This is a H.P. Action brought by Dolores L. D’Agostino, (“Petitioner”) against Gateway Residential AAF Marina Towers Assoc., (“Respondent”) seeking a finding that Respondent has engaged in harassment pursuant to NYC Admin. Code §27-2005(d). The subject premises is located at 355 South End Ave., apt. 24C, New York, NY 10280. According to the petition, Petitioner asserts that Respondent violated NYC Admin. Code §27-2005(d) by causing or intending to cause her to move out of the subject premises or to waive any rights to such subject premises, that Respondent repeatedly caused or permitted acts or omissions that substantially interfered with or disturbed her comfort, peace or quiet and if the acts or omissions involve physical conditions in the subject premises, a violation of record was recorded. Further, in paragraph 2C (ii) of the petition, Petitioner states that Respondent retaliated against her because she requested “breathable air” in her apartment, that Respondent has refused to correct secondhand smoke/toxic air coming into her apartment several times a day in violation of a no smoking addendum to her lease, that she is a rent stabilized tenant, that the Respondent has “shown interest in getting..” her to leave her apartment for a higher rent, and that she is an 86 year suffering with “COPD” otherwise known as chronic obstructive pulmonary disease. TRIAL This Court conducted a trial on January 13, 2023 where both parties appeared. Petitioner appeared pro se and Respondent appeared by counsel. EVIDENCE Petitioner offered into evidence four (4) exhibits. The following documents were admitted into evidence on behalf of Petitioner: P1-Smoking Policy of Respondent- Marina Towers; P2 — Memo to residents from Respondent- Gateway regarding smoking in apartments; P3 — Five (5) Day Notice to Cure1; and P4 — letter dated April 20, 2022 from Respondent- Gateway addressed to Petitioner about complaints received by Respondent regarding excessive noise emanating from her apartment. TESTIMONY Petitioner called herself and three other witnesses to testify on her behalf. Petitioner testified that she is the rent stabilized tenant of the subject premises, that for four years she has been exposed to serious secondhand smoking from her neighbors, that Respondent has treated her complaints with evasive hostility, that Respondent’s responses to her are “laughable,” that Respondent came into her apartment in 2020 and 2021 to investigate the complaints but their visits lasted for three to six minutes of a smelling/sniffing test and merely stared at the air vents, that building personnel tried to smell smoke in the hallways in response to her complaints, that Respondents offered to have professionals test the indoor air quality but that she did not trust them because they might have used their findings against her, that she admitted refusing access to Respondent to test the indoor air quality, that the smell of smoke awakens her, that she would play “Puerto Rican” music loudly to retaliate against the neighbors below her who she believed were the source of the smell of smoke, that in April 2022 she received from Respondent a Notice to Cure (P3 in evidence) regarding allegations against her for objectionable conduct, that she believed such a Notice was a punitive action against her, since she complained about smoking, that the letter (P4 in evidence) sent to her from Respondent regarding excessive noise emanating from her apartment was intended to harass her, that for the last two years she has consistently worn one to two facial masks a day to shield herself from the smell of smoke in her apartment, and that the day before her trial testimony she did not smell smoke in her apartment. On cross examination Petitioner admitted she has called Respondent’s agents “Little Putins,” “liars right down to their testicles,” “vile monsters,” that she makes noise in her apartment such as running her vacuum cleaner loudly and playing loud “Puerto Rican” music to annoy her neighbors who she believes are smoking, that she never had any experts test the air quality in her apartment, that she had no independent knowledge of the air quality in the apartment, that the only proof of poor air quality due to smoke is her health, that Respondent responded to her smoke complaints, that Respondent checked the hallways for smell of smoke, that HPD has not come to her apartment to determine if there are any violations, that there are no recorded HPD violations for the smell of smoke in her apartment, that the Respondent did offer to pay for an air quality test company of her choosing, and that she never independently hired anyone to test the air quality in her apartment. Sharon Tucker a friend and former high school student of the Petitioner testified that when she has phone conversations with Petitioner she constantly complains to her about the smell of smoke in her apartment. On cross examination Ms. Tucker indicated that she was at Petitioner’s apartment the night before this trial and did not smell smoke. Zenobia Fox another friend of Petitioner testified that Petitioner purchased an air purifier to use at the subject premises which was expensive, that she knows Petitioner to be an honest person who is involved in grant writing for community projects, that all of Petitioner’s work has been honorable, and that she visited the subject premises a few weeks before the trial. Diane Stoller testified that she is a friend of the Petitioner for over twenty (20) years, that they met at Holy Name Hospital while Ms. Stoller was doing hospice work and that Petitioner has complained to her about secondhand smoke at the subject premises. On cross examination Ms. Stoller indicated that she has not been to the subject premises in the last two years, that her first time there was six years ago, that she was at the subject premises for Petitioner’s 80th birthday and while she was there she did not smell smoke. Respondent called one witness, Frederick Lichtenstein. Mr. Lichtenstein testified that he is the managing agent and assistant general manager of the Respondent, that part of his duties consist of handling repair issues, that after 2010 Respondent established a non-smoking policy in their buildings, that before 2010 building residents could smoke unless they provided notice to Respondent that they were not smokers and would therefore not be smoking in their apartments, that he referred to P1 in evidence2 for the Respondent’s smoking policy which provides that there are some building renters who are permitted to smoke in their apartments, that he is familiar with Petitioner, that Petitioner complains to him several times a week about smoke, that Respondent