Hunts Point Hous. Dev. Fund Corp. v Ferebee

[*1] Hunts Point Hous. Dev. Fund Corp. v Ferebee 2019 NY Slip Op 51823(U) Decided on November 14, 2019 Civil Court Of The City Of New York, Bronx County Lutwak, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 November 14, 2019
Civil Court of the City of New York, Bronx County

Hunts Point Housing Development Fund Corporation, Petitioner (Landlord),

against

Angela Ferebee, Respondent (Tenant), "JOHN DOE" and "JANE DOE", Respondents (Undertenants).



62585/2016



Petitioner's Attorney:

Jason D. Boroff & Associates, PLLC

349 East 149th Street, Suite 703

Bronx, New York 10451

(718) 475-7888

Respondent's Attorney:

Charlie Dorsey Soto, Esq.

Neighborhood Ass'n for Inter-Cultural Affairs, Inc. (NAICA)

1075 Grand Concourse, Suite 1B

Bronx, New York 10452

(718) 538-3344
Diane E. Lutwak, J.

BACKGROUND & PROCEDURAL HISTORY

This is a holdover eviction proceeding brought by Petitioner Hunts Point Housing Development Fund Corporation against Respondent Angela Ferebee[FN1] , the Rent Stabilized tenant [*2]living at 721 Faile Street, Apartment 2B, Bronx, New York. Petitioner alleges three grounds for this proceeding, all arising from Respondent's installation and use of a washing machine in her apartment which Petitioner claims constitutes a violation of a substantial obligation of the tenancy: First, such installation without the landlord's prior written consent is prohibited by paragraph 15 of her lease and paragraph 5 of the "House Rules". Second, the washing machine is causing leaks and damage to the apartment below Respondent's and the basement below that in violation of paragraph 7 of the "House Rules" which prohibits "objectionable conduct". Third, the washing machine has clogged the sewer line, which also constitutes "objectionable conduct" in violation of paragraph 7 of the "House Rules". These claims are found in Petitioner's predicate "10 Day Notice to Cure" dated August 22, 2016 which is attached to the predicate "Ten (10) Day Notice to Terminate" dated September 23, 2016; both notices are attached to and incorporated by reference in the Petition.

The Petition was originally noticed to be heard on November 15, 2016. The proceeding was adjourned to January 17, 2017, and Respondent retained Neighborhood Association for Inter-Cultural Affairs (NAICA) as counsel. There followed a number of adjournments and motion practice. On May 3, 2018, Respondent's motion to dismiss the proceeding or alternatively to file an answer was granted solely to the extent of allowing Respondent to interpose an Answer raising four defenses: (1) failure to state a cause of action; (2) denial of the existence of an agreement to be bound by "House Rules"; (3) statute of limitations; and (4) "a reasonable accommodation pursuant to the Fair Housing Act as amended in 1988". The Answer also includes a counterclaim for attorneys' fees under Real Property Law § 234.

On November 29, 2018 the court granted Respondent's motion for discovery, denied Petitioner's motion to strike Respondent's defenses and counterclaim and denied Respondent's request for a stay of the proceeding pending a final determination by the New York City Commission on Human Rights on Respondent's related discrimination complaint which she filed on August 31, 2018, over a year and half after this proceeding was commenced. After several additional adjournments and pre-trial conferences, the trial began on July 12, 2019 and concluded on October 15, 2019.

TRIAL

Petitioner's Prima Facie Case

Petitioner called three witnesses: Jaime Diaz, the property manager; Lawrence Hirsch, the owner of a commercial heating company; and Hector Vargas, the former superintendent of the building. Mr. Diaz has worked for Petitioner's managing agent, Building Management Associates, for twenty-two years. Through this witness, and without objection, Petitioner submitted into evidence attorney-certified copies of its deed dated August 22, 1991 (Exhibit 1), the building's multiple dwelling registration statement from the New York City Department of Housing Preservation and Development (Exhibit 2) and the building's Registration Rent Roll from the New York State Division of Housing and Community Renewal (Exhibit 3). Also admitted into evidence without objection as Exhibit 4 was Respondent's original, fully executed, single-page, double-sided lease dated August 30, 1995 for the one-year term of September 1, 1995 through August 31, 1996 and a single-page, single-sided document entitled "SEBCO HOUSES RULES" signed and hand-dated in ink at the bottom: "11/5/92 X Mrs. Angela Ferebee". Mr. Diaz testified that Respondent "was a transfer from another building, rules are dated earlier from the other building. Same rules."

