Recitation, as required by CPLR 2219(a), of the papers considered in the review of petitioners order to show cause seeking civil and criminal contempt and other relief:Papers NumberedPetitioner’s Order to Show Cause 1DHPD Partial Opposition to the OSC 2Contents of the Court File (Judicial Notice 3Hearing Exhibits 4DECISION AND ORDERUpon the foregoing cited papers, the decision/Order of this Court on this order to show cause for civil and criminal contempt is a follows: PROCEDURAL HISTORYThe petitioner commenced this proceeding by Order to Show Cause (OSC) on December 16, 2016 seeking a finding of conditions at the premises in violation of the Housing Maintenance Code (HMC) and the Multiple Dwelling Law (MDL); and directing respondent’s predecessor in interest, East 217 Management Corp (the “Prior Owner”), to correct said violations and enjoining respondent from permitting said violations to exist.By consent order dated January 13, 2017 (the “Consent Order”), the Prior Owner agreed to correct all Class C, immediately hazardous, violations (“C violation”) placed on any of January 4, 2017, December 30, 2016, December 25, 2016, or December 13, 2016 by January 20, 2017; sixteen (16) in total. The violations were placed for inadequate heat, no hot water, lack of gas, electrical cords being run from the hallway into apartments, improper electrical wiring in the public area on the third floor, lack of access to the cellar or boiler, an obstructed wasteline, and a severe leak at the first floor ceiling. The Prior Owner also agreed to inspect and repair some other alleged conditions at the building and to provide immediate access to the basement and the boiler. The Consent Order settled petitioner’s first motion seeking to restore the case and for an order requiring restoration of essential services.On January 30, 2017, petitioner again moved for restoration of essential services. The motion was adjourned to February 21, 2017. On February 21, the court adjourned to February 23rd by interim order directing Prior Owner to provide unfettered access to the Department of Housing Preservation and Development (DHPD) Emergency Repair Bureau so it may install equipment and infrastructure necessary to restore essential services to the premises (the “Interim Order”). Access was to commence February 23 at 9am. On February 24, the court made the Interim Order a “permanent order” “without prejudice to respondent-landlord’s right to seek appropriate relief upon a proper demonstration.” The court also granted that part of the petitioner’s motion seeking civil penalties to the extent of ordering a hearing on March 29, 2017.On March 9, 2017, the DHPD issued a full vacate order for the premises requiring that all occupants vacate by March 10, 2017 (the “Vacate Order”).On March 29, 2017, the court held a hearing to assess civil penalties and entered judgment in favor of DHPD in the amount of $129,500, with right of execution against the property (the “Civil Penalties Order”). The hearing also revealed that on March 28, 2017, the Prior Owner sold the building, through Nkechinyere Ihezie1, to the respondent-owner — Vermont Realty Partners LLC (the “New Owner”). The Prior Owner was directed to implead the New Owner. Also on March 29, 2017, the court denied a motion for contempt because of the transfer of title and a question of knowledge and intent.On May 15, 2017, the court granted petitioner’s second contempt motion holding that the Prior Owner was in contempt of court for failing to implead the New Owner, as directed, and ordered to pay petitioner the base fine of $250. At this point in the proceedings, the New Owner owned the building for over six weeks and the Vacate Order — a public record — was extant for over 60 days.On July 28, 2017, petitioner moved to implead the New Owner. On September 8, 2017, the court granted petitioner’s motion and substituted New Owner as respondent-owner after argument (the “Substitution Order”). It also amended the petition to include conditions arising since the initial petition and a claim of harassment under HMC §27-2005(d), as defined in HMC §27-2004(a)(48) (the “Amended Petition”). In the Substitution Order, the court held that the New Owner knew or should have known about the conditions at the building and, as the successor in interest, stood in the shoes of its predecessor. At this point in the proceedings, members of the petitioner-Association had been out of possession for six months, and the New Owner in possession for four months.On October 3, 2017, petitioner made filed the instant OSC, made returnable on October 19, 2017. In it petitioner sought a finding that conditions described in Amended Petition are violations of the HMC; directing the New Owner to correct all violations; enjoining the New Owner from permitting said violations to exist and from permitting any new conditions which endanger the life, health and safety of the petitioners and their families; finding harassment; enjoining the New Owner from continuing in a pattern of harassment; imposing civil penalties pursuant to HMC §27-2115(m); restoration of the proceeding for a contempt hearing; granting DHPD access for to