Matter of Garcia

For a Judgment, pursuant to Article 7A of the Real Property Actions and Proceedings Law, appointing a court designated administrator for the premises known as:851 East 163rd Street, Bronx, NY 10459 Block No. 02690, Lot No. 0100 (Bronx County)DECISION AFTER TRIAL After trial and upon the Post-Trial Briefs submitted by counsel for petitioners and respondents, the court’s decision on this petition for a judgment appointing an administrator pursuant to Article 7-A of the Real Property Actions and Proceedings Law (RPAPL) is as follows:BACKGROUND AND HISTORY OF THE CASEThis proceeding for the appointment of a 7-A administrator was commenced in September 24, 2017 by 19 tenants of the subject premises, 851 East 163rd Street, Bronx NY 10459, a building encompassing 36 class “A” residential dwelling units according to DHPD’s Registration. The superintendent occupies Apartment 32. There are vacate orders on two apartments, 23 and 33 due to the fire that occurred on July 3, 2017. Apartments 35 and 54 are vacant. Petitioners number 19 persons who are entitled to occupy 15 of the occupied apartments. Petitioners constitute at least 1/3 of the tenants in the subject building.¹Previously, in October, 2017, The New York City Department of Housing Preservation and Development commenced a “Housing Part” proceeding seeking the correction of various violations of the Housing Maintenance code at the subject premises, which was settled pursuant to a Consent Order dated October 17, 2017. (See Department of Housing Preservation & Development of the City of New York v. East 163rd Street Realty LLC & Hiram Colon Jr., Civil. Ct., Bronx County, L&T Index # HP 49552/17.) Under the Consent Order, the landlords agreed to correct 17 Class “C” (“immediately hazardous”) violations, 42 Class “B” (“hazardous”) violations and 13 Class “A” violations found by the Department of Housing, Preservation and Development of the City of New York (HPD) in its Violation Summary Report.In the instant 7-A proceeding, issue was joined by the landlords Hiram Colon Sr., Hiram Colon Jr., and East 163rd Street Realty, LLC by Verified Answer dated November 2, 2017.THE LAWRPAPL Article 7-A was enacted in 1965 to permit one-third or more of a building’s tenants or HPD to institute a proceeding for the appointment of an administrator to operate a building when conditions dangerous to the life, health or safety of the occupants exist. Himmel v. Chase Manhattan Bank, 47 Misc. 2d 93, 262 N.Y.S.2d 515 (Civ. Ct., N.Y. County, 1965). An Article 7-A proceeding may be maintained where there is a “lack of heat or of running water or of light or of electricity or of adequate sewage disposal facilities, or any other condition dangerous to life, health or safety, which has existed for five days, or an infestation by rodents, or any combination of such conditions; or course of conduct by the owner or his agents of harassment, illegal eviction, continued deprivation of services or other acts dangerous to life, health and safety.” RPAPL §770(1).A finding that such conditions exist requires the appointment of an Article 7-A administrator. RPAPL §776; Maresca v. 167 Bleecker, Inc., 121 Misc. 2d 846 (Civ. Ct., N.Y. County, 1983). However, if the landlord can establish that such conditions do not exist or have been removed or remedied, this constitutes a statutory defense to the appointment of an administrator. RPAPL §775(a); Feliciano v. Kia, N.Y.L.J., June 11, 1990, p. 26, c. 5 (App. Term, 1st Dep’t, 1990); Ansonia Associates v. King, N.Y.L.J., May 27, 1992, p. 24, c. 2 (Civ. Ct., N.Y. County). In Feliciano v. Kia, the Appellate Term, 1st Department, found that the appointment of a 7-A administrator was not warranted because any remaining uncorrected conditions were not so significant or numerous to deprive the tenants of essential services or endanger their life, health, or safety. Id. The Appellate Term accordingly dismissed the petition based upon its conclusion “…that the building premises are not in an immediately hazardous condition and that many essential services have been restored and the violations removed.” Id.Specifically, violations such as windows not readily openable, bathroom tile floors in need of repair, improperly fitted doors, and holes in wood floor may not be such a magnitude, individually or collectively, as to constitute a danger to the life, health, or safety of the tenants of the building. DeKoven v. 780 West End Realty Co., 48 Misc. 2d 951 (Civ. Ct., N.Y. County, 1965). Moreover, where the tenants are unable to demonstrate the existence of emergency situations, unusual circumstances, or neglect by the landlord, the court may dismiss the petition. Kahn v. Riverside Syndicate, Inc., 34 A.D.2d 515, 308 N.Y.S.2d 65 (1st Dep’t 1970).Furthermore, the appointment of a 7-A administrator is a “drastic remedy” which will not be invoked absent the participation of a majority of tenants who are actual occupants in the building. Ansonia Associates v. King, N.Y.L.J., May 27, 1992, p. 24, col. 2 (Civ. Ct., N.Y. County). If the petitioning tenants in an Article 7-A proceeding cannot make the requisite showing that they comprise one-third or more of the tenants actually occupying the building, the proceeding will be dismissed. RPAPL §770(1); Thenebe v. Ansonia Associates, N.Y.L.J., June 27, 1994, p. 28, c. 2 (App. Term, 1st Dept.) (the court also held that the building-wide conditions complained of were not sufficiently severe to warrant the appointment of an administrator). This one-third requirement is a legislative safeguard against the imposition of an administrator at the request of only a minority of tenants in occupancy. Wall St. Transcript Corp. v. Finch Apt. Corp., 148 Misc. 2d 181, 559 N.Y.S.2d 920 (Civ. Ct., N.Y. County, 1990).CONDITIONS AT THE BUILDINGThe conditions at the building have been established at trial through the testimony of numerous petitioner(s)-tenant(s), the exhibits and photographs admitted into evidence, and the various inspections of the premises by HPD.Petitioners called Rinville Dorsainville as their first witness. He stated that he is an electrical inspector for the New York City Department of Buildings where he been employed for twenty-eight years. He testified that he has inspected thousands of buildings, and the court qualified him as an expert. He testified that he visited the building on September 21, 2017. Petitioners admitted into evidence some certified documents from NYC DOB subpoenaed and admitted into evidence as Petitioner’s 1.Mr. Dorsainville testified that he visited the building in response to a complaint about defective wiring and after inspection issued Summons #35284948J. His inspection included the service equipment and a walk through of the basement to see if there were any infractions there. He observed that the electric service equipment was from Con Edison and connected the building to the street. He observed that the building consists of apartments and a commercial unit. He found that the building was not grounded and that the electrical installation was not protected. He concluded that if a short circuit occurred there could be damage to property and “likely” a fire.He testified he went to Apartment 45 and the tenant in that apartment showed him the electrical panel and he observed that one of the breakers was tripped and that the whole apartment was in darkness. He concluded that the electrical installation was improper as there were several circuits in the panel but only one breaker for the entire apartment and as a result there was risk of overloading the circuit. He concluded that fire was a likely to occur as the electrical system was compromised. On cross examination, inspector Dorsainville acknowledged that one of the complaints made under complaint number #2249805 had been resolved. He stated that on that same date, September 21, 2017, he was also in the basement of the building and noted that the store had grounded wiring, but that the apartments did not have grounded wiring. The court admitted a violation summary report dated 12/6/2017 in evidence on consent as Petitioner’s 2. The court also admitted into evidence as Petitioner’s 3, a closed violation summary report dated 11/16/2017.Petitioner Elisa Garcia testified that she has been a resident in the building since 1968, and that she lived in Apartment 25, but on October 1, 2003, moved into Apartment 27. She stated that she lives in the apartment with her four children ages 17, 16, 14 and 10 but that her 17 year old usually sleeps in her grandfather’s apartment, Apartment 25. Ms. Garcia testified that on July 3, 2017, at approximately 11am, there was a fire in the building. She said a building employee was banging hard on her door yelling “fire,” and she opened the door and saw black smoke coming from Apartment 23, which is at the end of the second floor. She then removed her kids from her apartment, and went to her father’s apartment to get him out. She said that they all escaped from the building and sat on a bench at the bus