Mr. Diaz testified that this eviction proceeding was brought because Respondent has a [*3]washing machine which she was not given permission for and that it is "causing leaks to the basement and the apartments below". Paragraph 15 of Respondent's lease prohibits her from placing in the apartment or using a "laundry machine" and states that the violation of this prohibition "shall be regarded as a substantial and material violation and shall give cause to the landlord to end this lease." Paragraph 5 of the "Sebco Houses Rules" prohibits tenants from installing or keeping washing machine in their apartments. Paragraph 7 of those rules prohibits tenants from engaging in "objectionable conduct", defined as "behavior which makes or will make the apartment or building less fit to live in" and "anything which interferes with the right of others to properly and peacefully enjoy their apartments, or causes conditions that are dangerous, unlawful, hazardous, unsanitary and detrimental to other tenants in the building." A Notice to Cure was served, the washing machine was not removed and therefore this case was filed. At Petitioner's request, the court took judicial notice of certain documents in the court file: The Notice of Petition and Petition; the predicate notices to cure and to terminate attached to the Petition; and the affidavits of service.

On cross-examination, Respondent's counsel asked Mr. Diaz, "Who is Sebco Management?" He answered that "there is no Sebco Management" and that he could not explain who or what Sebco was.

Petitioner's second witness, Lawrence Hirsch, testified that he works servicing and installing commercial and industrial boilers and burners in apartment buildings, schools and hospitals in New York City and Yonkers. He has worked in this field for 32 years and, for the past 15 years, has owned a business called "HEAT, Inc." He has been to 721 Faile Street and has inspected the building's boiler room equipment, which was installed in 2013. He testified that based on the load calculations - square footage and anticipated use - the equipment in the boiler room is sized correctly for the provision of heat and hot water to the apartments in the building. However, the plumbing is not designed for the apartments to have washing machines and dishwashers, which "usually wreak havoc on the plumbing" and cause "temperature fluctuations [which] will affect the entire line." If such appliances are not installed properly by a licensed plumber, "cold will go into the hot line eventually the hot water will bounce back" and scalding may result.

The only way to accommodate washing machines and dishwashers would be to "increase the size of the equipment in the boiler room" and modify the plumbing in "the skeleton of the building". Mr. Hirsch testified that the storage tanks are not designed to handle that capacity, ConEdison would need to confirm that the additional load could be accommodated and the cost for this work would be $150,000 or more. A report Mr. Hirsch prepared in letter form dated March 24, 2018 detailing his findings was admitted into evidence without objection. The report states that the existing boiler room equipment is sufficient for the provision of heat and hot water to the kitchens and bathrooms in the building's 29 apartments and laundry room but not to supply hot water to washing machines or dishwashers in the apartments. The report states, inter alia: "It has been discussed the feasibility of just giving (1) unit the ability to produce domestic hot water. This is not a house where simple upgrades can be performed to increase capacity. All of the apartments are piped off of branches with one central heating & domestic hot water plant. Isolating this one apartment would require modifications to the building's heating and domestic hot water system to create a 'freestanding' unit, while maintaining the continuous free flow to the remaining apartments. Bringing additional gas and electric to one unit in the building would be roughly 75% to cost as renovating the heating plant. Running a large enough gas service for an [*4]independent appliance would require opening walls, floors & ceilings from the basement to that apartment. There is also a matter of fresh air introduction & combustion ventilation for new combustion heating equipment in the apartment that would need to be surveyed, designed and submitted to NYC DEP & NYC DOB for approval."

On cross-examination Mr. Hirsch acknowledged that he had never been to Respondent's apartment and that the March 24, 2018 letter report does not mention Apartment 2B. On re-direct Mr. Hirsch testified that he did not need to go to Respondent's apartment to arrive at his conclusions.

Petitioner's third witness was Hector Vargas, who was the superintendent of 721 Faile Street for five years, up until 2018. He became aware of Respondent's washing machine one day in the summer of 2016, when he noticed a washing machine hose hanging out of the window of her Apartment 2B with soapy water shooting out of it. Seven photographs Mr. Vargas took that day were admitted into evidence showing the washing machine hose emitting streams of soapy water which poured down the side of the building, coursed over the window ledge of Apartment 1B and landed in the courtyard. Prior to this the tenant in Apartment 1B had complained about water running down the exterior wall, splashing on her window ledge and entering her apartment; until he saw the washing machine hose sticking out of the Apartment 2B window Mr. Vargas thought it was rain water going into Apartment 1B. Mr. Vargas testified that there also were frequent backups and flooding of soapy water into the basement that would leave a residue on the floor; he would mop up the water or push it out into the courtyard. A sewer company had to come unplug the drain on many occasions before this case started including May 10, 2016, June 24, 2016 and July 28, 2016. Mr. Vargas testified, "It would be a mess down there, the water, soapy. Soapsuds on the floors in the basement. So then by the time they take the cap off all the water from everybody else's apartment that's stuck on the line would drain out into the basement due to the back-up behind."

