Decision/Order After Trial This HP proceeding commenced in September 2020. Petitioner seeks an order directing the correction of violations, a finding of harassment and a restraining order. The subject premises are located at 144-35 Roosevelt Avenue, Apartment 2F, Flushing, NY 11355. The parties appeared by counsel. Respondent-owner filed a Verified Answer. The verification was signed by Ruth Wu who is registered as the “Head Officer.” In November 2020, the parties entered into an agreement regarding the correction of violations. The parties could not resolve the harassment claim and the matter was adjourned for a virtual bench trial. The parties were provided instructions on the submission of documents to be offered into evidence and the protocols for virtual bench trials. Respondent Department of Housing Preservation and Development (DHPD) does not take a position on this harassment claim. The trial commenced on May 6, 2021. On May 18, 2021, the continued date, neither respondent nor respondent’s counsel appeared.1 The trial was continued to June 4, 2021 and August 12, 2021. Counsels requested time to submit their post-trial memorandum of law. The memorandums were submitted on August 27, 2021. Petitioner’s Evidence Petitioner was provided with a Mandarin interpreter and sworn in. Petitioner testified that she moved into the apartment in July 2015. Petitioner testified that she met with Ruth Wu, as the representative of the landlord, and negotiated the rent with her. Petitioner testified that she met Ruth Wu at the accounting office of Liberty Accounting and that is where the lease was signed. The lease was entered into evidence. (P’s A). Petitioner testified that when she was at the Liberty Accounting office to sign the lease, Ruth Wu made a copy of her passport. Petitioner stated that she filed this case because the landlord tried to remove her from the apartment, and she needed repairs. Petitioner stated that the landlord harassed her on the telephone by making repeated calls; saying that something will happen to her in court; and a marshal’s notice of eviction was posted on her door with a copy of her passport. Petitioner stated that she always paid her rent until April 2020 when she lost her job due to the pandemic. Petitioner said that she explained her situation to the landlord and asked for a reduction in the rent and instead, was told to “move out.” The “move out” demands included numerous telephone calls from respondent. Petitioner testified that she recognized the voices, and the actual recording of the calls were entered as evidence. Petitioner testified that she received a “red notice” from respondent. The “red notice” was entered into evidence. The “red notice” appears to be a petition for non-payment of rent, printed on red paper. It contains typed in information, over what seems to be a form petition, handwritten amount of $6,250.00 and at the top right corner a business card showing the named of attorneys “Kevin Kerveng Tung, PC” and Helen Wu, Esq., with Chinese characters below the name of attorney Helen Wu. Petitioner testified that the “red notice” was underneath her door. After finding the “red notice,” respondent called petitioner and stated that petitioner must pay the rent, or she will be evicted. Petitioner testified that she found the “red notice” and received the telephone call from Ruth Wu in late August 2020. Petitioner testified that she was asked if she had received the “marshal’s letter to move out.” (Petitioner’s C-1, C-2, D-1, D-22, E, F, G, H, I, J, K in evidence.) Petitioner testified that after she received the notice from the marshal, a camera was installed in the hallway facing her door. Petitioner testified as to conditions in the apartment that need to be corrected. The Court was asked to take judicial notice of the DHPD website. The Court took judicial notice of the DHPD website, www.nyc.gov/hpd. The report confirms that there are conditions in the apartment in violation of the Housing Maintenance Code (HMC). On cross-examination, petitioner stated that she has not been to Housing Court before and that her landlord has not filed a previous case against her. Petitioner testified that she called the landlord and the super about the needed repairs. Marshal Edward F. Guida, Jr., was called as a witness and sworn in. Marshal Guida testified that his office did not prepare a notice of eviction in August 2020. His office has not prepared any notice of evictions during the height of the COVID-19 pandemic. The Marshal further testified that if a notice of eviction is prepared, his office would not have posted on the door the “Marshal’s Legal