Dunbar v 1560 GC LLC

[*1] Dunbar v 1560 GC LLC 2021 NY Slip Op 50291(U) Decided on January 27, 2021 Civil Court Of The City Of New York, Bronx County Ibrahim, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 January 27, 2021
Civil Court of the City of New York, Bronx County

Oneka Dunbar, Petitioner,

against

1560 GC LLC, Chestnut Holdings of New York, Inc., Jonathan Weiner, & Ben Rieder, Respondents, and New York City Department of Housing Preservation and Development ("DOB") and Department of Buildings of the City of New York ("DOB"), Co-Respondent.



Edith Thompson, Petitioner,

against

1560 GC LLC, Chestnut Holdings of New York, Inc., Jonathan Weiner, & Ben Rieder, Respondents, and New York City Department of Housing Preservation & Development & Department of Buildings of the City of New York, Co-Respondent.



13394/2020



Counsel for Petitioners Dunbar and Thompson

Rochelle R. Watson, of counsel to

Tiffany A. Liston, Esq.,

Mobilization for Justice, Inc.

424 East 147th Street, 3rd Floor

Bronx, New York 10455

Counsel for Respondent-Landlord

Jordan Tapia, Esq.

Moss & Tapia Law, LLC

315 Madison Avenue, Suite 3052

New York, NY 10017

Counsel for Respondent DHPD

Mirta Yurnet-Thomas, Esq. & Emile Veale, Esq.

New York City

Housing Preservation and Development

100 Gold Street

New York, New York 10038
Shorab Ibrahim, J.

Recitation, as required by C.P.L.R. § 2219(a), of the papers considered in review of this motion.

For the Dunbar case: PETITIONER'S ORDER TO SHOW CAUSE WITH AFFIDIVIT AND EXHIBITS; RESPONDENTS' CROSS-MOTION/OPPOSITION TO PETITIONER'S MOTION WITH AFFIDAVIT, EXHBITS AND MEMORANDUM OF LAW [NYSCEF DOCS. 6-22]; PETITIONER'S REPLY AFFIRMATION IN SUPPORT OF MOTION [NYSCEF DOC. 3]; PETITIONER'S SUPPLEMENTAL AFFIRMATION IN SUPPORT OF THE MOTION [NYSCEF DOC. 27]; RESPONDENTS' SUPPLEMENTAL AFFIRMATION IN SUPPORT OF RESPONDENTS' CROSS-MOTION AND AFFIRMATION IN OPPOSITION TO PETITIONER'S MOTION [NYSCEF DOC. 23], WITH EXHIBITS [NYSCEF DOCS. 24-26].

For the Thompson case: PETITIONER'S ORDER TO SHOW CAUSE WITH AFFIDIVIT AND EXHIBITS; RESPONDENTS' CROSS-MOTION/OPPOSITION TO PETITIONER'S MOTION WITH AFFIDAVIT, EXHBITS AND MEMORANDUM OF LAW [NYSCEF DOCS. 4-20]; PETITIONER'S REPLY AFFIRMATION IN SUPPORT OF THE MOTION WITH EXHIBITS [NYSCEF DOC. 3]; RESPONDENTS' REPLY AFFIRMATION TO PETITIONER'S OPPOSITION TO RESPONDENTS' CROSS-MOTION [NYSCEF DOC. 25], PETITIONER'S SUPPLEMENTAL REPLY AFFIRMATION IN SUPPORT OF THE MOTION [NYSCEF DOC. 26].

BACKGROUND

The above captioned proceedings result from a fire at the subject building [1560 Grand Concourse, Bronx, NY 10457] ("the subject premises") on or about March 31, 2020. Vacate Orders were issued for Oneka Dunbar's and Edith Thompson's apartments ("Dunbar" and "Thompson") on or about April 1, 2020.[FN1]

Both proceedings seek, inter alia, that respondents correct the conditions in the apartments and common areas that resulted from the March 31, 2020 fire. The cases first appeared on the court's "HE" calendar, which was developed to handle emergency matters [*2]during first "wave" of the COVID-19 pandemic. On May 15, 2020, the parties in both cases entered consent orders to correct the conditions, with respondents having until July 31, 2020 to comply.

The repairs were not completed, and petitioners were not restored to possession of their apartments by July 31, 2020. The court now is presented with petitioners' motions to hold respondents in civil and criminal contempt pursuant to the Judiciary Law and New York City Civil Court Act. Respondents, for their part, move to enlarge their time to comply with the orders to correct, while also opposing the contempt motions.

