Randolph v New York City Hous. Auth. E. Riv. Houses

[*1] Randolph v New York City Hous. Auth. E. Riv. Houses 2014 NY Slip Op 51045(U) Decided on July 8, 2014 Civil Court Of The City Of New York, New York County Kraus, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on July 8, 2014
Civil Court of the City of New York, New York County

Annabelle Randolph,, Petitioner-Tenant

against

New York City Housing Authority East River Houses, Respondent-Landlord.



L & T 15490/2010 and HP 862/2012



THE LEGAL AID SOCIETY

HARLEM COMMUNITY LAW OFFICE

Attorneys for Annabelle Randolph

By: Alan Canner, Esq.

230 East 106th Street

New York, New York 10029

212.426.3093

KELLY D. MACNEAL

Attorney for NYCHA

By: Harley D. Diamond, Esq.

250 Broadway, Room 7012

New York, New York 10007

212.776.5253
Sabrina B. Kraus, J.

BACKGROUNDThe underlying HP was commenced by ANNABELLE RANDOLPH( Tenant), the [*2]tenant of record of 448 East 105th Street, Apartment 4A, New York, New York 10029 (Subject Premises) against NEW YORK CITY HOUSING AUTHORITY - EAST RIVER HOUSES (NYCHA), the owner and landlord of the building, seeking correction of violations. It was consolidated with a nonpayment proceeding between the same parties.PROCEDURAL HISTORY OF THE NONPAYMENT PROCEEDING

This proceeding was originally returnable on September 28, 2010, and was settled on that date pursuant to a stipulation. Tenant acknowledged owing $668.03 in arrears and consented to entry of a judgment in said amount. The warrant of eviction never issued. Tenant agreed to pay the arrears plus the current rent by November 12, 2010.

In the stipulation, NYCHA agreed to do repairs including plastering and painting and repairing kitchen cabinets within 60 days, repairing the windows in the bedroom and living room within 45 days, repair leaks under the kitchen and bathroom sink within 10 days, fix a bedroom outlet within 1 week, and provide hot water and a working stove within one week.

On November 18, 2010, Tenant moved to restore the proceeding. Tenant alleged she had paid the $668.00 in arrears, but was seeking an abatement because of NYCHA's failure to make the repairs and specifically referenced failure to provide hot water in the bathroom and an ongoing leak under the kitchen sink which was causing damage to the Subject Premises.The motion was granted to the extent of ordering NYCHA to restore hot water and fix the leak under the sink, access was scheduled for November 23, 2010, and the proceeding was adjourned to January 4, 2011 "for the abatement issue." On January 4, 2011, the motion was marked denied no appearance movant by the court and all stays were vacated.

On July 12, 2011, Tenant again moved for relief by Order to Show Cause asserting that NYCHA had failed to make the repairs and that she was seeking an abatement. The parties entered into a new stipulation wherein Tenant agreed to pay $1291.69 in arrears by the end of August and NYCHA agreed to paint, within 30 days, and fix the leak and restore hot water within 3 days . Access was set for July 19, 27 and August 18.

Tenant made no further motion in the proceeding for nearly two years, and on April 17, 2013, retained counsel and moved for an order of civil and criminal contempt, consolidation with HP Index 862/2012, for limited discovery and related relief.[FN1] The parties entered into a stipulation dated May 15, 2013, granting the motion to the extent of consolidating the two proceedings, and agreeing to discovery. The proceeding was adjourned over a number of months. On October 2, 2013, the court (Saxe, J) issued an order regarding discovery and adjourning the proceedings to October 17, 2013. On January 15, 2014, the parties entered into a stipulation adjourning the consolidated proceedings for a contempt hearing on March 26, 2014. [*3]On June 4, 2014, the proceedings were assigned to Part L for the contempt hearing. The hearing commenced and concluded on the same date, and the proceedings were adjourned to June 27, 2014, for the submission of memoranda. On June 27, 2014, the memoranda were submitted and the Court reserved decision.