Possession.” He explained that the notice stating, “Marshal’s Legal Possession,” is given to the landlord at the time that the Marshal executes on the warrant of eviction. The Marshal testified that the notice of eviction with the “Marshal’s Legal Possession” shows a different font for the apartment number; that there is no year after the index number; that there are Chinese characters at the bottom of the notice of eviction, that his office does not use or add Chinese characters; that there is no actual named respondent, except for “John Doe, Jane Doe;” that it does not have a date of execution. Marshal Guida testified that he believes someone “took a prior notice of [legal] possession given to the landlord and now altered [it] to show Apartment 2F.” The Marshal concluded that it is fair to say that a tenant would never given the “notice of legal possession.” It is a notice that is only given to the landlord. On cross-examination the Marshal confirmed that, yes, it is possible to deliver the the notice of legal possession to an authorized agent of the landlord. The Marshal could not recall the last time that a notice of legal possession was prepared for this respondent. Petitioner called her spouse, who is still listed on the apartment lease with petitioner. Mr. Ethan Pang was sworn in. Mr. Pang testified that he has not resided in the apartment since 2019. He remembered that he signed the initial lease at an accounting firm but does not remember the name of the firm. Mr. Pang testified to a series of latenight calls and videos sent to his mobile phone. He believes that these call and videos are from the respondent because the message demanded rent. The videos and messages were entered into evidence. (Pet’s L, M, N, O, P) The videos were sent by respondent and presumed to have been recorded by respondent’s “surveillance” cameras. The cameras are stationed at the building’s entrance and one directed at petitioner’s door. Respondent’s messages included allegations that there was a robbery, and that prostitution was going on in the apartment. Respondent texted that it needed Mr. Pang’s assistance regarding criminal activity at the subject premises. Mr. Pang described that the messages were annoying, that they made him feel upset and that the messages would be sent at varied times. The messages that were sent late at night were particularly disturbing. On cross examination, Mr. Pang stated that his name in still on the lease because he does not know how to “let go of apartment to have his name removed.” He did not believe that it was reasonable for the respondent to contact him by sending him text messages in the middle of the night. Respondent’s Evidence Respondent called Helen Wu as its only witness. Helen Wu is an attorney admitted to practice in the State of New York. Ms. Wu was sworn in and testified that she is currently employed as a “managing agent part-time” for Roosevelt Holding. Ms. Wu stated that she has worked in this capacity since the “end of last year.” Ms. Wu stated that Ruth Wu is her mother. Helen Wu described her job responsibilities. She stated that she is familiar with the petitioner to the extent that she is a tenant of the respondent. Ms. Wu stated that office work for respondent is done “out of [the] shared space with Liberty Accounting.” Ms. Wu testified that relations with Liberty Accounting is only to help them answer calls from Chinese speaking callers. On direct examination, Ms. Wu stated that she had not seen the marshal’s notice before; that she was not aware that anyone from respondent had placed the notice on the door; that she is not aware of pending litigation between the parties; that her business card attached to the notice cannot be explained as she no longer works with that law firm listed on the card. Ms. Wu has not “seen her old business card for some years.” Ms. Wu said that she has no idea how the marshal’s notice of eviction and notice of legal possession ended up on petitioner’s door. On cross-examination Helen Wu confirmed that her mom, Ruth Wu, is the head officer and currently registered as a shareholder. She testified that has she given her mother her business cards. Her mother would readily give them out and leave out in the open to promote the business and as a sign of pride that her daughter is an attorney. Helen Wu testified that she did not give petitioner her business card. She stated that respondent shares an office with the accounting firm because it is convenient and near the train station. Ruth Wu still manages the building and Helen Wu “generally knows mostly all activities but does not know all details.” Discussion I. Correction