RECITATION, AS REQUIRED BY CPLR SECTION 2219(A), OF THE PAPERS CONSIDERED IN THE REVIEW OF THIS ORDER TO SHOW CAUSE TO PUNISH FOR CONTEMPT: PAPERS NUMBERED ORDER TO SHOW CAUSE AND AFFIRMATION AND AFFIDAVIT AND EXHIBITS ANNEXED 1 PETITIONER’S POST HEARING MEMORANDUM OF LAW 2 RESPONDENT’S POST HEARING MEMORANDUM OF LAW 3 DECISION/ORDER UPON THE FOREGOING CITED PAPERS, THE DECISION/ORDER IN THIS ORDER TO SHOW CAUSE TO PUNISH FOR CONTEMPT IS AS FOLLOWS: A hearing was held on petitioner tenant’s Order To Show Cause (OSC) to punish respondent landlord NYCHA for civil contempt. Both parties appear by counsel. Petitioner tenant called three witnesses to testify, including herself, and admitted eight exhibits into evidence. Respondent NYCHA called two witnesses and admitted no documentary evidence. Both parties submitted post hearing memorandums of law. Petitioner seeks civil penalties for respondent’s undisputed failure to comply with the parties’ two attorney, so ordered November 8, 2018 stipulation, in which respondent acknowledged there was mold in the petitioner’s apartment, and agreed to abate it. Petitioner also seeks an order punishing respondent pursuant to Judiciary Law Section 753 for civil contempt by fine, imprisonment or both, an order awarding her costs, including an abatement, disbursements and reasonable attorney’s fees pursuant to Judiciary Law section 773. Petitioner sought an order enjoining respondent from beginning any mold abatement in her apartment prior to her temporary relocation which was necessary as a reasonable, medical accommodation. Respondent NYCHA’s untimely written opposition, dated six months after the date for submission of opposition papers, was rejected by the petitioner and stricken by the court. Case History: Petitioner commenced this HP repair action against NYCHA, alleging apartment conditions of rats, mice, foul smell, sewage back up from the basement, and mold on radiators. Pursuant to a July 23, 2018 order, respondent NYCHA was directed to inspect and repair as required by law the following “alleged items”: exterminate for mice/rats; mold/mildew on apartment radiators, toilet back up; mold hallway closet wall and ceiling, paint hallway closet, and missing hallway closet shelves. Access was ordered for 7/26/18, 7/27/18, 8/1/18 and 8/2/18. Petitioner’s prior OSC for civil contempt to punish respondent for its failure to comply with the July 23, 2018 order, was settled pursuant to a November 8, 2018, two attorney stipulation. Paragraph 2 of the stipulation states respondent received in open court an independent mold inspection report of the subject apartment dated October 9, 2018 by Ace Home Inspectors, Frank Baldassare, NYC Mold Assessor Cert. #00302. The stipulation states the report indicated contamination of visible mold on both rear bedrooms, visible mold and moisture at the hall closet, mold growth under windows, visible mold on bathroom floor and tub, visible mold baseboard area at front of home and living room area, mold on stored items and furniture, visual evidence of mold in base cabinet, collection of indoor mold spores found a mold condition in the subject premises, evidence of water intrusion in the hallway closet, defective exterior building gutters, and sewage back up. Paragraphs 4, 5, 6, 7 and 8 of the November 8, 2018 stipulation states in pertinent part: The parties agree and stipulate there is a mold condition throughout the apartment. NYCHA agrees to inspect, repair, and safely abate, as legally required, the mold and water damage/leak/sewer backup in the subject premises pursuant to guidelines outlined in the report on pages 14-16 and 22-23, and consistent with the BAEZ v. NYCHA consent decree, 13-cv-8916…After mold is abated and underlying causes addressed, NYCHA agrees to repair any water damage, paint and plaster as necessary… Petitioner agrees to provide access on 11/26, 11/28 and 11/29 from 8:30 am to 4:00 pm, with workers by 11:00 am or Petitioner is free to leave. Counsel for the parties should be notified of other mutually convenient access dates arranged by the parties… Either party could restore the proceeding for appropriate relief, and both parties retained rights and defenses. Petitioner’s instant contempt OSC: The OSC was adjourned by order and by two attorney stipulations, from January 10, 2019 to July 29, 2019. Pursuant to the parties’ two attorney, January 18, 2019 stipulation to adjourn, the petitioner’s temporary relocation was to commence on January 25, 2019 for “one month only”. The temporary relocation was based on a medical accommodation as petitioner’s health was negatively affected by the mold in her apartment. NYCHA was to abate the mold in the apartment during this time. Paragraph 2 c of the January 18, 2019 stipulation states all work in the apartment: is presumptively complete when (a) the Original Apartment has been rehabilitated according to mold inspection report by Edward Olmsted, CIH, CSP, New York State Mold Assessor, dated December 24, 2018, a copy of which was provided to respondent and Respondent’s Attorney in Court on January 8, 2019, and all applicable laws and NYCHA policies and procedures; (b) the condition of the Original Apartment would satisfy the warranty of habitability as to hazardous conditions; and c) all work areas to be left in broom-clean condition…d)…Upon completion of all work in the Original Apartment, NYCHA agrees to provide Petitioner and Petitioner’s attorney one-week notice of completion of repairs, and to make the Original Apartment available for re-inspection…e)…The parties agree Petitioner has a zero rent balance in the Original Apartment through January 31, 2019. The parties’ two attorney, March 13, 2019 adjourn stipulation stated additional access to the subject apartment was to be arranged through counsel as needed. The petitioner, her counsel, and the respondent’s quality assurance inspector (the super) were to re-inspect the subject apartment together on March 18, 2019. On April 24, 2019 the proceeding was adjourned to June 12, 2019 for additional access pursuant to a two attorney stipulation. NYCHA1 was to inspect and repair mold/rust in bathroom on tiles over the tub and caulk around the tub, fix the leak behind the hallway closet wall and peeling paint, and repair locks on windows that don’t latch and the living room left window that does not open. Access dates were April 25, 2019 and May 7, 2019 from 8 am to 4 pm. On June 12, 20192 the matter was adjourned by order to July 29, 2019 for a hearing on petitioner’s contempt motion. The order states that the respondent3 agreed to inspect, repair and abate existing mold in accordance with NYCHA’s Revised Standard Mold & Policies & Procedures dated 12/21/18 and petitioner’s independent mold analysis by Ed Olmsted dated 6/10/19, provided to respondent that day in open court. Access was to be provided on 7/9/19, 7/10/19 & 7/11/19. The contempt hearing: Petitioner tenant’s first witness was Edward Olmsted, who was qualified as an