DECISION/ORDER After a trial, the following constitutes the decision and order on the petition: PROCEDURAL HISTORY Avi Pusateri (petitioner), pro se, brought this petition seeking a finding of harassment and an order to correct repairs alleging that respondents (Zion Abramov and Spring Property Management LLC) violated their rights by withholding essential services and several other allegations of harassment behavior. Petitioner secured counsel, Queens Legal Services and respondents, through counsel, interposed an answer. The proceeding was on the court’s calendar on February 10, 2021, February 24, 2021, March 22, 2021, April 26, 2021 and June 11, 2021. On March 23, 2021, the parties entered into an agreement whereby they agreed that the property had been surrendered but with a reservation for all claims against one another. The court began taking testimony April 26, 2021 after the parties were unable to reach a settlement. The trial was continued on June 11, 2021. After a completed presentation of witnesses and evidences, the court reserved decision. TESTIMONY AND EVIDENCE Petitioner called four witnesses, himself and his wife, Kayla Miller, Louis Weiss, a close friend and Rachel Thau, another friend, all of whom appeared virtually through Microsoft Teams in the presentation of his prima facie main case. Respondent called two witnesses, both of whom appeared virtually as well, Meir Abramov and the respondent himself Zion Abramov. There was no dispute as to the ownership of the property or the relationship of tenant/building owner between the parties. While service is disputed in the answer, no specific facts were set forth contesting the presumptively good service alleged in the affidavits of service. Therefore, the court will not consider the jurisdictional defense. US Bank National Association v. Nakash, 2021 NY Slip Op 03479 (App Div. 2d Dept, 2021); Citimortgage v. Jimenez, 2021 NY Slip Op 03440 (App. Div. 2d Dept, 2021). Ms. Miller testified credibly that she moved in with her husband, petitioner, to the subject premises on September 1, 2017. She stated that the building had three floors — the basement housed a preschool, the first floor a synagogue and that they lived on the second floor where there were two apartments. All of her experiences were with Zion, Josh, Israel Hassan and Moishe Abramov with regard to the management of the building. However, she stated that she mainly dealt with Zion. She testified that there were a variety of repairs that were not made in a timely fashion, including the heat, hot water and electric systems. She stated that HPD came to inspect more than once and that she believed violations had been put into place. She described the time periods for which the essential services were lacking, construction noises at inappropriate times, lack of COVID-19 precautions, what she perceived as acts of misogyny and statements made by the respondent about why and when he wanted possession of the apartment. She also described various incidents that she believed constituted harassment, including two such incidents that were presented through video. One such incident led to calling the police, but no evidence was presented of the domestic incident. She was adamant in her testimony that she never used vulgar language at the respondent. She credibly testified that she felt threatened and afraid of being yelled at. On cross-examination, she was unable or unwilling to identify a picture allegedly of herself inside the synagogue not wearing a mask. Petitioner, himself, testified about the apartment, namely its condition and the management structure as he knew it. He also testified about several incidents that ultimately led him to bringing the instant action. He described a variety of interactions between himself and “Josh.” He also spoke to the discomfort created by the respondent’s failure to wear a mask during the pandemic. He voiced frustration at the synagogue’s (and by extension approval by respondent) lack of mask adherence. Petitioner recalled an incident where his car was towed as he was attempting to move things out of the house. He described a wall of boxes outside of his apartment on one occasion blocking the entrance of the apartment. He claimed this was done by the respondent and that any boxes that were there prior, were organized neatly as to facilitate their leaving the apartment. Petitioner admitted that the impetus of this proceeding was to punish the respondent and prevent him from harassing future tenants. On cross-examination, the petitioner testified that he took all of the fixtures that he owned out of the apartment out of a desire to not let respondent profit from any of them. This included intentionally destroying some of those fixtures that were not removed as to render them useless. He was also unable or unwilling to identify pictures of himself outside the building during the car towing incident and taking some refrigerator doors with him. Louis Weiss testified about what he perceived to be a living situation that was “a bit uncomfortable.” He credibly testified that he did not want to come over to visit the Pusateri/Miller family because of the discomfort. Mr. Weiss described a specific incident during sukkot where a group of parishioners began to yell at the petitioner, his wife and himself. He believed them to be affiliated with the first-floor religious center. He testified that plans had to be changed with the Pusateri/Miller family due to lack of essential services at least once. Rachel Thau, who had been friends with Petitioner for about five (5) years, had also lived in the building. She was familiar with Mr. Zion Abramov, who she knew to be the owner. She was not familiar with Spring Management. She testified about the level of discomfort between petitioner and respondents and about how she had use of a closet outside of the basement