On cross-examination Mr. Vargas recalled being in Respondent's apartment once to unclog her kitchen sink drain and maybe on one other occasion. He denied having personally installed a stove for her, although he did sign a work order for it, and denied having installed her air conditioner or bathroom grab bars. Mr. Vargas testified that he had never seen Respondent's washing machine in her apartment and that, "She limits from going anywhere. She'll stay right there where we at. She won't let us pass nowhere. Wherever anything needs to be done at, that's where she makes you stay at. If we have to go like further or anything into the apartment, she won't let us. No access to nowhere else. Only where the work is going to be done at." Sometimes Respondent would make it difficult to gain access and when this occurred "a different super, from another location, is sent to the apartment." When he made the repair underneath Respondent's kitchen sink, "that was it. I was in and I was out. I didn't browse around her kitchen, none of that, to see what she had there." Regarding the drain in the courtyard, Mr. Vargas testified that it is not clogged, he kept it clean and while it links to the basement it does not cause flooding when it rains. Also, the hose coming out of Respondent's window was removed but the water continued to back up into the basement. When asked, "So only my client's washing machine floods the basement?", Mr. Vargas answered that the water coming into the basement comes from "where her kitchen line and sewer trap line is at".

Respondent's Case

Respondent's only witness was herself. She is 58 years old, lives alone and works from home as a "network marketer". She has lived at the subject premises in a second-floor walk-up [*5]apartment for over twenty years and previously lived in a fifth-floor, walk-up apartment at 850 Bryant Avenue. She moved from there because of her "medical conditions". Respondent testified that her previous landlord was Sebco Management; when she initially moved into the subject premises, Sebco was her landlord with the "same management, and then they changed their name." Respondent's rent is subsidized by "Section 8" and her current portion is $192.

Respondent testified that she has a washing machine in her kitchen; five photographs she took of it at the time this case started were entered into evidence without objection. They show that it has a stainless-steel finish and sits in the left corner at the back end of the kitchen in between a refrigerator with a matching stainless-steel finish to the left and a wall to the right. On top of the washing machine sit various boxes and baskets of food and other items, as on a counter. Across from the washing machine, in the right corner at the back end of the kitchen, is the sink and a set of cabinets. There is a window in the middle of the wall which both the washing machine and the kitchen sink abut. Respondent testified that she has "always had a washing machine" and purchased her current one in 2013. This machine is the second one she got since moving in to the Faile Street apartment; she bought it to replace a prior one that she had for ten years. Before that, beginning while living at 850 Bryant Avenue, she had a third one. Respondent testified that "there was never a time I didn't have a washing machine since I've been a tenant of Sebco. The only other time that I didn't have a washing machine was when my second washing machine broke and I immediately, because of my medical condition, I ordered another one right away." Respondent testified that she never made any attempt to hide her washing machine, and described it as "big and beautiful, as you can see from the pictures." When asked by her attorney whether Petitioner's agents have been in her apartment Respondent answered, "when they need to come in, they need to come in. But if they don't, then they don't." Before this case started she was never told to remove the washing machine and had never been to court; when asked "Under any other issue?" her answer was no.

She described the washing machine's location in her kitchen as, "diagonally across from the sink, next to the window." When asked who installed it and how, Respondent testified that "there was no installation involved with the washing machine overall. It was just a delivery." She also testified that, "This is a twenty-first century washing machine. You just turn it on. Plug it in." When asked about the connection, Respondent testified that there is a hose, and then explained, "When the machine was first installed there was a part that I needed to attach to it. And I admitted to that, that when I attached it, it wasn't tight on the hose. So, I put the hose out the window until I purchased the appropriate piece that involved the actual connection of it. So that was the issue at the time when Mr. Vargas saw the hose out the window. That was the one time only." Now, "the hose is installed appropriately so now when I wash my clothing the hose goes in my sink." Respondent testified that she uses the washing machine once or twice a month and that it has not caused any flooding into her apartment.