stop. She said that they observed people throwing documents out of windows and two people throwing themselves out of a window and firemen extracting people from stairs. She testified that she talked to other tenants about the fire, and that seeing the fire in the building made her feel unsafe.She testified that she had to find a way to live in a safe place, so she participated in a tenants meeting which was held on July 17, 2017. She noted that many of her neighbors met in the building’s lobby but that there were also non-neighbors at the meeting. She testified that the brother of a building employee named Jordan was present, but she didn’t see that he did anything.The court took judicial notice of the contents of the notice to admit. As noted on the record.At this point the court took judicial notice of the HP cases initiated by various tenants at the building, including the aforementioned DHPD initiated case under Index 49552/17. The other HP cases are as follows: 39639/17, 17618/17, 76284/14, 17168/14, 13367/13, 14687/12, 5637/12,29604/11,2077/11,47042/10, 49077/10, 45828/10, 35054/09, 49627/09, 71128/08, 18067/07, 12927/07, 81132/06, 48615/06, 48614/06, 30520/06, 27705/06, 23867/06, 14547/06, 3910/06. The respondent objected to the timeframe of the cases.Elissa Garcia continued her testimony regarding the tenants meeting that occurred in the lobby of the building that occurred on July 17, 2017. Although she testified that the tenants meeting started in the lobby of the building after 10 or 15 minutes it moved to another location because the tenants discovered that there was a person infiltrating the meeting to listen to the tenants discussion. They held a meeting at a second building at 830 Prospect Avenue, and the infiltrator also appeared at that second meeting, which ended at 7:30p.m. She said that ten or fifteen minutes later Hiram Colon arrived at her apartment and told her that there was a new superintendent in the building who was Elvira, in Apartment 32. Ms. Garcia recalled that she saw Elvira at both locations of the tenants meeting. Elvira had not disclosed to the other tenants that she now worked for Mr. Colon. Ms. Garcia also testified that on August 17, 2017, some of the tenants who were at the tenant meeting appeared at a press conference called by petitioner’s attorneys. She testified that she spoke, along with Natasha and Jennifer, and that the media were present.After the press conference, she said she went back to her apartment and that Hiram Colon came to the apartment because she had been without lights for 13 hours. Mr. Colon told her not to pay attention to the other tenants. He said that he was keeping a list of all the tenants who were calling 311 and that he wasn’t going to do anything for them. At a later time, she testified that Mr. Colon called her on the telephone and she recognized him from her caller ID and heard his voice, and he said he asked her to not pursue a case against him and he would give her a $0 balance in her non-payment of rent case and he would also give her a “pair of Washingtons.” Ms. Garcia testified that she would not accept any money from him. She said “he asked me if I wanted gifts for my children, but I refused.” Ms. Garcia testified that her apartment has one bedroom, one bathroom, one hallway, one living room, plus a small hall in the kitchen. She stated that the following conditions currently exist in the living room: one window doesn’t close, there is peeling paint by the window, only one of the two radiators in the living room work, and there are a total of six radiators in the apartment that don’t work. She added that the entrance door key lock is broken and the peep hole has been damaged since the day of the fire. She also stated that the living room window has not closed for more than four months, and the paint around the window has been peeling since May. She added that the doorknob, damaged on the day of the fire, is also coming off the door. She stated that she uses pliers to tighten the screws so her door knob doesn’t wiggle. She added that in the hallway next to the bedroom, there is damage to the closet door, and the closet and ceiling need to be painted and that for about five or six years the ceiling has needed to be painted, and the closet door wasn’t changed. She noted that the inside of the closet hasn’t been painted for fourteen years since she moved in. She further testified that in the kitchen the electrical light switch was broken and that during the months of June and August the electricity went out nine times. The house was in darkness for as long as 13 hours at a time. Currently in the apartment there is a broken window, peep hole, kitchen light, and door knob and there is an infestation of mice. She testified that the mice go in the stove, on the sofa, table, and she has to clean “poop.” She said there was “poop” on the stove that she had to clean every day. The last time she saw “poop” was that morning. She last saw a mouse the night before her testimony. She stated that she has had a mice problem for 14 years. The court accepted into evidence as Petitioner’s 4, a lease dated 10/4/16 and also accepted into evidence as Petitioner’s 5, a lease dated June 22, 2014. Ms. Garcia stated that she was present at the time Hiram Colon signed both leases. She testified that the date next to her signature which appears on the lease dated June 22, 2014 is October 15, 2016. These leases were both signed by both parties in her kitchen in March or April of 2017, one had a 2014 date and one had a 2016 date at the top. Ms. Garcia testified that she wants a 7-A Administrator appointed for better security in the building, to improve the administration of the building, and she wished to get necessary documents in a timely manner, she wanted there to be extermination for rats, and she wanted the electrical problems to be addressed, and she also wanted an administrator in response to the fire and she indicated that the landlord never fixed anything and so she thought a 7A Administrator should be appointed.On cross examination she testified that she has been living in Apartment 27 for fifteen years, and that she lived in Apartment 25 prior to that since 1968. She responded on cross-examination that the condition of the apartment has not been acceptable for the last fourteen years and that she has complained to the super many times. She acknowledged that the new superintendent is named Elvira, and that the superintendent before Elvira was Ms. Garcia’s father. She testified that she didn’t remember how long her father was the superintendent but he had been living in his apartment for 49 years. She recalled that Miguel was the superintendent when she moved in but didn’t recall how long her father was the superintendent. She admitted on cross-examination that her father never came to her apartment to make repairs. Her father merely would inform Mr. Colon about damage to the apartment and necessary repairs. Ms. Garcia stated that she learned that her father was no longer going to be the superintendent as of April 2017. She testified that there has been no superintendent of the building since the fire. On redirect Ms. Garcia testified that she saw her father performing tasks as the superintendent which included collecting rent and it was her father’s job to tell the tenants when there was no heat or hot water in the building. She conceded that her father did not make any repairs when he was superintendent but that Jordan and Joey made the repairs.Martin Ventura was called as a witness. He testified that he lived in apartment 44 since 2014 and that he pays $ 1200 per month in rent and that he lives with his wife Juana Cepeda, who is also a petitioner. The court accepted into evidence as Petitioner’s 6 his lease dated 3/10/17. He testified that when he moved into the building in 2014 he lived with his sister in law Maria Torres and he requested a lease last year and he noted that Jordan came to his house and said that the landlord would give him a lease in his own name because he paid his rent on time. Mr. Ventura said he signed and gave the lease to Jordan within two or three weeks and then Jordan brought the fully executed lease back to his house bearing the owners signature. The court also admitted into evidence photos marked as Petitioner’s 7, 8, 9, and 10. Petitioner’s 7 was a photo of the bathroom where Joe came to repair and add silicon caulking and cement to cover mold. The photo in evidence as Petitioner’s 8 showed mold around the bathroom window. Joe tried to repair the condition using paint only. Petitioner’s 9 showed the kitchen floor, which shows wooden boards were placed to cover a hole. He testified that he placed those boards there because the floor was rotten and that a person could fall through if they walked over it. No other efforts were made to fix this floor. Petitioner’s 10 shows that the hallway in the apartment has a slanted floor and that Mr. Ventura testified that there were no attempts made by the landlord to fix the hallway. He