The Court considered the following papers: Notice of Petition and Petition filed December 18, 2019 Complaints concerning living conditions dated January 21, 2020 Mount Vernon Building Department Complaint dated February 24, 2021 Tenant’s Declaration of Hardship During the Covid-19 Pandemic dated March 1, 2021. Notice of Violation #42876 from the Mount Vernon Building Department dated Oct. 22, 2021 Petitioner’s Affirmation in Opposition (with Exhibit A) to Respondent’s Motion made November 1, 2021 (“Opposition”) electronically filed on November 15, 2021. Respondent’s Reply Affirmation dated November 19, 2021 (“Reply”) electronically filed on the same date (with Exhibits A, B, & C). DECISION AND ORDER Findings of Fact Petitioner commenced this nonpayment proceeding on December 18, 2019 seeking to recover the sum of $6,814.74 comprising alleged rents in arrears of $5,690.00 and late fees of $1,124.74 for periods from June 2019 through December 2019, and the issuance of a warrant of eviction and judgment of possession against Respondents. The Petition alleges, inter alia, that Respondent-tenant entered into possession of the premises under a written rental agreement with Petitioner-landlord for monthly rent of $2,195.00. The Petition also alleges that the premises is subject to the Emergency Tenant Protection Act of 1974 (EPTA) and that the monthly rent or tenant portion is not greater than the maximum regulatory rents, and that Petitioner is in compliance with applicable regulations and with RPL 235-b regarding the Warranty of Habitability. The case first appeared on the court’s calendar on January 7, 2020 and was subsequently adjourned several times. On January 21, 2020, the parties appeared. Daniel Finger appeared as counsel for Petitioner. The Respondent-tenant, Mark Green, appeared pro se. Mr. Finger stated, on the record, that he had an opportunity to speak with the tenant about repairs needed in the apartment. The Court instructed the tenant to complete the court’s complaint concerning living conditions form (“court’s living conditions form”) and file the form with the court; a copy was given to the landlord’s attorney. On Petitioner’s counsel request, the case was adjourned to February 11, 2020. The Respondent filed Tenant’s Declaration of Hardship During the Covid-19 Pandemic on March 1, 2021. The court’s living conditions form filed by Respondent specified the following five conditions for Petitioner to inspect and repair: 1. Kitchen totally damaged (pictures given to the landlord) 2. Bathroom tiles 3. Hole in bedroom wall 4. Bathroom door 5. Bad smell due to outside and hole in the ceiling. The completed form stated that all or most of the above conditions were reported to the building’s manager and to maintenance. On September 13, 2021, both parties appeared. Respondent was represented by Legal Services of the Hudson Valley (LSHV). The Court set access dates and instructed the landlord to complete the repairs. The access dates were September 20, 2021 and September 21, 2021. Both parties appeared on November 1, 2021. Respondent’s counsel informed the court that Petitioner had not done the work to remedy the conditions in the apartment since January 21, 2020 when the court’s living conditions form was filed with the court and Petitioner. Counsel stated that the tenant and his young daughters have been living with these conditions for over one year. Respondent’s counsel placed in the record a certified copy of a Complaint from the Department of Buildings for the City of Mount Vernon (“Building Department”) dated February 24, 2021 upon which Building Inspector David Barrett described the following conditions in Respondent’s apartment 1. Kitchen Fixtures inoperable 2. Kitchen cabinets broken and wood is withering 3. Wooden floors sinking-in 4. Bathroom tiles aren’t corked so water comes from behind them 5. Broken doorknobs throughout apartment The Building Inspector also made the following observation: “5/24/21 confirmed repairs need to be made throughout apartment kitchen is in need of immediate repair stove is inoperable damage to walls behind stove, sink separating from wall discovered hole in master bedroom ceiling master closet also need paint and repair (305.3 Interior Surfaces) spoke with management tenant is currently in court work order has been generated”. Further, the Building Department issued Notice of Violation #42876 dated October 22, 2021 against Petitioner with respect to conditions in Respondent’s apartment, including water damage throughout the kitchen and noted that the floor in the apartment is in poor condition with accumulation of an unknown substance. The Notice of Violation also states: “OWNER IS REQUIRED TO LOCATE CAUSE OF WATER DAMAGE AND CORRECT THE ABOVE CONDITIONS IMMEDIATELY”. Petitioner’s counsel admitted that access was provided on September 21, 2021 but argued that Petitioner had no access to the apartment to make repairs on September 20, 2021. The tenant disputed counsel’s assertion stating that access was provided on September 20, 2021 because the building superintendent painted the apartment on that day. With respect to Petitioner having notice of the living conditions in the apartment specified in the tenant’s January 21, 2020 complaint, Petitioner’s counsel disputed the validity of the court’s living conditions form. The court asked counsel to specify what conditions were repaired since January 21, 2020 to which he stated “I don’t know off the top of my head what was done or what wasn’t done”…”I believe some items were done…” When the court asked counsel to identify some of the items completed, counsel stated “I don’t know what specific work was done…” In responding