Herclues v. Bethel Capital LLC

Recitation, as required by C.P.L.R. §2219(a), of the papers considered in r of this motion. Papers/Numbered Order to Show Cause with Affirmation & Affidavit Annexed [With Exhibits A-E, NYSCEF No. 5-6]         1 Affirmation & Affidavit in Opposition [With Exhibits A-E, NYSCEF No. 7-13]     2 After oral argument held on February 11, 2021 and upon the foregoing cited papers, the decision and order on these motions is as follows: BACKGROUND & PROCEDURAL HISTORY Petitioner commenced the instant proceeding by Order to Show Cause dated August 26, 2020 seeking correction of violations.¹ At the second court date on November 12, 2020, the court issued an Order to Correct and Notice of Violations Pursuant to CPLR §409(b). Respondents were directed to correct open violations in petitioner’s apartment at the subject building within prescribed time frames [14 days for "immediately hazardous" class "C" violations, 30 days for "hazardous" class "B" violations, and 90 days for "non-hazardous" class "A" violations, except that the violation for lack of gas was to be corrected within 30 days and the violation for lack of hot water was to be corrected within 72 hours].² The repairs were not completed, and gas has not been restored to the subject premises. The court now is presented with petitioner’s motion to hold respondents in civil contempt pursuant to the Judiciary Law and New York City Civil Court Act for failing to correct conditions as required by the November 12, 2020 Order. They also seek an order for respondents to correct all open violations and for attorneys’ fees pursuant to Judiciary Law §773. Respondents, for their part, oppose the portion of petitioner’s motion seeking contempt, but do not address the remaining requests for relief. DISCUSSION In Matter of McCormack v. Axelrod, the Court of Appeals articulated a four-pronged test for civil contempt: (1) that a lawful court order was in effect clearly expressed an unequivocal mandate, (2) the order was disobeyed, (3) the contemnor had knowledge of the order, and (4) that the movant was prejudiced. (59 NY2d 574, 583 [1983]). To succeed on a civil contempt motion, the moving party must establish contempt by clear and convincing evidence. (see Simens v. Darwish, 104 AD3d 465, 466 [1st Dept 2013]; Denaro v. Rosalia, 50 AD3d 727, 727 [2nd Dept 2008]). Petitioner here moves for civil contempt on a simple premise: respondents have failed to comply with the November 12, 2020 Order to Correct. Though there are other conditions alleged in the movants’ affidavit, the main issues are the lack of gas, lack of hot water and mice infestation. There is no dispute that the November 12, 2020 Order to Correct is a lawful court order expressing an unequivocal mandate, or that respondents had knowledge of it. There is also no dispute that, to the extent the gas is admittedly not restored, the order was not complied with, and petitioner has been prejudiced. (see Matter of McCormick v. Axelrod, 59 NY2d at 583). As such, the court’s analysis will focus on the second prong, whether respondents disobeyed the November 12, 2020 Order. Petitioner argues that under the circumstances here, where repairs have not been made by respondents, focusing on the lack of gas, lack of hot water and mice,³ contempt must be found. In support of the motion, petitioner submits an affidavit from his wife, Vicenta Zuniga, who also lives at the subject apartment. Ms. Zuniga alleges that respondents did not make repairs during any of the access dates set out in the November 12, 2020 Order, nor did respondents return to make repairs since the Order was issued. In opposition, respondents claim they did not willfully disobey the Order. Respondents argue that all the repairs were done at the end of September and beginning of October 2020, including mold remediation, and work was completed by October 7, 2020.⁴ Further, respondents allege that an electric hot water tank was installed in mid-October 2020.⁵ In fact, respondents’ counsel alleges that, “according to [Raikel] Castillo,” since the hot water heater was installed, the plumber returned “several times” to ensure the hot water temperature is “at or around 120 F.”⁶ Mr. Castillo further alleges in his affidavit in opposition that workers did not return to make repairs on the access dates set out in the November 12, 2020 Order because “they wanted to check that all of their work was completed, which it was, and all of the work was performed in October 2020.”⁷ As to the gas, respondents admit that gas has not been restored. However, respondents allege that they have done all that is required of them. According to respondents’ counsel, respondents are only waiting for “Con Ed to install a gas meter for the new boiler system installed,” but that Con Ed has not done the work, despite the fact that there is a “Con Ed Case Number MC-516735.”