When asked by her attorney, "What complaints have you made to the landlord prior to when this case started, outside of the bathroom?" Respondent answered that she had made "a complaint about the super, Hector Vargas." When her attorney again asked about "repair issues", Respondent answered, "Just in the bathroom mostly, big issue there. Ceiling leaking, and the mold."

When asked about her stove Respondent testified that it sits directly across from the washing machine and that Hector Vargas installed it in 2013 or 2014: "He installed it because the gas has to be turned off. I spoke with Jaime Diaz, the building manager, in that regard. [*6]Because initially Home Depot, they were going to install it. But I have to speak to my landlord first in that regard because of the gas issue. They're not allowed or licensed to turn the gas off on the property without the landlord's okay. So, I spoke to Mr. Diaz about it and he — we - arranged like always a time that was sufficient for me and applicable to my schedule for the super at the time."

Respondent testified that she needs a washing machine in her apartment because she is disabled, the building is a walk-up and there are "over twenty or so" stairs[FN2] from the lobby to her apartment, although she "never counted them". Respondent can't "carry bags and boxes and laundry and things of that nature" and is limited to carrying "a dozen of eggs and a loaf of bread". Respondent's health problems date back to when she first moved in to the Bryant Avenue building in 1992; she testified that she has provided many letters to Petitioner from her doctors. Describing her health problems, Respondent testified that she had cervical spine surgery in 2003 which caused her to have limitations with her toes, nerve damage and muscle tension spasms, conditions which she continues to experience every day. She had three other surgeries in February of this year for bowel obstruction, a kidney stone and a stent. She also has a "torn hairline fracture" in her knee. She sees ten to twelve doctors on a regular basis — neurologists, urologists, orthopedists, pulmonologists, bone specialists, nerve specialists and pain management doctors. She testified that, "With all of these things, all of my medical conditions, I've notified my management. They have letters from my medical doctors."

Respondent believes Petitioner brought this case against her because of her complaints about the super, Mr. Vargas, who started "disrespecting" her after her pulmonologist wrote a letter on her behalf to Petitioner's management company stating that any person coming in to her apartment must wear surgical shoes. Respondent testified: "Hector Vargas, he didn't like the idea of that. And that's when he started, like, disrespecting me and that's what caused all this ." Respondent sent two emails to Petitioner's management company, one of which was admitted into evidence, complaining about Mr. Vargas "and the mistreatment and the cruelty that he would bestow upon me whenever he was in my presence, with other tenants, and things of that nature." Respondent also filed a case with the New York City Commission on Human Rights after Petitioner filed this proceeding against her.

On cross-examination Respondent acknowledged that she did not get written permission from Petitioner to install a washing machine and that she has no plumbing expertise. She has never used the building's laundry room. Respondent identified herself in photographs Petitioner took of her in the building's public areas carrying two plastic grocery-type bags in her left hand. Respondent testified that she never said she could not carry any bags; she could not carry laundry but could carry five to ten pounds. The grocery bags in the photographs contained "potato chips in one bag and a loaf of bread in the other."

When Petitioner's attorney asked her about prior cases between the parties, initially Respondent testified that there had not been any "since I've lived where I've lived" and that she [*7]knew Petitioner's attorney "from a case with my uncle". Then when asked if it would surprise her to know that there have been seventeen cases between the parties Respondent answered that it would not surprise her. A certified printout from the court's case management system showing seventeen cases between the parties from 1996 through 2016 when this case was filed was admitted into evidence and Respondent then admitted that Petitioner previously had brought numerous cases against her for nonpayment of rent, although not for having a washing machine, and that she had filed an HP Action against Petitioner. The printout shows that of the seventeen cases, one other than this one was a holdover, four were HP Actions and eleven were nonpayment proceedings.

At Petitioner's request the court took judicial notice of the file in L & T Index # 290/2003, a nonpayment proceeding in which a final judgment was entered for Petitioner at the first appearance on January 21, 2003. Following motion practice and an order of Housing Court Judge Malatzky granting Petitioner's motion for legal fees to the extent of setting it down for a hearing, the matter was settled in a two-attorney stipulation on January 28, 2004 awarding Petitioner a non-possessory $600.00 money judgment for legal fees, vacating the possessory judgment and warrant of eviction and discontinuing the proceeding. When asked if she recalled being held in contempt for failure to provide access Respondent testified that she did not recall that. Admitted into evidence without objection was a copy of a Decision and Order dated December 9, 2003 from one of the HP Actions, L & T Index # 86101/2003, finding Respondent to be in contempt of a Stipulation dated October 30, 2003 by denying access to Petitioner on three dates in November 2003.

