Lily JEFFERS, Petitioner, v. RIVER PARK RESIDENCES, LP, Reliant Realty Services LLC, and Fermin Garcia, Respondents-Owners, and Department of Housing Preservation and Development of the City of New York, Co-Respondents.
Recitation, as required by C.P.L.R. § 2219(a), of the papers considered in review of this motion.
Order to Show Cause with Affirmation & Affidavit Annexed
[With Exhibits A-M, NYSCEF No. 14-30]1
Notice of Cross-Motion with Affirmation & Affidavit Annexed
[With Exhibits A-F, NYSCEF No. 31-39]2
Affirmation in Reply and Opposition [NYSCEF No40]3
After oral argument held on April 27, 2021 and upon the foregoing cited papers, the decision and order on these motions is as follows:
BACKGROUND & PROCEDURAL HISTORY
The court assumes familiarity with this case's procedural history and facts, particularly those recited in the October 28, 2020 Trial Decision and the February 26, 2021 Decision and Order on petitioner's subsequent motion to aside in part the Trial Decision and render a new decision as a matter of law.1
In the October 28, 2020 Trial Decision, the court issued a Class B violation for mold in the foyer closet and a Class C violation for mold at the walls in the closet in the first room from north.2 The court also took notice of additional violations at the subject premises issued by DHPD: three (3) Class A violations for the refrigerator gasket, painting throughout and defective bell/buzzer/intercom, as well as a Class C violation to make the front door of the apartment self-closing.3
The court ordered respondents to correct Class A violations within ninety (90) days, or by January 26, 2021, Class B violations within thirty (30) days, or by November 27, 2020, and Class C violations within fourteen (14) days, or by November 11, 2020. The court also ordered respondents to comply with the New York City Department of Health's (“DOH”) guidelines for mold remediation, as well as with the recommendations of Edward Olmsted, petitioner's mold expert.4
The court now is presented with petitioner's motion to hold respondents in civil contempt pursuant to the Judiciary Law for failing to correct violations as required by the October 28, 2020 Trial Decision. Petitioner also seeks an order for respondents to correct all open violations and awarding damages, civil penalties, and attorneys' fees. Contempt, petitioner argues, should be found as her mold expert, Mr. Olmsted, re-inspected the apartment in February 2021, after respondents completed the mold remediation, and mold was still found in the apartment, including in the areas cited in the Trial Decision. Moreover, respondents did not comply with Mr. Olmsted's recommendations regarding cleaning the items in the closets contaminated by mold, nor with the recommendation that the apartment be re-tested for mold, including air sampling. Finally, petitioner seeks contempt due to the three (3) Class A violations that remain open on the DHPD website.
Respondents, for their part, oppose petitioner's motion in its entirety, arguing that they have completed the mold remediation, all the violations were cleared, and the vendors fully paid. Respondents argue that the items in the closets that were contaminated by mold were not cleaned due to petitioner's conduct, essentially not working with respondents to come up with a viable solution. Respondents argue that petitioner is barred from claiming contempt, as she seeks the same relief here as in her previous motion to set aside the court's trial decision, in part, and render a new decision as a matter of law. Respondents also cross-move for an order sanctioning petitioner and/or her attorneys for frivolous motion practice and unnecessarily causing respondents to expend additional legal fees.
In Matter of McCormack v Axelrod, the Court of Appeals articulated a four-pronged test for civil contempt: (1) that a lawful court order was in effect clearly expressed an unequivocal mandate, (2) the order was disobeyed, (3) the contemnor had knowledge of the order, and (4) that the movant was prejudiced. (59 NY2d 574, 583 ). To succeed on a civil contempt motion, the moving party must establish contempt by clear and convincing evidence. (see Simens v Darwish, 104 AD3d 465, 466 [1st Dept 2013]; Denaro v Rosalia, 50 AD3d 727, 727 [2nd Dept 2008]).
