DECISION AND ORDER Petitioner filed this HP case seeking civil penalties and an order to maintain the heating system at the subject premises, a 6-unit building, located at 63-31 110 Street, Queens, NY11375. Petitioner’s request is based on its findings of inadequate heat. The matter was scheduled for a hearing on June 28, 2021. The Department of Housing Preservation and Development (DHPD) appeared via Microsoft Teams video conferencing pursuant to the Administrative Orders in place during the COVID-19 pandemic. Respondent appeared in Court in opposition to the request for civil penalties. Procedural History: The case was first on the calendar on March 31, 2021. Respondent appeared in court and indicated that she could not hear. The case was adjourned to May 12, 2021 to request for a Sign Language Interpreter for respondent. On May 21, 2021, respondent appeared in court. The Sign Language Interpreter appeared by Microsoft Teams. It was only then that the Court was informed that respondent does not “sign.” Respondent could not understand the Sign Language Interpreter. Respondent stated again that she could not hear. The case was adjourned to May 26, 2021. Respondent was informed, in writing, that she was to bring proof as to when the heat problem was corrected. On May 26, 2021, the case was adjourned to June 28, 2021. On June 28, 2021, respondent stated that there was “no problem with heat,” that “it was unhappy tenant who was not allowed to have a washing machine.” Respondent was informed that she must be sworn in before she is to testify. The Court, however, was not able to administer the oath because respondent kept stating that she could not hear. When the Court had attempted to administer the oath, respondent looked at the court officer and did not respond. Respondent proceeded to pull from her ear what appeared to be a hearing aid device. Respondent then stated that the device was not working. Respondent stated that she could not hear the Court because she was not able to fix her hearing device. Respondent proceeded to refer to pieces of papers which she stated were her evidence. The respondent was instructed to stop testifying because she was not sworn in. When the Court asked respondent to stop, she generally would stop talking which suggested to the Court that she heard the instructions. The Court inquired whether petitioner wanted to examine the papers held by respondent. Petitioner agreed. The papers were delivered to petitioner via email. Upon receipt, petitioner indicated that the papers submitted were not dispositive to the issue as to when the heat violation was corrected. One document was a statement from the respondent herself. The second was a statement from a tenant in the building. Neither document explained when the heat was restored to apartment A1 and what steps were taken to remedy the violation prior to March 11, 2021. The Court explained that respondent’s papers were legally insufficient to address the civil penalties case and that a finding of civil penalties would be required. At that moment respondent commenced a soliloquy that the inspector was “lying,” that she had gotten someone to fix the problem and that it was fixed; that it is not reasonable; that they just want to make money; that the boiler “thing” was changed; that this is the only tenant who complains about heat because there was a washing machine dispute; and that the tenant kept the windows opened to let the cold air in the apartment. Respondent at times cried in the court room. Respondent did not ask the Court for another court date to repair or replace her hearing aid device. Discussion Based on the evidence presented by the petitioner and the lack of contrary credible testimony or admissible evidence from the respondent, the Court must find in favor of the petitioner. Civil penalties are granted pursuant to NYC Administrative Code §27-2115 et al., (Chapter 2, NYC Housing Maintenance Code) On January 7, 2021, the DHPD inspector found that the temperature in Apartment 1A at the subject premises was 60°F at 3:35 PM. The outside temperature was 41°F. On February 14, 2021, a different DHPD inspector found that the room temperature was 60°F at 2:16 PM. The outside temperature was 37°F. The water temperature was 37°F and there was no access to the building’s heating system. Petitioner informed the Court that another DHPD inspection, on March 11, 2021, confirmed that the apartment had adequate heat. The violation was closed. Petitioner’s Order to Show Cause is granted to the extent that civil penalties are imposed as described below. Petitioner established that on January 7, 2021 and February 14, 2021 there was inadequate heat in the premises. The inspectors noted that the windows were closed. The outside temperate was 41°F and 37°F respectively. During the Mach 11, 2021 inspection, DHPD confirmed that heat was restored. On March 11, 2021the last violation was deemed closed. Petitioner seeks $500 per day for the first violations and $1,000 per day for the second violation until the violations were closed. Respondent alleged that she could not hear the Court. The Court observed respondent’s demeanor during various appearances. It