Schanzer v Vendome

[*1] Schanzer v Vendome 2006 NY Slip Op 50339(U) [11 Misc 3d 1061(A)] Decided on February 20, 2006 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 February 20, 2006
Civil Court of the City of New York, New York County

Sara Schanzer, Petitioner-Tenant,

against

Nino Vendome; VENDOME MANAGEMENT, INC; 227-231 EAST 21ST STREET, LLC; and PETER FANG, Respondent-Owners, -and- DEPARTMENT OF HOUSING PRESERVATION AND DEVELOPMENT OF THE CITY OF NEW YORK, Co-Respondent, -and- NEW YORK CITY DEPARTMENT OF BUILDINGS, Co-Respondent.



6065/2005



Petitioner pro se.

Karp & Kalamotousakis, LLP, New York City (Charles J. Seigel of counsel), for respondents Nino Vendome, Vendome Management, Inc., 227-231 East 21st Street LLC, and Peter Fang.

Department of Housing Preservation and Development of the City of New York (Valentine J. Moretti of counsel), for respondent.

Gerald Lebovits, J.

For many years, the Department of Buildings (DOB) cited respondents for allowing the subject building to have a hazardous exterior facade, in violation of the Building Code. For many years, respondents paid Environmental Control Board (ECB) fines for failing to maintain the building's exterior facade. And despite that, respondents for many years failed to cure these Building Code violations, always rated "moderate" to "high" in severity of danger.

Among the long list of adjudications to which respondents admitted liability were (1) a $180 ECB fine respondents paid for a DOB violation issued in January 1998 for cracks in the building's front facade (ECB Viol. No. 34168353X); (2) a $2000 ECB fine respondents paid for a DOB violation issued in May 2004 for "[f]ailure to maintain exterior building wall," which was "in danger of falling to public sidewalk" (ECB Viol. No. 34435701R); (3) an $800 ECB fine respondents paid for a DOB violation issued in July 2004 for "failure to maintain exterior building wall" (ECB Viol. No. 34435632M); and (4) an $800 ECB fine respondents paid for a DOB violation issued in October 2004 for a "deteriorating brick and stucco exterior wall" (ECB Viol. No. 34451610L).

Finally, on March 4, 2005, petitioner, Sara Schanzer, began this Housing Part (HP) proceeding to compel respondents to correct the long-uncorrected Building Code violations.

On the heels of this proceeding, the DOB, on March 23, 2006, issued a stop-work order to respondents because of two additional Building Code violations that the DOB's inspectors found: failing to maintain the building's fa ade in a safe condition and failing to maintain the proper fire-proof material in the first floor commercial space's ceiling. Respondents ultimately paid two $800 ECB fines to resolve these "high severity" violations (ECB Viol. Nos. 34465256P and 3443285P). [*2]

To resolve this proceeding, the parties entered into so-ordered two-attorney stipulations on May 10 and May 31, 2005, both approved by the DOB and the Department of Housing Preservation and Development (HPD). Paragraph 1 of the May 10 stipulation required respondents to cure the six above-noted violations within 45 days of petitioner's providing access. Paragraph 5 of the May 10 stipulation required that respondents cure those violations by effecting repairs "to code standards, and to the extent practical, so as to minimize any inconvenience to petitioner." Paragraph 3 (d) of the May 31 stipulation directed respondents to complete "all work in tenant's apartment as per prior stipulation." That meant, under paragraph 1 of the May 10 stipulation, that respondents agreed to correct all violations and complete all work inside petitioner's apartment within 45 days of petitioner's providing access to her apartment. Petitioner provided access on June 21, 2005.

On July 22, 2005, petitioner moved for contempt by order to show cause. The DOB did not appear at the hearing, but HPD joins petitioner in seeking to hold respondents in contempt. The issue, as petitioner and HPD contend, is whether petitioner has proven to a reasonable degree of certainty that any of the respondents disobeyed a stipulation requiring respondents to make repairs by August 5, 2005, according to code, and, to the extent practicable, with minimal inconvenience to petitioner and, if so, whether respondents' disobedience prejudiced, impeded, or defeated petitioner's rights. The court agrees with petitioner and HPD and finds all respondents, other than Peter Fang, in civil contempt.