further testified that he had mold in his bathroom since he moved in. All the landlord did was paint the bathroom and apply caulking. In addition he testified that the bathtub was leaning to one side and the floor was slanted since he moved in. He stated that the floor is not level. Mr. Ventura testified that he was at the building when the fire took place with his wife, son and girlfriend. He testified that someone knocked on his door and that it was dark and smoky and that he smelled something burning. He ran to tell his wife about the fire and to his son’s bedroom to tell him about the fire as well. He tried to exit through the emergency window, but he couldn’t open the window, his son had to help him open the window. He testified that it took two minutes. He testified that his window handle is in the same condition now as it was during the fire and that there has been no attempt to fix the window handle. He also testified that he wants a 7A Administrator for the security of the building. On cross examination Mr. Ventura acknowledged that some work was done in December but that no work was done on the floor in the kitchen. The floor in the kitchen still looks like the photo introduced into evidence as Petitioner’s 9. He also noted that the hallway floors as depicted in the photo marked as Petitioner’s 10, look the same today as they did in the picture.Naike Martinez was called to testify. She testified that she lived in apartment 55 for 17 years with her husband, mother and three daughters, ages 15, 7 and 3. She stated that her mother Isabel Cepeda is the tenant of record. Ms. Martinez testified that her apartment has two bedrooms, a living room a hallway a kitchen and a bathroom. She testified that in the living room there was one exposed outlet where you were able to see inside the wall, and that that was about 12 inches off the floor, within reach of her three year old. She testified that the outlet cover was missing for approximately eight years. She stated that the condition still existed at the time of her testimony. In one of the bedrooms another outlet cover was missing and the outlet was also about twelve inches off the floor. She stated that the landlord had taken no actions to cure this. She added that that cover was missing for eight years. She added that in the bedrooms most of the windows broke because of the fire and that there was a half inch gap between window and window frame and the bottom of the window frame was rotten, and that the gap lets in cold air in the winter. She said that the landlord has failed to address the condition of the window frame. She testified that she has a problem with mice which come in through the walls, eating her food, pooping everywhere, and that the problem has spanned for over a year and a half. She said her daughters do not go into the kitchen because they are afraid of the mice. The court accepted into evidence photos marked as Petitioner’s 11, 12, 13 and 14. Petitioner’s 11 shows two mouse traps in the living room with two mice in them, taken in January of 2017. Petitioner’s 12 shows that the wall behind the kitchen sink has a hole. Petitioner’s 13 is another photo of the bottom of the wall behind the kitchen sink and petitioner’s 14 is a close up of the bottom of the wall behind the kitchen sink. Ms. Martinez testified that Petitioner’s 12, 13 and 14 were taken in February or March of 2017. Ms. Martinez testified that these conditions are unchanged and look the same. She testified that in March or April of 2017 the landlord tried to plaster the hole but the hole reopened and mice came through the plaster and created a hole around the pipe. She testified that the wall behind the kitchen sink is soft and mushy. Ms. Martinez testified that she left messages for the landlord regarding the mice and she mentioned it to the people who picked up the rent. She stated that she has a telephone number which she believes to be the landlord’s where she is only able to leave a voicemail message and that the people who collect the rent are usually Joey or Jordan. She mentioned that the landlord did nothing to correct the mice problem until 2017 when he put down rat poison. She then saw dead mice in several locations in the apartment and there was a smell of dead mice under her kitchen sink cabinet. She mentioned she found a dead mouse inside her daughter’s slippers and a dead mouse in her sofa bed. She had to throw out the sofa bed because the smell was so bad. She said there were lots of mouse holes throughout the apartment, and she even put her own mouse traps down. She further testified that after August of 2017, she had water pressure problems. The water only trickles out of the faucet. Ms. Martinez testified that on July 3, 2017 while she was at work she received a phone call that there was a fire in the building and she learned that the fire department broke the windows in her bathroom, living room, kitchen, and in one of the bedrooms, and also damaged the air conditioners and the window frames. The apartment was not habitable so she went to sleep in her sister’s house after the fire. She noted that after the fire her apartment smelled like fire and the refrigerator, clothing, tv and walls smelled like smoke. She said her husband, mother and herself cleaned up the apartment and that the landlord did not help. She said the landlord put plywood on the kitchen windows and bathroom windows making those rooms excessively hot as it was summer and that the landlord took one month to replace the broken windows with new windows. She further testified that there were two fires in the building, one in July 2011, and one in July 2017. On December 11, 2017, two electricians came to do work in her kitchen. They did not seal off the kitchen from the other rooms and there was dust flying throughout the apartment. The court accepted into evidence photos marked as Petitioner’s 15 and 16 which were taken on December 20, showing the broken kitchen walls and a white dust on the bookshelves where the wall was opened. Petitioner’s 15, in evidence, shows the broken kitchen wall, and the microwave cabinet in the kitchen, covered in dust. This photo was taken on approximately December 20th, 2017. She testified that the dust affected her three daughters because they had to breathe in dust. She noted that every time the landlord worked in the apartment they left the apartment dusty and days after the work was finished a cleaning crew was sent after she complained to the manager, Richard Torres. The cleaning crew cleaned approximately four days after the electrical and plastering work was done. Even after the cleaning, not all of the dust was removed. A health inspector came to the apartment and found that there was dust in the apartment.Petitioners’ next witness to testify was Santa Moore, who lives in Apartment 46. She testified that she lives there with her three kids and her aunt. Her kids are 18, 14, and 6. The apartment has two bedrooms, and living room, kitchen, bathroom and hallway. She said the window in a bedroom is in bad condition, and that there is broken glass, and that if the window were opened it would fall on her. She also testified that the window in the kids bedroom and the bathroom were broken. She testified that the landlord has done nothing to repair these conditions. She testified that the landlord had knowledge that the windows were broken because they were broken when she moved into the apartment. In October of 2017, “Richard” came to check the window. He tried to open the kitchen window, and the window fell on top of him. She mentioned that she is afraid of the windows falling on her children or on herself. She further testified that the fire escape window was broken in the kids bedroom and that “anyone would be able to enter the apartment.” she testified that “the landlord” had not repaired a violation for window guards, violation number 12172993. She also provided testimony that the heat in the apartment is very poor and that she hardly ever has heat and that these conditions have existed since she moved into the apartment in December of 2014. She testified that sometimes between 7pm and 10pm there is no hot water and sometimes there is no heat in the morning. She testified that the apartment is very cold in the winter and that she had to “very frequently” wear sweaters, pants, socks, and turn on an electric heater to keep warm. The court accepted into evidence a photo marked as Petitioner’s 18; and Ms. Moore testified that the photo represented the window in her kitchen and that it was taken in December of 2017. She testified that the photo shows that there is ice on the window. She testified that “last Sunday into Monday morning” she had no hot water and that in 2007 there were many occasions where she had no hot water, but that she didn’t remember how many times she had insufficient or no hot water. She testified that she called HPD about “six seven or ten times” within the last year to complain about the lack of hot water. She said that this hot