expert witness. Petitioner’s 1 in evidence is Mr. Olmsted’s Curriculum Vitae (CV). Mr. Olmsted testified he is an Industrial Hygienist, an environmental scientist, and a certified safety professional. He works with OSHA, the EPA, and NYU Medical Center. He evaluates contaminants, biological hazards, and residential exposures, including mold exposure. Since the mid 1990′s he has been a consultant to the federal, state and local government, and is a Hunter College Professor. His CV notes that he is a published author of mold exposure in residential and industrial settings, and is a member of several societies, including the American Industrial Hygienist Academy. He has testified in approximately 28 court trials, and was certified as an expert in all those trials. Mr. Olmsted testified credibly that he has inspected between two and three thousand apartments. He visited the subject apartment on two occasions. The first inspection was on December 18, 2018. He took moisture readings with a moisture meter, and surface samples of the subject apartment on that date. He then looked at the surface samples under a microscope. He also performed a visual inspection using a strong flashlight in which he looked for visible mold (funghi), which can look like a dirty wall. He testified mold is microscopic but the spores and fruiting bodies grow, and mold manufactures the spores. When surfaces are wet, mold with other organisms grow. Mr. Olmsted testified that he wrote a December 24, 2018 report regarding his December 18, 2018 inspection of the apartment. That twenty three page report was admitted into evidence as Petitioner’s 2. The report includes a diagram of the apartment and thirteen full size color photographs of conditions inside of the apartment and the building’s exterior. Several of the photographs show visible dark areas on the apartment walls, ceilings, pantry closet, inside the kitchen cabinet, and on a table and hutch. Page 3 of Mr. Olmsted’s December 24, 2018 report in evidence states: …A level of moisture exceeding 20 percent in wood is above normal and suggests water intrusion…a moisture level above 17 percent in wood or sheetrock is sufficient to support mold growth. Levels above 20 percent are sufficient to germinate spores in some species of mold resulting in fungal growth. Water intrusion is the principal risk factor for mold and bacterial growth… Results This report is based on a visual inspection by Olmsted, analysis of tape lift samples by Olmsted and moisture readings. Analysis of four samples done by Prestige Enviromicrobiology (Prestige) and the report is attached. The following summarized the survey results: 1. Moisture readings in the apartment revealed dampness in the following areas: a. Bedroom floor in the bedroom adjacent to the bathroom 42 percent b. Hallway outside the bedrooms floor 75 percent…. 4…Summary of the tape lift samples…Mold growth was found on the following surfaces: a. All of the walls in the two bedrooms, living room and pantry closet. b. The kitchen base cabinets c. The ceilings in the two bedrooms. d. All of the furniture e. On some articles of clothing…. Petitioner’s 3 in evidence in Mr. Olmsted’s invoice for his December 18, 2018 inspection of the apartment and his December 24, 2018 report, for $500.00. Mr. Olmsted testified that on December 18, 2018 he observed mold on the apartment’s walls and ceiling, furniture, clothing, as well as on the inside and on the outside of the kitchen cabinets. He observed water damage, and crumbling plaster walls in the bathroom and linen closet. He measured water under the tiles. The concrete slab under the tiles was wet and this is unusual. The water evaporating up from the concrete slab causes a humidity problem, and humidity supports mold. He observed moisture in a bedroom wall. The cause was from the down spout and gutters, with water coming from the outside weathering on the outside walls. The bathroom and linen closet had water from the apartment above. He collected thirteen tape lifts and looked at those samples under a microscope. Those samples were growing mold and the genus of mold. He analyzed the samples within one to two days of taking them. The results of his samples demonstrated there was mold growing on many surfaces in the subject apartment. Mold was present in the apartment on his December 18, 2018 visit. There was excessive moisture present in the apartment on that date. Mr. Olmsted recommended that NYCHA follows NYC Department of Health (NYCDOH) mold abatement guidelines. He recommended using a heap filter, cleaning with a strong detergent, scraping plaster down to the substructure, and then plastering and painting. He testified the apartment was in a very bad condition, and you cannot just paint over mold. Mr. Olmsted testified he visited the apartment a second time on June 4, 2019. He stated he did a final mold assessment of the apartment. Petitioner’s 4 in evidence is Mr. Olmsted’s seven page June 10, 2019 report based on his June 4, 2019 visit to the apartment. On that date he did a visual inspection of all areas and moisture readings. He determined that no mold abatement was performed in the two bedroom closets or the entry way closet. He observed visible mold on walls and interior sides of doors. He observed mold around the medicine cabinet in the bathroom. On that visit, he took tape lift samples, He analyzed those samples in his office shortly after the inspection, and found various genus of mold present on the samples. He determined after that June 4, 2019 visit and analyzation of tape lift samples, that there was mold present in the apartment closets and bathroom on that date. The mold still needed to be abated, as mold was not completely abated in the apartment. Petitioner’s 5 in evidence is Olmsted Environmental Services, Inc invoice from Mr. Olmstead dated June 30, 2019 in the amount of $625.00 for “Mold assessment after cleanup of 17 Topscott, Apartment 1B, Brooklyn, NY, report and laboratory analysis of 3 samples”. Mr. Olmsted testified on cross examination that he is a NYS mold assessor, and the state requires a four day class. He testified on cross exam that mold grows and produces a vegetative structure with roots connecting filaments which then forms part of a colony which helps mold digest and move water. He testified that sporalating structures grows millions of spores in reproduction, and on December 2018 he observed mold “growing” on the petitioner tenant’s clothing and furniture. He observed water leaks in the apartment. During his June 4, 2019 visit to the apartment he did not find evidence of water leaks, and the mold was reduced to the closets. The closet were empty of all possessions, and the furniture still had mold on it. Mr. Olmsted testified on re-direct that on June 4, 2019 there was mold in the closet and bathroom. He testified that any mold on the tenant’s clothes would not cause the mold. Petitioner’s second witness was Marvin Jean Jacques, who works for respondent NYCHA as a mold