On redirect, Respondent testified that she did not consult a professional about installing the washing machine because, "everything was ok, meaning that the washing machine was ready to use". When she realized that there was a "valve gadget that keeps the hose together" she purchased the necessary piece at Home Depot, "and put the piece on, didn't do it right, that's when I needed to put it out the window, I was washing clothes at the time."

Petitioner's Rebuttal Case

On rebuttal, Petitioner's first witness was John Sedaris, a licensed master plumber who graduated from the Columbia University School of Engineering in 1977 and has been in business for himself for 41 years. Mr. Sedaris evaluated the plumbing at 721 Faile Street to determine if it could accommodate an individual apartment washing machine. He did not examine Respondent's apartment but did enter the apartment below hers. For the building to be equipped for individual washing machines a "suds-pressure zone" would need to be installed to prevent the back-up of suds into the lower apartments when a machine is discharged from an upper apartment and that this would cost hundreds of thousands of dollars. Mr. Sedaris testified that to "prevent cross-contamination into the drinking water" a washing machine needs to be properly installed. Mr. Sedaris had no idea what Respondent meant when she said that to install the washing machine you just "plug it in". When asked by the court if he was familiar with the type of connection where a washing machine is attached to the sink faucet for input and sink basin for output, Mr. Sedaris testified that with such a hook-up there is nothing to prevent water from going backwards and it "would cause suds in lower floors with contaminants. Someone could use that sink, toilet, shower, and pick up a disease. That's Rube Goldberg."

Petitioner's second rebuttal witness was David Post, who was the property manager for 721 Faile Street from 1995 to 2007. Mr. Post knew Respondent as one of the tenants and remembered that there had been a case between the parties that went on "for years" regarding the [*8]condition of her bathroom. In that case Mr. Post recalled that Petitioner was awarded $600 in legal fees and $25 in sanctions for Respondent's failure to provide access. Mr. Post had been inside of Respondent's apartment to ensure that the toilet bowl worked properly and testified that he never saw a washing machine. It was the policy of the building to not allow washing machines as the plumbing could not support it. Respondent never asked for permission, while he was property manager, to install a washing machine. On cross-examination Mr. Post testified that he had seen Respondent's kitchen when he was in her apartment to deal with the bathroom issues in the early 2000's and never saw a washing machine there.

Petitioner re-called Jaime Diaz as its third rebuttal witness. Mr. Diaz testified that 721 Faile Street has a laundry room on the ground floor level, accessed by exiting the building and entering through a separate door. Seven photographs were admitted into evidence showing the front of the building where there are two steps at the entrance, a ramp leading to the separate entrance to the laundry room and the laundry room itself. The two photographs in which Respondent had identified herself carrying grocery bags were also admitted into evidence through Mr. Diaz, who testified that he took those photographs on November 2, 2017. Mr. Diaz testified that Respondent never asked for permission to have a washing machine and was never given such permission.

On cross-examination, Mr. Diaz reiterated that to enter the laundry room at 721 Faile Street one must go outside, as there is no access from within the building. He acknowledged that there is no ramp to exit the building and the building does not have an elevator.

DISCUSSION

Petitioner has asserted three grounds for Respondent's eviction based on her installation and use of a washing machine in her apartment: First, that this violates paragraph 15 of her lease and paragraph 5 of the "House Rules" which prohibit such an installation. Second, that the washing machine is causing leaks, which constitutes "objectionable conduct" in violation of paragraph 7 of the House Rules. Third, that the washing machine has clogged the building's sewer line, also a violation of paragraph 7 of the House Rules.

Petitioner's claims arising from the House Rules are dismissed. The House Rules that Petitioner entered into evidence fail to mention any address or Petitioner's name and pre-date Respondent's lease by almost three years. Further, while they refer to an entity called "Sebco Houses" Petitioner's property manager Jaime Diaz could not explain what "Sebco Houses" is or how it is connected to Petitioner. The only evidence shedding any light on this question was Respondent's testimony that she moved to this apartment from a fifth-floor apartment at 850 Bryant Street and that "Sebco Management was landlord of both buildings". However, Mr. Diaz denied the existence of an entity called "Sebco Management", although he did testify that Respondent is "a transfer from another building" and that the "rules are dated earlier from the other building". Mr. Post, the prior property manager for the period of 1995 through 2007, offered no testimony on this subject. This is simply insufficient evidence from which the court can draw a connection between Respondent's Rent Stabilized tenancy based on a lease dated August 30, 1995 and the "SEBCO HOUSES RULES" dated November 5, 1992. Accordingly, Petitioner's claims based on the rules are dismissed.