water issue has been a problem since she moved into the building. She testified that when there is no hot water she calls 311 to complain and she boils hot water to bathe and brush her teeth. She provided additional testimony that her electrical lights went out at least two times and on the most recent time the lights went out for about ten hours, and on the previous blackout the lights went out for around 15 hours. The most recent blackout occurred in February of 2018. The court then took judicial notice of four violations: 10911490, 10911491, 10911492, 10911493. These were violations placed on September 30, 2015 relating to an alleged lead paint hazard. The witness testified that the landlord did not remediate these violations. The court also took judicial notice of a violation for mice that was placed on October 25, 2017, which was violation number 12036510. Ms. Moore testified that the mice condition was terrible. There was mice “poop” in the kitchen, the drawers, the bedroom, and below the stove. The mice damaged the food in the kitchen. She said that she found evidence of mice on at least five occasions and has had this mice condition for at least one year. There was a break in Santa Moore’s testimony and the court, upon application of petitioners, took judicial notice that the subject building is in DHPD’s “Alternative Enforcement Program.” Ms. Moore continued her testimony. She stated that the landlord sent an exterminator about two or three times since she moved into the apartment. She testified that after the fire occurred, the exterminator has had to come more frequently. In addition to food being damaged, she testified that there was a urine and feces smell in her clothes and under the sink. “There were lots of feces, it was very ugly.” She said she had to kill many mice, she bought traps many times, and put poison down many times. The court accepted into evidence Petitioner’s 19 showing a photo of mice in traps in the kitchen. The photo was taken during 2017. When questioned about whether she communicated anything to the landlord or his employees, she said that she told the landlord’s workers that she found several mice in the apartment, and they said “okay, keep killing them.” She said that she remembers having spoken to “Joey” about this in 2016, which began the period of when she began finding mice in the apartment. The court took judicial notice of a violation for roaches, placed on October 25, 2017 under violation number 12036511. Ms. Moore described the roach problem as being “very bad.” She’s had many roaches since she first moved in. she had to buy stuff to kill them on a monthly basis. She found roaches in her toaster, microwave, in food areas, and in a “corn flakes” box. She testified that after the July 2017 fire she has had an ongoing fear of a fire reoccurring. Ms. Moore provided testimony that she signed a lease for apartment 46 in September of 2014 and that the lease expired in August 2015, but that she was never offered a renewal lease and she never signed a renewal lease. She remembered that she had requested a renewal lease from “Jordan” who is the landlord’s employee, and he told her he would bring her the new lease but she never received it. She testified that because of the lack of a lease, she was unable to get food stamps and rent benefits because she had no proof of her address. The court admitted into evidence a certified DHCR registration history for apartment 46, as Petitioner’s 20. The last page of the document shows that the tenant before Ms. Moore had a monthly rent of $937.50 and her name was Hilda Barreto. Santa Moore testified that her rent was $1318.69 which would be an increase of 40.66 percent. She testified that she wants a 7-A administrator appointed to address the problems in the building and find solutions.On cross-examination Ms. Moore was asked whether she ever signed up for regular monthly extermination, and she replied yes, but she was not informed that she had to sign up for a monthly “subscription.” She testified that the exterminator knocks on her door monthly and she lets him in on a monthly basis. She testified that she has a “fuse box” and not a “circuit breaker” and that she has had a problem with lead paint. She noted that lead paint samples were taken but there was never a removal of the lead paint. She said that the landlord only painted the bathroom and kitchen. She later recalled that the workers came to remove lead. She testified that when she moved in in September of 2014, the windows were fully operational, except for the fire escape window, which did not close. She acknowledged that she never complained directly to Hiram Colon but mentioned that she complained to the workers in the building, “Jordan” and “Joey” She also conceded that both “Jordan” and “Joey” came on scheduled dates to make repairs. Upon further cross-examination she noted that respondents had someone do lead paint testing in approximately January 2008, but that in 2005 she did not know that she had lead paint in the apartment. On re-direct, she testified that her electricity went out twice, but that there was no short circuit. Finally, she stated that she last paid $1300 for her monthly rent to the landlord in November of 2017 and did not believe that she was getting any “shelter allowance” payments from HRA.The next tenant to testify was Reina Vasquez who lives in Apartment 24. She testified that she has lived there for seven years and that she is paying $1450 per month in rent. The court accepted into evidence as petitioner’s 21, her lease with riders attached dated October 1, 2013. She states that the owner’s son signed her lease and said he “was going to give her a new lease.” She testified that she lives in the apartment with her husband and her four children, ages 12, 9, 9 and 4. She says her apartment has an entry room, a bathroom, a kitchen, a hallway, a living room, and a bedroom at the far end of the hallway. The court took judicial notice of a violation for mice dated January 18, 2018, violation number 12195772. She testified that the landlord sprayed poison for the mice but that there are still mice in her apartment, and that there are still mouse holes in the kitchen and in the far room. She said that the landlord has done nothing to close the holes. The court also took judicial notice of a violation for a “leaky kitchen faucet sink” placed on January 18, 2018 under violation number 12195999. Ms. Vasquez testified that the landlord has not fixed the violation. The court also took judicial notice of a class “c” violation for an “exposed electrical wires at outlet in bedroom” under violation number 12033212. That violation was placed April 26, 2018. Ms. Vasquez testified that this condition was fixed “the week before last week.” She testified that this condition existed when she moved in seven years ago and that the outlet with exposed electrical wires is about three feet high and her youngest daughter is about three feet tall. The court took judicial notice of a class “B” violation for a missing smoke detector under violation number 12033218. Ms. Vasquez noted in her testimony that that was repaired on April 25, 2018 and April 26, 2018. Ms. Vasquez testified that she and her four kids were in the apartment when the July 2017 fire occurred. She found out about the fire when her neighbor’s daughter knocked on her door. The court accepted into evidence photos as Petitioner’s 22, 23, 24 and 25. Petitioner’s 22 was a photo of the bathroom taken about four months ago before “they fixed things.” The photo was taken when there was a water leak. She testified that the water leak occurred for a month and her ceiling began to fall. Petitioner’s 25 is a photo of her ceiling in the kitchen and she testified that she took this image when they plastered the kitchen ceiling four months ago. She noted that the condition existed for two months before it was repaired. The court took judicial notice of the three lead paint violations placed on October 25, 2017, under violations numbered 12034106, 12034108, and 12034109. Those are violations for lead paint on the hallway wall, in the foyer, and in the bathroom. She testified that the landlord only painted the hallway, bathroom and kitchen. She said that the owner’s workers came to do the work and they did not present any licenses. She testified that she took the photo accepted into evidence as Petitioner’s 23 representing the wall by the kitchen in the hallway about five months ago. She said that the condition of the wall was like that for six months. She said that her husband had to plaster a hole three feet high off the floor. She noted that on April 25 and 26 the landlord’s workers came to paint the apartment. She testified that she took the photo of the closet door by the bathroom, which is in evidence as petitioner’s 24, “about four months ago.” She said on April 25, 2018, “they” replaced the door. The court then took judicial notice of a violation for roaches placed on January 18, 2018, under violation number 