DISCUSSION

Given the common questions of law and fact raised, the court consolidates these matters under the lower index number [13394/2020]. (see Civil Court Act § 110(b) ["On the application of any city department, any party, or on its own motion, the housing part of the civil court shall, unless good cause is shown to the contrary, consolidate all actions and proceedings pending in such part as to any building."]; Surrey Coop, Apts. V Brown, 1990 NYLJ LEXIS 8527 at *1 [Civ Ct, Bronx County 1990]; Teitelbaum v PTR Co., 6 AD3d 254, 255, 774 NYS2d 699 [1st Dept 2004] [Consolidation is mandated by judicial economy where two lawsuits are intertwined with common questions of law and fact.]).

There is no serious dispute that the May 15, 2020 Orders to Correct are lawful court orders expressing an unequivocal mandate, that respondents had knowledge of them, that the orders were not complied with—to the extent that the repairs were not done, vacate orders not lifted and possession not restored—and that the tenants have been prejudiced. (see Matter of McCormick v Axelrod, 59 NY2d 574, 583, 466 NYS2d 279 [1983]). Petitioners argue contempt must be found under these circumstances.

Respondents argue [in support of their motions for further time to comply with the May 15, 2020 Orders and in opposition to petitioners' motions] that the failure to comply with the July 31, 2020 mandate must be viewed in context. They argue that the delays, in context, are not attributable to their actions or omissions. Respondents ask the court to consider the scope of the damage to the building. The fire itself killed four (4) people and it took 140 firefighters to subdue.[FN2] Respondents ask the court to consider the repairs they undertook almost immediately after the fire, but prior to the orders to correct, including fixing the roof openings which were made to fight the fire. Respondents ask the court to consider the insurance claims process and the discovery of asbestos at the property. (See Oct. 23, 2020 David Tannenbaum affidavit at 24). They claim much of the asbestos remediation process was taken over out of their hands. (id. at 29). Finally, respondents ask that the court consider all of this in the context of the raging COVID-19 pandemic.

In sum, respondents argue they did not willfully disobey the orders because they did not cause the delays in commencing and completing repairs so that the vacate orders can be lifted.

Although they cite to NYC Admin Code § 27-2115(k)(3)(iv), respondents' stated defenses also fall under NYC Admin Code § 27-2115(k)(3)(ii) and (iii). (see Chambers v Old Stone Hill Road Associates, 66 AD3d 944, 946, 889 NYS2d 598 [2nd Dept 2009] (in acting diligently to obtain permits, party did not "disobey" court order); Savas v Bruen, 139 AD3d 736, [*3]30 NYS3d 673 [2nd Dept 2016] (inability to comply with order is a defense to contempt)).

Petitioners' replies are as straightforward as their motions: that the court should not credit respondents' factual statements and conclusions because they are made solely by respondents' attorney and by David Tannenbaum, someone without personal knowledge. Petitioners note that while reconstruction on other apartments in the subject building has gone forward, no work has been done to petitioners' apartments.

Regardless of whether each element of civil contempt can be established by clear and convincing evidence, (Simens v Darwish, 104 AD3d 465, 466, 960 NYS2d 120 [1st Dept 2013]; Denaro v Rosalia, 52 AD3d 727, 855 NYS2d 601 [2nd Dept 2008]), "[t]he Court's power to punish a party for civil contempt is discretionary and the Court should exercise that discretion in light of the facts and circumstances in each particular case." (Castillo v Banner Group LLC, 63 Misc 3d 1235[A] at *3, 2019 NY Slip Op 50897[U] [Civ Ct, New York County 2019] citing In Re Hildreth, 28 AD2d 290, 292 [1st Dept 1967]).

Here, there are currently no good outcomes or easy solutions. Petitioners have been out of possession of their homes since March 31, 2020, while a pandemic has ravaged the United States, New York City worst of all. On the other hand, the building suffered a massive fire, resulting in death and destruction. According to respondents, that very destruction exposed asbestos, leading to further delay.

The motions before this court turn, however, on whether respondents have properly raised issues of fact, so that a hearing on the contempt motion is required. (see e.g., Automated Waste Disposal Inc. v Mid-Hudson Waste, Inc., 50 AD3d 1073, 1074, 857 NYS2d 229 [2nd Dept 2008]

The entirety of respondents' factual claims rest on the affirmations of their counsel, Ms. Tapia, and the affidavit of their agent, Mr. Tannenbaum. As to Ms. Tapia, her statements are not made on personal knowledge and are afforded no probative value. (Thelen LLP v Omni Contracting Co., 79 AD3d 605,606 914 NYS2d 119 [1st Dept 2010]; Onewest Bank, FSB v Michel, 143 AD3d 869, 871, 39 NYS3d 485 [2nd Dept 2016]).