to the Mount Vernon Building Department’s complaint and notice of violation, Petitioner’s counsel stated “I have not seen it”…I can’t say if my client has seen it” Respondent’s counsel made an application for the court to issue an order directing Petitioner to immediately remedy the conditions specified in the complaint form filed with the court on January 21, 2020 and conditions described in the complaint and notice of violation issued by the Building Department. The court issued a Decision and Order dated November 4, 2021 directing Petitioner to file and serve a response to Respondent’s motion on or before November 15, 2021 and for Respondent to file and serve a reply by November 19, 2021. The case was adjourned for an in-person evidentiary hearing on November 22, 2021 at 2:00 p.m. Petitioner’s Opposition Petitioner’s counsel appeared in person for the evidentiary hearing on November 22, 2021. Petitioner did not appear by its employees or agents with personal knowledge regarding the repairs or conditions in the apartment. Petitioner’s opposition papers allege that on or about May 2021, access was provided for Petitioner to make repairs, without explaining whether the repairs specified in the court’s living conditions form of January 21, 2020 or the conditions described in the complaint or notice of violation issued by the inspector for the Building Department were corrected. Petitioner’s response included an email from Respondent’s counsel to Petitioner’s counsel dated September 28, 2021 (as Petitioner’s Exhibit A) which stated, inter alia, “there can be no dispute over access as your client came to the apartment last Tuesday and yesterday” [9/21/2021] and [9/27/2021]. The email identified three major repair issues: (1) water damage in the kitchen and the ceiling; (2) defective stove/over causing a smell of gas; and (3) a mold problem in the apartment described in a contractor’s report sent to Petitioner’s counsel. Contrary to Petitioner’s assertion, this email did not confirm all repairs were made. At the hearing, Petitioner’s counsel could not confirm with any degree of specificity or with personal knowledge whether repairs were made and when they were made. Counsel said Petitioner’s agents were in the apartment, but he was not clear if they made repairs. He “believed” that “a number of repairs” were made but produced no evidence to support such belief. Counsel did not know whether his client complied with the building code requirement for the Building Department to re-inspect the premises to determine if Petitioner made the repairs. At the hearing, Petitioner’s counsel acknowledged that Petitioner is obligated to make repairs and maintain habitable and safe living conditions in Respondent’s apartment under the lease, the building code of the city of Mount Vernon, the EPTA regulations and other provisions of law (“landlord’s legal obligations”). However, Petitioner takes the position that these legal obligations are not enforceable by a court in a summary proceeding because the proceeding is stayed by virtue of the Covid hardship declaration, and that the court lacks authority to enforce any of Petitioner’s legal obligations. Respondent’s Reply Respondent-Mark Green and his counsel appeared in person for the evidentiary hearing on November 22, 2021 pursuant to the court’s order dated November 4, 2021. Respondent’s reply papers allege that the landlord was notified of the poor conditions in his apartment, which were reported to the landlord in January 2020 when the parties appeared in court. Subsequently, the conditions were identified in the Mount Vernon Building Department’s complaint of February 24, 2001 and Notice of Violation dated October 22, 2021. Petitioner failed to remedy these conditions for over one year. Respondent’s counsel communicated the poor housing conditions to Petitioner’s counsel since the commencement of these proceedings. Mr. Green said that he complained of the conditions in his apartment to the landlord and its agents/employees prior to the commencement of the summary proceedings and nothing was done. Respondent particularized the conditions in his reply papers along with supporting exhibits. At the hearing, Mr. Green stated that, other than cosmetic painting over the water damage from the leaky ceiling, Petitioner did not make the repairs described in the notice of violation or complaint issued by the Building Department. The Respondent requests that the court grant Respondent’s motion for an order pursuant to Section 382(3) of the Executive Law of the State of New York (as amended) directing the Petitioner to abate the condition which are in violation of the uniform building code. Discussion On September 2, 2021, Governor Hochul signed into law new legislation related to residential eviction and foreclosure protections (L. 2021, c. 417; “Act”). The Act continues to provide relief to respondents and defendants in residential eviction proceedings and foreclosure actions in New York. The Act publishes a “Hardship Declarations” form to be used by tenant-respondents in residential eviction matters and defendant-mortgagors in residential foreclosure actions in reporting financial hardship during or due to the COVID-19 pandemic. Under the Act, residential eviction proceedings are stayed until at least January 15, 2022 where a tenant-respondent submits a completed Hardship Declaration. The Act sets forth the legislative findings and intent for extending the stay on residential evictions including that “…[t]he legislature is especially cognizant of the ongoing risks posed by residential evictions stemming from non-payment of rent during the height of the public health emergency, and its