12195986. She testified on cross-examination that shortly after obtaining the lease in her name and her husband’s name she asked the landlord for a new lease in her name only and she acknowledged that the landlord provided her with a satisfactory lease. She testified that she did not make complaints about repairs directly to Mr. Colon but instead she made complaints to “Jordan.” She testified that he never showed up to make repairs on the access dates but would only tell her that he would come “tomorrow.” She stated that she was unaware of regularly scheduled extermination in the building and did not know that there was a sign up sheet in the lobby for regularly scheduled monthly exterminations. When asked if an exterminator ever knocked on her door, she said no, an exterminator came three times after the fire took place and never came back again. She acknowledged in her testimony that there is a sign in the building with Mr. Colon’s cell phone number for 24 hour emergencies. She acknowledged that she has seen Mr. Colon in the building but never complained to him directly. Ms. Vasquez testified that the landlord put glue traps down for the mice infestation. She testified that her husband had called Mr. Colon and that she usually would just report to “Jordan.”Petitioner called Roseanna Abrahamson as a witness. She testified that she is and has been a Department of Health and Mental Hygiene (DOHMH) public health inspector for nine years, and for the past two years has been in the Lead Poisoning Prevention Division. The Court marked for identification purposes as Petitioner’s 26 and 27, a DOHMH report for Apartment 45 and a DOHMH report for Apartment 55, respectively, which included records for every inspection, lab analysis reports for dust wipe samples, and a copy of the commissioner’s orders. Inspector Abrahamson testified that she earned a B.A. in Biology and has an E.P.A. Risk Assessment License for the purpose of supervising and conducting lead dust wipe testing. She testified that she went to 851 East 163rd Street for the first time on December 21, 2107, after a construction dust complaint was made to DOHMH through 311. She recalled that she went to Apartment 55 first where she saw two construction workers plastering and painting, and she observed that no measures were taken to control visible dust. Inspector Abrahamson testified that no HEPA vacuum was available, and that by the end of the inspection, one of the workers got a vacuum but that it was not functioning properly in that it blew dust out. She stated that the workers did not have proper equipment to clean construction dust in the entire apartment. The inspector provided testimony that a dust wipe was collected showing elevated levels of lead at 68 mcg/square foot exceeding the 40 mcg/square foot limit. She issued and served a notice of this violation to the landlord by mailing a copy to the landlord and posting a copy in the lobby. She testified that she came back to Apartment 55 on December 27, 2017 and again observed construction dust everywhere including the children’s room, noting that the apartment had been substantially cleaned but not properly done with a HEPA vacuum, wet mop and disposable towels. Another violation was issued on that date. Inspector Abrahamson further testified that she next returned to Apartment 55 on January 3, 2018 after the building management sent staff to clean the apartment, and saw no visible construction dust or debris. She said in her testimony that the building management was required to submit clearance dust wipe samples to DOHMH but failed to do so, and the agency sent a warning letter to the landlord and referred the case to HPD who performed a final clean-up on April 13, 2108. Inspector Abrahamson testified that exposure to lead dust causes damage to a child’s central nervous system as well as developmental delays in speech and cognitive abilities, and that greater exposure increases the likelihood of damage. She testified that lead dust is most likely ingested by children through hand-to-mouth contact.Inspector Abrahamson testified that after another dust complaint was referred to DOHMH through 311, she visited Apartment 45 in the building on January 3, 2018 but did not obtain access. She obtained access to Apartment 45 on January 7, 2018 and saw visible dust that appeared to have resulted from a partial electrical wiring replacement and installation of electrical outlets. She testified that she took 13 dust wipes including “a blank” for a quality assurance sample to make sure there was no contamination of samples. She stated that she observed visible dust throughout Apartment 45, including the children’s bedroom. She noted that she contacted the building’s property manager Richard Torres but didn’t recall when she received a response. She testified that the results of the dust wipes came in on January 16, 2018, and one came back positive for the window sill in the bathroom at 3,120 meg/square foot, which is significantly in excess of the standard 250mcg/square foot. The inspector said that she spoke to Mr. Torres to try to schedule a cleaning and that a follow-up inspection was conducted on January 31, 2018, at which time dust and debris were still present in Apartment 45. Inspector Abrahamson provided testimony that Mr. Torres was served with a Commissioner’s Order from the Health Department, and that he was aware of the conditions and knew that the timeframe for compliance after the initial inspection was immediate. She testified that the next date she was in the apartment was March 16, 2018, and at that time there still was visible dust in the children’s room and bathroom of the apartment which was not fully cleaned by building management until April. Inspector Abrahamson further testified that another follow-up inspection was conducted by Inspector Tikkaram of DOHMH. At this time, the Court declined to admit Petitioner’s 26 and 27 in evidence, as the documents were not properly certified.The next witness to testify on behalf of petitioners was Rebecca Garcia who testified that she lives in Apartment 22 with her husband and three children ages 14, 12, and 9, and has been living there for ten years. The Court accepted into evidence as Petitioner’s 28 a copy of her two-year renewal lease dated September 20, 2015, but which was signed by Rebecca Garcia and Hiram Colon in May, 2017 at Apartment 27 where her neighbor Elisa lives. Rebecca Garcia testified that in May, 2017 she had a non-payment of rent case in Part J under L&T Index No. 16072/17, and that her attorney in that case suggested she request a two-year lease in order to obtain a “one-shot deal” for payment of the arrears through HRA. The Court took judicial notice of the court’s database showing the history of that case, noting that the case was calendared on May 19, 2017 and May 25, 2017. Rebecca Garcia also testified that pursuant to a stipulation in the non-payment case, the landlord was required to fix things in the apartment including the bathrooms and the living room windows on June 1 and 2, 2017, but nobody showed up on those dates or later in June, July or August of 2017. Rebecca Garcia stated in her testimony that her rent is $1,107.74 per month and that she started paying this amount in June, 2017 pursuant to the lease dated September 20, 2015 which she signed in May, 2017 (i.e. Petitioner’s 28). She also stated that she signed the prior lease in 2013, and when that lease expired in December, 2014, she was not offered a renewal lease until May, 2017. The Court admitted into evidence as Petitioner’s 29 a video Rebecca Garcia recorded through her kitchen window two or three weeks prior to her testimony, which showed rats scurrying along her fire escape. She testified that she also saw rats inside her kitchen about two or three weeks prior to her testimony, and that they were about five inches long. She further testified that she first saw rats in her apartment in 2010, approximately one year after she moved in. The Court accepted into evidence as Petitioner’s 30-41 various photographs of Rebecca Garcia’s apartment. Petitioner’s 30 is a photograph of rats on her stove taken in 2017; Petitioner’s 31 is a photograph of rats on top of her daughter’s school bag; Petitioner’s 32 is a photograph of a rat on top of a bicycle in her apartment; Petitioner’s 33 is a photograph of her microwave and toaster oven where she keeps foods safe from rats; Petitioner’s 34 is a photograph of a bucket where she has to keep her children’s cereal so the rats can’t get into it; Petitioner’s 35 is a photograph of the living room window taken a couple of days before her testimony showing that she has used a piece of a box to cover the top of the window and a piece of plastic to cover the bottom of the window to prevent cold air from coming in; Petitioner’s 36 is a recent photograph depicting the bathroom floor with missing tiles; Petitioner’s 37 is a photograph showing currently existing mold around the knob or valve next to the toilet; Petitioner’s 38 is a