The contempt hearing began in August and ended in November. Testifying at the hearing were DOB Inspector Paul Harkin, respondent-employee Peter Fang, respondent's architect Caesar Bustamonte, and petitioner, Sara Schanzer. All testified credibly, although the court rejects Fang's and Bustamonte's conclusions that the DOB and petitioner were at fault for respondents' failures in complying with the May 10 and May 31 stipulations.

The parties disagree about insignificant facts that this court need not resolve. Important to the court's resolution of this contempt proceeding are those facts on which the parties agree, and thus the court will rely only on those agreed-upon facts.

The parties agree that the 45-day period to effect repairs expired on August 5, 2005. They also agree that on July 15, 2005, the DOB issued a stop-work and preemptory vacate orders that forced petitioner to vacate her apartment. The DOB issued its vacate order, the order explains, because it found that respondents were performing its construction dangerously by not bracing the building's "[i]nterior temporary structural steel shoring," by using "inadequate" "[s]teel screw jacks supporting needle beams," and by having "[i]nadequate support between needle beams." The DOB lifted its stop-work order on July 20 and rescinded its vacate order on August 15. The parties further agree that respondents corrected the six violations by August 11, 2005, only seven days after its August 5 deadline. But, both parties acknowledge, respondents' construction efforts and the debris from the construction inside petitioner's apartment—construction necessary to repair the exterior wall—made petitioner's apartment uninhabitable for 75 nights, until September 27, 2005, when petitioner moved back in. The [*3]parties agree, moreover, that during the construction, not only did the DOB issue its July 15 stop-work and vacate orders, but also that the DOB issued four Building Code violations for which respondents admitted liability and paid fines at the ECB: (1) a $250 ECB fine respondents paid for a DOB violation issued on June 23, 2005, for respondents' "failure to provide approved plans at premises at time of inspection" (ECB Viol. No. 34483908K); (2) a $180 ECB fine respondents paid for a DOB violation issued on June 28, 2005, for respondents' obstruction of the "exit passage . . . at 2nd floor front facade [and] 2nd means of egress to fire escape" (ECB Viol. No. 34477272N); (3) a $130 ECB fine respondents paid for a DOB violation issued on June 28, 2005, for respondents' "failure to provide approved plans at site at time of inspection" (ECB Viol. No. 34477270J); and (4) a $200 ECB fine respondents paid for a DOB violation issued on July 15, 2005, for respondents' "failure to obtain a permit for temporary construction" (ECB Viol. No. 34484004M).

Respondents raise a series of defenses based on these facts, but the facts show that they violated the May 10 and May 31 stipulations in three separate and significant ways. First, respondents did not complete the work by August 5. They corrected the violations only by August 11 and completed the work only by September 27. That violated paragraph 3 (d) of the May 31 stipulation, which directed respondents to correct the violations and to assure that "[a]ll work in tenant's apartment will be completed as per prior stipulation," meaning, under paragraph 1 of the May 10 stipulation, within 45 days of petitioner's providing access to her apartment. Second, respondents did not complete its work according to code; respondents admitted liability and paid fines at the ECB for four Building Code violations.[FN1] That violated paragraph 5 of the [*4]May 10 stipulation, which required that respondents cure six Building Code violations by effecting repairs "to code standards." Third, respondents did not work, as far as practicable, with minimal intrusion to petitioner because petitioner was out-of-possession for 75 nights. That violated paragraph 5 of the May 10 stipulation, which required that respondents cure its six violations "to the extent practical, so as to minimize any inconvenience to petitioner." Any of these three violations of the May 10 and May 21 stipulations would provide the reasonable certainty the court requires to hold respondents in civil contempt. Together, the three violations of the stipulations show a degree of wilfulness that would sustain a finding of criminal contempt.

