Sophia LUCAS, Petitioner, v. Craig FORLADER, Respondent, New York City Department of Housing Preservation and Development, Respondent.
Recitation, as required by CPLR § 2219(a), of the papers considered in the review of petitioner's order to show cause for civil contempt, for a finding of harassment, for civil penalties, and for damages:
Order to Show Cause & Affirmation/Affidavit/Exhibits Annexed 1 (NYSCEF No.17-19)
Proof of Service of March 23, 2022 Decision/Order 2 (NYSCEF #21)
Inquest Exhibit (1) 3
Upon the foregoing cited papers and the inquest taken on May 4, 2022, the decision and order on petitioner's motion, by order to show cause, is as follows:
The HP action for the correction of violations and for a finding of harassment and other relief was commenced by order to show cause in December 2021. On January 12, 2022, after respondent Craig Forlader (hereinafter “Mr. Forlader”) failed to appear, the court (Sanchez, J.) issued a “Default Order to Restore Heat,” which directed Mr. Forlader to restore the heat at the subject premises, as required by the Housing Maintenance Code. The Order also references a Department of Housing Preservation and Development (DHPD) class “C” violation for lack of heat (Violation #14770795). The Order reserved petitioner's right to seek civil penalties and the restoration of her harassment claims.
In March 2022, petitioner, through counsel, filed the instant motion for civil contempt and other relief by order to show cause.1 Proof of service of the order to show cause was filed to NYSCEF and the court granted the order to show cause, upon Mr. Forlader's failure to appear on March 23, 2022, to the extent of setting it down for a hearing on the relief requested. After one adjournment at petitioner's request, the hearing was scheduled for May 4, 2022. Upon Mr. Forlader's failure to appear on May 4, 2022, the court held an inquest on the order to show cause and reserved decision.
Petitioner Sophia Lucas was called as the sole witness. She testified that she lives with her three (3) children and moved into the subject premises in May 2015. She further testified that she has a Section 8 subsidy, and that her landlord was responsible for maintaining utilities. Ms. Lucas testified that her landlord told her he would turn off her essential services in 2021, and that she last had heat in May 2021. She testified that she called Mr. Forlader's management office in November 2021 to notify them of the lack of heat. She also made numerous 311 calls about the heat.
Ms. Lucas then testified that because of confusion about the building's address, DHPD was unable to conduct an inspect until January 2022, after the instant action was commenced. The court then took judicial notice (pursuant to Multiple Dwelling Law § 328(3)) of the open “C” violation for heat on the DHPD website.2 Ms. Lucas testified that she tried to contact Mr. Forlader about the heat again, but that she was only able to leave voice messages and no one called her back, or no one answered her calls. She testified that she purchased space heaters and had to keep her stove on for heat.
Petitioner's attorneys presented a Costco receipt for a space heater, which was admitted as petitioner's exhibit 1. Ms. Lucas testified that she purchased four (4) space heaters total, at a cost of $44.99 each. She also testified that she purchased four (4) extra blankets for warmth, at a cost of $12.99 each. Notwithstanding the space heaters and running of her stove, however, Ms. Lucas testified that her apartment still was not warm enough.
When asked how the lack of heat had affected her and her children, Ms. Lucas testified that they were cold for entire days, and that the cold exacerbated her stiffness when she was recovering from a surgery. Finally, Ms. Lucas testified that as of the date of the inquest, May 4, 2022, the heat still had not been restored. After again requesting the relief sought in the order to show cause, petitioner's attorneys rested.
Under Judiciary Law § 753, a court of record has the power to punish, by fine and imprisonment, or either, “a neglect or violation of duty, or other misconduct, by which a right or remedy of a party to a civil action or special proceeding, pending in the court may be defeated, impaired, impeded, or prejudiced.” See generally El-Dehdan v. El-Dehdan, 26 NY3d 19, 28-29 . A civil contempt is “one where the rights of an individual have been harmed by the contemnor's failure to obey a court order.” Dept. of Envtl. Protection v. Dept. of Envtl. Conservation, 70 NY2d 233, 239 . For civil contempt to lie, “it must be established that the rights of a party to the litigation have been prejudiced.” Id. at 239. Furthermore, “[t]o sustain a finding of civil or criminal contempt based on an alleged violation of a court order it is necessary to establish that a lawful order of the court clearly expressing an unequivocal mandate was in effect [and] appear with reasonable certainty that the order has been disobeyed.” Id. at 240. Finally, “the party charged must have had knowledge of the court's order.” Id. at 240.
Petitioner has established each of the elements for civil contempt by clear and convincing evidence. See El-Dehdan, 26 NY3d at 29. Judge Sanchez's January 12, 2022 Default Order contained an unequivocal mandate to correct the “C” violation for lack of heat. Petitioner established, via proof of service filed to NYSCEF (Document #13) that the Default Order was served upon Mr. Forlader in a timely manner and according to the method prescribed by Judge Sanchez therein. Therefore, knowledge of the order is established. See Matter of Lisa T. v. King E.T., 30 NY3d 548, 556  [Knowledge of orders of protection appropriately found when they were, inter alia, served upon respondent]. Based on Ms. Lucas's testimony and the continued existence of the DHPD violation (see Dept. of Hous. Preserv. & Dev. v. Knoll, 120 Misc 2d 813, 814 [App Term, 2d Dept 1983]), it has been established that the Default Order's unequivocal mandate to correct the heat violation was disobeyed by Mr. Forlader. Finally, Ms. Lucas's testimony established that she and her children were prejudiced by Mr. Forlader's disobedience of the Default Order's unequivocal mandate. See Dept. of Hous. Preserv. & Dev. v. 24 W. 132 Equities, Inc., 137 Misc 2d 459, 460 [App Term, 1st Dept 1987] [Civil contempt order affirmed where respondent failed to provide heat and hot water]; De Koven v. 780 West End Realty Co., 48 Misc 2d 951, 954 [Civ Ct, NY County 1965] [Observing that the legislature included “lack of heat” amongst the enumerated conditions “dangerous to life, health or safety” in RPAPL § 770].
