656 WEST 162ND STREET TENANTS ASSOCIATION v. Department of Housing Preservation and Development of the City of New York and Department of Buildings of the City of New York, Co-Respondents. (2021)

The Decision/Order of this Court on petitioners’ motion directing Department of Housing Preservation and Development (“HPD”) to enforce certain City of New York Administrative Code provisions, directing respondent/owners to produce forthwith to them all records pertaining to compliance with those provisions and imposing penalties against respondent/owners in the event that there is a determination that respondent/owners failed to comply is as follows:

In this Housing Part (“HP”) action, petitioner-tenants move the court to compel respondent-owners to abide by the notice and reporting requirements of Local Law No. 1 (2004) of City of NY.¹ Prior to this motion, the court had been familiar with the portion of Local Law 1 relating to HPD investigations of tenant lead paint complaints. The court had not, however, seen any litigation in the HP concerning an owners’ responsibility to notify occupants and investigate for the presence of lead-based paint in dwelling units. These responsibility requirements are specifically detailed in Administrative Code of City of NY § 27-2056.4. As such, a primer into the dangers of lead paint and the legislative response to lead-based paint poisoning is instructive.

History of Lead Paint Regulation

The dangers of lead and lead poisoning have been known since the early 1900's. Despite the concerns of doctors and other scientists, the United States continued to allow the use of toxic lead in many products including gasoline and paint. Finally, in 1960, New York City banned the use or sale of lead-based paint on interior building surfaces. NY City Health Code § 173.13. The federal government followed suit and banned lead-based paint in 1978. 16 CFR §§ 1303.1—1303.5.

The dangers of lead paint are known more now. High blood lead levels can produce brain damage, coma or death, and even relatively low levels can lead to significant nervous system damage. Juarez by Juarez v. Wavecrest Mgmt. Team Ltd., 88 N.Y.2d 628, 640—41, 649 N.Y.S.2d 115, 672 N.E.2d 135 (1996), (citing 1995 Report of Lead—Based Paint Hazard Reduction and Financing Task Force, Putting the Pieces Together: Controlling Lead Hazards in the Nation's Housing, at 3; Oct. 1991 Statement by Centers for Disease Control and Prevention, Preventing Lead Poisoning in Young Children, at 7—10 [4th rev]). Children under the age of six, whose nervous systems are still developing, are particularly vulnerable to the damage caused by lead poisoning. Id. This damage includes nervous and reproductive system disorders, delays in neurological and physical development, cognitive and behavioral changes, and hypertension, most of which are irreversible. Williamsburg Around the Bridge Block Ass'n v. Giuliani, 167 Misc. 2d 980, 984, 637 N.Y.S.2d 241 (Sup. Ct. 1995), aff'd, 223 A.D.2d 64, 644 N.Y.S.2d 252 (1996), as modified (Oct. 1, 1996). Children generally contract lead poisoning through ingestion and very young children are particularly vulnerable because they tend to put their hands in their mouths more often than adults. Id.

The Local Law 1 Amendment of 2004

Since New York City banned lead paint in 1960, it has been confronted with the vexing problem of how to eradicate the lead paint that had already been used in residences up to that point. Finding that lead poisoning from lead paint is a preventable childhood disease and a public health crisis, the New York City Council enacted the New York City Childhood Lead Poisoning Prevention Act of 20003 (“CLPPA”) in 2004 to attempt to eradicate lead poisoning by 2010. Statement of Findings and Purpose to CLPPA at Admin. Code § 27-2056.1. Portions of the CLPPA functioned as an amendment to the terms of Local Law 1.

To eliminate childhood lead poisoning, the legislature included more stringent reporting and notice requirements for landlords. Before the 2004 amendments to Local Law 1, lead paint remediation was triggered when tenants complained about the possibility of lead paint inside of an apartment where a child under the age of six resides. Once notified by a tenant, landlords would have an affirmative obligation to investigate the apartment for lead paint and remediate if necessary. No obligation existed, however, unless the tenant raised the issue with the landlord. The 2004 amendment to Local Law 1 ² forced landlords to proactively determine whether children under the age of 6 reside in an apartment built before 1960 ³ and to investigate for the presence of lead if such child is present in the apartment.