Respondents raise nine defenses, discussed below seriatim. Other than what this court should do about the question of damages, the court rejects one defense as not relevant [FN2] and another as a misplaced plea for mercy,[FN3] and accepts only the defense seeking to dismiss Peter [*5]Fang as a respondent. The May 10 stipulation reserved at paragraph 10 Fang's "defense that he is not a proper party respondent to this proceeding." As one of respondent Vendome Management's employees, Fang was involved in most of the interactions with petitioner and the DOB, and he appeared often in this court to assist his employer in this proceeding. But he did not exercise the degree of control that Housing Maintenance Code § 27-2004 (a) (45) requires to turn an employee non-managing agent like Fang into a respondent. He did not demonstrate a significant degree of control over the premises' physical or fiscal management such that he is a proper party.

Respondents also argue that this motion should be denied as premature. The court disagrees. This motion was filed on July 22, and repairs did not have to be completed until August 5. But the four ECB violations, the stop-work order, and the vacate order all preceded petitioner's motion. By July 22, respondent had already violated the May 10 stipulation, which required that work be done to code.

Respondents next argue that petitioner and the DOB caused the delay. According to respondents, they would have completed the work timely "[b]ut for the interference of petitioner and of co-respondent Department of Buildings." (Respondents' Post-Hearing Memorandum of Law at 2.) Although petitioner kept complaining to the authorities that respondents were effecting repairs illegally, her complaints would not have caused any delays had the DOB not found some of them meritorious and issued stop-work and vacate orders and issued the four Building Code violations to which respondents admitted liability before the ECB. That respondents, as Bustamonte testified, continued to work to effect emergency repairs while the stop-work and vacate orders were in effect also shows that respondents suffered from no delay, regardless whether petitioner or the DOB caused them. Respondents seek to have the court place retroactive gag orders against petitioner and the DOB to stop them from complaining about respondents' dangerous construction efforts, yet they have only themselves to blame. Moreover, it would be academic even if respondents were correct in their speculative argument that the DOB's actions set them back a week and that the work would have been finished by August 5 instead of August 11 had petitioner and the DOB not supposedly hindered them. The May 31 stipulation required respondents to complete "[a]ll work in tenant's apartment" by August 5. The violations were corrected by August 5, but the work in respondent's apartment was not finished until September 27. The time in which the stop-work and vacate orders were in effect delayed respondents at most five days (from July 15, when the stop-work order went into effect, until July 20, when it was lifted), not the 53 days between August 5 and September 27.

For similar reasons, the court rejects respondents' argument that the most damages [*6]petitioner may recover is from August 5, when respondents agreed that it would complete correcting the violations, to August 11, when it did so. Once again, the May 31 stipulation required respondents to complete "[a]ll work in tenant's apartment" by August 5, but the parties agree that the work was not completed until September 27. Damages should therefore be calculated from August 5 to September 27.

Respondents additionally argue that their supposed failure to make timely repairs were not the proximate cause of petitioner's injuries. The court disagrees. Respondents' insufficient efforts caused petitioner to be out-of-possession for 75 nights. Being dispossessed for 75 nights prejudiced her rights directly and significantly.

Continuing, respondents raise three related arguments in one point heading. They urge, first, that they complied with paragraph 5 of the May 10 stipulation, which specified that "all work shall be performed to code standards." Respondents make this point: "[T]he mere fact that violations were placed during the repair period does not in and of itself indicate that the repairs were themselves being made improperly." (Respondents' Post-Hearing Memorandum of Law at 5 [emphasis in original].) But the unequivocal mandate in the May 10 stipulation was not only that respondents would correct the violations but that work in progress would conform to code. Had the parties on May 10 agreed only to correct the violations according to code, there would have been no need for the parties to have negotiated the language in paragraph 5 that the work itself be done to code; paragraph 1 of the May 10 stipulation had already provided that the violations be corrected. And although respondents are correct that one may not conclude that the DOB's mere placement of violations does not equate to improper repairs (for example, the ECB violation for respondents' "failure to obtain a permit for temporary construction" does not necessarily mean that they would not have received a permit had they applied for one, even though the DOB has good reasons for requiring permits), the uncontested facts here show that respondents were conducting their repairs improperly. The vacate order covered precisely that—improper repairs: "unbraced" "[i]nterior temporary structural steel shoring," "inadequate" "[s]teel screw jacks supporting needle beams," and "[i]nadequate support between needle beams." So did one Building Code violation issued for respondents' obstructing the "exit passage . . . at 2nd floor front facade [and] 2nd means of egress to fire escape."