repair the outstanding violations and conditions contained in the Consent Order; and awarding costs, and legal fees. They also seek a finding from this court that Amended Petitioner was properly served and filed nunc pro tunc and that the Consent Order be deemed served upon the New Owner.On October 19, 2017, the attorney for the owners (both prior and new) moved to be relieved as counsel, which was granted. The instant OSC was adjourned to October 31, 2017 for a hearing. On October 27, 2017, DHPD opposed that branch of the OSC seeking an order directing DHPD to make repairs, but was otherwise was in support. The case was subsequently adjourned a few more times to accommodate either the New Owner or its counsel, and was ultimately made returnable on December 13, 2017.On December 13, 2017, the New Owner appeared without written opposition and made an application for another adjournment, which was denied given the length of delay already endured by petitioner. After completion of the hearing on December 14, 2017, the parties asked for the court to withhold judgment to allow them to try to reach a settlement. The parties contacted the court on March 6, 20182 to say that no settlement could be reached and the court should rule on the contempt motion.HEARING:After hearing the court finds the New Owner in civil contempt of the Consent Order and grants all relief sought by petitioner, except denies the request for an order directing DHPD make the repairs. It is undisputed that the respondent had knowledge of the Consent Order. The court is unmoved by the New Owner’s argument that it would be unfair to hold it in contempt for failure to comply with the Consent Order because they never agreed to it. This argument was previously rejected by the court in the Substitution Order.The court found both of petitioner’s witnesses credible. On December 13, 2017, Travis Davis and Jose Melendez testified that they were displaced from the subject premises on March 10, 2017 by DHPD. Mr. Davis testified that he moved into the premises in May 2013 and remains out of possession and lives in a shelter. Jose Melendez also moved in in 2013, no specific month or day was provided. He is currently renting space in Brooklyn from a friend for more money than his rent at the premises. Both men testified that they want to be restored to possession. They enjoyed living at the premises and want their old lives back. They also testified of deplorable conditions prior to the Vacate Order and that they do not believe the New Owner is doing any work at the premises. They have observed boarded windows, a roll gate at the entrance, and no sign of any construction at the premises.The New Owner produced a document, which it showed to Mr. Melendez. He acknowledged his signature on it, but the document was not offered into evidence. The document purportedly was a surrender agreement. Mr. Melendez pointed out that the agreement also called for payment of money, which was never paid. The New Owner provided no proof of any money paid to Mr. Melendez.Petitioner asked the court take judicial notice of the contents of the court file, including, but not limited to, the Consent Order, the Civil Penalties Order, and The Substitution Order. The court also took judicial notice of the DHPD Violation Summary Report as of the date of the hearing December 14, 2017 (the “VSR”) (Pet Exh 1). Also in evidence is an email dated April 17, 2017 from petitioner’s counsel to “[email protected]” and addressed to a “Fishel.” The email stated “[h]ere is my email address. Please have your attorney reach out to me directly with any settlement offers.” (Pet Exh 2).Mr. Fishel Schlessinger, a member of the ownership, testified for the New Owner. He admitting to purchasing the property in late-March 2017. He was aware of the Vacate Order at the time of purchase, but was not aware of this proceeding or of the Consent Order. He alleged that he had no way of knowing about this proceeding because no one filed a notice of pendency. He also testified that he learned about the Consent Order in July or August 2017 from his own investigation. He also admitted knowing that a tenant had been vacated by DHPD. He intimated he had received misinformation from the Prior Owner’s counsel, but provided no proof. The court recessed and the proceedings were adjourned to the following day (December 14) and the witness was instructed that he remained under oath and was not to discuss his testimony with anyone.On December 14, 2017, Mr. Schlessinger testified that he offered another apartment to Mr Davis and that the New Owner had plans to renovate the building. He testified that the Department of Buildings (DOB) is the cause of the delay in lifting the Vacate Order. To that point, the New Owner asked the court take judicial notice of the DOB website, specifically a rejected application for construction permits (Resp Exh A) and an extant permit for boiler replacement (Resp Exh B). The application is dated December 4, 2017 and was rejected on December 11, 2017 because of incomplete plan drawings. The permit was issued on February 24, 2017 to the Prior Owner. Mr Schlessinger stated that he did not