recovery period, such as the potential to exacerbate the resurgence of COVID-19, the damage significant numbers of evictions would cause to the state’s economic recovery, and the deleterious social and public health effects of homelessness and housing instability…” [Act, §2.] The legislature made it clear that the stay of eviction proceedings protected against residential evictions caused by non-payment of rent during the Covid-19 pandemic. Nothing in legislative findings or intent even remotely suggests that the moratorium on evictions was intended to stay the landlord’s legal obligations to maintain safe and habitable conditions or to render the courts powerless while landlords subject tenants to unsafe and uninhabitable conditions during the Covid-19 pandemic, as the Petitioner suggests. The “NOTICE TO TENANT” provision in the Act explains that where the tenant signs and files the hardship declaration form, the tenant is protected from eviction until January 15, 2022, unless the landlord successfully challenges the hardship declaration, or the nuisance exception of the Act applies. [Act, Part C, Subpart A, Section 1, para. 4]. The hardship declaration results in the eviction proceedings being postponed until January 15, 2022. However, in this case, the proceedings were adjourned on consent of the parties to dates before January 15, 2022, for Petitioner-landlord to repair and remedy the conditions in Respondent’s apartment. Therefore, the court may consider Respondent’s motion on the adjourned dates and continue the proceedings for the purpose of addressing the unsafe and uninhabitable conditions and Petitioner’s obligations to remedy those conditions by making necessary repairs. The Court finds that Petitioner-landlord had notice of unsafe and uninhabitable conditions existing in Respondent’s apartment at least since January 21, 2020, when the parties appeared in court. Despite complaints from the tenant, tenant’s counsel, and complaint and notice of violation issued by the Building Department, Petitioner failed to remedy these conditions for almost two years. Instead, Petitioner now takes the untenable position that the court has no authority to enforce Petitioner’s legal obligations to remedy the conditions and make repairs in Respondent’s apartment because of the stay on evictions. The Court notes that these conditions existed more than one year before Respondent filed the hardship declaration on March 1, 2021 triggering the stay on eviction. The stay on eviction proceedings does not absolve the Petitioner-landlord from fulfilling its legal obligations for abating these conditions. In addition to the stay on eviction, a tenant affirms in the hardship declaration that he/she must comply with all other terms under the tenancy, lease agreement or similar contract during the pendency of the stay. [Act, Part C, Subpart A, Section 1, para. 4]. There is not authority for Petitioner’s contention the landlord is not required to similarly comply with its legal obligations under the lease and applicable laws and regulations. The New York State Executive Law was amended effective October 25, 2021 to allow a judge of the city court the authority to order the abatement of conditions of a building, which conditions are in violation of the uniform building and fire prevention code. The new law states: 3. Where the construction or use of a building is in violation of any provision of the uniform code or any lawful order obtained thereunder, a justice of the supreme court, New York city civil court, a city court, district court or county court may order the removal of the building or an abatement of the condition in violation of such provisions. An application for such relief may be made by the secretary, an appropriate municipal officer, or any other person aggrieved by the violation. See N.Y. Exec. Law §382 (3), (as amended 2021) The court finds that the conditions existing in Respondent’s Apartment as described in the Complaint dated February 24, 2021 and Notice of Violation #42876 dated October 22, 2021 issued to Petitioner by the Department of Buildings for the City of Mount Vernon violate the provisions the uniform building code of the state of New York and at lawful order of the Mount Vernon Building Department dated on October 22, 2021 requiring such conditions be corrected immediately. Moreover, the existing conditions coupled with Petitioner’s position that its obligations to remedy such conditions are unenforceable during the stay directly conflict with Petitioner’s representations in its Non-payment Petition that Petitioner is complying with applicable EPTA regulations. Under Section 7 of the EPTA and regulations thereunder, Petitioner made a written certification that it is maintaining and will continue to maintain all services required by the EPTA, any law, ordinance, or regulation applicable to the premises. Now, therefore, Respondent’s motion is granted, and it is ORDERED, that Petitioner shall abate the conditions is Respondent’s Apartment, 5K located at 630 Gramatan Avenue, Mount Vernon, NY 10552 immediately but no later than December 20, 2021, which conditions are described in Complaint dated February 24, 2021 and the Notice of Violation #42876 dated October 22, 2021 issued to Petitioner by the Department of Buildings for the City of Mount Vernon. ORDERED, that Petitioner shall file all documents for re-inspection of said apartment and full compliance with the building code with the Mount Vernon Building Department and proof of abatement of the conditions and compliance with the building code shall be filed with the Court. This constitutes the Decision and Order of this Court. Dated: December 7, 2021