PROCEDURAL HISTORY OF THE HP PROCEEDING

The HP proceeding was started by Order to show Cause originally returnable May 30, 2012. An inspection took place on May 17, 2012. The inspector found that there was no hot water in the Subject Premises, and that the water was at a temperature of 87 degrees. The inspector further noted that the oven door needed repair, and that there was a defective faucet in the kitchen. The Inspector further noted that the bedroom wall needed to be repaired, and that there was broken glass in the bedroom. The Inspector also found walls needed to be repaired in the other bedroom and the hallway. The inspector found that there was under a half square foot of black mold in the bathroom and that the entire apartment needed to be painted.

On June 19, 2012, the parties entered into a stipulation settling the proceeding. The stipulation provided that NYCHA would restore hot water within two weeks of the initial access date set for June 20, 2012. The other repairs were agreed to be finished within 30 days or 60 days of initial access.

On October 30, 2012, Tenant moved for an order restoring the proceeding for a compliance hearing. Tenant asserted that NYCHA had not complied with the order and in particular that hot water had not been restored. The motion was granted by the court (Gonzales, J) on December 4, 2012. The order provided that NYCHA was directed to provide heat and hot water by December 7, fix the stove, kitchen faucet, and complete plastering and painting by December 24. The order further provided that if NYCHA defaulted Tenant could move for contempt.

On December 21, 2012, Tenant moved to hold NYCHA in contempt. Tenant asserted that she still had no hot water, her window remained broken, the painting and plastering had not been done and there was still mold in the bathroom. The motion was settled pursuant to a stipulation. The stipulation provided that NYCHA would abate the mold in the bathroom and bedroom, provide hot water, abate the mold and plaster and paint the apartment. All work other then painting was to be done in 30 days and the painting was to be done within 30 days after the mold abatement.

On February 15, 2013, Tenant again moved to hold NYCHA in contempt for failing to do the repairs. The moving papers alleged that hot water was still not being provided, that there were holes in her room and that painting and plastering had not been done. The motion was settled pursuant to a stipulation wherein NYCHA agreed to give Tenant a one month abatement totaling $460. NYCHA further agreed to complete plastering of the Subject Premises by February 19, 2013, and to repair the broken glass window in Tenant's bedroom. The stipulation further provided "(a)lthough NYCHA believes that the hot water issue has already been addressed in the A line apts, HA and maintenance man from NYCHA agree to come to apt on 2/19/13 to re-inspect hot water." The stipulation was not so-ordered by the court.

On March 20, 2013, counsel appeared on behalf of Tenant for the first time. The proceedings were thereafter consolidated, as noted above.

RELATED LITIGATION

During the course of the hearing herein, the parties referenced and offered evidence pertaining to, another case, Brown v NYCHA East River Houses, Index Nos HP 1885/2010 & [*4]116/2012, regarding apartment 5C in the same building, where no hot water was provided and the court held a contempt hearing (Ex C). In that hearing, Joseph Roederer (Roederer) testified. Roederer is the Deputy Director of Skilled Trades for NYCHA in Manhattan. Roederer testified that in 2009 NYCHA replaced older conventional hot water generators in the subject buildings with instantaneous hot water heaters which were believed to be cheaper and safer. The new heaters reached each apartment through a shower body which controls the flow of hot water. NYCHA was aware of building wide problems with hot water as of 2011 and by 2012 had identified the problem as being due to the faulty shower bodies which needed to be replaced in each unit and which cost $140 per unit.

A transcript of Roederer's testimony was entered into evidence (EX 1).

THE HEARINGTenant testified at the hearing. Tenant resides in the Subject Premises with her fourteen

year old son. East River Houses is a complex of ten buildings and 1,157 apartments (Ex A). Tenant moved into the Subject Premises in 2008. Tenant and her son both suffer from asthma and have since before they moved into the Subject Premises. The court found Tenant to be a credible witness. While NYCHA did some repairs listed in the September 28, 2010 stipulation, NYCHA

did not restore the hot water. NYCHA breached four so-ordered stipulations, and one court order by failing to restore hot water, paint and plaster the Subject Premises and abate the mold condition in the bathroom. In addition to the Tenant's credible testimony the conditions were established by the inspection on May 17, 2012 and the report of the inspector confirming that nearly two years after the September 2010 stipulation , Tenant remained without hot water and in need of plaster and painting.