administrator with respondent’s Technical Services Department, who was subpoenaed to testify. He testified that due to the Baez Case4, NYCHA uses a “mold buster’s” protocal of December 18, 2018. The witness testified he had no specialized mold abatement training. He testified there was a special master appointed in the Baez Case, and pursuant to the litigation, a vendor, Environmental Education Associates (EEA) conducts “mold buster training” for NYCHA. When the witness was asked on direct if NYCHA uses standard policy and procedures for mold remediation, he answered no, they use Baez Policy procedures of December 18, 2018. Petitioner’s 6 in evidence is a certified copy of pages 1 through 42 of the revised 12/19/18 “NYCHA Standard Procedure Manual, Filed 12/21/18, SP 040:14:1, Mold/Mildew Control in NYCHA Residential Buildings, which is Document 222 of Case No. 13-cv-08916(WHP) of the Southern District of New York” (Baez etal vs NYCHA) Mr. Jacques testified that the Baez case directs, NYCHA to find the root cause for mold and eliminates excessive moisture and recurrence. “Mold busters” is a new standard mold abatement procedure, using better tools, that NYCHA started on January 7, 2019. Mr. Jacques testified he was the person responsible for the December 19, 2018 mold procedure. He does not know the NYCHA mold abatement procedure prior to Baez. He testified the hypothetical protocol after the new system was put in place after July 2019 was as follows: a call from a tenant to NYCHA’s customer call center generated a service ticket request. That “parent” work order went into NYCHA’s “Maximo” system (a desk top application) and then an initial inspection takes place within one to five days. At the initial inspection it is determined a) if there is visible mold, b) if there is visible water damage, and c) if there is a wet reading. Then a “mold receipt form” is given to the tenant after the inspection. He testified that if the condition is unfounded, the work ticket is closed. If it is founded, then a work order(s) is sent to NYCHA’s skilled trades. He testified it depends how long that next step of sending a work order to NYCHA’s skilled trades takes and the repair/abatement is completed. He testified NYCHA had 60,000 mold tickets. Mr. Jacques testified that during the inspection, the superintendent comes in and looks for water damage, humidity, air flow in unit. He testified on cross exam that on July 1, 2019, the NYCHA maximo application was rolled out and prior to July 2019 NYCHA used the old system. His job was training and implementation. Petitioner’s 7 in evidence is a certified copy of the “NYCHA Standard Procedure Manual, filed 06/12/15, SP 040:14:1, Mold/Mildew and Moisture Control in NYCHA Residential Buildings, which is Document 59-3 of Case No. 13-cv-08916 (WHP) of the Southern District of New York” (Baez, etal vs NYCHA), pages 1 through 29. Petitioner’s 8 in evidence are two decision and orders on HP 2628/14, Chastity Edwards petitioner tenant against respondent NYCHA Breukelen Houses. Judge Chinea’s October 30, 2017 decision and order after trial awarded the petitioner tenant a ten percent abatement due to NYCHA’s failure to abate mold in the apartment, and directed NYCHA to abate the mold. Judge Kuzniewski’s subsequent July 5, 2018 decision and order on the same case, found NYCHA in civil contempt of the October 30, 2017 court order, and set the matter down for a hearing on petitioner tenants costs, disbursements and legal fees. Petitioner Sakeena Nazeer testified credibly on her own behalf. She has lived in the subject two bedroom apartment for 12 years. She pays $1090 a month in rent, and she receives SSI. When she moved into the apartment it was clean. Four to five times each year raw sewage from the basement backs up into her sinks and tub, and floods her entire apartment. In the beginning she wrote and called the management, and their emergency repair workers would snake out the basement. Ms. Nazeer testified that in July 2017 there was flooding from the gutters, and green mold came from the outside of the windows to the inside of her apartment. The yard smelled of raw sewage, there were rat dwellings in the yard, unleashed pit bulls, and people were grilling in the building hallways. Ms. Nazeer testified in her first bedroom there was black mold from the ceiling to the floor, and on the walls and radiators. The apartment above her had floods, and it ran into her apartment hallway foyer. NYCHA gutted her closet due to mold throughout the closet. The worker pulled out the closet, would not touch it, and left the apartment without abating the mold. NYCHA only wanted to plaster and paint, and not do mold abatement. Mold spread to her second bedroom. Ms. Nazeer testified after July 2017 she put in two work tickets with NYCHA for mold, and one ticket for her refrigerator. In June 2018 there was mold in her foyer closet, as well as on the hall and walls of her foyer. There was such heavy black mold in one bedroom, she had to keep the door closed. She wrote to NYCHA and the Mayor of NYC. NYCHA responded by sending in a plasterer. After June 2018 the conditions in her apartment got horrifyingly worse, mold was on her food, even her cans of food were turning black. Ms. Nazeer testified she brought this HP case against NYCHA in July 2018 because she was experiencing nose bleeds, headaches, hives from the mold and she was not able to spend time in the apartment. The court took judicial notice of the July 22, 2018 HPD inspection of the apartment contained in the court file, which found five HPD apartment violations. One “B” violation for mice, and four violations to repair the plaster, replace closet shelves, abate mold in the private hall closet south wall, and abate mold in the east wall and ceiling of the south east room, and the east and north wall of the north east wall. The July 23, 2018 order directed access for July 26 and 27, and August 1 and 2, 2018. Petitioner testified on the July 26, 2018 access date the exterminator came to her house. The exterminator said there were no rat dwellings outside, but she showed them to the exterminator. On July 27, 2018 NYCHA called the tenant and stated they were not coming to the apartment on the court ordered access date. On August 1, 2018, NYCHA workers came to clean the mold with a spray bottle, a sponge and a dirty bucket. She told them that was not acceptable. On the August 2, 2018 access date, NYCHA failed to appear. She never received anything from NYCHA explaining what they would do for the mold in her apartment. Ms. Nazeer testified that the conditions in her apartment were unsanitary. NYCHA was unresponsive, so she brought the HP case against NYCHA back to court. The September 12, 2018 so ordered court stipulation after petitioner’s initial contempt OSC, has a September 14, 2018 access date and an October 10, 2018 adjourn date. Ms. Nazeer testified that on the September 14, 2018 access date, a female worker came to her apartment for the radiators. She showed the worker the mold and rust, and backed up sewage. The worker took photos of the conditions, and the tenant never heard from NYCHA again. Ms. Nazeer testified that after the September 14, 2018 court ordered access date and before the October 10, 2018 court date, a mold inspector, Mr. Frank Baldassarre, came to her apartment. He is a certified mold inspector. She paid $550.00 for him to inspect her apartment. (Copy of Frank Baldassare’s NYS Mold Assessor Cert#M00302 mold inspection report” dated 10/10/18 is appended as petitioner’s A to her OSC.) Ms. Nazeer testified that the November 8, 2018 court stipulation had court ordered access dates of November 26th, 28th, and 29th, 2018. NYCHA failed to appear on any of those three access dates. Ms. Nazeer was shown petitioner’s Exhibit 2, photographs from her expert, Mr. Olmsted’s twenty three page December 24, 2018 report. She reviewed them and testified the photos accurately reflected the condition of her apartment. Ms. Nazeer testified that the January 18, 2019 stipulation was the relocation agreement to relocate to apartment 3 in a building twelve blocks away. NYCHA was going to open the walls of her apartment requiring her relocation. It was agreed by the parties, she would relocate for only one month. However, due to NYCHA’s failure to timely abate the mold, the tenant’s relocation lasted from January 25, 2019 through April 15, 2019. She had to pay the costs of relocating to the temporary apartment. It took her seven days each time to move to and from the temporary apartment. NYCHA did not help her. She slept on an air mattress. She moved most but not all of her belongings. She paid the same rent for the temporary apartment. Ms. Nazeer testified that she was present at the re-inspection of her apartment on March 18, 2019, and she observed moisture readings taken on the floor and walls. The light on the moisture reader turned red, and NYCHA said it showed high moisture readings of the bathroom and bedroom floor. All the rooms were inspected. She saw the windowsills in the apartment were not plastered or painted. There was mold in the lower level of the tub and mold in the bathroom, and in the closets. They went to the basement, and beneath her bathroom she saw a puddle of water. She could not move back to her apartment because of the high moisture levels in her apartment. Thirty five floor tiles warped due to moisture. She moved back into her apartment after her floor tiles were replaced. Ms. Nazeer testified after she moved back to her apartment, she observed all the window locks were broken and she could not open one window. There was mold on the bathroom floor, mold on the tiles and throughout the closets, and peeling paint. The two attorney April 2, 2019 stipulation adjourning the case, set access dates for April 25, 2019 and May 7, 2019. Respondent was to inspect and repair mold and rust in bathroom on tiles over tub and on the tub caulking, leak behind hallway closet and peeling paint, and window locks do not latch and left living room window did not open. Petitioner testified that on April 25, 2019 a worker came and fixed the windows. On May 7, 2019, NYCHA failed to appear. When the superintendent came to inspect, she told him the painters had not come. An hour later the painter came, he looked at her windows and closet, he said he was busy in another apartment, and no work was performed. Ms. Nazeer looked at the photographs from Mr. Olmsted’s June 10, 2019 report in evidence as Petitioner’s 4, and testified they accurately reflected what her apartment looked like. She testified no rent was owed. Ms. Nazeer testified that due to the mold in her apartment, she is hardly able to breathe and has a respiratory problem. In addition, her skin is itchy, she has nose bleeds, an itchy nose, and her eyes burned. She had to leave her apartment for hours at a time to get relief She experienced chest pains and labored breathing. She had to stop biking and became depressed. She could not use her two bedrooms from July 2018 to April 2019. Her personal property in the first bedroom was affected. Her belongs were stiff, had mold on them and she had to either throw them out, or wash and dry them. Her hats, books and shoes were covered with mold. She is not able to use her closet. There was another leak after she moved back into the apartment. Ms. Nazeer testified that the apartment conditions limited her social life as her children and eighteen grandchildren could not visi, or sleep over. She was not able to engage in activities. Ms. Nazeer testified on cross examination that she often opens her windows. Sewage would back up from the floor level of the tub. Brown water fills her tub and raw sewage oozes out. When asked how she responded, she testified that she would call NYCHA and she mops it up. She opens the vent, and the windows. She testified on cross that on August 1, 2018 she did not send NYCHA worker away because of his bucket, but she asked them to send someone with proper equipment to remove sewage, mold and water. The NYCHA worker never returned with a new, clean bucket, and she believed the landlord’s “clean up” was not suitable. Ms. Nazeer testified on cross exam that on August 2, 2018 NYCHA failed to appear at the apartment. She did not recall if she spoke to NYCHA on the July 26, 2018 access date, when respondent failed to appear. NYCHA called her and told her they were not coming on July 27, 2018, as no one from NYCHA was available to do work. She reminded NYCHA she had two more access dates of August 1, 2018 and August 2, 2018. She testified that after her expert, Mr. Olmsted’s December 25, 2018 report, she was offered a temporary apartment. Ms. Nazeer testified on cross examination that after she had medical issues due to the apartment’s condition, she went to various doctors. She went to her PCP and the ER and received treatment. She left items in the closet which were covered in mold. Ms. Nazeer testified on re-direct that she requested a medical reasonable accommodation for the temporary apartment in December 2018. Respondent NYCHA called Carina Fable, a manager employed by NYCHA, to testify on its behalf. She is a NYCHA housing assistant, and is currently the NYCHA Park Rock building manager. Ms. Fable testified that when this case was commenced she was only a little involved because she was the assistant manager. She testified that accommodations were offered to the petitioner in December 2018, apartment 2E at 2041 Pacific Street. She testified NYCHA received photos from petitioner regarding the mold and they offered her an apartment. Ms. Fable testified the petitioner Ms. Nazeer said she wanted a hotel, and would have to talk to her attorney. Eventually the petitioner took the apartment. One month passed between NYCHA’s offer and the petitioner moving to apartment 2E. Ms. Fable testified her first time in the apartment was in June 2018. Black mold was in the bedroom and bathroom. After she observed the mold she informed the manager. Ms. Fable could not recall if she entered that information about the mold into the NYCHA reporting system. Ms. Fable testified she was present when repairs were attempted in the apartment between December 2018 and January 2019, and the tenant refused access. She was unable to testify to any specific dates the tenant allegedly refused access during those months. She testified she was in the apartment for twenty minutes in February 2019 and twenty minutes in March 2019. She had mold training two weeks prior to her October 7, 2019 testimony, but no mold training during the twenty minute visits to the apartment. She testified petitioner tenant’s furniture and beds were in the apartment and her clothes were in the closet. Although she has seen mold before, she did not often inspect complaints of mold. Ms. Fable testified she inspected the apartment in April 2019 with the superintendent, the petitioner tenant, and her attorney. (During cross examination she admitted the inspection took place in March 2019, not April 2019) She at first testified she observed the work was completed, but then testified one closet was not completed, as it had dark spots in it and had peeling paint. She does not know the procedure for painting. She does not know what instructions were given to the tenant to prepare the apartment. She observed there were no black spots on the wall in the kitchen, bathroom, bedroom. She testified that the tenant did not mention anything after she returned to court, and only mentioned the closet and tub caulking. The witness testified she did not do anything about those complaints. She believed she made an entry and an email to NYCHA’s law department. She was not the manager at the time. She did not do anything else. She did not instruct the tenant how to prepare her apartment. The witness did not check the tenant’s clothes and did not observe anything on the clothes. Ms. Fable testified on cross examination that she received the December 2018 photos of the mold in the apartment, and in June 2019 she observed mold in the apartment. She testified the tenant refused the temporary relocation apartment. She acknowledged the temporary relocation rider had to be signed, and it was signed on January 18, 2019. She testified that between December 2018 and January 2019 the tenant refused access. The witness was asked about the November 8, 2018 court stipulation, with so ordered access dates of November 26th, 28th and 29th, 2018. Ms. Fable admitted that there were no court ordered access dates in either December 2018 or January 2019, the months she alleges the tenant refused access. Ms. Fable testified that the apartment floor still needed replacement on March 18, 2019. Moisture levels of the floors were too high, and there was still a leak on that date. Ms. Fable testified on redirect, when it was pointed out to her that the November 8, 2018 stipulation paragraph 7 stated “mutually convenient further dates”, that she was not involved in setting up other access dates. Respondent failed to produce any witness that had personal knowledge as to any “mutually convenient further dates”. Respondent NYCHA’s second witness, Ali Nichols, is NYCHA’s superintendent of Park Rock Houses since December 2018. Mr. Nichols testified before his current position he was a NYCHA assistant superintendent at NYCHA’s Albany houses. In May 2018 he took a three day class on mold to learn to recognize mold. He would go into an apartment, and visually inspect it for mold and water damage, and use a moisture meter. The moisture meter readings are zero to 999, and a reading of 599 means there is moisture present behind a wall. Mr. Nichols testified that in December 2018 he went to the tenant’s apartment. There was evidence of a substantial amount of mold in the bedrooms, bathroom and kitchen. However, NYCHA did not do a moisture meter reading in the apartment. He testified the mold remediation workers came to the apartment in January 2019. He was present when the mold remediation workers set up the apartment before they began work. They put plastic over the tenant’s belongings. Between January and February 2019, the closets had clothing in them. There was furniture in the apartment that was covered in plastic. He did not see the furniture before it was covered with plastic. He observed the workers remove sheet rock and the cabinets. He did not observe mold because the workers bagged the sheet rock and cabinets up before he could look at it. A couple of weeks later the sheet rock was restored and the plasterers came, but he did not observe that work. He saw the apartment when the workers were finished, but he was not there everyday, he went two to three times per week. Mr. Nichols testified that in March 2019 he did a walk through of the apartment with the tenant and her attorney, and the tenant complained there was mold in her closet. He told the tenant the workers did nothing with her closet because her clothes were in there. The tenant removed her clothes from the closet in April 2019. He checked for moisture. The moisture was not excessive and he arranged for the closet to be cleaned. Mr. Nichols testified his position entails maintenance and janitorial responsibility. He testified when a tenant calls in a complaint to NYCHA’s call center, the call center enters a ticket in their “Maximo” system, and a date is provided. It is usually assigned to his unit, they get scheduled dates, and they assign it to their maintenance workers, and it goes on their “hand helds.” He was not at NYCHA’s Park Rock development until December 2018. Mr. Nichols testified he tested the tenant’s apartment for moisture in the closets in March 2019 and April 2019, and it had a low reading. He set up for cleaning and painting the closet. In January 2019 he was involved in collective conversations about the building’s brick work and cleaning and sealing the gutters. Mr. Nichols testified on cross that he attended a three day mold assessment training at NYCHA’s Albany Houses, and in April 2019 he took a “Mold Buster” class. Petitioner’s 7 in evidence is a certified copy of a 29 page “NYCHA’s Standard Procedure Manual, Filed 6/12/2015, SP 040:14:1, Mold/Mildew and Moisture Control in NYCHA Residential Buildings, Document 59-3 of Case No. 13-cv-08916 (WHP), of the Southern District of New York”. (Baez, etal vs NYCHA) Pages 5 and 6 of Section 8 of that document lays out “Time Frames to respond to mold/mildew and related issues”. Mr. Nichols was asked about that section of the NYCHA Standard Procedure Manual on mold/mildew that states seven days for simple repairs and fifteen days for complex repairs to be completed. Mr. Nichols testified that during the March 18, 2019 walk through at the apartment the tenant told him about the closets. When he told her to remove her clothes from the closets she did. He did not personally instruct the tenant to leave her furniture in the apartment when she temporarily relocated. He tested the apartment with a moisture meter on March 18, 2019. He testified moisture in the closets was low that day, but mold was present. The moisture reading of the bedroom into the hallway was high. Prior to March 18, 2019 he did provide a certified report of the inspection that led to the March 18, 2019 re inspection. Mr. Nichols testified on re direct that moisture from the bedroom to the hallway in the floor was eventually corrected. In summation, petitioner asked for a finding of contempt, pointing out respondent NYCHA failed to submit written opposition to her instant OSC for contempt. Petitioner stated that according to CCA 110, the court can order a rent credit, find that respondent NYCHA violated its own regulations in mold remediation, and reimburse her for the $625.00 she spent on her expert’s fees, and pursuant to Judicial Act 773 schedule a hearing for her attorneys fees. Respondent stated in its summation that it had a defense to this contempt motion which was that the tenant failed to provide access, the tenant did not immediately move to the temporary relocation apartment, and tenant failed to remove her belongings from her closet. Respondent contended it went above and beyond by working on the building exterior to get to the root of the problem, its actions were not willful, they did the best they could. DISCUSSION: Pursuant to Judiciary Law Section 753 (A): a court of record has power to punish by fine and imprisonment, or either, a neglect or violation of duty, or other misconduct, by which a right or remedy of a party to a civil action or special proceeding, pending in that court may be defeated, impaired, impeded or prejudiced in any of the following cases:…3) A party to the action or special proceeding…for any other disobedience to a lawful mandate of the court. For a party to prevail on this claim, s/he must establish a lawful order was in effect with an unequivocal mandate, that the order, with reasonable certainty, was disobeyed, that petitioner was aware of the order, although it is not necessary the order was actually served upon the party, and that the party demonstrated s/he was prejudiced as a result of the other party’s failure to comply with the order. McCormick v. Axelrod, 59 NY2d 574 at 583,584 (1983), see also El-Dehdan vs El Dehdan, 26 NY3d 19 (2015). The movant bears the burden of establishing contempt with clear and convincing evidence. Wilfulness is not an element of civil contempt. El-Dehdan vs El Dehdan, supra at 29 and 35. See also Incorporated Village of Plandome Manor v. Ioannou, 452 AD 3d 365 (2nd Dept, 2008) “…A civil contempt is imposed ‘not to punish, but, rather, to compensate the injured private party or to coerce compliance with the court’s mandate…(cit omitted) DHPD vs Deka Realty Corp, 208 AD2d 37 (2nd Dept, 1995) Pursuant to Judiciary Law Section 773: If an actual loss or injury has been caused to a party to an action or special proceeding…a fine, sufficient to indemnify the aggrieved party must be imposed upon the offender, and collected and paid over to the aggrieved party, under the direction of the court… Where it is not shown that such an actual loss or injury has been cause, a fine may be imposed not exceeding the amount of the complainant’s costs and expenses, and two hundred and fifty dollars in addition thereto, and must be collected and paid, in like manner… “By its unambiguous terms, the statute distinguishes between the amount of the fine assessable in two separate types of civil contempt cases, one where actual damage has resulted from the defendants’ contemptuous acts and one where there may be prejudice to a complainant’s rights but it is not shown that such an actual loss or injury has been cause…In the first type of case the fine must be ‘sufficient to indemnify the aggrieved party; in the latter the fine may not exceed the amount of the complainant’s costs, and expenses plus $250… State of New York v. Unique Ideas, Inc., 44 NY2d 345 at 349 Counsel fees and other professional fees are properly included in an award to a complainant as ‘reasonable and necessary costs and expenses’ in pursuing contempt…Glanzman v. Fischman, 143 AD2d 880 (2nd Dept, 1988) Petitioner appends copies of the Baez, etal v. NYCHA, 13 CV 8916, US District Court for the South District of New York December 16, 2013 stipulation and order of U.S.D.J. William H. Pauley III, filed on April 17, 2014, and The Modified Amended Stipulation and Order of Settlement, so ordered by Judge Pauley on November 29, 2018 (Petitioner’s OSC Exhibit F) Baez was a class action case instituted by public housing residents suffering from asthma, alleging NYCHA failed to make reasonable accommodations and modifications in its policies, practices, and procedures to effectively abate mold and excessive moisture in their apartments exacerbating their asthma. Section III, pages 4 and 5 of the December 16, 2013 stipulation and order specified the specific procedure NYCHA was directed to follow to abate mold and excessive moisture. Pursuant to page 3 of The Modified Amended Stipulation and Order of Settlement in Baez, etal v. NYCHA so ordered by Judge Pauley on November 29, 2018, the Court found that on December 15, 2015, NYCHA had been out of compliance with the original Baez v. NYCHA Stipulation and Order of Settlement from the day it was entered, and ruled that a Special master would be appointed to enforce NYCHA’s compliance. The special master met with plaintiffs and defendants attorneys for two years to discuss the root causes of and reasons for the reoccurrence of mold and excessive moisture and the procedures and protocols that could improve NYCHA’s performance. Section II, pages 6 and 7 of the Modified Amended Stipulation and Order of Settlement again specified the specific mold and moisture abatement procedure NYCHA was directed to follow. An abatement based upon the implied warranty of habitability pursuant to Real Property Law section 235(b) protects against conditions that materially affect the health and safety of tenants or deficiencies that in the eyes of a reasonable person deprive the tenant of those essential functions which a residence is expected to provide. Sollow v. Wellner, 86 NY2d 582, 587 (1995), Park West Management Corp., v. Mitchell, 47 NY2d 316, 329 (1979) The respondent has the burden of proof on his affirmative defense that the landlord breached the warranty of habitability. “In ascertaining damages, the finder of fact must weigh the severity of the violation and duration of the conditions giving rise to the breach as well as the effectiveness of steps taken by the landlord to abate those conditions. Since both sides will ordinarily be familiar with the conditions of the premises both before and after the breach, they are competent to give their opinion as to the diminution in value occasioned by the breach (citations omitted).” Park West Management Corp., at 329. The court had the opportunity to observe and evaluate the testimony and demeanor of both the petitioner, her two witnesses, and respondent