Local Law 1 creates two means by which a landlord must ask a tenant if a child under six years resides in the apartment. First, landlords must present riders with every lease or lease renewal inquiring whether a child under the age of six resides in the dwelling being rented. Admin. Code § 27-2056.4(d). Second, Local Law 1 forces landlords to write to any occupants of pre-1960 apartments every January and inquire whether any children under the age of six reside in the unit. Admin. Code § 27-2056.4(e). If a tenant or occupant indicates a child under six years of age lives in the apartment, the owner must commence an investigation for peeling paint, chewable surfaces, deteriorated subsurfaces, friction surfaces and impact surfaces.⁴ Admin. Code § 27-2056.4 (a). The landlord has an obligation to complete this investigation at least once a year so long as a child under six years resides in the apartment. Id. Upon the completion of the investigation, Local Law 1 mandates that the owner prepare a report as to the findings of the investigation and deliver that report to the tenant or occupant of the dwelling. Admin. Code § 27-2056.4(f). The landlords also have an obligation to retain these reports for ten years and to make them available to HPD on request. If the investigation indicates that there is lead paint present in the apartment, the owner has a responsibility to remediate the lead paint consistent with work practices established by the city. Admin. Code § 27-2056.3.

Here, the petitioners in the verified petition allege that the respondent/owners failed to abide by Administrative Code of City of NY § 27-2056.4 which requires the owners to notify and investigate for the presence of lead-based paint in dwelling units. According to petitioners, respondent/owners failed to give them the yearly notices required by Local Law 1, failed to attach a lead paint rider to their leases, and failed to send them the required lead paint inquiry every January. Moreover, the petitioners allege that the respondent-landlord failed to do any lead paint investigation as required under Local Law 1 or, if they did such an investigation, failed to notify them of the results of the investigation or give them the report created after the investigation was completed. In this motion, petitioners ask the court to order the respondent-owner to produce all records that Local Law 1 dictates the owner must give to tenants.⁵ If the respondent-owner is unable to produce such records, then the petitioners ask that the court impose penalties established by Local Law 1 for violations of such provisions. Such penalties include a fine of $500 or imprisonment for up to six months, or both and civil penalties of not more than $1,500 per violation. Admin. Code § 27-2056.4(g).

Respondent-landlords in opposition argue that the court should not grant the motion for several reasons: the court lacks subject matter jurisdiction, it would violate their 5th Amendment rights, and it is impermissible discovery.⁶

Discussion

Local Law 1 specifically obligates landlords of apartments built before 1960 to turn over certain documents to tenants and to maintain those documents for 10 years. The question, therefore, is not whether the tenants are entitled to the documents they seek but whether the court should order the respondents to produce these documents in the context of this litigation.

Respondent-landlord insists that the court lacks subject matter jurisdiction to grant the relief requested. The court disagrees. New York City Civil Court Act § 110 (a) and (a) (4) explicitly bestows subject matter jurisdiction to the Housing Part of the Civil Court to grant injunctive relief to enforce “state and local laws for the establishment and maintenance of housing standards, including, but not limited to, the multiple dwelling law and the housing maintenance code, building code and health code” Further, New York City Civil Court Act § 110 (c), indicates: “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.” The court finds that, because Local Law 1 is concerned with housing standards, the court can enforce its dictates. Pursuant to Civil Court Act § 110 (a), the court can choose to enforce Local Law 1 via injunctive relief and such injunctive relief would certainly include forcing the respondent-owners to abide by the obligations created by Local Law 1 in order to ascertain whether conditions exist that may irrevocably harm children residing in these apartments.