In January or February 2013, NYCHA changed the shower body, and did other repairs in the Subject Premises. From this date forward, Tenant testified she has intermittent hot water in the shower and the bathroom. By May 2013 Tenant acknowledged she had consistent hot water in the kitchen, but testified that hot water in the bathroom still remained intermittent through the date of the hearing. Tenant testified that currently the biggest problem with hot water in the bathroom is in the mornings and that in the evenings there is generally hot water in the bathroom.

Emails introduced by Tenant establish that NYCHA had knowledge of a pervasive lack of hot water in the East River Houses as early as December 2008 and had determined within one month of that date to make addressing the lack of hot water a priority (Ex H-2). NYCHA specifically determined that a new shower body was necessary in the Subject Premises to remedy the lack of hot water by May 2011, and was overwhelmed with the number of court cases where lack of hot water had become an issue in the complex (EX H-3) . In February 2012 a work request for the replacement of shower bodies in the development was submitted as an emergency request.

DISCUSSIONCivil Contempt

A party that disobey's a court's lawful mandate may be held in Civil Contempt [Judiciary Law § 753(a)(3)]. For Tenant to prevail on this claim, Tenant must establish that a lawful order was in effect with an unequivocal mandate, that the order was disobeyed, that NYCHA knew about the order, and that Tenant was prejudiced as a result of NYCHA's failure to comply with the order (McCormick v Axelrod 59 NY2d 574). The undisputed failure by NYCHA to comply [*5]with four so-ordered stipulations and one court order by failing to provide an adequate supply of hot water, prejudice's the Tenant's rights in the proceeding and is sufficient to hold NYCHA in Civil Contempt [Ross v Congregation B'Nai Abraham Mordechai 8 Misc 3d 136(A)]. Tenant did establish at the hearing that the so-ordered stipulations and order were lawfully in effect, unequivocally required NYCHA to make repairs including to restore hot water, and that NYCHA failed to comply repeatedly and over a long term . Tenant was clearly prejudiced as a result of NYCHA's noncompliance and all elements necessary for a finding of civil contempt were established by Tenant at the hearing (Various tenants of 446-448 West 167th Street v DHPD 153 Misc 2d 221; affd 194 AD2d 311).

Tenant is thus entitled to actual damages as a result of NYCHA's failure to comply.

The Court rejects NYCHA's argument that it is not subject to civil contempt because Tenant has not filed a notice of claim for this amount, and the court notes that NYCHA provides no legal authority showing that a claim of civil contempt must be predicated on a notice of claim.

Similarly the court reject's Tenant's proposed findings for actual damages. The party seeking damages for civil contempt must prove actual loss, failing which the court is limited to the imposition of a fine of $250.00 (Berkowitz v Astro Moving & Stor. Co 240 AD2d 450; Rechberger v Rechberger 139 AD2d 906). The actual loss standard "..sets a fairly high bar for the standard of proof necessary to establish the right to a civil contemp monetary remedy beyond the $250 ... (Ortega v City of New York 11 Misc 3d 848, 898)."

Tenant seeks $30 per day for each day without hot water, $20 per day for painting and plastering and similar per diem penalties for the mold condition and the window repair. Tenant acknowledges that these sums bare no relation to the reduced rental value of the Subject Premises. A flat per diem fine as a penalty is inappropriate for damages on civil contempt [see eg DHPD v Deka Realty Corp 208 AD2d 37 (per diem fines were improper for civil contempt which damages must compensate tenants for actual loss); State of New York v Unique Ideas, Inc. 44 NY2d 345, 350 (per diem fines inappropriate for civil contempt because they could be indiscriminately applied to achieve extortion beyond the requirements of just compensation or indemnity, and to reward the omission of proof)].

Tenant argues that legally she is entitled seek damages for property loss, out of pocket expenses and loss of time from work. The Court agrees, however Tenant presented no evidence of monetary damages on any of these categories.

Tenant provides no breakdown of what damages are included in her proposed daily fines.