⁸ Finally, in regards to extermination for mice and roaches, respondents allege that a new company was hired. The new extermination company went to the building “around the 3rd week in November, 2020″ to place mice traps throughout the building. The exterminator then went to petitioner’s apartment to “look for mice and roach infestation and to place glue traps and sprayed for roaches.” Mr. Castillo, however, alleges that he saw “some clutter on the apartment floor” which prevented the exterminator from properly doing the work.⁹ Respondents also attach an invoice from the extermination company, dated December 23, 2020, for “monthly service” for pest control services.”¹⁰ It is clear from the foregoing that respondents have not stated a defense to civil contempt pursuant to NYC Admin Code §27-2115(k)(3). This proceeding was commenced in September 2020. At that time, there were several open violations in the subject apartment, issued on June 10, 2019, December 23, 2019, December 27, 2019, February 27, 2020, May 27, 2020, and June 26, 2020.¹¹ Those violations included lack of gas and infestation of mice and roaches. Respondents allege all repairs were completed in late September and early October 2020, including the new hot water heater installed in mid-October 2020. They allege that, as a result, there was no need for workers to perform any repairs in connection with the November 12, 2020 Order. Essentially, respondents’ argument is that they cannot be held liable for contempt as they were already in full compliance with the Order before it was even issued. However, when HPD re-inspected the apartment in late October 2020, notably after respondents allege they completed repairs, several new violations were issued on October 27, 2020, October 30, 2020, November 2, 2020, November 5, 2020 and November 6, 2020.¹² Not only were these violations issued after respondents allegedly completed all repairs in the apartment, but these violations include new violations for lack of gas, lack of hot water, and infestation of mice and roaches. Further undermining respondents’ claims of compliance is the that fact that DHPD placed additional violations in the apartment in December 2020. These “new” violations, issued on December 14th and 15th of 2020, are specifically for lack of hot water, lack of gas and mice infestation, the conditions petitioner focuses on in this motion for contempt.¹³ As such, not only were new violations for the same conditions issued in October and November 2020 after the time respondents allege the repairs were made, but new violations were also issued after the November 12, 2020 Order, and after respondents’ time to correct all but class “A” violations had already expired. Respondents were to correct the lack of hot water within 72 hours after the November 12, 2020 Order, or no later than November 15, 2020; the other class “C” violations, such as mice/roach infestation, within 14 days, or no later than November 26, 2020; and lack of gas and class “B” violations within 30 days, or no later than December 12, 2020.¹⁴ DHPD inspected the apartment both after respondents claimed the work was done and after the time to correct most violations had expired. Both times, DHPD found that the conditions were not corrected, including the lack of hot water, lack of gas and mice infestation.¹⁵ Under these circumstances, respondents’ claims that the repairs were done, and that they are in compliance with the court order, have no merit whatsoever. The law is clear that the existence of violations of record are prima facie proof they continue to exist. (see DHPD v. Living Waters Realty, Inc., 14 Misc 3d 484, 487 [Civ Ct, New York County 2006]; DHPD v. De Bona, 101 AD2d 875, 875 [2d Dept 1984]; see also NYC Admin Code §27-2115 [f][7]). The court also notes that, in regards to the hot water heater, respondents’ counsel alleged that not only was the new electric tank installed on or about October 15, 2020, but that”[a]ccording to Mr. Castillo the plumber has been back several times to make changes to the hot water settings so that the hot water temperature is at or around 120 F ” These claims were not found in the accompanying affidavit from Mr. Castillo, although Mr. Castillo discusses the installation of a new hot water heater in his affidavit. As such, respondents’ counsel’s claims are not made on personal knowledge and are therefore afforded no probative value. (see Thelen LLP v. Omni Contracting Co., 79 AD3d 605, 606 [1st Dept 2010]; Onewest Bank, FSB v. Michel, 143 AD3d 869, 871 [2nd Dept 2016]). As to extermination for mice and roaches, respondents’ claims are similarly insufficient. Mr. Castillo alleges an exterminator went to the building in the third week of November 2020 to place mice traps in the building. However, there is no allegation that the exterminator went to petitioner’s apartment, where the violations for mice infestation were placed. Furthermore, respondents do not attach an affidavit from the exterminator in support of Mr. Castillo’s claims that “clutter” on the floor of the apartment prevented the exterminator from “properly perform[ing] his duties.” Without more, Mr. Castillo’s self-serving claims are insufficient. This is especially true in light of the fact that the invoice from the exterminator annexed in support of respondents’ claims that extermination services were provided states that this was a regular “monthly service” for pest control, and the invoice does not reference petitioner’s apartment anywhere.