Recitation, as required by CPLR 2219(a), of the papers considered in the review of this motionPapers NumberedNotice of Motion and Affidavits Annexed 1Affidavit and Affirmation in Opposition 2Reply AffirmationExhibitsDecision/OrderProcedural and Factual History In December 2017, petitioner, Angel Golds, commenced this HP action naming the New York City Housing Authority, Mott Haven Houses as the respondent. The initial HP inspection took place sometime in December 2017. Pursuant to the inspection, the following conditions were described as conditions in the apartment to be addressed as per the New York City Housing Maintenance Code:Entire Apt needs to be painted & holes plasteredMissing smoke detector and carbon monoxideRoach infestedOn the first court date, January 10, 2018, petitioner appeared pro-se. The case was adjourned to February 21, 2018 for the repairs to be completed by January 22, 2018. On February 21, 2018, without the court’s review, the case was adjourned to April 5, 2018 for the repairs to be completed within 30 days.On April 5, 2018, petitioner appeared by counsel, Bronx Legal Services. A two-attorney stipulation, so ordered, addressed the conditions included in the HP Inspection report and additional conditions for respondent to “inspect and repair as required by law.” At that juncture, without an amendment to the pleadings, petitioner’s name was presented as Angel Golds Sidney. The case was adjourned to June 3, 2018.On June 3, 2018, the case was adjourned again for respondent to complete repairs as provided in the HP inspection report of December 2017 and to correct the conditions described in the stipulation of April 5, 2018. The adjourned date was July 10, 2018.A second HP inspection took place on June 21, 2018. The HP inspection found the following conditions:Water leak found at the west wall in the kitchen near circuit breaker box.Escutcheon plates at the risers unsecured to ceiling in kitchen.Small plaster cracks on west wall at base wood cabinet.Bathroom wash basin drain strainer missing.Peeling Paint Found at South wall.Bathroom light fixture bulbs blown out.Entire apartment roach infestation.Refrigerator gasket seals at upper and lower doors peeling.On July 10, 2018, the parties could not come to an agreement. A Consent Order issued which described the conditions contained in the June 21, 2018 HP inspection report. The repairs were to be completed within 30 days of July 20, 2018. The matter was adjourned to August 22, 2018 for the completion of repairs.On August 22, 2018, the parties agreed and adjourned the case to October 1, 2018. Two access dates were provided with a provision to update counsel. On October 1, 2018, the parties agreed and adjourned the case to December 5, 2018.On December 5, 2018, the matter was adjourned by the court to January 11, 2019 for completion of the repairs or trial.A third HP inspection took place on December 20, 2018. The following conditions were found:Paint ceiling and all walls at bathroom.Missing escutcheon plate at floor at heat riser at kitchen.No hot water (Temp 113 degrees thermometer #92234) at kitchen & bathroom.Smoke detector defective.Carbon monoxide detector defective.On January 11, 2019 an interim order adjourned the case for trial. All parties were to be trial ready on January 28, 2019. Access dates were agreed upon to address the smoke detector, the carbon monoxide detector and the hot water issue. Additional access dates were chosen to address the repairs/conditions found by the HP inspection of December 20, 2018.On January 28, 2019, the parties agreed to adjourn the trial to February 21, 2019.On February 21, 2019 petitioner’s motion to hold respondent in contempt was made returnable before the court. The case and motion were adjourned to March 21, 2019. Petitioner agreed to give access on March 7, 2019 to address the hot water issue in the bathroom and to paint the bathroom walls and ceiling and abate mold, if any.On March 21, 2019, the parties agreed to submit the motion for contempt. An “interim order” presented by the parties stated that “the motion seeking contempt and opposition to motion are submitted.” This “interim order” does not reference an affirmation in reply and as such the affirmation in reply now contained in the court’s file is not considered by this Court.Discussion and Conclusion of LawPetitioner’s motion for contempt seeks to punish respondent, with “such punishment [that] may consist of fines or imprisonment, or both, according to law.”The motion before the court names the New York City Department of Housing Preservation and Development (hereinafter HPD) as a respondent. HPD is not a party to this action. Nor was HPD served with the motion papers.Petitioner served the notice of motion to hold respondent in contempt of court by mailing the motion papers to the legal department at 250 Broadway, New York, New York. Petitioner did not seek permission to serve by mail the attorneys for the accused.The Judiciary Law allows for the commencement of a contempt motion by service of a notice of motion. The service of a motion to punish for contempt, however, requires service upon the accused. Section 761 of the Judiciary Law provides: An application to punish for contempt in a civil contempt proceeding shall be served upon the accused, unless service upon the attorney for the accused be ordered by the court or judge.Service upon the accused is required given the severity of the penalties available to the court in a contempt proceeding. The very notice of motion before the court states “your failure to appear in court may result in your immediate arrest or imprisonment for contempt of court.” Such punishment may consist of “fines or imprisonment, or both, according to law.”Petitioner’s failure to effectuate service as required by the clear language of Section 761 and the absence of an order from the court permitting service by mail upon the attorney, is an uncurable defect in this civil contempt proceeding. The motion seeking to hold respondent in contempt must be denied. Petitioner’s reference to CPLR §2214, in the notice of motion that it “is served pursuant to CPLR §2214…,” does not and cannot annul the requirement that an application for contempt in a civil proceeding shall be served upon the accused. 1242 Superior Apts., v. Rodriguez, 61 Misc.3d 1221(A) (Civ. Ct Bronx Co. 2018); Continental Bank v. Moscatiello, 115 Misc.2d 617 (Sup. Ct. Queens Co. 1982.)The denial of this motion, however, does not alter respondent’s obligation to abate and repair conditions in the apartment that were found to exist pursuant to the HP inspections. Respondent is to complete the repairs, if not yet completed, within ten days of an agreed upon access date as provided by petitioner’s counsel.This Decision/Order is mailed to both sides.This constitutes the Decision/Order of this Court/So orderedDated: May 5, 2019Bronx, New York.