Respondent-landlord also argues that the court cannot order the relief sought because such an order would violate their Fifth Amendment rights against incrimination. Respondents have no such right as it pertains to these documents. As petitioners argue in their reply papers, there is no Fifth Amendment privilege for records which are required, by law, to be kept and which are subject to governmental regulation and inspection. People v. Doe, 59 N.Y.2d 655, 656—57, 463 N.Y.S.2d 405, 450 N.E.2d 211 (1983). “To hold otherwise and allow the privilege to cloak such records would make enforcement of State and Federal laws impossible.” Id.

Finally, respondents argue that ordering them to disclose these documents amounts to impermissible discovery without leave of court. This is also incorrect. Discovery pertains to documents in the possession of an adverse party that will assist in the preparation for trial. Petitioners are not requesting these documents to assist in trial. Instead, they are demanding these documents because Local Law 1 mandates it. As such, petitioners here are entitled to these documents under the law without discovery request.

Accordingly, respondent/owners are ordered to provide all petitioners with all required and applicable records pertaining to their apartments ⁷ that are responsive to the mandates of Administrative Code 27-2056.4 within 60 days of the date of this decision with Notice of Entry. The records are to be submitted to the petitioners and accompanied with an affidavit of someone with personal knowledge of these notices and reports. If respondent/owners are unable to fully comply with this Order, there must be an affidavit submitted to the petitioners and the Court via NYSCEF by respondent/owners within 60 days of the date of this decision with Notice of Entry explaining why such notices and reports are unavailable.

However, the court denies without prejudice the part of petitioners’ motion asking to impose penalties against the respondent-landlord, provided for in Administrative Code § 27-2056.4 (g). Such relief is premature, since without seeing the full documents, as ordered herein, the court lacks the ability to determine whether respondent-landlords have violated the dictates of Local Law 1 and, if they have, to what extent. Petitioners may re-submit, if appropriate, once respondent/owners submit a complete ⁸ packet of the records specified above in this Decision and Order or if after HPD's audit agreed to in the July 26, 2021 stipulation there is a showing of non-compliance.

ORDERED: Petitioners’ motion asking that respondent/owners produce to them all records showing their compliance with Administrative Code § 27-2056.4 is granted as indicated herein and must be provided within 60 days of the date of this Decision and Order with Notice of Entry.

This is the decision and order of the court.

FOOTNOTES

1.   Local Law 1 is codified as Administrative Code of City of NY § 27-2056.1 et seq. but will be referred to as Local Law 1 throughout.

2.   The CLPPA has been subsequently amended by Local Law 74 of 2005, Local Laws 64 through 73 of 2019, Local Laws 27 through 31 of 2020, and Local Laws 39-40 of 2021.

3.   Local Law 1 always applies to any apartment built before 1960 (the year that New York City passed the lead paint ban), but because lead paint continued to be sold in the United States until 1978, it also applies to buildings built between 1960 and 1978, if the owner knows lead paint to be present in those apartments.

4.   Each of these terms is defined in Admin. Code § 27-2056.2, but the purposes here all one needs to know is that these are the typical areas in an apartment where a young child can ingest lead paint.

5.   Petitioners also ask the court to force HPD to do an audit of respondent-owner's Local Law 1 records as described in Admin. Code § 27-2056.4(h). Petitioners and HPD settled that portion of the motion via stipulation dated July 26, 2021, wherein HPD promised to conduct such an audit within four months and issue violations if it finds there are any.

6.   The court notes that respondent-owners state that they have completed a Local Law 1 investigation this year and annex a report detailing their investigation, as well as notices to petitioners notifying two of them that their apartments need lead testing and correction. The court also notes that the petitioners in reply highlight the deficiencies found in these documents, not the least of which is that the report is unsigned.

7.   Apartments 1B, 1G, 1H, 1R, 2A, 2C, 2D, 2E, 2R, 3A, 3B, 4A, 4B, 4D, 4E, 5A, 5C, 5D, 5H, and 6B.

8.   The documents submitted by respondent/owners in NYSCEF 15 (Exhibits A-C) appear to be incomplete and were not submitted pursuant to Court Order.

Frances A. Ortiz, J.