Respondents also urge in the same point heading the related argument that "violations for failing to maintain the building facade . . . were duplicative of the original violations which formed the predicate of this proceeding [and shows] simply that the requisite repairs had not yet been completed." (Id.) This point might have had merit had the ECB not dismissed the only violation respondents received while work was in progress for failing to maintain the fa ade, as noted in footnote 1, above. That dismissal renders this point academic.

Third, respondents close this point heading by noting that the stipulations covered only "work" and thus that the violations for not having their plans on-site cannot be equated with "work." (Id. at 6.) But the ECB violations for obstructing the exit passage and the fire escape were issued for "work," as respondents define that term, as was the "work" that led to the stop-[*7]work and vacate orders.

With the matter of contempt now adjudicated in petitioner's favor, the court must resolve the matter of damages. Respondents correctly note that petitioner, appearing pro se at the hearing, did not introduce competent evidence of the attorney fees she incurred for her then-attorneys' work preparing this contempt motion. At the hearing, petitioner simply mentioned how much she paid her then-attorneys. After the hearing ended, petitioner provided respondents, HPD, and the court with an attachment containing a detailed invoice from her attorneys. Petitioner appears to believe that reimbursement for the attorney fees she paid her then-attorneys for bringing this contempt motion should be bifurcated and resolved at another phase. Thus, petitioner, in concluding her written submission, asks the court to "set down a hearing for legal fees." On the other hand, petitioner at the hearing testified on September 16 and again on October 20 about the expenses she incurred by being dispossessed for 75 nights. Although she did not offer receipts or much in the way of specifics during the hearing, respondents did not seek them either. Yet respondents now complain, after seeing the receipts petitioner submitted post-hearing, that "[p]etitioner also seems to have eaten for two on more than one occasion, and to have paid for breakfast at various establishments during the time period she allegedly was staying at a bed and breakfast facility." (Respondents' Post-Hearing Memorandum of Law at 11.)

The only solution to protect the rights of petitioner and respondents is to adjourn for pro se petitioner to try to prove her damages with specificity and under the rules of evidence. This will also allow respondents, now that they have the bills, to cross-examine her about them and to introduce any other evidence they deem advisable. The damages part of the hearing will be held on March 28, 2006, at 2:15 p.m.

One last issue must be resolved. On January 10, 2006, petitioner submitted an affidavit entitled "Addendum to Petitioner's Reply" stating that Con Edison discovered a gas leak in her building on January 8, 2006. By letter dated January 23, 2006, respondents ask the court to disregard the letter because, they contend, "Ms. Schanzer apparently is seeking improperly to have the Court consider evidence which was not during the hearing (without an explanation as to why such evidence was not so introduced) . . . ." The court presumes that petitioner did not raise this issue at the hearing because the testimonial aspect of the hearing ended on November 22, 2005, and Con Edison discovered the leak on January 8, 2006, long after the hearing concluded.

Even though the court may not, and in this case need not, consider evidence about the alleged gas leak on petitioner's motion for contempt, the court must consider it to decide, even at this late date, whether to order its correction. (See Civ Ct Act § 110 [c] [providing that Housing Part "retain[s] continuing jurisdiction of any action or proceeding relating to a building until all violations of law have been removed."].) Because the court has jurisdiction over ECB violations (see Various Tenants of 515 E. 12th St. v 515 E. 12th St., Inc., 128 Misc 2d 235, 236-237 [Hous. Part Civ Ct NY County 1985]), the court, under the authority provided to it under MDL § 328 (3), accessed the DOB's BIS Web site and found ECB Violation Number 34426761Y, issued on January 10, 2006, for "plumbing work w/o a permit hazardous. Location: gas lines cut in cellar [*8]and capped off throughout bldg. Remedy: obtain a permit if feasible or restore to prior legal condition." ( [accessed Feb. 20, 2006].) A hearing is scheduled before the ECB on March 2, 2006.