Regardless of whether each element of civil contempt can be established by clear and convincing evidence, “[t]he Court's power to punish a party for civil contempt is discretionary and the Court should exercise that discretion in light of the facts and circumstances in each particular case.” (Castillo v Banner Group LLC, 63 Misc 3d 1235[A] at *3, 2019 NY Slip Op 50897[U] [Civ Ct, New York County 2019] citing In Re Hildreth, 28 AD2d 290, 292 [1st Dept 1967]).
Petitioner here moves for civil contempt on a simple premise: respondents have failed to comply with the October 28, 2020 Trial Decision. Admittedly, prejudice to petitioner will be obvious if respondents did not comply with the October 28, 2020 Trial Decision to correct, especially as petitioner alleges she has been unable to return to her home due to the continued presence of mold.
There is no dispute that the October 28, 2020 Trial Decision is a lawful court order expressing an unequivocal mandate and that respondents had knowledge of it. (see Matter of McCormick v Axelrod, 59 NY2d at 583). As such, the court's analysis will focus on whether respondents disobeyed the October 28, 2020 Trial Decision.
Petitioner argues that under the circumstances here, contempt must be found where the three (3) Class A violations issued by DHPD remain open, where petitioner's experts' reports show mold is still present in the apartment after respondents completed the mold remediation work, and where respondents failed to comply with Mr. Olmsted's recommendations regarding cleaning items contaminated by mold and post-remediation testing, including air samples. Petitioner, in her affidavit in support of the motion, concludes by asking the court to order respondents “to correctly remediate all of the mold at the subject premises.”
Petitioner attaches as Exhibit H to her motion a report dated January 8, 2021, which alleges that mold is present in the bathroom. This report, while it may be relevant to petitioner's request for an order to fully correct the alleged mold condition in her apartment (see pg. 17-18 of the affirmation in support), is not relevant in the context of contempt. The court's October 28, 2020 Trial Decision did not find that mold existed in the bathroom at that time and, therefore, petitioner cannot seek contempt for respondents' claimed failure to abate mold in the bathroom.
Petitioner also attaches as Exhibit K a new report from Mr. Olmsted, dated February 28, 2021, alleging that, based on a visual inspection and tape lift samples, mold is present on a wall in the corner bedroom, on the wall in the bedroom closet, and on the wall in the hallway. The report further alleges that, based on air samples, mold is present in the foyer closet, bathroom and corner bedroom.
Again, although the findings in the report that there is mold in the bedroom, bathroom and hallway may be relevant to petitioner's request for an order to fully correct the alleged mold condition in her apartment, they are irrelevant to contempt. Petitioner cannot seek contempt for mold found in these areas, as the October 28, 2020 Trial Decision did not place violations for mold in these locations.
The report is relevant, however, to the extent that mold was found in the foyer closet and bedroom closet, where the court placed Class B and Class C violations for mold, respectively, after the deadline for respondents to correct said violations. Petitioner can seek contempt for mold that has not been abated pursuant to the October 28, 2020 Trial Decision.
Finally, Petitioner attaches as Exhibit L to her motion an Open Violation report from DHPD, dated March 2, 2021, showing that the three Class A violations in her apartment remain open.
In opposition, respondents claim they completed all mold remediation in accordance with Mr. Olmsted's recommendations, and therefore contempt cannot be found. Respondents attach their own expert reports. Attached as Exhibit C to the cross motion is the first report, dated November 10, 2020. This report alleges that mold is present in the foyer and bedroom closets. The report also set out a scope of work to remediate the mold, similar to Mr. Olmsted's recommendations in his July 2020 report.
The second report attached by respondents as Exhibit D to the cross motion is dated December 11, 2020, after respondents finished the mold abatement work. This report, using visual inspection, infrared cameras and a moisture meter, alleged that no mold is present either in the foyer closet or the bedroom closet, the sole two areas where the court issued mold violations. Neither of respondents' reports used air sampling, which the July 2020 Olmsted report recommended.
Although respondents do not address the open Class A violations issued by DHPD, a more recent DHPD Open Violation report, dated April 23, 2021, shows that no access was provided to DHPD on or about April 8, 2021 when DHPD attempted to inspect whether the Class A violations had been corrected.