photograph showing the poor condition of the bathtub, which has existed since she moved in but was repaired only the day before her testimony; Petitioner’s 39 is a photograph taken a week before her testimony showing the electrical socket coming out of the wall next to her bed in her bedroom; Petitioner’s 40 is a photograph also taken one week before her testimony showing a defective electrical outlet in the kitchen next to the refrigerator and washing machine which has existed since she moved into the apartment; and Petitioner’s 41 is a photograph showing a poorly taped seam over a crack in the wall.Rebecca Garcia testified that she has seen rats in her living room, bathroom, and kitchen, and that the rats eat food in the kitchen and leave poop everywhere. Ms. Garcia also testified that the rats go on the clothes in her children’s bedroom and on the sofa in the living room. She stated that due to the presence of rodents in the apartment, her three children have asthma and are afraid of being bit by rats. Rebecca Garcia stated that she is involved in this case because there are a lot of things in the building that need to be done.On cross-examination, Rebecca Garcia acknowledged that her renewal lease admitted in evidence as Petitioner’s 28 contains a a preferential rent rider setting her rent at $1,107.79 per month for the period from January 1, 2016 through December 31, 2017. She also acknowledged that she never brought the non-payment case back to court to enforce the May 25, 2017 stipulation of settlement. She denied that there were extermination notices posted in the lobby of the building. Rebecca Garcia testified that she normally would speak to Jordan and not Hiram Colon to set up any access dates, but that there were no access dates set after those in the May, 2017 stipulation. Rebecca Garcia conceded during the cross-examination that Con Edison was conducting construction work right next to her building which involved breaking up the street, and that she saw evidence of mice and rats when this construction was occurring, but noted that she first noticed mice many years ago. Rebecca Garcia mentioned that her husband or her neighbor Elisa in Apartment 27 would be at her apartment to provided access.Griselda Garcia was the next witness to testify on behalf of petitioner. She testified that she moved into Apartment 3 in the building in October, 2013, and lives there with her mother, husband, and children who are 17 and 9 years old. Her apartment has two bedrooms, a kitchen, hall, and bathroom. Griselda Garcia testified that the kitchen ceiling has had a problem since 2014 with a recurring water leak causing falling plaster and holes in the ceiling, which has not been corrected by the landlord despite repeated repair attempts. The Court accepted into evidence as Petitioner’s 42 a video recorded on May 6, 2018 showing water dripping from a paint “bubble” on the kitchen ceiling, and various photographs were also accepted into evidence as Petitioner’s 43-48. Petitioner’s 43 is a photograph showing the kitchen ceiling leak; Petitioner’s 44 is a photograph showing falling water, plastic, and wood from the kitchen ceiling; Petitioner’s 45 and 46 are photographs showing the hole in the kitchen ceiling where plaster and wood fell; Petitioner’s 47 is a photograph of the damage in the kitchen; and Petitioner’s 48 is a photograph of buckets holding water and debris which had fallen from the kitchen ceiling. Griselda Garcia testified that the hole smelled like wet, rotten wood and mold, until she cleaned the kitchen and picked up the debris. She also testified that the landlord came to fix and paint her kitchen ceiling the same day of her testimony but a few water drops have already started coming down in one spot. The Court also accepted into evidence another photograph as Petitioner’s 49 depicting the bathroom window in her apartment taken one week before her testimony. Griselda Garcia provided testimony that she has had mold around her bathroom window sill. Ms. Garcia testified that she put Clorox on the mold and cleaned it, but it repeatedly came back. She stated that the landlord came once to clean the mold but the mold came back and the workers never reappeared. She testified that her children have asthma and they breathe the mold in when they are taking baths. She testified that her daughter has to go to the ER when it’s cold outside because of the asthma. She said that the mold has always been a problem in the wintertime. She recalled that she first noticed the mold about three years ago. The Court accepted a photograph of mice caught in a mice trap as petitioner’s 50. Ms. Garcia testified that the photo was taken on the floor in front of the stove in her kitchen and the photo was taken some time between December 17, 2017 and January 18, 2018. The Court also accepted into evidence another photograph as Petitioner’s 51 showing a mouse in the kitchen in November of 2017. She provided testimony that she waited two years to have the holes in her kitchen covered. She testified that she and her husband covered the holes in the bathroom. She testified that in January and February of 2018, she didn’t have adequate heat in the apartment and that in January alone she was without heat at least ten different times; and in February, she was without heat about five or six times. She recalled that when she got up for work in the morning there was no heat and that she had to use space heaters to get ready for work. She stated that when there was no heat at night, she had to sleep with two blankets, stockings, pants, and extra layers of clothes. Ms. Garcia testified that at nighttime, after about 9:00 pm, she had no hot water service, and she had to heat up water in pots and pans in order to bathe; and this happened two or three times in January and once in February of 2018. Ms. Garcia testified that the bathroom window gets stuck when lifted up and that in the kids’ room, the window was held in place with screws. And she said kids’ that the window was like that for about three years. Ms. Garcia testified that she wanted to have a 7A Administrator appointed to improve conditions in the building and so that her family can avoid health problems and be relaxed in the building with heat. On cross-examination, Ms. Garcia acknowledged that she had to close the bathroom window to bathe her daughter and she acknowledged that she gets access to the exterminator every time with a knock on her door and has signed for glue traps and poison. Ms. Garcia testified that when she saw the leak in the kitchen, she did not speak to the tenant in apartment 26 above her, and she was unaware of whether he had a washing machine in the apartment. On cross-examination, Ms. Garcia testified that she had higher electric bills in the winter because she had to use space heaters.Petitioners called Fania Monserrate in apartment 26 to testify. She testified that she has been in apartment 26 since 2013 and she lived there with her three children who are 18, 16 and 13 years old. She testified that there are two bedrooms in her apartment and the apartment also has a kitchen, bathroom, hallway and living room. The Court took judicial notice of violation number 11888000 placed on 7/20/17 for mice. Ms. Monserrate testified that she had mice in her apartment since she moved in and that she even saw mice the week before her testimony. She thought that the mice got into her apartment through holes in the kitchen and cracks around the doorframe. She said she had to stuff holes with Brillo and use glue traps and she had to throw out a lot of food that the mice had gotten to. She testified that both of her sons have asthma. The Court accepted into evidence as petitioner’s 52 a photograph of the doorframe and that this photo was taken in March or April of 2018, according to the witness. The Court also took judicial notice of violation number 11887997, placed on 7/20/17 for roaches. She said that she has had the problem ever since they had to open up her kitchen floor about two years ago. She stated that she bought fumigation spray and powder, which she put down weekly, but it did not prevent the roaches. She said that they walked in her food and on her plates. The Court accepted into evidence as petitioner’s 53 a photograph of a cockroach on the kitchen wall which taken in March or April of 2018. The Court took judicial notice of a DOB/ECB violation placed for defective wiring on 5/20/14, violation number 350349084M. Ms. Monserrate testified that the condition of the electrical system was critical; the microwave and the tv were connected to the same outlet causing her lights to flicker, and she saw the circuit breaker emitting sparks twice, both last year and this year. She testified that she must disconnect appliances to use other appliances and that her microwave was damaged as a result. She also testified that she lost electricity about seven or eight times this year and that when the electricity goes out, she has to turn on the circuit breaker but she was afraid