of Violations It is undisputed that conditions exist and constitute violations under the Housing Maintenance Code. DHPD has issued violations which have not been corrected. The violations of record must be corrected. Failure to correct the violations may result in the imposition of civil fines and penalties. II. Harassment Petitioner credibly testified that after she spoke to Ruth Wu about her loss of income a series of events took place culminating in the posting of a marshal notice of eviction on her door. Marshal Guida credibility testified that his office did not issue, prepare, or post such a notice of petitioner’s door. The eviction notice placed on petitioner’s door occurred in August 2020, while the Executive Order staying eviction was in effect. It is noted that during this critical time the infections caused by the spread of the virus and the death rates from COVID-19 cases were on the rise. Respondent’s witness denied any knowledge or awareness of the notice posted on petitioner’s door ever occurring. The alleged lack of knowledge cannot be understood as reasonable or deemed credible in the context of the evidence presented. The videos, the telephone calls, the petition for non-payment of rent printed on red paper, and the fabricated marshal’s notice of eviction posted on petitioner’s door constitute actions that rise to the level of harassment. The evidence demonstrates acts that could and would have the effect to cause petitioner to move out, or worse, to cause an illegal eviction. See, Contreras v. Chi Hao Lin, 71 Misc. 3d 1232(A), 2021 NY Slip Op 50554(U); Madera v. 76-66 Austin Owners Corp., 70 Misc. 3d 1208(A), 2021 NY Slip Op 50014(U). The use of a marshal’s notice, a legal document, when there is no legal basis to support it constitutes harassment. A warrant of eviction can only exist after a court has issued the warrant requested because a judgement of possession was granted. Respondent did not have a judgment of possession and the court did not grant a warrant of eviction. Respondent used “cut and paste” to alter a document and pretended that it was sanctioned by the judicial system. The posting of a fabricated eviction notice on petitioner’s door can only be construed as an act to create chaos and confusion, done to cause an illegal eviction. Had this illegal notice been taken further, this petitioner could have been unlawfully removed during a time of critical public health emergency. Respondent takes no responsibility and claims no awareness. Respondent does not deny or dispute the video and text messages sent to petitioner and Mr. Pang. Petitioner’s evidence shows a series of messages demanding that petitioner pay or move out. Petitioner also shows that video messages were sent to her husband with suggestions that there were criminal activities going on at the premises. The videos, recorded and sent by respondent’s agent, suggest an objective and goal to compel petitioner to move out. Alleging robbery and insinuation that petitioner is engaged in prostitution can only be interpreted as behavior intended to cause humiliation and interference with one’s enjoyment of the premises. The Administrative Code includes threatening, intimidating or using obscene language; g. other repeated acts or omissions of such significance as to substantially interfere with or disturb the comfort, repose, peace or quiet of any person lawfully entitled to occupancy of such dwelling unit and that cause or are intended to cause such person to vacate such dwelling unit or to surrender or waive any rights in relation to such occupancy. Section 27-2005 of the NYC Admin Code states that “[t]he owner of a dwelling shall not harass any tenants or persons lawfully entitled to occupancy of such dwelling.” Harassment is defined as “any act or omission by or on behalf of an owner that causes or is intended to cause any person lawfully entitled to occupancy of a dwelling unit to vacate such dwelling unit or to surrender or waive any rights in relation to such occupancy” (NYC Admin Code §27-2004 [a][48]). Harassment includes “repeated interruptions or discontinuances of essential services, or an interruption or discontinuance of an essential service for an extended duration or of such significance as to substantially impair the habitability of such dwelling unit” NYC Admin Code §27-2004 [a][48][2][b], and “an interruption or discontinuance of an essential service that (i) affects such dwelling unit and (ii) occurs in a building where repeated interruptions or discontinuances of essential services have occurred “NYC Admin Code §27-2004 [a][48][2][b-1]. Upon a finding of harassment, tenants may