Though petitioner seeks a finding of contempt on the papers, respondents' submissions create an issue of fact.
Consequently, a hearing must be held to determine if, in fact, respondents fulfilled their obligations under the October 28, 2020 Trial Decision.
Thus, petitioner's motion is granted solely to the extent of setting the matter down for a hearing on contempt. If contempt is found, the matter will be scheduled for a hearing on petitioner's other requested relief, including whether the court should issue additional violations for mold in the apartment and issue an order to correct for same. It remains petitioner's burden to prove each element of contempt.
The court notes that the contempt hearing shall only regard civil contempt. Petitioner's order to show cause does not seek or discuss criminal contempt and, in any case, as respondents were not personally served with the order to show cause, no criminal contempt may be found. (see Lu v. Betancourt, 116 AD2d 492, 494 [1st Dept 1986] [“Where the penalty of criminal contempt is sought, failure to personally serve the alleged contemnor constitutes a jurisdictional defect requiring dismissal”], citing People v Balt, 34 AD2d 932 [1st Dept 1970].)
Cross-Motion for Sanctions
In addition to opposing petitioner's motion, respondents also cross-move for sanctions against petitioner, alleging that she is seeking a third bite at the apple, and attempting an end-run around the court's February 2021 Decision upholding its Trial Decision and not issuing further mold violations.
Respondents claim petitioner is barred by res judicata and collateral estoppel from “blatantly” seeking “substantially identical relief as was sought both at trial [sic] in the prior motion.” As such, respondents seek sanctions against petitioner and/or her counsel, claiming petitioner's instant motion for contempt and other relief is entirely without merit and frivolous.
Petitioner opposes, generally denying that her motion is frivolous and without merit and asserts that, if anything, respondents should be sanctioned for making a frivolous motion for sanctions. Petitioner points out that there is still a dispute as to the cleaning of items in the closets, and states that she is not attempting to re-litigate prior matters. The most recent Olmsted report, from February 2021, was attached to her papers to show that respondents did not comply with the Trial Decision to abate the mold by showing “there is still mold present in the areas of the apartment that had violations.”
The law is clear that “[c]onduct during litigation, including on an appeal, is frivolous and subject to sanction and/or the award of costs when it is completely without merit in law or fact and cannot be supported by a reasonable argument for the extension, modification, or reversal of existing law; it is undertaken primarily to delay or prolong the resolution of the litigation, or to harass or maliciously injure another; or it asserts material factual statements that are false.” (Mascia v Maresco, 39 AD3d 504, 505 [2d Dept 2007] [internal citations omitted]; see also 22 NYCRR 130-1.1).
“Under these standards, attorneys have been found to act frivolously when they bring motions, commence actions or prosecute appeals that are utterly without merit and cannot be supported by reasonable argument.” (Edwards v Edwards, 165 AD2d 362, 366 [1st Dept 1991] [internal citations omitted], superseded by statute on other grounds as stated in Matter of Raab, 139 AD3d 116, 118 [1st Dept 2016]).
Respondents are not entitled to sanctions. Petitioner is not seeking to re-litigate matters that were addressed either at trial or in petitioner's prior motion. Here, petitioner is seeking different relief available to her under the law: contempt for respondents' alleged failure to comply with the October 28, 2020 Trial Decision and, consequently, civil penalties, damages and attorneys' fees as a result of such contempt.
Indeed, the Trial Decision explicitly retains petitioner's right to seek contempt: “Failure to comply with this order shall subject respondents to the contempt powers of the court and civil penalties, as appropriate under NYC Admin Code § 27-2115.”5
Although petitioner also seeks an order that respondents abate mold in other areas of the apartment not included in the court's Trial Decision, such request is certainly not frivolous nor without merit, and therefore not sanctionable.
This court previously held that it would not place a violation for mold in the bathroom as there was never a violation for mold there, Mr. Olmsted's reports introduced at trial did not find mold there, and no other proof was introduced by petitioner as to mold in the bathroom.6 For the same reasons, the court declined to modify its Trial Decision in the February 26, 2021 Decision.7
Now, however, petitioner's mold reports from January and February 2021 appear to show that mold exists not just in the bathroom, but in other areas of the apartment where there was previously no adequate proof of mold.