¹⁶ Where respondents do not show proof of any work done specifically in petitioner’s apartment, they have failed to show compliance with this court’s Order. Finally, as to the lack of gas violations, the court notes that respondents not only admit that the violations have not been corrected, but they submit no proof whatsoever in support of their claims that they did all that was required of them and that they are only waiting for Con Ed to install a gas meter. (see, e.g., Chambers v. Old Stone Hill Road Associates, 66 AD3d 944, 946, 889 NYS2d 598 [2nd Dept 2009] [in acting diligently to obtain permits, party did not "disobey" court order]). None of the exhibits attached to respondents’ opposition address the lack of gas, nor does the affidavit of Mr. Castillo.¹⁷ The only portion of respondents’ opposition that addresses the lack of gas is their counsel’s affirmation. However, as noted above, respondents’ counsel’s unsupported claims made with no personal knowledge are not to be given any probative value. (see Thelen LLP v. Omni Contracting Co., 79 AD3d at 606; Onewest Bank, FSB v. Michel, 143 AD3d at 871). As such, respondents offer no proof that, despite their good faith efforts to comply with the November 12, 2020 Order, they were stymied by persons, agencies, and events out of their control. (see NYC Admin Code §272115[k][3]). Given the foregoing, it is clear that there is no issue of fact as to the second prong of the test for civil contempt, that respondents disobeyed the November 12, 2020 Order. (see Matter of McCormick v. Axelrod, 59 NY2d at 583). Consequently, a hearing is not required. As to respondents’ argument that they did not willfully disobey the Order, the court notes that willfulness is not an element of civil contempt. (see El-Dehdan v. El-Dehdan, 26 NY3d 19, 3334, 9 NYS3d 475 [2015]). Finally, petitioner was certainly prejudiced by respondents’ failure to cure the violations in the apartment, especially those pertaining to lack of hot water, lack of gas and vermin infestation. Petitioner has now been living without hot water or gas in his apartment for months, notably during the winter season. Under these unique circumstances, where respondent’s papers do not raise a factual dispute, (see Farkas v. Farkas, 209 AD2d 316, 318 [1st Dept 1994]), petitioner has shown clearly and convincingly that respondents are in contempt of the November 12, 2020 Order. Petitioner alleges that respondents’ noncompliance is so willful that it rises to the level of criminal contempt. However, not only does petitioner’s order to show cause does not seek criminal contempt, but petitioner fails to discuss how respondents’ noncompliance was willful; he merely assumes the fact. In any case, as respondents were not personally served with the order to show cause, no criminal contempt may be found. (see Lu v. Betancourt, 116 AD2d 492, 494 [1st Dept 1986] ["Where the penalty of criminal contempt is sought, failure to personally serve the alleged contemnor constitutes a jurisdictional defect requiring dismissal], citing People v. Balt, 34 AD2d 932 [1st Dept 1970].) As to civil contempt, the law is clear that “[w]here a party is able to show that he or she has suffered an actual loss or injury as a result of a civil contempt, a fine may be imposed in an amount sufficient to indemnify the aggrieved party.” (In Re Beiny,164 AD2d 233, 236 [1st Dept 1990]; see also DHPD v. Deka Realty Corp., 208 AD2d 37, 43 [2d Dept 1995]; Judiciary Law §§753, 773). If actual loss or injury is incapable of being established, or petitioner cannot show proof of actual damages, “a contemnor is liable, under Judiciary Law §773, for a fine of $250 plus petitioner’s costs and expenses. (In Re Beiny,164 AD2d at 238; see also DHPD v. Deka Realty Corp., 208 AD2d at 42). Here, as petitioner does not discuss actual damages in his order to show cause for contempt, “the issue of the appropriate fine to be imposed for civil contempt was properly remitted for a hearing on the issue of actual damages suffered by the tenants.” (DHPD v. Deka Realty Corp., 208 AD2d at 45). This hearing shall include attorneys’ fees, if any, or any actual damages that petitioner may have incurred. Respondents remain bound under the November 12, 2020 Order to Correct. As such, this order is without any prejudice to any claims for civil penalties that petitioner may have against respondents. CONCLUSION Based on the foregoing, petitioner’s motion for contempt is granted and the matter is set down for a virtual hearing on damages, including attorneys’ fees. The case is adjourned to April19, 2021 at 10 A.M. for hearing. The parties are directed to email to each other and the court any documents and other evidence they wish to introduce into evidence. This is to be completed by April 5, 2021. Any objections to proposed evidence shall be noted via email to each other and the court by April 12, 2021. This constitutes the Order of the court. Copies will be emailed to the parties’ counsels. Dated: March 9, 2021