Nevertheless, Petitioner did make out its prima facie case on its remaining claim that Respondent's installation of a washing machine in her apartment violates paragraph 15 of her lease, which provision also states that this violation "shall be regarded as a substantial and material violation and shall give cause to the landlord to end this lease." Respondent admitted [*9]that she installed a washing machine in her apartment and offered no proof that she did so with Petitioner's consent.

Respondent raises two affirmative defenses which she asserts warrant dismissal of this proceeding — statute of limitations and "a reasonable accommodation pursuant to the Fair Housing Act as amended in 1988". For the reasons that follow, the court finds that Respondent failed to meet her burden of proof on either of these defenses.

First, given the testimony, the court will treat Respondent's "statute of limitations" defense as one of waiver. Where a landlord collects rent and otherwise acquiesces in the tenant's installation and use of a washing machine the landlord "may be deemed to have waived his remedial right, even assuming a breach of a substantial obligation of the lease." Fanchild Investors Inc v Cohen (43 Misc 2d 39, 250 NYS2d 446 [Civ Ct NY Co 1964]). In Fanchild, where the tenant had installed a washing machine when he moved into the premises two years earlier, the court found that the testimony at trial established that the building's superintendent had been in the tenant's kitchen many times to collect rent and otherwise, "could not have missed seeing the washer" and did not deny having seen it. See also Concord Properties, Inc v Speier (1985 NY Misc LEXIS 3366, 193 NYLJ 112 [App Term 1st Dep't 1985])(where it was undisputed that landlord, in writing and orally, permitted tenant's installation of a sink in connection with tenant's photographic endeavors, for the obvious purpose of disposal of chemicals used to develop film, landlord was found to have waived any objection to tenant's use of a room in his apartment, in violation of his lease, as a photographic darkroom); 601 West Realty LLC v Grigoroff (2000 NY Misc LEXIS 723 [Civ Ct NY Co 2000])(summary judgment granted to tenant who had operated a washing machine in her apartment for sixteen years with the knowledge of landlord and its predecessor-in-interest); Melroy Realty Corp v Siegel (60 Misc 2d 383, 303 NYS2d 198 [Civ Ct NY Co 1969])(holdover proceeding based on tenant's alleged violation of a substantial obligation of his lease by failing to obtain the landlord's consent to a three-month sublease dismissed based on waiver of the right to evict where landlord had accepted one month's rent "with full knowledge of the subletting and prior to the commencement of this summary proceeding").

Here, Respondent failed to prove by a preponderance of the evidence that Petitioner knew she was maintaining and using a washing machine, a necessary element of the waiver defense, prior to when Petitioner's super saw the hose discharging soapy water from her window in the summer of 2016. The only evidence Respondent presented of Petitioner's knowledge was her uncorroborated and conclusory testimony that she has had a washing machine for the entire length of her tenancy, that the current one, which she purchased from Home Depot in 2013 or 2014, is "big and beautiful", that she never tried to hide it and that it is located in her kitchen across from her stove which she alleges was installed by the building's former super Hector Vargas. Respondent did not testify about any other of Petitioner's workers ever having been in her kitchen. The only reason for Petitioner's workers to be in her apartment that Respondent mentioned, other than for installation of her stove, was to address conditions in her bathroom. However, Respondent presented no evidence that to get to the bathroom one would necessarily see the washing machine, nor did Respondent offer any specific information evincing Petitioner's actual knowledge of the washing machine.

Regarding the stove installation, Respondent provided no details such as dates or times of purchase, delivery and installation; whether she was home at the time of the installation and, if so, whether anyone else was present; or which washing machine she had at that time and where [*10]it was located. Rather, she testified only that she recalled speaking to Jaime Diaz about arranging to have the gas turned off for the installation and that Hector was the super at that time.

The reliability of Respondent's testimony was called into question not only because it was lacking in particularities but also because her answers to questions were often equivocal and evasive. For example, she testified that she had never been to court with Petitioner before but then acknowledged that there had been sixteen proceedings between the parties prior to this one. She did not recall having been held in contempt in one of those proceedings, L & T Index # 86106/03. When asked by her attorney whether Petitioner's agents have been in her apartment Respondent answered, "when they need to come in, they need to come in. But if they don't, then they don't." She testified that her washing machine sits right across from the stove yet offered into evidence a photograph showing that across from the washing machine is the kitchen sink, with no stove appearing in any of her five photographs of the washing machine.

