Intent to Revoke Letter [Respondents' T]; and Jan. 30, 2003, Stop Work Order [Respondents' U].) That is, respondents contend, they risked contempt if they did not do the work and arrest if they did. But no Catch-22 existed. Respondents created their own predicament and themselves caused the delays. While repairing the building, they managed to receive a number of DOB Environmental Control Board violations, such as "work does not conform to approved plans" (violation of Sept. 24, 2003). As Maffei explained, the DOB does not approve or re-instate a work permit until valid penalties are assessed. Here, according to Maffei, respondents finally paid penalties of $35,000-$40,000—the original assessment, he testified, was too low—before a new work permit was obtained in early February 2004.

Moreover, Maffei's testimony that DOB could have acceded to his request for an override without paying a penalty does not comport with reality. The DOB was within its rights to reject that request, and to issue stop-work orders, after it repeatedly caught respondents performing work illegally and unsafely, resulting in ECB violations for which respondents paid fines while they should have been lawfully complying with Judge Klein's order to correct. In that context, the court rejects Maffei's contention that the DOB unconscionably refused to allow him to self-certify his work so as to allow the project to move forward more quickly.

More quickly than it should have by law is how the project moved. Maffei testified that he filed plans to repair the roof on November 26, 2003, and that the plans were approved on December 3, 2003. He also testified that the roof was repaired in November 2003. From that testimony the court concluded aloud during the hearing that respondents conducted work for which they had no work permit. When the court asked Maffei about that malfeasance, he testified that he filed his plan to legitimize work on the roof that had already been done. When the court asked him whether he noted that on his plans, he said that he did not. When the court asked him why not, he said that he had no explanation.

Penalties and Sentence

Respondents are found responsible for and are liable to pay civil penalties as follows, pursuant to HMC § 27-2115: For the defective first means of egress, namely the stair case in danger of collapse (condition 1), respondents must pay a $125-a-day penalty for the class "C" violation from August 13, 2003, until January 1, 2004 (62 days), or $17,750. For the cascading water leak caused by a defective roof (conditions 2 & 9, which this court deems to be one violation), respondents must pay a $125-a-day penalty for the class "C" violation from August 13, 2003, until January 1, 2004 (62 days), or $17,750. For the exposed electrical wires [*8](condition 3), respondents must pay a $125-a-day penalty for the class "C" violation from August 13, 2003, until January 1, 2004 (62 days), or $17,750. For the accumulation of construction rubbish in the public hall (condition 4), respondents must pay a $125-a-day penalty for the class "C" violation from August 13, 2003, until January 1, 2004 (62 days), or $17,750. As DHPD concedes, there has been no illegal occupancy at cellar; thus, a violation for condition 5 is not sustained. For the defective heating system (condition 7), which respondents have not repaired, respondents must pay a $125-a-day penalty for the class "C" violation from August 13, 2003, until today, December 22, 2004 (498 days), or $62,250. A violation for condition 6, "no boiler enclosure at cellar," is not sustained, given that no boiler needs to be enclosed any longer. For the obstruction of secondary means of egress, namely the rubbish at rear yard (condition 8), respondents must pay a $125-a-day penalty for the class "C" violation from August 13, 2003, until January 1, 2004 (62 days), or $17,750. The court also awards $150 for each of the five class "C" violation enumerated above, for a total base penalty of $750. (See HMC 27-2115 [a].) The court awards a judgment for DHPD for civil penalties in the total amount of $151,750.

By clear and convincing evidence, the court finds respondents guilty of civil contempt. By proof beyond a reasonable doubt, the court also finds respondents guilty of criminal contempt. They failed wilfully for months to comply with the clear and unequivocal mandate of Judge Jerald B. Klein dated August 5, 2003, and they did so in a manner calculated to impede the city's right to protect and preserve housing standards. Even as of December 2004, respondents have not repaired the heating system. Nor have they applied for so much as a temporary certificate of occupancy to re-claim the subject building, or applied for sign-offs (except for plumbing), or acted to remove or lift vacate orders issued by two New York City agencies. And that does not speak to the 62 pages of Housing Maintenance Code violations lodged against the building.

The court finds it appropriate to sentence Golia to incarceration for his contumacious behavior. Rosenblatt hired an engineer, an architect, and carpenters, and, they testified, spoke to them regularly to ascertain their progress. Her efforts were inadequate, and often counterproductive, but she did more than Golia did, and for that she will elude a jail sentence. Golia, however, is a contractor, as Juan Diaz testified, and the building's managing agent, and yet no evidence was elicited to show what he did to comply with the order to correct, and thus the court is forced to believe that he did nothing but obstruct.

For their civil contempt, it is ordered and adjudged that each respondent shall, pursuant to Judiciary Law § 773, pay a fine in the sum of $250 to DHPD, and DHPD shall have execution therefor; and

For their criminal contempt, it is further ordered and adjudged that each respondent shall, pursuant to Judiciary Law § 751, pay a fine of $1000 to DHPD, and DHPD shall have execution therefor; and

Further that respondent Peter Golia, for his criminal contempt, shall be committed, [*9]pursuant to Judiciary Law § 751, to the city or county jail for a definite period of 10 days; and then until such time as the $1000 fine imposed for his criminal contempt has been paid, which time shall not exceed an additional 10 days in jail, pursuant to Judiciary Law § 774.

Now therefore, judgment in the amount of $155,500 is granted in favor of DHPD and against respondents Stacy Rosenblatt, Peter Golia, and the 2649 Frederick Douglass Realty Corporation and against the subject premises of 2649 Frederick Douglass Boulevard for its block and lot number; and DHPD shall have immediate execution thereon. ($155,500 = $151,750 in civil penalties + $250 for civil contempt for each of the three respondents + $1000 in criminal contempt for each of the three respondents.)

And it is further ordered that a certified copy of this order shall be delivered to the sheriff of the City of New York or the sheriff of any county within the state of New York, and such sheriff shall serve upon respondent Peter Golia a certified copy of this order, and such sheriff shall forthwith and without further process take the body of respondent Peter Golia and commit him to civil, city, or county jail in New York County, or in any adjacent county, where he shall be held for his aforesaid criminal contempt for a definite period of 10 days; and for an additional period of time not to exceed 10 days, until he has paid his aforesaid criminal-contempt fine of $1000.

This opinion is the court's decision, order, judgment, and decree.

Dated: December 22, 2004

SO ORDERED:

J.H.C.

Dated: December 22, 2004

ENTERED:

Clerk of the Court Footnotes

Footnote 1:1. The court does not accept the testimony of Melvin Allen, the original petitioner in this tenant-initiated HP proceeding. He prevaricated over whether three or four tenants resided in the building before the vacate orders were issued. He denied having been to the premises since the vacate orders issued but then, after some unresponsive testimony, conceded error on cross-examination, admitting that he was present later when the police and others were on the scene. He testified without engendering confidence that he did not accept money from respondents to vacate his apartment. He insisted on testifying as quickly as possible on the first day of the hearing so that he could go to work, but he remained in court after he finished testifying. After the court twice denied him an opportunity pro se to cross-examine a witness for respondent (given that he is not a party to this motion), he threw with medium force papers from a DHPD attorney onto counsel's table and then denied doing so, pretending that the court erroneously accused him of throwing a small ball of paper he found under another table in the well of the courtroom. And he has a motive to lie because he is a plaintiff in a civil action against respondents in Supreme Court for illegal eviction. The court discounts Allen's testimony in its entirety.