seek an order from a court restraining an owner from engaging in such conduct, and to impose civil penalties of not less than $2,000.00 and not more than $10,000.00 NYC Admin Code §27-2115 [m][2]. Respondent’s registered head officer, Ruth Wu, did not testify. The voice of Ruth Wu was identified among the messages and recorded conversations entered as evidence. Respondent’s witness, Helen Wu did not deny or dispute that the messages and videos sent to Mr. Pang came from the respondent.3 The lack of testimony from Ruth Wu must be given a negative inference. See, Wallace 18 LLC v. Tucker, 66 Misc. 3d 1209(A) (Civ. Ct. Bronx Co. 2020). “A negative inference may be drawn from the absence of reasonably anticipated testimony when there is some independent evidence presented which allows the court to make such an inference.” III. Sanctions The posting of a forged marshal’s notice of can only be construed as an act done by respondent to intimidate or cause the petitioner to move out. The recorded conversation that followed the posting of the notice confirms that it was initiated and posted by the respondent. The respondent’s witness testified that she did not know of the eviction notice, however, this testimony was not credible. The unauthorized use of a marshal’s notice is unlawful and may be sanctionable. See New York City Housing Auth. v. Marrero,64 Misc. 3d 1228(A) (Bx. Co. Civ. Ct., 2019); New York City Housing. Auth., Sedgwick Houses v. Scott, 65 Misc. 3d 1229(A) (Bx Co. Civ Ct 2019). The marshal’s notice in evidence showed that Chinese characters were added. The original document that may have been related to another case which was altered to give the appearance that the Marshal was going to remove the petitioner from this apartment. This evidence coupled with the admission that respondent’s office provides interpretation to the Chinese speaking community further demonstrates respondent’s ability to add Chinese characters to the notice. Respondent’s unauthorized and improper alteration of a legal document to cause an eviction is extraordinary. Decision: Petitioner has established a prima facie case of harassment. Harassment is not always blatantly manifested by an actor that or someone who takes responsibility for its/his/her actions. Instead, the court is called upon to look at numerous actions, documents, recordings, and behaviors which become evident as intertwined and tangled with other events to show harassment. The Court finds that respondent engaged in the act of harassment by creating/tampering/posting a notice of eviction as if the notice came from the Marshal. The Court finds that respondent must correct violations issued by DHPD pursuant to the Housing Maintenance Code. Respondent is directed to correct the violations. All work to be performed pursuant to COVID-19 safety protocols. The clear objective behind the harassment section under the New York City Administrative Code it to prevent the use of any threats or acts, expressed or implied, to cause a lawful occupant to vacate the dwelling. The Court finds that respondent engaged in acts that constitute harassment under the Housing Maintenance Code and penalties in the sum of $8,000.00 are imposed. The posting of a valid notice of eviction from a marshal would not constitute a form of harassment. As such, the Court is required to impose civil penalties under the harassment law and pursuant to CPLR §8303(a)(2). It is Ordered that respondent-owner harassed petitioner in violation of NYC Admin Code §27-2005 and that a “C” violation exist; and it is further Ordered that the civil penalties of $8,000.00 are assessed against the respondent Roosevelt Holding Corp., payable to the New York City Department of Housing Preservation and Development; and it is further Ordered that respondent Roosevelt Holding Corp., is enjoined, and restrained from engaging in any acts that constitute harassment as prohibited by the harassment law; and it is further Ordered that petitioner is granted a money judgment against respondent Roosevelt Holding Corp., pursuant to CPLR §8303(a)(2) as discretionary allowance in this extraordinary case in the sum of $3,000.00; and it is further Ordered that petitioner is granted a money judgment for compensatory damages in the sum of $1,000.00; and it is further Ordered that petitioner is awarded attorney’s fees in an amount to be determined at a hearing. The hearing will be held on November 9, 2021 at 2:30 PM, courtroom 407. A virtual invitation will be sent to all the parties. This Decision/Order is being emailed to all the parties. This constitutes the Decision/Order of the Court. Dated: September 24, 2021