Tenant further asserts the court should include in the award of damages non-pecuniary loss for items like pain and suffering and diminution of quality of life.

The Court of Appeals in Matter of McCormick v Axelrod 59 NYS2d 574, 587, affirmed a finding of civil contempt damages of $2500 for one patient and $1000 for the other two patients where nursing home patients were involuntarily discharged in violation of a stay. The Court held "(p)etitioner's damages were determined by (the trial court) based upon such factors as the degree of emotional upset suffered by each of these elderly women, the period of time required for adjustment to their new surroundings, and the benefits to petitioners from their new placements." This holding suggests that is appropriate for the court to consider a claim for non-[*6]pecuniary loss in determining actual damages on a finding for civil contempt.[FN2]

Notwithstanding such authority, the Court finds that Tenant failed to establish at the hearing evidence supporting such a level of damages on these claims. While the Tenant did testify about the disruptions to her daily life as a result of the lack of hot water, this testimony by itself was insufficient to establish damages for "pain and suffering" or reduced "quality of life" beyond the reduced value of the Subject Premises.

Moreover, to the extent that Tenant testified that she worried the lack of hot water would lead her to lose custody of her son, the Court did not find this testimony credible. Finally, it seems clear that this sum is sought by Tenant to punish NYCHA and as a fine for its conduct rather then to compensate the Tenant for actual loss as required by the statute (State of New York v. Unique Ideas 44 NY2d 345).

While NYCHA's failure to restore hot water was the most prejudicial to Tenant, Tenant also established that NYCHA breached the stipulations by failing to paint and plaster the Subject Premises from November 28, 2010 through December 31, 2012, and that NYCHA failed to abate the mold condition from July 2012 through December 2012.

A fine for Civil Contempt is not intended to punish NYCHA but to compensate Tenant for actual damages (DHPD v Deka Realty Corp 208 AD2d 37). Tenant did not offer any proof of out of pocket expenses at the hearing. However, Tenant gave detailed credible testimony of the conditions in the Subject Premises and their impact on her and her son. Clearly one form of actual damages established by Tenant at the hearing pertains to the decreased value of the Subject Premises as plagued by the conditions for the relevant periods. The calculation of these type of damages is similar to the calculation for a rent abatement [see eg Brown v 315 E 69 St Owners Corp 11 Misc 3d 1069(A) holding actual damages for failure to obey order to correct appropriately calculated in an amount akin to a rent abatement)].The first order directed NYCHA to restore hot water by October 2010. NYCHA is in civil contempt of this order and the following orders at least through the period from October 1, 2010 through January 2013. The court finds that Tenant established that the combined conditions and NYCHA's failure to address them effectively reduced the value of the Subject Premises by 80% for a period covering October 2010 through January 2013. While the condition was established to have existed prior to October 2010, there is no basis to imposes damages for contempt prior to the time Petitioner agreed to restore hot water in the first stipulation.

Moreover, while Tenant asserted an intermitted lack of hot water in the kitchen through May 2013, and in the bathroom, through the date of the hearing, the Court does not find that these remaining claims are a basis to hold NYCHA liable for further damages. The record establishes Tenant refused access to NYCHA on several dates in February 2013 (Exs 3A-D), and the court finds that by February 2013 NYCHA had substantially compiled with the prior order and stipulations.

The court does not find that the broken bedroom window, though delayed in being addressed, should be a basis for contempt. Tenant testified that the window would not properly stay up. When NYCHA did not address the repair, Tenant tried to prop it open with a book, which did not work and resulted in the window breaking. As Tenant's conduct caused the window to break, the court does not find that the delay in repairing the broken window should serve as a basis to hold NYCHA in contempt.

To the extent Tenant testified she incurred more costs for food by eating out, Tenant failed to support this by a showing of actual damages incurred or dollars spent. Tenant presented no evidence of any pecuniary loss for property damage.