apartment. Petitioner entered into evidence nine (9) exhibits including two text threads, five videos and two pictures, which the court took into account while making its decision. At the close of petitioner’s prima facie case, respondent moved for dismissal. The court reserved decision on that motion and now denies it. Uncontested, the allegations presented through testimony would rise to the level of harassment. The court must give all due deference to pleadings and doing so, prior to respondents’ presentation of evidence, the motion fails. Respondents called two witnesses, Meir Abramov and Zion Abramov. The first witness, Meir Abramov, testified that he is Zion’s brother and that he helps manage the property. He identified Moishe Abramov as his nephew and that no “Josh” manages the property. He stated that he began management of the property November 2020. His testimony mostly related to the various pictures presented by respondent as evidence. He went through all the exhibits pointing out what he considered to be damages allegedly cause by the petitioners found by the respondents after petitioners vacated the apartment. Zion Abraham testified credibly that he was the owner. He further testified as to various damage that he found in the apartment following petitioner’s vacatur. He also described incidents of conflict with regard to petitioner’s car parking. He described his involvement in the management of the building and its various agents. He denied that “Josh” was affiliated with the management of the building but stated that he was on the board of the synagogue, who is the direct beneficiary of the income stemming from the rental of the units. The witness described how he was mistreated by the petitioners and how he felt insulted and yelled at by the petitioner’s wife. Respondent entered into evidence a variety of exhibits (Respondent’s A-R, though not all exhibits were admitted into evidence due to lack of foundation) including pictures in or around the apartment, pictures of the front of the building, pictures of the inside of the synagogue on the first floor and pictures of some emails sent between the parties. The court notes that there was an oddity in the evidentiary foundation of some of the evidence due to conflicting testimony by the witness Meir Abramov. The disconnect between the witness’ testimony on direct and cross regarding the same evidence called into question not only the evidence presented themselves (from an evidentiary point of view) but also of the witness’ credibility and of his testimony at large. As an example, during foundational questions, Mr. Abramov was able to identify with a certain degree of specificity where the pictures were in relation to the apartment, but not during cross-examination. This leads the court to discredit some of Mr. Abramov’s testimony. DISCUSSION Good-faith attempts to correct a violation do not constitute a defense to a rent abatement, Reichick v. Matteo, N.Y.L.J. January 23, 1978, at 13:2 (App. Term 2nd Dept.), McBride v. 218 E. 70th St. Assocs., 102 Misc 2d 279, 283 (App. Term 1st Dept. 1979), Brooks Family Holdings LLC v. Morrison, 2017 N.Y.L.J. LEXIS 657, *5 (Civ. Ct. Queens Co.) or an order to correct. D’Agostino v. Forty-Three E. Equities Corp., 12 Misc 3d 486, 489-90 (Civ. Ct. NY Co. 2006), aff’d on other grounds, 16 Misc 3d 59 (App. Term 1st Dept. 2007). It is, however, a viable defense to harassment. As is the case here, the conditions were remedied, to such an extent that they were not complained of for 10-11 months at a time as presented in the testimony. It is without argument that there were a variety of conditions and even HPD violations at some point, however, petitioner admitted, and respondent showed, that they were addressed. Petitioner agreed that there were periods of over eight (8) months whereby the conditions did not exist. Petitioner mischaracterizes the evidence it presented in that it was not a continued months-long process that essential services were denied, but rather a variety of points where the services were not provided and then remedied. No evidence was presented that this was a concerted scheme as opposed to a building in need of maintenance. Whatever other cause of action Petitioner’s allegations lack of consistent essential services gives rise to, the appropriate attempts that Respondents made to correct the service of water, rebut the presumption that the intent behind that condition was to cause Petitioner to vacate or waive rights. All of the witnesses spent a significant amount of time addressing issues of damage following the vacatur of the apartment. The court need not address any of these allegations because they are neither claims against the respondents, nor defenses against the petitioner for the purposes of a harassment proceeding. Both parties may have rights against one another for these acts but they do not play into the analysis for whether harassment occurred prior to vacatur. The evidence shows a fraught relationship between two groups of people who did not like one another. This combined with the stress felt by all during the pandemic combined with the usual pressures between property owners and their tenants created an untenable environment. It is the court’s duty to ascertain whether or not, within the context of that environment, respondents’ behaviors crossed the line into harassment as defined by the Housing Maintenance Code. However, where testimony conflicted but both were credible and neither account outweighed the other and in a situation where the evidence is equally balanced, the party with the burden of proof has failed to set out their case. Rinaldi & Sons, Inc. v. Wells Fargo Alarm Service, Inc. (39 N.Y.2d 191, 1976). While petitioner was unable to prove a connection between the unknown individual who yelled at the petitioner and his family various times