As such, petitioner is entitled to seek appropriate relief from this court, including an additional or modified order to correct. (see Department of Hous. Preserv. & Dev. of City of NY v. Living Waters Realty, Inc., 14 Misc 3d 484, 487-488 [Civ Ct, New York County 2006], citing CCA § 110(c) [“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.”]).
Contrary to respondents' claim that petitioner's instant motion is frivolous and therefore sanctionable, it is respondents' cross-motion for sanctions that is frivolous and utterly without merit under the law, and therefore sanctionable. (see Shelley v Shelley, 180 Misc 2d 275, 284 [Sup Ct, Westchester County 1999] [“It has been recognized that a motion for sanctions in such circumstances is itself a form of frivolous conduct warranting the imposition of sanctions”], citing Patterson v Balaquiot, 188 AD2d 275, 275 [1st Dept 1992] [“the request for sanctions was itself frivolous”]; Southern Blvd. Sound v Felix Storch, Inc., 167 Misc 2d 731, 732 [App Term, 1st Dept 1996] [“in appropriate circumstances a baseless request for sanctions itself may constitute frivolous conduct within the meaning of rule 130”]; see also Costantini v Costantini, 44 AD3d 509, 509 [1st Dept 2007]). It should have been obvious to respondents that the relief petitioner seeks is proper under this court's prior Decisions and authorized by the CCA.
Therefore, respondents' cross motion seeking sanctions against petitioner for exercising her rights and remedies available to her under the law is wholly without support, designed to harass petitioner, and is a misuse of the court's time and resources.
Respondents were given the opportunity to argue their cross-motion at length, on the record, during oral argument. Mr. Garcia himself was on the conference call, privy to the entire discussion, and was provided with the opportunity to speak. As such, there is no question that respondents were placed on notice that this court did not consider petitioner's motion frivolous. Indeed, after extensive discussion with both parties' attorneys, the court even pointed out to respondents' counsel that a frivolous sanctions motion is itself sanctionable. Despite notice and opportunity to be heard, at no point did respondents or their attorney withdraw the frivolous cross-motion for sanctions.
It should be obvious to respondents that a motion to hold them in contempt of the October 28, 2020 Order is not barred by collateral estoppel or res-judicata, as contempt was never previously sought.
Finally, it is incumbent to point out that this frivolous cross-motion is simply the latest of respondents' dilatory tactics. The court notes that respondents were to interpose an answer no later than August 7, 2020. However, the answer is only dated September 1, 2020. Furthermore, respondents were to interpose opposition to petitioner's instant motion no later than April 9, 2021. However, respondents could not be bothered to serve their opposition and cross-motion until the evening of April 25, 2021 and did not file a copy with the court until the morning of April 26, 2021, minutes before oral argument on petitioner's motion.
Not only did respondents not seek an extension of their time to oppose or advise the court of their plans to cross-move prior to the scheduled oral argument date, so the court could set a briefing schedule, but, due to their belated papers, this court had to adjourn oral argument to review the cross-motion received minutes prior to the initial oral argument date.8
Respondents' sanctionable conduct extends to the language used in their papers and at oral argument. For example, respondents accuse petitioner of undertaking “a simple yet devious ruse,”9 and that petitioner was attempting to “pull the wool over the court's eyes.”10 While some of respondents' counsel's statements might be considered hyperbole meant to paint his clients in the best light, (e.g. that respondents maintenance workers are “front-line” workers in “the war against coronavirus”11 ), these attacks on petitioner and/or her counsel are entirely improper. (see Wen-Ying Chen-Mao v Bowne House Owners Corp., 31 Misc 3d 1225[A], *2, 2021 NY Slip Op 50850[U] [Sup Ct, Queens County 2011] [“colorful and needless comments are ultimately self-defeating in terms of both persuasion to the Court and in any effort with opposing counsel and their clients”]).