Once again, respondents are accused of performing work illegally. Because the DOB classified the violation severity as "high," this court deems it a class "C" violation. Respondents must correct it withing 24 hours of receiving this decision by mail. Petitioner or co-respondent HPD may move for civil and criminal contempt if respondents fail to correct this gas violation timely.

This opinion is the court's decision and order.

Dated: February 20, 2006

J.H.C. Footnotes

Footnote 1:1. The following, which the court relegates to a footnote, is not necessary to the court's determination, and the court does not consider it in its disposition. As a matter of propriety, however, the court expresses its dismay that on September 20, 2005, an ECB administrative law judge, following a hearing held on August 25, 2005, dismissed a fifth Building Code violation, ECB Violation Number 34483909M. On June 23, 2005, a DOB inspector placed a violation for respondents' failure to maintain the building's collapsing fa ade. Respondents' counsel represented to the ALJ during a hearing at which Fang was present but at which petitioner Schanzer was absent "that the respondent has been trying to make the necessary repairs on the fa ade for over a year, but that progress had been hindered by a tenant [Schanzer] who refused to allow any work to be done from inside her apartment." Based on that representation and testimony from respondents' side, the ALJ found "that the respondent was unable to gain access through the tenant's [Schanzer's] apartment, even after the tenant had stipulated that she would allow such access." The ALJ also explained that "[t]he fact that the same agency [DOB] that issued the [June 23] violation three weeks later ordered that the apartment be vacated so that the respondent could fix the violation shows that the petitioner [DOB] recognized the respondent's inability to gain access to the apartment even after many months of legal proceedings." The ALJ therefore concluded "that because the respondent could not enter the apartment to make the necessary repairs, it was not in violation of the cited regulation." Respondents mislead the ALJ. Petitioner—the tenant to whom the ALJ referred—provided access on June 21, two days before the June 23 violation, and yet by September 20, the date of the ALJ's decision, the work was still unfinished. Additionally, the DOB did not issue its July 15 vacate order because petitioner refused access. Instead, the DOB issued its vacate order because the DOB's Borough Commissioner found that respondents were performing its construction dangerously by not bracing the building's "[i]nterior temporary structural steel shoring," by using "inadequate" "[s]teel screw jacks supporting needle beams," and by having "[i]nadequate support between needle beams." Finally, petitioner-tenant granted access on June 21, three weeks before the July 15 vacate order, a fact known to respondents but which they apparently did not convey to the ALJ. Only from a lack of information amounting to disinformation could the ALJ have incorrectly found that the DOB issued its vacate order on the false ground that petitioner had refused to grant access by July 15. The court relies on none of this in this decision. But all of it reflects poorly on respondents.

Footnote 2:2. Respondents' seventh defense is that paragraph 7 of the May 10 stipulation provides, not that all work be done in the least intrusive manner, but that work not go forward until petitioner reviews the plans and agrees "that the work to be done therein is the least invasive under the law." (Emphasis in original.) Respondents interpret that paragraph correctly, and petitioner interprets it incorrectly, but the issue is irrelevant. Paragraph 5 of the May 10 stipulation, which required that respondents cure its six violations in a way that "minimize[s] any inconvenience to petitioner," already required respondents not to inconvenience petitioner unduly, and respondents violated that paragraph by dispossessing her for 75 nights.

Footnote 3:3. Respondents' eighth defense asks the court to "examine the totality of the parties' conduct in determining whether any respondent is in contempt." (Respondents' Post-Hearing Memorandum of Law at 7.) Respondents in this defense repeat an argument they made earlier (that petitioner's complaints hindered them and caused the repair delays); notes problems they had in a holdover proceeding against petitioner that they concede they lost and about which no one introduced evidence at this contempt proceeding; and states that the DOB, which had approved its plans for egress to the fire escape, erred in placing a violation against respondents for erecting an improper means of egress to the fire escape—even though they did not introduce at this hearing the architectural plans they filed with the DOB to allow the court to compare the filed plans with the DOB's violation and even though respondents admitted before the ECB liability for that very violation and paid a fine.