have knowledge of the permit prior to purchase because he never looked at the DOB website before purchasing the premises. He also claimed to have contacted a plumber on December 13 regarding the permit and possible work on the boiler; he had not yet heard back. No explanation was provided for the lack of action on the permit prior to December 13. Mr Schlessinger also claimed that the New Owner had commenced electrical work, but no proof of any work at the premises was provided.DECISION:Based upon the evidence at the hearing, the court finds that the New Owner is in civil contempt. The Consent Order is a lawful order of this court, was known to the New Owner, is unequivocal, and has been disobeyed to the prejudice of petitioner.The New Owner has made no showing of any good faith effort to repair the property or have the Vacate Order lifted. The New Owner admitted that it was aware of the Vacate Order and that a tenant had been removed by DHPD for lack of essential services when purchasing the property. That it did not occur to the New Owner to search for active litigation is not a mistake that enures to the detriment of the out-of-possession tenant. The New Owner has all rights and claims as against the Prior Owner.The only documentary evidence of any attempt to do any work at the premises is the rejected permit application, and that was first made on December 4, 2017, eight months after purchase and nine days before the hearing date. The court does not credit Mr Schlessiger’s testimony that he was unaware of this litigation, or that any good faith effort is being made to repair this building.The VSR in evidence demonstrated nearly all C Violations in the Consent Order remain outstanding and, since the Consent Order, an additional 30 C Violations were placed; many for the same conditions but also for some new conditions, like deterioration of interior walls, broken windows, uncapped gas lines and steam risers, defective roof, and accumulation of rubbish. The VSR indicates the premises is in a state of extreme disrepair and has degraded to the point of blight. As of April 27, 2018, the DHPD website informs that the Vacate Order remains in place and there are 202 violations at this 5-unit building.The New Owner attempted to show that Mr Davis and Mr Melendez are not prejudiced by the continued displacement from the premises because neither man could point to a particular disruption to their daily life. The court is not moved by this. Mr Davis testified that he has not been able to procure permanent housing since being displaced. Mr Melendez testified that he is renting a smaller space for more money since being displaced. And both testified that they are unhappy where they are and wish to return to the apartments at which they resided for four years. Being displaced from your legally occupied apartment without due process of law because of the Vacate Order, and remaining displaced for many months despite court orders requiring removal of the Vacate Order, is per se prejudicial.No actual damages were established at the hearing, so the court awards $500, the base fine of $250 to each displaced tenant, as a penalty for civil contempt. That amount is to be paid to petitioner’s counsel in certified funds within 20 days of the date of this order. Upon failure to timely pay, petitioner may seek a money judgment for same.The court finds harassment pursuant to HMC §27-2005(d) based upon the existence of immediately hazardous violations for a period of over five days, the continued existence of the Vacate Order, and a pattern of behavior that, without alternative explanation, the court finds is intended to have Mr Davis and Mr Melendez relinquish rights to the premises. The Court issues a C Violation for harassment and assessed a civil penalty in the amount of $5000. That penalty is made part of the judgment for civil penalties awarded below.The court grants a judgment for civil penalties in the amount of $717,700 3to DHPD, with right of execution against the property known as Block 3842, Lot 7. This is without prejudice to any civil penalties accrued since conclusion of the hearing on December 14, 2017.The Consent Order remains in full force and effect, as do all subsequent orders of this court. Pursuant to the CCA §110, the court directs respondent to correct all violations at the premises. The New Owner is also directed to investigate all conditions alleged in the Amended Petition, whether or not a violation has been placed, and correct said conditions as required by law. The court declines, however, to direct DHPD to do any emergency repairs.Access for repairs, if necessary, may be arranged through counsel. All work shall be completed and the Vacate Order shall be lifted within 65 days of the date of this order. Upon failure to correct, the case may be restored for all appropriate relief.This is the decision and order of the Court, copies of which are being mailed to the parties. Exhibits may be picked up at Part F, Room 830 at 111 Centre Street through Pamela Walitt within 35 days of the date of this order or they may be disposed of pursuant to Court Directive.Dated: New York, NYMay 2, 2018SO ORDERED:
