Papers Numbered Petitioner’s Notice of Motion, Supplemental Affirmation and Affidavit Annexed 1, 2, 3 Respondent-Old Owner’s Cross Motion and Opposition to Petitioner’s Motion, along with Supplemental Memorandum of Law, Attorney Affirmation, and Affidavit Annexed 4, 5, 6, 7, 8 Respondent-Current Owner’s Opposition to the Respondent-Old Owner’s Cross Motion, along with Supplemental Attorney Affirmation, 9, 10 Respondent-Current Owner’s Opposition to the Petitioner’s Motion, along with Supplemental Attorney Affirmation, and Affidavit Annexed 11, 12, 13 Petitioner’s Opposition to Cross Motion and Reply Affirmation Annexed 14, 15 Petitioner’s Reply Affirmation to Respondent-Current Owner’s Opposition 16 Respondent-Old Owner’s Reply Affirmation Annexed 17 DECISION/ORDER Upon the forgoing cited papers, the Decision and Order on this Motion is as follows: Petitioners commenced this Housing Part proceeding (“HP proceeding”) against 517 West 212 Street LLC and Frank Pecora (“Respondents-Former Owners”), and the Department of Housing Preservation and Development of the City of New York (“HPD”) pursuant to New York City Civil Court Act §110 seeking an order to correct violations of the New York City Housing Maintenance Code (“the Code”) at 517 West 212th Street, New York, New York (“the subject building”). Petitioners and Respondents-Former Owners entered into an order to correct the violations (“Consent Order”) on January 20, 2017 and then stipulated on February 7, 2018 and then again on March 21, 2019 to settle all claims for civil penalties, contempt damages, and warranty of habitability to date. On or about May 31, 2019 Respondents-Former Owners sold the subject building to 517-525 West 212th St. LLC and JLP Metro Management Inc. (“Current Owners”)(Respondents-Former Owner and Current Owners are collectively referred to as “Respondents”). Petitioners now move to hold Respondents-Former Owners in contempt, to join Current Owners, to hold Current Owners in contempt, and for damages and civil penalties. Respondents-Former Owners cross-move to dismiss as against them. The Court consolidates these motions for resolution herein. Petitioners’ Motion-Joinder CPLR §1002(b) gives the Court discretion to join a party to a lawsuit when another party asserts a right to relief against it arising out of the same transaction or occurrence, if any common question of law or fact would arise. Here, the multiple dwelling registration (“MDR”) applicable to the subject building, pursuant to Multiple Dwelling Law (“MDL”) §325, annexed to Petitioners’ motion, identifies Respondents-Current Owners as the managing agent and also lists Respondents-Current Owners’ name and address in connection with the corporate entity registered for the subject building. The Code defines the term “owner” expansively to include, inter alia, a “lesser estate therein,” including a “lessee, agent, or any other person, firm or corporation, directly or indirectly in control of a dwelling.” N.Y.C. Admin. Code §27-2004(a)(45). The Legislature drafted the Code to, inter alia, enforce minimum standards of health, safety, fire protection, light, ventilation, cleanliness, repair, and maintenance to protect the people of the city against the consequences of urban blight. N.Y.C. Admin. Code §27-2002. Given that Respondents-Current Owners are now in a position to remedy violations within the broad definition of an owner, provided by the Code, they are an appropriate party that Petitioners may achieve a right to relief against, whether through this motion or a hearing before this Court. Accordingly, the Court grants Petitioners’ motion to join the Respondents-Current Owners, to wit, 517-525 West 212th St. LLC and JLP Metro Management Inc., as Respondents to this proceeding. The caption is therefore amended to reflect the newly joined parties. Petitioners’ Motion-Contempt, Civil Penalties, Damages, and Equitable Relief Petitioners also move for civil contempt, civil penalties, damages, and equitable relief against all Respondents, alleging a willful failure to comply with the March 21, 2019 so-ordered stipulation. With regard to civil contempt against Respondents-Former Owners, a prospective fine is civil in nature so long as the contemnor is given an opportunity to purge. Ruesch v. Ruesch, 106 A.D.3d 976, 977 (2nd Dept. 2013). As Respondents-Former Owners sold the subject building, they are no longer able to complete the repairs, thus eliminating their ability to purge. The only purpose of a civil contempt sanction at that point would have been to punish them, but punishment is the purpose of criminal contempt, not civil contempt. Mollah v. Mollah, 136 A.D.3d 992, 994 (2nd Dept. 2016). As such, Petitioners’ motion for civil contempt against Respondents-Former Owners is denied without prejudice to Petitioners’ motion for criminal contempt. For criminal contempt, Petitioners need to prove beyond a reasonable doubt that Respondents-Former Owners willfully disobeyed a court order. People v. Metropolitan, 231 A.D.2d 445 (1st Dept. 1996), Bayamon Steel Processors v. Platt, 191 A.D.2d 249 (1st Dept 1993), Willer v. Dachenhausen, 83 A.D.2d 924 (1st Dept. 1981). Petitioners’ papers do suggest a prima facie showing of Respondents-Former Owners’ actions involving unabated repairs, refusal to comply with access dates, and noncompliance with certain terms of the Consent Order and subsequent so-ordered stipulations. In response, Respondents-Former Owners contest the allegations in their supportive affidavit. All such conflicting propositions are questions of fact requiring a hearing. See Edelstein v. Edelstein, 110 A.D.3d 567, 568 (1st Dept. 2013), Penn-Dixie Industries, Inc. v. Castle, 77 A.D.2d 844 (1st Dept. 1980), Singer v. Singer, 52 A.D.2d 774 (1st Dept. 1976) (denial of a hearing under such circumstances implicates a potential contemnor’s due process rights). As such, the Court grants Petitioners’ motion to the extent of calendaring a hearing. Petitioners also move for contempt against Respondents-Current Owners, who are successors-in-interest to Respondents-Former Owners. A court may punish a party for any disobedience of a lawful mandate of the court. Judiciary Law §753(A)(3). Before a court may punish for civil contempt, the movant must demonstrate that there has been a lawful order of the court in effect, clearly expressing an unequivocal mandate; a determination “with reasonable certainty” — essentially meaning proof by clear and convincing evidence — that the contemnor disobeyed that order; and that the contemnor knew of the Court’s order. El-Dehdan v. El-Dehdan, 26 N.Y.3d 19, 29 (2015), Matter of First Am. Title Ins. Co. v. Cohen, 163 A.D.3d 814, 816 (2nd Dept. 2018). While the instant so-ordered March 21, 2019 stipulation contained a clear and unequivocal mandate, Respondents-Current Owners raise an issue of the element of contempt requiring knowledge. Petitioners argue that the March 21, 2019 stipulation binds Respondents-Current Owners through imputed knowledge from their predecessors and from the language of the stipulation, particularly provision 23 therein stating “[t]he stipulation shall be binding upon, and inure the benefit of, the parties hereto, their representatives, successors and assigns” (“Provision 23″). Petitioners essentially argue that the Provision 23 is a real covenant running with the land. One type of real covenant indeed runs with the land, and another is a personal covenant. Neponsit Property Owners’ Ass’n v. Emigrant Industrial Sav. Bank, 15 N.E.2d 793 (1938), Arroyo v. Rosenbluth, 115 Misc.2d 655, 660 (Civ. Ct. Kings Co. 1982). Real covenants bind the covenantor and any and all subsequent grantees as well. Id. Personal covenants generally bind only the covenantor. Neponsit Prop. Owners’ Assn., supra, 15 N.E.2d at 795. In order to prove that Provision 23 runs with the land, Petitioners must show that it (1) was intended, by all Respondents, for it to run with the land; (2) touched or concerned the land; and (3) created privity of estate between the promisee or party claiming the benefit of the covenant and the promisor or a party resting under its burden. Arroyo, supra, 115 Misc.2d at 657; Inc. Vill. of Mastic Beach v. Mastic Beach Prop. Owners Ass’n, Inc., 2014 NY Slip Op 31788(U), 4 (S. Ct. N.Y. Co.). Provision 23, as a stipulation concerned with repairing conditions in the subject premises, “touches” the land. Stasyszyn v. Sutton E. Assocs., 161 A.D.2d 269, 299 (1st Dept. 1990)(such a stipulation creates a covenant that “concerns” real property when “the burden imposed on the real property was to make the premises habitable”). Moreover, the direct relation of conveyances between Respondents created the necessary privity of estate. Id. The record on the motion practice, however, is still unclear as to the parties’ intent. While the language enforced upon the current owners in Stasyszyn, supra, is strikingly similar to the language in Provision 23, it also imposed an obligation to notify potential successors of the agreement, unlike Provision 23. Furthermore, the deed for the subject building does not contain language claiming that the successors are subject to a landlord-tenant litigation and any stipulations produced therefrom. Arroyo, supra, 115 Misc. 2d at 655-656. Respondents-Current Owners’ purport in the annexed affidavit that they do not know about Provision 23, which Petitioners dispute. Further factfinding is therefore required. Jennings Beach Assn, v. Kaiser, 145 A.D.2d 607, 608 (2nd Dept 1988). The record leaves unclear some facts as to what occurred during the conveyance of the subject building. As such, the Court grants Petitioner’s motion to the extent of scheduling this proceeding for a hearing to determine the intent of the parties, which will also determine the outstanding elements of breach of a court order and knowledge of the same, for civil contempt. Respondents-Former Owners’ Cross-Motion Respondents-Former Owners move to dismiss for pursuant to CPLR §3211(a)(7), which requires the Court to deem the allegations of the petition as true and construe them in Petitioners’ favor, affording Petitioners the benefit of “every reasonable inference,” Cortlandt St. Recovery Corp. v. Bonderman, 31 N.Y.3d 30, 38 (2018), and determine whether the facts as alleged fit any cognizable legal theory. Lezama v. Cedano, 119 A.D.3d 479, 480 (1st Dept. 2014). Here, Respondents, by way of their attorneys, have signed a consent order and multiple so-ordered stipulations agreeing to correct extant violations on the subject building. The consent order was predicated on HPD violations given judicial notice by this Court. The facts alleged not only fit a cognizable legal theory, the theory has been proved. The opportunity to dispute whether Petitioners has failed to state a cause of action has unequivocally expired. This reasoning applies to the other grounds for which Respondent-Former Owners’ are seeking dismissal of this proceeding, CPLR §3211(a)(1) and CPLR §3211(a)(8). Personal jurisdiction and a documentary evidence defense are not appropriate at this time given the proceeding’s procedural history. The Court does underscore that Petitioners’ relief against Respondents-Former Owners may be limited given its inability to purge, but criminal contempt may still be an issue requiring a fact-finding hearing. Ruesch, supra, 106 A.D.3d at 977. Accordingly, Respondents-Former Owners’ cross-motion is denied in its entirety without prejudice to any defense they may have against criminal contempt. The Court shall restore this proceeding for a hearing to determine damages, equitable relief, civil contempt, civil penalties, and criminal contempt, on a date to be determined by the parties and the Part B Court Attorney. Parties can contact the court attorney at [email protected]. Accordingly, it is ORDERED that the Court grants the motion of Petitioners to join Current Owners as respondents to this proceeding, and it is further ORDERED that the Court denies Petitioners’ motion for civil contempt against Respondents-Former Owners; and it is further ORDERED that the Court grants the motion for civil contempt against Current Owners and criminal contempt against Respondents-Former Owners to the extent of setting the matter down for a hearing; and it is further ORDERED that the Court denies the motion of Respondents-Former Owners to dismiss. This constitutes the decision and order of this Court. Dated: March 9, 2020