Tenant's rent in October 2010 was $197.00 per month. Tenant's rent remained at this level until May 2011 when it increased to $602.00 per month, and then in May 2012 the rent decreased to $460.00 per month until May 2013 when the rent was set at $448.00 per month. The total rent payable to NYCHA for the period of October 2010 through January 2013 was $12,743.00. Eighty percent of this amount is $10,194. The court finds that the February 2013 stipulation was rejected by the court and is thus unenforceable, notwithstanding the fact that it was signed by the parties.

The Court finds that Tenant has established actual damages based on NYCHA's civil contempt in the amount of $10,194.00.

Criminal Contempt

§ 750 (A) (3) of the Judiciary Law provides that a party may be held in criminal contempt for wilful disobedience to the lawful mandate of the court. Authority for this court to punish for contempt is also found in §27-2124 of the Housing Maintenance Code and §110(e) of the Civil Court Act. In order to establish that NYCHA should be held in criminal contempt, Tenant must establish beyond a reasonable doubt that NYCHA willfully disobeyed the court's order (McCormack supra ).The evidence at the hearing established beyond a reasonable doubt that NYCHA knew when it signed each one of the stipulations agreeing to quickly restore hot water to the Subject Premises that it would not be complying with this aspect of the stipulations. NYCHA was aware of its failure to provide hot water through out the complex as early as December 2008 (Ex H-2). and that new shower bodies were required to be installed to address this problem. By early 2011 NYCHA was aware that new shower bodies were necessary to fix the problem (Ex H-3). As of February 2012, NYCHA knew that the problem would not be resolved until all shower bodies had been replaced and that this would take a significant amount of time to accomplish (Exs H-5 & H-7). The balance of the emails entered into evidence further establish that NYCHA was aware of a pervasive problem and had no intention of restoring hot water to Tenant within any of the time frames provided in the orders issued in these proceedings.

Criminal contempt is appropriately found here because NYCHA's execution of stipulations which it knew it could not comply with is an offense against judicial authority. The penalty is intended to compel NYCHA's respect for the court ordered stipulations, the penalty is punitive rather than coercive (see King v Barnes 113 NY 476 criminal contempt is used to protect the integrity and dignity of the judicial process and to compel respect for its mandates). The court finds NYCHA is in criminal contempt by agreeing to stipulations which its agents were fully aware would not be complied with at the time they were entered. This includes the September 28, 2010, stipulation in the nonpayment proceeding and the June 19, 2012 stipulation in the HP proceeding, and the December 21, 2012 stipulation resolving a prior motion for [*7]contempt.However, fines payable for criminal contempt are not payable to Tenant, but rather are payable to NYC Commissioner of Finance. Having one city agency pay another city agency seems ineffective. Based on the foregoing, the court imposes a penalty of $100 per each criminal contempt for its intentional each of the three stipulations specified above, for a total of $300.00

CONCLUSION

Based on the foregoing, the court finds NYCHA in civil contempt and awards Tenant damages in the amount of $10,194.00 for same. The Court further finds NYCHA in criminal contempt of three prior stipulations and orders NYCHA to pay $300.00 to the NYC Commissioner of Finance within thirty days.

This constitutes the decision and order of this court.

Dated: July 8, 2014

New York, New York________________________

Hon. Sabrina Kraus

Footnotes

Footnote 1:In the interim NYCHA commenced another nonpayment proceeding against Tenant under Index Number 15049/2011. The court requisitioned said file and took judicial notice of the contents on notice to the parties. That proceeding was settled pursuant to a stipulation dated September 6, 2011, wherein the nonpayment proceeding was discontinued, it was acknowledged that Respondent owed only half the rent for the current month and where NYCHA again agreed to restore hot water within 24 hours in addition to painting and related conditions. Tenant attempted to restore the proceeding based on NYCHA's breach and the continued lack of hot water per order to show cause. However the Court (Saunders, J) declined to allow Tenant to restore for the breach and directed Tenant to commence an HP action.

Footnote 2:Tenant also cites McCain v Dinkins 84 NY2d 216 in support of her request for non-pecuniary loss however the Court of Appeals in that case noted that the per diem fine was limited to the specific facts therein holding "(t)hese fines against the city are as remedial as could be developed within the discretionary, equitable power of the court under the unusual circumstances of this matter (id at 229)."