Mr. Tannenbaum's affidavit purports to be based on him being "personally familiar with the facts and circumstances based upon a review of Petitioner's file, court documents and from information obtained from court conferences I have attended." The court is troubled with Mr. Tannenbaum's purported personal knowledge and respondents' failure to submit substantiating documents.[FN3]

Thus, the court generally agrees with petitioners that Mr. Tannenbaum's statements lack probative value. Yet, the court will not turn a blind eye to common sense. There was a massive, deadly fire. Insurance proceeds are necessary to repair the property. Here, given the age of the building, the fire damage exposed asbestos. That asbestos requires remediation. That remediation causes delays. There has been a pandemic during all these events, which has slowed the normal course. (see Lloyd v Oestreicher, 22 Misc. 900, 902, 195 NYS2d 895 [City of New York Mun. Ct, First District 1959] ("Inquiry, observation and experience all lead me to this conclusion")). Indeed, "common sense" is often employed in HP actions, such as this. (see Smith v Parkchester North Condominium, 163 Misc 2d 66, 68, 619 NYS 2d 523 [Civ Ct, Bronx County 1994]; Division of Housing Preservation and Development of the City of New York v NYSandy 12CPB9 LLC, 61 Misc 3d 1219[A] [Civ Ct, Bronx County 2019]). In this sense, issues of fact [*4]exist.

Consequently, based on the totality of the circumstances, the court hereby exercises its discretion and orders a hearing on petitioners' motions for contempt. At the hearing, respondents must establish their stated defense by a preponderance of the evidence. (see 133 W 145 LLC v Davis, 63 Misc 3d 158[A], 2019 NY Slip Op 50850[U] [App Term, 1st Dept 2019]; 3657 Realty Co. LLC v Jones, 52 AD3d 272, 859 NYS2d 434 [1st Dept 2008]). That is, respondents must establish "(ii) That he or she began to correct the condition which constitutes the violation promptly upon discovering it but that full correction could not be completed expeditiously because of technical difficulties, inability to obtain necessary materials, funds or labor, or inability to gain access to the dwelling unit wherein the violation occurs, or such other portion of the building as might be necessary to make the repair; or (iii) That he or she was unable to obtain a permit or license necessary to correct the violation, provided that diligent and prompt application was made therefor; or (iv) That the violation giving rise to the action was caused by the act or negligence, neglect or abuse of another not in the employ or subject to the direction of the owner." (NYC Admin Code § 27-2115(k)(3)).[FN4]

In essence, respondents must establish with sufficient proof that, despite their good faith efforts to comply with the July 31, 2020 mandate, they were stymied by persons, agencies, and events out of their control.

Respondents' motions to extend their time to comply with the orders to correct are held in abeyance, pending determinations of the contempt motions.

The application to hold Mr. Tannenbaum in contempt is denied. While a non-party can be held in contempt under certain circumstances, (see Johnson v Atop Roofing and Siding Corp., 135 Misc 2d 746, 516 NYS2d 408 [Civ Ct, Kings County 1987]; DHPD v B.B. AM Holdings, NYLJ June 22, 1995, at 28, col 4 [App Term, 1st Dept]), the conclusory statements in petitioners' orders to show cause fail to support a claim against Mr. Tannenbaum. Indeed, their memorandum of law conflates Mr. Tannenbaum with the respondents-owners [see page 14].

CONCLUSION

Based on the foregoing, the above captioned proceedings are consolidated and the motions seeking contempt are granted solely to the extent of setting the matters down for a virtual hearing on contempt. The cases are adjourned to March 8, 2021 at 10 A.M. for hearing. The parties are directed to email to each other and the court any documents and other evidence they wish to introduce into evidence. This is to be completed by February 17, 2021. Any objections to proposed evidence shall be noted via email to each other and the court by March 2, 2021.

Dated: January 27, 2021

Bronx, NY

SHORAB IBRAHIM, JHC Footnotes

Footnote 1:The record shows that a total of eight (8) apartments were affected by vacate orders resulting from the fire.

Footnote 2:https://www.nytimes.com/2020/03/31/nyregion/bronx-fire-building.html#:~:text=Fire%20at%20Bronx%20Apartment%20Building%20Kills%204%20The,night.%20Gregg%20Vigliotti%20for%20The%20New%20York%20Times. Last accessed January 26, 2021.

Footnote 3:Affidavits from the representatives of petitioners' insurance company, architect, and other contractors, for example.

Footnote 4:While "common-sense" may have helped earn respondents a hearing, actual proof will be required at the hearing.