would attempt to verify Petitioner’s smoke complaints, that Respondent would send employees such as security guards to inspect the surrounding apartments and hallways for smell of smoke and there was no finding of a smell of smoke, that Respondent in 2020 or 2021 hired GAC Environmental to conduct air quality test at the subject premises, that Petitioner was present during the testing, that GAC Environmental found no contamination of the air quality,3 that Respondent offered Petitioner to pick her own air quality testing company and she refused it and wanted to hire her own company, that there are no HPD violations for smell of smoke or poor air quality, that HPD was called for smell of smoke complaints and that it was logged in by HPD as unfounded, and that Petitioner’s tenor toward him is aggressive with lots of yelling. On cross examination Mr. Lichtenstein acknowledged that there was an HPD violation at the subject premises for the ceiling4 and while the workers were there addressing it GAC Environmental tested the air quality. DISCUSSION Two elements must be proven for a finding of harassment. First, the Respondent/owner must have acted or omitted to act in such a way that caused or intended to cause the Petitioner/tenant or lawful occupant to vacate the subject unit or to surrender any rights in relation to such occupancy. NYC Admin. Code §27-2005(d); §27-2004(a)(48). Second, the Respondent’s action or failure to act must fall under at least one of the twenty-one enumerated acts and omissions found in NYC Admin Code §27-2004(a)(48)(a — g). A properly pled petition must only allege one of the twenty-one enumerated acts and omissions found in NYC Admin Code §27-2004(a)(48 a — g); there is a rebuttable presumption in buildings with more than two units that these acts and omissions were intended to cause such person to vacate such dwelling unit or to surrender or waive any rights in relation to such occupancy. NYC Admin. Code §27-2004(a)(48). Here, Petitioner at trial did not prove that Respondent acted or omitted to act in a way that caused her to surrender any rights in relation to her occupancy. The unrebutted testimony of Frederick Lichtenstein showed that Respondent addressed Petitioner’s complaints of secondhand smoke by actively sending building staff to evaluate the complaints, by offering to pay for an air quality testing company of Petitioner’s choosing which she declined, and by sending GAC Environmental to test the air quality in her apartment which came back with no findings of poor air quality. Further, there was no documentary evidence or expert testimony showing that the air in Petitioner’s apartment contained smoke or was of poor toxic quality. Petitioner admitted that she never hired an air quality tester. She also admitted that there is no HPD violation for smell of smoke at the subject premises. Additionally, Petitioner’s witnesses who had been to the subject premises testified that during their visits they never smelled smoke. Lastly, there was testimony from Mr. Lichtenstein and corroborated by P1 in evidence that some building renters are permitted to smoke in their apartments. Therefore, there can be an occasion where there may be a smell of smoke. Similarly, Petitioner did not prove at trial that the Respondent’s action or failure to act falls under at least one of the twenty-one enumerated acts and omissions found in NYC Admin Code §27-2004(a)(48)(a — g). Specifically, Petitioner did not establish that Respondent repeatedly caused or permitted acts or omissions that substantially interfered with or disturbed her comfort, peace or quiet. NYC Admin Code §27-2004(a)(48)(g). Under NYC Admin Code §27-2115 (h) (2) (i), an allegation based on physical conditions of a dwelling unit must be based at least in part on one or more violations of record issued by HPD or any other agency. Here, Petitioner’s alleged claim of secondhand smoke involves physical conditions at the subject premises but there was no evidence at the trial of any HPD or other agency violation of record issued against Respondent for such claim. NYC Admin Code §27-2004(a)(48)(b-2); NYC Admin Code §27-2115 (h) (2) (i). Furthermore, Petitioner did not prove that Respondent retaliated against her for requesting “breathable” air. On the contrary, Respondent addressed Petitioner’s concerns with their gratuitous offer to provide an air quality tester and sending building personnel to inspect her complaints. Respondent also demonstrated that although currently there is a no smoking policy in the building, there are some renters who are allowed to smoke. P1 in evidence. As such, Respondent has not blatantly violated the no smoking policy as alleged by Petitioner in the petition. The fact that Petitioner received a noise complaint letter (P4 in evidence) and Notice to Cure (P3 in evidence) from Respondent does not constitute a repeated pattern of harassment intended to force Petitioner out of the subject premises. The complaint letter was dated April 20, 2022 and the Notice to Cure was dated April 25, 2022. Both notices were prepared after the November 9, 2021 filing of the instant petition. Actually, Petitioner admitted during this trial that she played loud music, ran her vacuum cleaner at an excessive volume and called Respondent’s agents “Little Putins,” “liars right down to their testicles” “and “vile monsters.” As such, it was her own admitted behavior that precipitated the need for the notices. For the reasons discussed above, Petitioner has failed to sustain its burden of establishing harassment under NYC Admin. Code §27-2005(d) against Respondent. Accordingly, after trial, the Petition is dismissed. The dismissal is limited to a cause of action for harassment under NYC Admin. Code §27-2005(d) and is without prejudice to any other cause of action or defense either party may have against each other in any other litigation between them. Respondent at the end of trial asked this Court to dismiss the petition and make a finding that Petitioner’s claim against it was frivolous and award it legal fees. According to NYC Admin Code §27-2115 (m) (4), if a court determines that a claim of harassment by a tenant against an owner is so lacking in merit as to be frivolous, the court may award attorney’s fees to such owner. Although Petitioner’s cause of action for harassment was unfounded, her claim was not brought in bad faith. As such, this Court denies Respondent’s application to deem the matter frivolous and award it attorney’s fees. ORDERED: After trial, the petition is dismissed. This is the decision and order of the Court, copies of which are being uploaded to NYSCEF and mailed to both parties. Dated: January 31, 2023