because it has emitted sparks and she is afraid of getting burned if it lights on fire. Ms. Monserrate testified that the landlord sent electricians last year and they broke the wall in the hallway and said that they fixed the problem but her lights kept going out and she did not believe the problem was resolved. She mentioned that she believed that the entire apartment had only one circuit breaker. The Court also took judicial notice of a Class “C” violation for mold on the ceilings and walls of the bathroom places on 1/11/18, violation 12199322. In her testimony, Ms. Monserrate described the mold making her ceiling as well as the walls and the area around the windows turn black. She has always had a problem with the mold and the landlord has come to fix it but it returns because all they do is plaster and paint. She testified that they painted the bathroom the Friday before her testimony and that they had to fix the mold on the bathroom ceiling and walls twice in one month. Ms. Monserrate testified that the mold smells bad and that she and her son are asthmatic. The Court accepted into evidence as Petitioner’s 54 a photograph of the bathroom wall taken three weeks prior. The Court further accepted into evidence a copy of ECB violation #35284949L as Petitioner’s 55, a copy of ECB violation #35284948J as Petitioner’s 56, a copy of DOB violation #35264049H as Petitioner’s 57, a copy of DOB violation #35263424X as Petitioner’s 58, a printout of HPD violations dated 6-12-18 as Petitioner’s 59, and an HPD printout of the multiple dwelling registration information dated 6-12-18 as Petitioner’s 60. The Court also took judicial notice of a list of HP actions previously filed by various tenants in the building, as set forth in the Bronx Housing Court’s publicly accessible database.Ms. Monserrate provided additional testimony that the mold condition in her bathroom existed for 6 months to a year, and that the landlord’s attempts to fix the mold by plastering and painting were unsuccessful because the mold came returned. The Court accepted into evidence as Petitioner’s 61 a photograph of mold on the kitchen ceiling in Apartment 26. The Court also accepted into evidence as Petitioner’s 62 a photograph of the leak in the living room ceiling/wall. Ms. Monserrate testified that the landlord failed to fix the leak for over one year, but came the week before her testimony to plaster and paint. Ms. Monserrate stated that she wants a 7A administrator to repair all the conditions in each apartment in the building.On cross-examination, Ms. Monserrate testified that she was in the apartment the first time the landlord came to plaster and paint, but that her mother was there on subsequent occasions. She acknowledged that on the occasions when her mother was there, she had no personal knowledge of the work that was done but relied on her mother’s representation that the landlord’s workers did the same thing that they did the other times they were there.Natasha Tosca next testified on behalf of petitioners. She testified that she has lived in apartment 45 since May 31st, 2013. She lives there with her two children, who are 14 and 11 years old. The Court accepted into evidence as petitioner’s 63 a lease for apartment 45 signed by Ms. Tosca and by Ralph Colon, who is the son of Hiram Colon. The Court also accepted into evidence as petitioner’s 64 a renewal lease signed by Ms. Tosca and by Hiram Colon. Ms. Tosca testified that the renewal lease expired in 2017 and she did not receive a subsequent renewal lease. She testified that in November of 2014, she filed a rent overcharge claim against the landlord. She stated that in September 2015, Hiram Colon knocked on her door to discuss this case with her and he offered to make her the superintendent and move her into a different apartment, and offered to give her payments that he would receive from Catholic charities to pay for her arrears if she would drop her overcharge case. Ms. Tosca testified that it was her understanding that Mr. Colon offered to wave the back rent and give any monies he received to her in exchange for her dropping her DHCR case. In 2017, she received the decision on her overcharge case where DHCR found that she was overcharged 63,000$ and lowered her rent to 613$/month. The Court accepted into evidence a copy of the DHCR overcharge order as petitioner’s 65. Ms. Tosca testified that she had received no money from the landlord for the overcharge. Ms. Tosca testified that there are 35 apartments in the building but only 33 are occupied. She testified that at the time of the July 3rd 2017 fire she was in her apartment and, after the fire, she said that she put up flyers and knocked on her neighbors’ doors to form a tenants association. She stated that the tenants’ association meeting was scheduled on July 17, 2017 in the lobby of the building and that the meeting started at 6pm. She recalled that the following persons were present: Elissa Garcia from apartment 27, Don Angel Garcia from apartment 25, Anna Burnham, Greg Baltz, Stephanie Rudolph, and one of the landlord’s employees who was wearing a floral shirt with a hat. Ms. Tosca testified that the man in the floral shirt had not been invited to the meeting. The Court accepted into evidence as petitioner’s 66 a photo of the man in the floral shirt, who appeared uninvited at the July 17, 2017 meeting. Ms. Tosca testified that she asked the man to leave because he was making the tenants there feel uncomfortable but he said that he wasn’t leaving and that Hiram Colon was his boss. Ms. Tosca testified that the meeting was then moved to a different building across the street.Ms. Tosca testified that when she moved in to the apartment in May 2013 that she was told she could reach the landlord regarding necessary repairs through one of four methods: 1) she could call a telephone number 917-503-1300; 2) she could contact Don Angel, the superintendent, in apartment 25; 3) she could call Jordan’s telephone number; 4) or she could send a letter to a post office box. Ms. Tosca testified that she called the telephone number hundreds of times in the first year but no one ever answered. The machine said to leave a message, but she rarely if ever received a return call. Ms. Tosca also testified that when she knocked on Don Angel Garcia’s door he didn’t make any repairs and only told her to call the telephone number or he called the telephone number. She testified that when she tried to call Jordan by telephone, he rarely picked up his cellphone and when he did he’d say he would come by tomorrow but rarely showed up. She stated that she last contacted the post office box in 2014. The Court accepted into evidence as Petitioner’s 67 a copy of a letter sent to Hiram Colon which included a list of repairs and was originally sent by certified mail to the post office box. The Court also accepted into evidence the green return receipt postcard signed by Hiram Colon. Ms. Tosca testified that she received no response from Mr. Colon to the letter that she sent. Ms. Tosca testified that Elvira Torres was the superintendent after July of 2017 and that when she tried to contact Ms. Torres by cell phone, text message, or by knocking on the door, she received either no response or had the door slammed in her face. Ms. Tosca testified that in 2017 she received stating that Richard Torres was the new building manager and that when she called the phone number on the letter, 50 percent of the time her call went directly to voicemail. She testified that she mostly received no response to her texts and that if there was any response it would be days later. Ms. Tosca testified that the quality of the management in the building had not changed from May of 2013 to present. Ms. Tosca testified that to get extermination services she would call or knock on the super’s door but that she never saw a sign-up sheet in the lobby. She testified that the bathroom in her apartment had a water leak and mold by the heater and between the tub and the sink. She recalled that she saw the leak when she first moved in in May of 2013 and complained about it but that between May of 2013 and May of 2017 there was no repair of the leak; the landlord only plastered and painted, and Ms. Tosca was compelled to call 311 to report the leak to HPD. The Court took judicial notice of the HPD list of violations in apartment 45. The Court also accepted into evidence as Petitioner’s 69, a photograph of mushrooms on the bathroom ceiling of apartment 45. Ms. Tosca testified that on November 28th of 2017, the landlord opened up the ceiling in the bathroom and they tore down the rest of the ceiling. The workers left in the afternoon and left her ceiling open, where she saw layers of sheetrock covered in black mold, missing pieces of a rotten wood beam, a pipe wrapped with a rag, and a plastic garbage bag under where the toilet from the upstairs apartment would be. The Court accepted into evidence as Petitioner’s 70-75 photographs showing the hole in the bathroom ceiling, taken during the