Additionally, the court notes that Fermin Garcia's affidavit in support of the cross-motion contains demonstrably false statements. In paragraph 10, Mr. Garcia states the “Court already decided that the landlord's certifications were properly documented and now Respondent is seeking to undo that ruling.” Mr. Garcia, the court assumes, takes his cues from counsel.12 Mr. Yetwin states in his affirmation, at paragraph 10, “the parties to this litigation have already litigated these exact same issues.”13 However, this court has not previously ruled on the landlord's proof of correction of the violations it placed since the issue [of compliance] has never been previously presented.14 (see In re Kover, 134 AD3d 64, 74, 19 NYS3d 228 [1st Dept 2015] [sanctions and costs have been imposed for insulting behavior to opposing counsel, baseless ad hominem attacks against the court and opposing party, and mischaracterization of the record] (emphasis added)).
Timoney v Newmark & Co. Real Estate, Inc, cited by respondents, is likewise instructive. In Timoney, the court notes, “there is no arguable merit to plaintiff's numerous appellate arguments which ‘are rife with speculation and innuendo seeking merely to obscure the real issue[s] in the case’.” (299 AD2d 201, 202, 750 NYS2d 271 [1st Dept 2002] (internal citations omitted)). Respondents here similarly attempt to obscure the real issue — whether the mold violations placed by the court have been properly addressed — by consistently, and improperly, arguing that issue has already been decided.
While respondents could reasonably argue they complied with the Order, which they do in part, they also repeatedly and falsely claim the court has already ruled on petitioner's requested relief and move for sanctions based on that false premise. Thus, the cross-motion for sanctions only serves to delay the proceeding and muddy the issue.
As such, respondents and their counsel are sanctioned, pursuant to 22 NYCRR 130-1.1, and shall pay the sum of $1,000.00 15 to the Lawyers' Fund for Client Protection of the State of New York on or before June 30, 2021, with proof of timely payment in full to be emailed to this court.
Based on the foregoing, petitioner's motion for contempt is granted solely to the extent of setting the matter down for a hearing on contempt. Respondents' cross-motion is denied in its entirety.
The case is adjourned to June 25, 2021 at 10 A.M. for the contempt hearing. The parties are directed to email to each other and the court any documents and other evidence they wish to introduce into evidence by June 16, 2021. Any objections to proposed evidence shall be noted via email to each other and the court by June 22, 2021.
This constitutes the Order of the court. Copies will be emailed to the parties' counsels.
1. See October 28, 2020 Trial Decision and February 26, 2021 Decision, denying petitioner's motion and leaving its Trial Decision undisturbed.
2. See October 28, 2020 Trial Decision at Pg. 9.
3. See DHPD Open Violation Report dated October 26, 2020.
4. See October 28, 2020 Trial Decision at Pg. 9.
5. See October 28, 2020 Trial Decision at Pg. 10.
6. See October 28, 2020 Trial Decision at Pg. 10.
7. See February 26, 2021 Decision at Pgs. 2-3.
8. Petitioner's counsel, for her part, was able to upload opposition to the cross-motion/reply shortly before the initial argument date of April 26, 2021.
9. See cross-Motion at par. 21 of Attorney Affirmation.
10. Stated at the April 27, 2021 oral argument by respondent's counsel.
12. Mr. Fermin makes his statement based on what his attorney advised.
13. See also par. 8 of Mr. Yetwin's affirmation, “It defies the very nature of the summary proceeding to relitigate the same claims for essentially the same relief based on the same set of facts and circumstances.” [emphasis added]; par. 12, petitioner “is essentially seeking the precise relief sought in the prior motion” [emphasis added]; par. 18, “it is clear that the Petitioner's claims were decided after virtual trial”; par. 20, “Petitioner, under the guide [sic] of a different procedure, blatantly seeks substantially identical relief”.
14. This is particularly troubling to the court since respondents' cross-motion is replete with allegations that petitioner's attorney is making false and misleading assertions [and lying]. (see par. 28, 29, and 30 of the Yetwin affirmation).
15. $1,000.00 is the sum respondents sought in their motion for sanctions.
Shorab Ibrahim, J.
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