seemed that respondent was able to hear at least some of the proceeding. The Court cannot prove whether respondent could or could not hear. Respondent’s reactions and answers to certain questions may allow a reasonable observer to believe that respondent was able to hear some of the proceeding. Respondent expressed frustration and indicated that she could understand better if the Court allowed for “lip reading.” During the COVID-19 pandemic all persons who appear1 in court must wear a mask and must maintain a minimum distance to prevent the spread of the virus. At the time that respondent made her request for “lip reading,” that request could not be granted. Notwithstanding, respondent’s hearing situation, she attempted to submit her defense and show her mitigating information. The NYC Administrative Code specifies what should be the penalties for a 1st heat violation. The 1st heat violation is to be assessed a fine/penalty of $250-$500 per day. The 2nd heat violation is to be assessed a fine/penalty of $500-$1000 per day. It is in the Court’s discretion to determine the total sum of the civil fines/penalties to be imposed. In this case, the penalties are assessed at $250.00 per day, for 60 days for a total amount of $15,000.00, and reduced to $10,000.00 in the Court’s discretion and in the interest of justice. The Court takes judicial notice that during this past winter, living under COVID-19 lockdown, both landlords and tenants have faced adversities of new magnitude. The Civil Court Act §110 (c), describes the inherent discretion of the Court to determine the civil penalties to be imposed. Regardless of the relief originally sought by a party the court may recommend or employ any remedy, program, procedure or sanction authorized by law for the enforcement of housing standards, if it believes they will be more effective to accomplish compliance or to protect and promote the public interest; Decision and Order In the interest of justice, the Court will give the respondent an opportunity to prove that the violations were corrected prior to March 11, 2021. If respondent wants to testify, she may have to replace or repair her hearing device to be able to hear the court administer the oath and be sworn in. The Housing Maintenance Code, §27-2115(k)(3) permits an owner to show facts in defense or mitigation of the civil penalties sought by petitioner. Respondent will have to file an Order to Show Cause with supporting admissible documents no later than 35 days days after the date of this Decision/Order. If respondent does not submit an Order to Show Cause with supporting documents, then respondent shall pay to the petitioner a sum of $10,000.00 as fines/penalties by no later than December 1, 2021. It is ORDERED that INDIRA PATEL, and her agents and employees shall forthwith maintain the following essential services as required by law: 1. Provide heat during the period from October 1 through May 31, to maintain in every portion of the subject premises used or occupied for living purposes: i. A temperature of at least 68 degrees Fahrenheit whenever the outside temperature falls below 55 degrees Fahrenheit, between the hours of 6 a.m. and 10 p.m.; and ii. A temperature of at least 62 between the hours of 10 p.m. and 6 a.m. 2. Supply every bath, shower, washbasin and sink in every dwelling unit with hot water at a constant minimum temperature of 120 degrees Fahrenheit, twenty-four hours per day. 3. Provide access to the boiler area for the petitioner’s inspectors and/or contractors, and post proper notices relating to access to the boiler area pursuant to the Multiple Dwelling Law and the Housing Maintenance Code. 4. Remove any device on the heating system which can cause the system to become inoperable or to provide less than the minimum legal requirements of heat and/or hot water and maintain the system free of any such device, and it is further ORDERED that the civil fines and penalties sought in the petition are granted in the sum of $10,000.00, which is to be paid by certified check, an attorney’s check, or a money order payable to “DHPD,” on or before December 1, 2021, and it is further ORDERED, that respondent shall have the right to file an Order to Show Cause, within 35 days of the date of this Decision/Order, with supporting documents showing that the heat was restored earlier than March 11, 2021 and upon such filing the civil penalties imposed pursuant to this Decision/Order will be stayed; and it is further ORDERED, that if respondent does not file an Order to Show Cause by the date allowed, respondent shall mail the payment showing the address of the subject premises and the HP Index Number 300437/21 Queens on the payment instrument. The payment is to be mailed to: DHPD at 100 Gold St., 6th Fl., New York, New York 10038, Attn: Tasonia Ragin; and it is further ORDERED that the failure to pay the penalty on or before December 1, 2021 will result in the entry of a money judgment in favor of petitioner the Department of Housing Preservation and Development of the City of New York against the respondent INDIRA PATEL in the sum of $10,000.00 This constitutes the Decision and Order of the Court. Dated: September 14, 2021