last week in November 2017 in apartment 45. Ms. Tosca testified that a piece of wood with rusty nails fell down from the ceiling near her foot and that an inspector came the next day. The Court took judicial notice that violation number 35263424X already admitted into evidence as Petitioner’s 58 remains open and uncorrected by the landlord. Ms. Tosca testified that the landlord made no effort to abate the leak, that they only used some kind of solution to wipe down the outer layer of sheetrock. She testified that she was aware that a water leak was coming out of her wall because there was bubbling paint and the ceiling was cracking. She acknowledged that in March or April of 2018, the landlord sent someone to plaster and paint. Ms. Tosca testified that the shower knobs leak and that only scalding hot water comes out when the shower is on and the water pressure is low. Ms. Tosca testified that a hearing was held at DOB on January 19, 2018 regarding DOB violation number 35284949L already in evidence as Petitioner’s 55 for unapproved electrical equipment/wiring and that DOB found Mr. Colon to be in violation. She acknowledged that the landlord sent someone to make repairs during the last week of November 2017 and she stated that an electrician opened the walls and added outlets and made holes in her walls and left dust everywhere. She testified that there were no dust control measures, no plastic sheets, no wet mopping, and no HEPA vacuuming. She stated that there was an attempt to clean and mop on the last day of work but within twenty minutes of the floor drying it was still covered in dust. The Court accepted into evidence as petitioner’s 76-82 photographs of apartment 45 taken during the last week in November 2017. Ms. Tosca testified that her youngest son couldn’t breath and she had to send her kids to stay with other family members and that she dusted, swept, mopped, and vacuumed the apartment. She testified that the Department of Health in December 2017 and the dust was still visible. The Department of Health inspector came and collected dust samples and dust wipes and tested for lead. She testified that the analysis of the lead dust wipes presented by the health inspector showed that there were 3120 micrograms per square foot which is more than 3000 micrograms in excess of safe levels. She further stated that in March of 2018, the landlord sent someone to clean up. Ms. Tosca testified that she also had electrical problems in the kitchen, living room, and bedroom, including sparks from the outlets, the ceiling light flickering and making a “static sound,” and the lights going out in the bedroom. Ms. Tosca testified that in her bedroom the walls were poorly plastered and had mesh sticking out and that all three windows were broken along with the window balances, including the fire escape window. Ms. Tosca testified that she has seen mice and roaches in her apartment and that the last time the exterminator has come to her apartment was in January, 2018. She testified that there is no process to request extermination. Ms. Tosca testified that this past winter the heat and hot water would sometimes “cut out” for hours, days, or weeks at a time. She testified that she did not have hot water on the following dates: November 3, 6, 9, 20 of 2017; January 5, 8, 21, and 27 of 2018; February 7 and 19 of 2018; March 7 and 26 of 2017; and April 5 and 14 of 2018. Ms. Tosca testified that she notified Elvira the superintendent by text or by knocking on her door and that she later had notified Richard Torres by calling and texting but that neither was responsive. She testified that she wanted a 7A administrator in the building because none of the serious issues, like ongoing water leaks, in the building had been repaired and that she was worried about another fire in the building.On cross-examination, Ms. Tosca admitted that she had a conversation with Mr. Colon in 2016 in apartment 21 in the building and she stated that they were in apartment 21 because Mr. Colon was trying to convince her to move into that apartment. Ms. Tosca testified that she would let the exterminator in when they sought access to her apartment. The Court accepted certified DOH/MH records for apartment 45 in evidence as Petitioner’s 26. And The Court also accepted certified DOH/MH records for apartment 55 in evidences as Petitioner’s 27. The Court further accepted in evidence as Petitioner’s 83 a print-out of open HPD violations in the building dated June 27, 2018. The petitioners rested.Respondent’s counsel moved for a directed verdict, arguing that one third of the tenants in the building have failed to testify and that as a matter of law petitioners have not laid out their prima facie case. The petitioners opposed the oral application for a directed verdict and counsel for the petitioners and respondent agreed to submit post-trial briefs on this point of law on or before July 11, 2018.The respondent failed to present any witnesses, testimony, or evidence in his defense. Hiram Colon did not testify on his own behalf.The Court notes that prior to the conclusion of trial, HPD’s counsel affirmed the agency’s support for the appointment of a 7A Administrator for the subject building.FINDINGS OF FACT AND CONCLUSIONS OF LAWOne-Third RequirementIn order to maintain this proceeding for the appointment of a 7-A administrator, petitioners must make the requisite showing that they comprise one-third or more of the tenants actually occupying the building, pursuant to RPAPL §770(1). As there are 36 units in the premises, petitioners must establish that they constitute at least 12 of the tenants actually in occupancy. Petitioners reside in 15 separate apartments in the subject building clearly satisfying the requirement of RPAPL §770(1). Contrary to respondent’s assertion, there is no statutory mandate or any controlling case law precedent requiring that one-third of the tenants actually testify at trial. Therefore, this does not constitute a basis for dismissal of this proceeding, and respondent’s application for dismissal of this proceeding after petitioners concluded their prima facie case is hereby denied.Conditions at the Building Merit the Appointment of an AdministratorThe court finds that based upon the various HPD Violation Summary Reports admitted into evidence at trial and of which the court has taken judicial notice, the landlord failed to significantly reduce the number of hazardous Housing Maintenance Code violations of record during the period of these reports.It is this court’s opinion that the testimony of the witnesses at trial shows that the appointment of a 7-A administrator is warranted in this case. The testimony cumulatively demonstrates that there currently are conditions dangerous to the life, health, and safety of the occupants of the building, requiring the appointment of a 7-A administrator. In fact, the testimony of these witnesses supports the court’s finding that the occupants of the building are still only sporadically receiving essential services, and that, despite the landlord’s attempt to do some work in the building, there are remaining conditions that are dangerous to the life, health, and safety of the occupants of the building.After trial, it is clear to this court that the actions and inactions of respondent and his agents demonstrate an inability to fully comply with the Housing Maintenance Code and other requirements of law. Furthermore, the court recognizes that the tenants have engaged in a lengthy and frustrating struggle to compel the necessary and proper maintenance of the building, and that HPD’s placement of the building in the Alternative Enforcement Program (AEP) is indicative of of the need for the appointment of a 7-A Administrator. While the Court also recognizes that the remedy sought by petitioners is extraordinary and “drastic,” the conditions at the building which include unsafe, ungrounded electrical wiring, lead paint, and a rodent infestation, are sufficiently grave and serious to warrant the appointment of a 7-A Administrator.Based upon the testimony of all witnesses at trial, the exhibits and photographs admitted into evidence, and the various inspections of the premises by HPD, this court is of the opinion that the appointment of an Article 7-A administrator is warranted in that: 1) there still exist conditions dangerous to the life, health, and safety of the tenants and a periodic lack of essential services; 2) the remaining uncorrected conditions are significant and numerous, and deprive the tenants of essential services or endanger their life, health, or safety; and 3) the premises are in an immediately hazardous condition and there is an emergency situation and neglect by the landlord that would require the appointment of an administrator.Accordingly, the petition is granted. HPD shall submit forthwith a proposed order of appointment of a 7-A Administrator to be selected by the Court, in accordance with this decision.This is the decision of the court.Dated: 7/24/2018New York, New York