The court finds more credible Hector's unequivocal testimony that he never saw a washing machine in Respondent's apartment, that he did not install the stove and that he merely signed off on the work order for the stove. Further, Respondent did not mention that Hector had been in her kitchen to unclog the sink; it was Hector who volunteered this information. He also testified credibly that Respondent often was difficult about letting workers in to her apartment and that when she did provide access she would limit it to the location where the repair was needed. Regarding the unclogging of Respondent's kitchen sink, Hector testified credibly that, "I was in and I was out. I didn't browse around her kitchen, none of that, to see what she had there." Hector's testimony about Respondent being difficult about providing access was corroborated by the Decision and Order in L & T Index # 86106/03 holding Respondent in contempt for failing to provide access in that HP Action.

Respondent did have many complaints about Hector; however, that Hector may have been annoyed about having to wear surgical shoes when he entered Respondent's apartment, and that Respondent complained to Petitioner about Hector's disrespectful treatment of her, does not substitute for proof that Hector installed the stove in her kitchen and actually saw and knew she had a washing machine in her kitchen.

Turning to Respondent's defense of disability discrimination, under the federal Fair Housing Amendments Act of 1988 ("FHAA"), it is unlawful to discriminate in housing practices, including rental terms, conditions, privileges, services and facilities, on the basis of a "handicap". 42 USC § 3604 [f][2]. Housing discrimination includes a refusal to make reasonable accommodations in rules, policies, practices, or services, when such accommodations may be necessary to afford a tenant an equal opportunity to use and enjoy a dwelling. 42 USC § 3604 [f][3][B]. Handicap is very broadly defined in the FHAA, and a person is considered handicapped and thereby protected under the FHAA if he or she has a physical or mental impairment that substantially limits one or more major life activities, or has a record of such impairment, or is regarded as having such an impairment. 42 USC § 3602 [h]; 24 CFR § 100.201. No specific diagnosis is necessary for a person to be "handicapped" and protected under the statute. Matter of Prospect Union Assoc v DeJesus (91 NYS3d 36, 40, 167 AD3d 540, 543 [1st Dep't 2018]).

The FHAA requires "that changes be made to such traditional rules or practices if necessary to permit a person with handicaps an equal opportunity to use and enjoy a dwelling." Shapiro v Cadman Towers, Inc (51 F3d 328, 333 [2d Cir 1995]). Reasonable accommodations [*11]might, in some cases, excuse actions that would otherwise constitute a violation of a lease or building rules. Hirschmann v Hassapoyannes (16 Misc 3d 1014, 1017, 843 NYS2d 778, 781 [Sup Ct NY Co 2007]). However, the FHAA does not mandate a reasonable accommodation to a tenant which "would result in substantial physical damage to the property of others," 42 USC § 3604 [f][9], and the obligation to provide a reasonable accommodation does not require a landlord to provide what the tenant views as "the ideal solution", White Cliffs at Dover v Bulman (151 NH 251, 855 A2d 437 [Sup Ct NH 2004]).

Respondent failed to prove that she is a handicapped person who is entitled to keep and use her washing machine as a reasonable accommodation of her physical impairments. Respondent's only proof of her impairments was her testimony: That her health problems date back to 1992, that in 2003 she had cervical spine surgery which caused her current daily symptoms of limitations with her toes, nerve damage and muscle tension spasms, that she underwent three surgeries in February of this year, for bowel obstruction, a kidney stone and a stent, and that she has a "torn hairline fracture" in her knee. Respondent testified that because of her impairments she cannot lift and carry more than five to ten pounds and that she cannot carry laundry. However, while she testified that she sees ten to twelve doctors of various specialties and "provided many letters" to Petitioner from her doctors, she offered no medical evidence at trial to corroborate her testimony about her health problems and how they limit her daily activities. Especially given her equivocal and evasive testimony about other matters as described above, the limited nature of Respondent's proof hampers the court's ability to make a finding that she meets the FHAA's definition of handicap. Compare, e.g., Shapiro v Cadman Towers, Inc (844 FSupp 116, 123 [EDNY 1994], aff'd, 51F3d 328, 332 [2nd Cir 1995])(court relied on medical evidence introduced at preliminary injunction hearing to find that the tenant is "handicapped" under the FHAA); 529 W 29th LLC v Reyes (63 Misc 3d 65, 100 NYS3d 475 [App Term 1st Dep't 2019])(evidence at trial that respondent-tenant is handicapped within the meaning of the 42 USC § 3602[h] included expert testimony by a clinical psychologist); Matter of Prospect Union Assoc v DeJesus (167 AD3d 540, 91 NYS3d 36 [App Term 1st Dep't 2018])(the appointment of a guardian under Article 81 of the Mental Hygiene Law for both respondent-tenants sufficiently established that they are "handicapped" within the meaning of 42 USC § 3602[h]).