NYCHA’s two witnesses, over the course of the contempt hearing. Respondent NYCHA failed to submit written opposition to the instant contempt OSC. The court has had the opportunity to evaluate petitioner’s eight documents entered into evidence during the hearing. Respondent NYCHA did not enter any documents into evidence during the hearing. Petitioner Sakeena Nazeer was a credible witness. Petitioner’s credible and unrebutted testimony was that she never received anything from NYCHA explaining what would be done about the mold in her apartment. NYCHA’s employee, Mr. Jean Jacques the NYCHA superintendent, testified that NYCHA was supposed to give tenants a “mold receipt form” after a NYCHA mold inspection. Petitioner’s credible and un rebutted testimony was that NYCHA failed to comply with so ordered access dates of November 26, 28, and 29 of 2018 from the November 8, 2018 so ordered stipulation, as well as the May 7, 2019 so ordered access date from the April 24, 2019 so ordered adjourn stipulation. Petitioner’s witness, Mr. Olmsted, a New York State mold assessor was certified as an expert witness. His credible and unrebutted testimony was there was mold in the apartment during his December 18, 2018 visit/inspection of the apartment, based not only on his visual inspection, but on moisture readings he took, and laboratory tests of a number of samples he took and analyzed from the apartment on that date. Mr. Olmsted’s December 24, 2018 report, in evidence, states the results of his December 18, 2018 inspection and testing results. Pursuant to the parties’ January 18, 2019 stipulation, respondent NYCHA received a copy of Mr Olmsted’s December 24, 2018 mold report of the apartment in court that day. Pursuant to the terms of the stipulation, petitioner was to be temporarily relocated from January 25, 2019 for “one month only”, however, it is undisputed that the petitioner was not able to move back into her apartment until April 15, 2019 due to respondent NYCHA’s failure to abate the mold and moisture, and failure to repair the floor tiles. It is undisputed that after April 15, 2019 when petitioner moved back into the subject apartment, mold and moisture was still present in her apartment as of June 10, 2019. Mr. Olmsted’s un-rebutted, credible, and expert testimony was that there was still mold in the apartment during his June 4, 2019 visit/inspection of the apartment, based not only on his visual inspection, but on his moisture readings, and laboratory tests of a number of samples he took and analyzed from the apartment on that date. Mr. Olmsted’s June 10, 2019 report entered into evidence, stated the results of his June 4, 2019 inspection and testing results. Respondent’s subpoenaed witness, Mr. Nichols, who is a NYCHA superintendent, testified credibly that mold was present in the apartment in December 2018. He testified credibly that during the March 18, 2019 walk through of the apartment he tested the apartment with a moisture meter on that day, that moisture in the closets was “low”, moisture of the bedroom into the hallway was “high”, and mold was present. Mr. Nichols had no personal knowledge of who entered any information into NYCHA’s “Maximo” system as to any work order tickets for the petitioner, as he did not enter information into that system. He had no personal knowledge how long it took between the time a work order was entered into Maximo system until the work would be completed, except that emergencies were to be completed within 48 hours. Respondent’s witness and employee, Ms. Fable, was not credible when she testified that petitioner refused to provide access between December 2018 and January 2019. She admitted on cross examination that there were no so ordered access dates in either December 2018 or January 2019. Ms. Fable’s testimony that the petitioner refused to move to the temporary apartment for a month between December 2018 and January 2019 was not credible, as she admitted on cross examination that any temporary relocation agreement was to be part of a court stipulation, and the court stipulation was signed on January 18, 2019. While Ms. Fable testified she was in the apartment in June 2018 and observed black mold in the apartment bedroom and bathroom, and she told her manager, she could not remember if she entered that information about the mold into the NYCHA reporting system. Ms. Fable’s testimony of the apartment’s condition in March 2019 was less than credible, and contradictory. Initially testifying the work in the apartment was complete in March 2019, she then contradicted her testimony testifying one closet was not completed as it had dark specs on it and peeling paint, and the petitioner mentioned the closet and tub caulking. Ms. Fable testified she did not do anything about those complaints, then testified she believed she made an entry and emailed NYCHA’s law department. Ms. Fable testified she did not know the NYCHA procedure for painting, and did not know what instructions were given to the petitioner to prepare the apartment. Respondent’s witness Ms. Fable contradicted her direct testimony the work was complete on March 2019, testifying on cross examination that on March 18, 2019 the apartment floor needed replacement, moisture levels of the floors were high, and there was a leak in the apartment. None of respondent’s employees who testified, Mr. Nichols, Ms. Fable, or petitioner’s subpoenaed witness, Mr. Jean Jacques, a NYCHA superintendent, had personal knowledge of whether or not petitioner was informed to remove clothing from her closet prior to March 2019. It is undisputed that the closet still had mold in it on March 18, 2019. It is undisputed that once petitioner was asked to remove clothes from that closet in March 2019 she did so. Respondent’s witnesses failed to have any knowledge to rebut petitioner’s credible testimony of NYCHA’s repeated failures to comply with court ordered access dates, and failure to abate the mold and moisture, and make repairs in her apartment. Based on the foregoing, the court finds that the petitioner tenant has established and demonstrated by clear and convincing evidence that respondent NYCHA is in civil contempt of the court’s November 8, 2018 order. Petitioner has established the November 18, 2018 two attorney, so ordered stipulation was a lawful order with an unequivocal mandate. Respondent NYCHA has been represented by counsel throughout this proceeding, from the inception of the underlying HP repair action petitioner tenant instituted in July 2018, through the contempt hearing. The court file contains numerous two attorney stipulations and court orders in this case concerning mold in the petitioner’s apartment, and so ordered access dates. Through petitioner’s credible testimony, the credible testimony of her expert witness Mr. Olmsted, a New York State Mold Assessor, as well as documentary evidence including Mr. Olmsted’s December 24, 2018 and June 10, 2019 report, respondent NYCHA failed to comply with the November 