and the respondents (Josh), the respondent created that connection by testifying, credibly, that the individual in the videos had a fiduciary relationship with the building. Mr. Zion Abramov testified that Josh was a board member of the church which benefits financially from the rent generated by the other units in the building. The respondent should know or should have known that said payments could incentivize someone to engage in that type of behavior in the analogous fashion as respondents in nuisance proceedings are responsible for their guests. This is no mere licensee, rather, respondent has ceded part of the financial interest in the building to a board/group of individuals who have acted antagonistically to the petitioners. Having knowledge of someone’s rent payment/history, by itself, would not impute agent status to the person, but the relationship between the individual and the respondents and respondents’ created organization allows for some measure of control therefore making respondent liable for their acts. For the purposes of harassment an entity may be liable for harassment if they are “in control of a building.” NYC Admin. Code §27-2004(a)(45). In this situation, the respondent admitted that the person (Josh) engaging in the behavior was part of the body that benefitted from the rental of the units. This draws, under these particular facts, enough of a connection to the respondent to make them liable. See Robinson v. Taube, 63 Misc.3d 1224(A)(Civ Ct NY Co, 2019). The court takes judicial notice of the proven efficacy of mask wearing as a means of limiting transmission of diseases, including COVID-191. This is not in dispute here, nor should it be. However, the housing court does not have the jurisdiction to punish failures to abide by the various statewide mask mandates (or lack thereof). The lack of mask wearing, by itself, did not constitute harassment as the intentionality was not geared towards the petitioners, rather no nexus was proven with regard to the lack of masks and petitioners. Harassment could exist in a situation where someone was a consistent mask-wearer who would then consistently take the mask off for purposes of threatening someone else. However, here, even a wholesale rejection of masks, while not backed by any science or common sense or general decorum, was not proven to target petitioner specifically and, therefore, does not constitute harassment. In fact, petitioner did not prove any allegations about respondents’ mask wearing. CONCLUSION Petition is granted to the following extent: tenants who prove harassment may obtain placement of housing maintenance code violations, an injunction restraining a landlord from engaging in such conduct, civil penalties payable to the New York City Commissioner of Finance, N.Y.C. Admin. Code §27-2115(m)(2), compensatory damages, punitive damages, and attorneys’ fees. N.Y.C. Admin. Code §27-2115(o). The petition seeks all of this relief. Having found that Respondents have harassed Petitioner as defined by the statute, the Court will direct HPD to place a violation and enjoin Respondents from future harassment. The civil penalties awarded shall be payable to HPD and shall not be less than $2,000 nor more than $10,000. N.Y.C. Admin. Code §27-2115(m)(2). As Respondents did not plot to force petitioner to vacate or surrender rights, but instead had a strained relationship with the petitioner and his family, the Court awards penalties at the minimum of $2,000. Compensatory damages cannot be contingent or speculative, but ascertainable to a degree of reasonable certainty. E.J. Brooks Co. v. Cambridge Sec. Seals, 31 NY3d 441, 448-49 (2018). Petitioner did not prove actual damages as such. In the absence of such proof, the Court may award Petitioner compensatory damages of $1,000.00. N.Y.C. Admin. Code §27-2115(o). Petitioner has not proven that Respondents’ omission regarding the provision of essential services rose to a level of intent or malice required to support the imposition of punitive damages. 2301 7th Ave. HDFC v. Hudgen-Grace, 29 Misc 3d 130(A)(App. Term 1st Dept. 2010). Given the mixed outcome of this proceeding, the Court does not award attorneys’ fees. Accordingly, it is: ORDERED that the Court denies so much of the petition as seeks harassment on the basis of lack of services provided, without prejudice to any other remedy Petitioner may obtain for the interruption of essential services, and it is further ORDERED that the Court makes a finding that Respondents have engaged in harassment of Petitioner by the acts undertaken by one of the board members of the organization in the first floor in violation of N.Y.C. Admin. Code §§27-2004(a)(48)(a), and 27-2004(a)(48)(g), and it is further ORDERED that HPD place a “C” violation for harassment on the subject premises, upon service of a copy of this order together with notice of entry by any party on HPD, and it is further ORDERED that the branch of the petition seeking an order for respondents to cease harassment against petitioner and his family is denied as moot because the apartment has been surrendered voluntarily and the parties no longer have need to interact with one another; and it is further ORDERED that the Court awards Petitioner a judgment in the amount of minimum amount of $1,000.00 as against Respondents, jointly and severally, and it is further ORDERED that the Court awards HPD civil penalties against Respondents in the minimum amount of $2,000.00, to be enforced as against the Building, at Block 15721, Lot 0067 of the borough of Queens, and it is further ORDERED that the Court dismisses Petitioner’s cause of action for punitive damages partly because no actual damages were proven, and it is further ORDERED that the Court denies Petitioner’s application for attorneys’ fees. This constitutes the decision/order of this Court. Dated: December 14, 2021