Even if the court were to find the evidence sufficient as to Respondent's medical impairments, she has not proven that keeping her washing machine despite the prohibition in her lease is a necessary and reasonable accommodation of her handicaps. Petitioner's uncontroverted evidence established that the equipment and plumbing that supply hot water to the apartments and laundry room in the building at 721 Faile Street cannot safely accommodate a washing machine in an individual apartment. Hector Vargas, Petitioner's former super, testified that Respondent's washing machine causes backups of sudsy water into the basement requiring a sewer company to be called in to unplug the drain. Lawrence Hirsch, a commercial heating and hot water specialist with 32 years of experience, testified that the plumbing at 721 Faile Street is not designed for individual apartments to have washing machines, which "wreak havoc on the plumbing" and can cause temperature fluctuations to the entire line. John Sedaris, a licensed master plumber and engineer with over 40 years of experience testified that a washing machine hooked up the way Respondent's is to the sink faucet for input and sink basin for output is a "Rube Goldberg" connection that includes no system for preventing contaminated water from the washing machine to back up into someone else's sink, toilet or shower on a lower floor.

Given the damage described by Petitioner's former super, and the dangers described by Petitioner's experts, allowing Respondent to continue to use her washing machine without substantial modifications to the building's hot water and plumbing systems is clearly not an option as it is likely to "result in substantial physical damage to the property of others." 42 USC § 3604 [f][9].

Nor is it reasonable to require Petitioner to upgrade its boiler and replumb the lines at a cost of over $150,000, as testified to by both Mr. Hirsch and Mr. Sedaris, to safely accommodate a washing machine in Respondent's apartment. A landlord may be required to incur reasonable costs to accommodate a person's handicap, but only so long as the accommodations sought "do not pose an undue hardship or a substantial burden." Shapiro v Cadman Towers, Inc (51 F3d at 335).

Respondent also has not convinced the court that having her own washing machine is necessary for her to have an equal opportunity to use and enjoy her apartment. The building has a laundry room on the ground floor level of the building, accessible down a ramp and through a separate entrance. While Respondent's health problems may interfere with her ability to carry her laundry there from her apartment, she did not offer testimony or other evidence to indicate whether she had explored any of the other possible options for getting her laundry done besides having a washing machine in her apartment — such as getting someone to help her carry her laundry up and down or using a laundry service - or why such other options are untenable for her.

CONCLUSION

Accordingly, the Petition is granted and Petitioner is awarded a judgment of possession. However, to provide Respondent with a post-judgment opportunity to correct the breach of her lease under RPAPL § 753(4) by removing her washing machine, issuance of the warrant of eviction is stayed ten days[FN3] from the date of Petitioner's filing with the Part T Clerk proof of service by first-class mail on Respondent and her attorney of a copy of this Decision and Order. The parties' attorneys may pick up their documents that were submitted into evidence as trial exhibits from the Part T Clerk (in either Room 409 or 410 at 851 Grand Concourse, Bronx, New York) within thirty days. If the exhibits are not picked up by December 16, 2019, they may be disposed of in accordance with Administrative Directives. This constitutes the Decision and Order of the court, copies of which are being mailed to the parties' attorneys.

Dated: November 14, 2019

_____________________________

Diane Lutwak, HCJ

Bronx, New York Footnotes

Footnote 1: Angela Ferebee is the only Respondent who appeared in this proceeding and at the close of trial Petitioner discontinued the case as against "John Doe" and "Jane Doe"; accordingly, all references herein to "Respondent" refer only to Ms. Ferebee.

Footnote 2: In response to her attorney's question about the number of "flights of stairs" from the lobby of the building to her apartment Respondent answered "Over twenty or so. I never counted them." However, the court treats this response as a reference to the number of stairs, not the number of flights, as other evidence in the record indicates that the building has just 29 apartments and Respondent lives on the second floor, in Apartment 2B.

Footnote 3: While the Housing Stability and Tenant Protection Act of 2019 amended RPAPL § 753(4) to extend the ten-day cure period to thirty days, that section does not apply herein because this proceeding was commenced prior to the effective date of that Act. However, should Respondent need more than ten days to cure the lease violation, her attorney can make an appropriate application to this court for an extension.