18, 2018 so ordered stipulation to abate the mold in petitioner tenant’s apartment. The November 8, 2018 two attorney stipulation clearly states that respondent stipulated there was a mold condition throughout the apartment, agreed to abate it pursuant to NYCHA’s own mold abatement procedures from the Baez v. NYCHA consent decree, and agreed to November 26, 28, and 29, 2018 access dates. Petitioner tenant’s credible and un rebutted testimony was that NYCHA failed to appear on court ordered access dates from the November 8, 2018 stipulation of November 26th, 28th and 29th, 2018. NYCHA’s failure to abate the mold is particularly egregious in light of having full access to the apartment from January 25, 2019 to on or about April 15, 2019, during which time petitioner tenant was temporarily relocated as a result of a medical accommodation as the mold in the apartment was negatively affecting her health. The unrebutted testimony of Mr. Olmsted and his December 24, 2018 and June 10, 2019 reports in evidence, containing the written results moisture readings and tape samples he took in the apartment on December 18, 2018 and June 4, 2019, and analyzed, are uncontroverted evidence of mold and moisture in the apartment in December 18, 2018 as well as in June 4, 2019. Petitioner testified credibly describing respondent’s failure to comply with the court’s order, and failure to abate the mold and moisture in her apartment from the parties’ November 8, 2018 stipulation through at least June 4, 2019. She described the negative affects her, and how the mold and moisture negatively affected her use and enjoyment of the apartment. She testified credibly as to health problems she experienced as a result of the mold in her apartment, including problems breathing, itchy skin and nose, burning eyes, chest pains. She also testified credibly how the apartment conditions limited her social life and family activities as she could not have her children or grandchildren over to her apartment to visit or sleep over. The petitioner testified credibly that as a result of the mold her personal property in the apartment was affected by the mold and she had to either throw them out or wash and dry them. She testified credibly that she received no help, financially or otherwise from respondent when she relocated to the temporary apartment, which she had to do because NYCHA’s failure to abate the mold and moisture in her apartment negatively affected her health. She testified credibly that it took her seven days each time for her to move to and from te temporary apartment and once there she slept on an air mattress. The court notes that petitioner did not testify to any out of pocket expenses associated with the above. Petitioner’s counsel is awarded $1625.00 costs from respondent NYCHA, representing the $500.00 Olmsted invoice in evidence as Petitioner’s 3, plus the $625.00 Olmsted invoice in evidence as Petitioner’s 5, plus $500.00 Olmsted witness fee. Petitioner’s counsel’s affirmation contained in her post hearing memorandum of law, states those costs were paid to Mr. Olmsted by petitioner’s counsel office — the Legal Aid Society. This is to be paid to petitioner’s counsel within fifteen days after service of a copy of this order by notice of entry. Petitioner did not offer proof of any out of pocket expenses at the hearing, but her credible and detailed testimony demonstrated how the apartment conditions negatively impacted her physically and socially. “…Clearly one form of actual damages established by Tenant at the hearing pertains to the decreased value of the Subject Premises as plagued by the conditions for the relevant periods. The calculations of these type of damages is similar to the calculation for a rent abatement…” Randolph vs NYCHA East River Houses, 44 Misc 3d 1207(A) at 5, (NY Civ Ct, 2014) Based on an overwhelming preponderance of the credible evidence, petitioner tenant has established that the mold and moisture conditions in her apartment and respondent NYCHA’s failure to effectively address them, reduced the value of the subject apartment by 50 percent from the date of the parties’ November 8, 2018 so ordered stipulation through and including January 24, 2019. NYCHA’s continued failure to abate the mold and moisture in the apartment, and failure to repair floor tiles, reduced the value of the apartment by 100 percent during the period petitioner tenant was temporarily relocated out of the apartment as a reasonable, medical accommodation, as her health was negatively affected by the presence of mold and moisture in the apartment, from January 25, 2019 through and including April 15, 2019. Respondent NYCHA continued to fail to abate the mold and moisture that still existed in the apartment as evidenced by Mr. Olmsted’s June 4, 2019 inspection of the apartment, which was memorialized in his June 10, 2019 report in evidence. This reduced the value of the apartment by 50 percent from April 15, 2019 through and including June 4, 2019. Petitioner’s undisputed testimony was that she pays $1090 a month in rent. $1090 x 12 months = $13,080 divided by 365 days = $35.83 rent per day. The total rent payable to NYCHA from November 8, 2018 to January 24, 2019 (78 days x $35.83 per day) = $2794.74. 50 percent abatement of $2794.74 = $1397.37 abatement for the period November 8, 2018 through January 24, 2019. The total rent payable to NYCHA from January 25, 2019 through April 15, 2019 (81 days x $35.83 per day) = $2902.23. 100 percent abatement of $2902.23 = $2902.23 abatement for the period January 25, 2019 through April 15, 2019. The total rent payable to NYCHA from April 16, 2019 through June 4, 2019 (50 days x $35.83 per day) = 1791.50. 50 percent abatement of $1791.50 = $895.75 abatement for the period April 16, 2019 through June 4, 2019. Adding the above abatement amounts of $1397.37 + $2902.23 + $895.75 equal total rent abatement/credit of $5195.35 in favor of the petitioner tenant as actual damages based on NYCHA’s civil contempt. In addition, petitioner tenant is awarded an additional $1000.00 rent credit/abatement, as an actual damage based on NYCHA’s civil contempt, for NYCHA’s failure to comply with four court ordered access dates. The $1000.00 represents a $250.00 fine for each of the four so ordered access dates NYCHA undisputedly failed to comply with — November 26, 28, and 29, 2018 from the November 8, 2018 stipulation, and May 7, 2019 from the April 24, 2019 so ordered adjourn stipulation. The total $6195.35 rent abatement/credit is to be applied immediately to petitioner tenant’s rent account. The proceeding is adjourned to December 20, 2019, 9:30 am, room 904, for a hearing on petitioner’s reasonable attorney’s fees. Petitioner’s counsel is to provide the respondent’s counsel a copy of her contemporaneous time records on or before December 18, 2019. A copy of petitioner’s exhibits will be available in Room 904 for pick up. This constitutes the decision and order of this court. December 6, 2019 Brooklyn, NY