CIVIL CONTEMPT PUNISHMENT
Having determined that Mr. Forlader is in civil contempt of the January 12, 2022 Default Order, an appropriate civil contempt punishment must be imposed. See Judiciary Law § 753. A civil contempt penalty must be “designed not to punish but, rather, to compensate the injured private party or to coerce compliance with the court's mandate or both.” Dept. of Envtl. Protection, 70 NY2d at 239. The court refrains from imposing imprisonment on this record and at this juncture. In lieu imprisonment, the court will impose a fine. Judiciary Law § 773 sets out the fines to be imposed upon a contempt finding. If “actual loss or injury” is proven, the fine will be in the amount of said loss or injury. “Where it is not shown that an actual loss or injury has been caused, a fine may be imposed, not exceeding the amount of the complainant's costs and expenses, and two hundred fifty dollars in addition thereto, and must be collected and paid, in like manner.”
The court finds that petitioner established actual losses in the amount of $231.92, representing the cost of four (4) space heaters (at $44.99 each) and four (4) blankets (at $12.99 each) that she purchased because of the lack of heat. The court also deems it proper for legal fees related to the disobedience of the Default Order to be included in the civil contempt fine. See Barclays Bank, PLC v. Hughes, 306 AD2d 406, 407 [2d Dept 2003]; Jamie v. Jamie, 19 AD3d 330, 330 [1st Dept 2005] [Permitting legal fees to be imposed even where actual damages are shown]. The court will schedule a hearing on legal fees and upon a determination of an amount of reasonable fees, a fine in the total amount of the actual losses and legal fees will be imposed and an Order Directing Punishment for Contempt will be issued.
Petitioner also seeks the imposition of civil penalties as a result of Mr. Forlader's failure to correct the “C” violation for lack of heat. The court notes that petitioner's right to seek civil penalties was reserved in Judge Sanchez's January 12, 2022 Default Order.3 Under NYC Admin. Code § 27-2115(h)(1), “upon failure to [correct] within the time set for certifying the correction of [a] violation pursuant to subdivision (c) of this section, [the court] shall impose a penalty in accordance with subdivision (a) of this section.” When a heat violation under NYC Admin. Code § 27-2029(a) is at issue (as it is here), an owner “shall be subject to a civil penalty not less than two hundred fifty nor more than five hundred dollars for each violation from and including the date the notice is affixed until the date the violation is corrected[.]” NYC Admin. Code § 27-2115(k)(1)(i). As the evidence establishes that the “C” violation for lack of heat has not been corrected, the court imposes civil penalties in the amount of $70,500.00, which reflects 141 days from the service of the notice of violation (January 11, 2022) until the end of heat season (May 31, 2022) at the maximum penalty amount of $500.00 per day. See Dept. of Hous. Preserv. & Dev. v. De Bona, 101 AD2d 875, 876 [2d Dept 1984] [“The enactment of the presumption of a continuing violation protects tenants’ rights by removing the onerous burden of proof that the violation existed on every date in question.”]; Dept. of Hous. Preserv. & Dev. v. Thomas, 2021 NY Slip Op 32566[U] [Civ Ct, Kings County 2021]. Accordingly, a judgment in the amount of $70,500.00, for civil penalties, shall be entered in favor of DHPD as against respondent Craig Forlader.
The inquest testimony established that petitioner engaged in harassment in violation of NYC Admin. Code § 27-2005(d). Ms. Lucas's testimony and the open DHPD violation for lack of heat (existing since January 2022) demonstrated that Mr. Forlader engaged in “an interruption or discontinuance of an essential service for an extended duration or of such significance as to substantially impair the habitability of [the] dwelling unit.” NYC Admin. Code § 27-2004(a)(48)(ii)(b); see also Berg v. Chelsea Hotel Owner, LLC, 203 AD3d 484, 485 [1st Dept 2022]. Although this is a private dwelling where the rebuttable presumption that the act of harassment was intended to cause the tenant to vacate or otherwise surrender or waive rights does not apply (see NYC Admin. Code § 27-2004(a)(48)(ii)), Ms. Lucas's testimony established the requisite intent by Forlader, in failing to provide adequate heat, to cause Ms. Lucas to vacate or otherwise surrender her rights as a tenant with a Section 8 subsidy.
Having determined that Mr. Forlader engaged in harassment against petitioner under the Housing Maintenance Code, the court hereby ORDERS following relief pursuant to NYC Admin. Code §§ 27-2115(m) and § 27-2115(o):
(A) The court finds that a class “C” violation existed as a result of the harassment and that such violation existed at the time that this action was commenced (December 21, 2021). The court further finds that the violation is not deemed a continuing class “C” violation;
(B) The court restrains Craig Forlader from violating NYC Admin. Code §§ 27-2005(d) and 27-2004(a)(48), and is directed to ensure that no further violation occurs;
(C) The court imposes a civil penalty (separate and distinct from the civil penalty issued above in reference to the lack of heat violation) against Craig Forlader in the amount of $10,000.00, which shall be subject to a judgment in favor of DHPD;
(D) The court awards statutory compensatory damages in the amount of $1,000.00 to petitioner, which shall be subject to a judgment in favor of petitioner and against Craig Forlader;
(E) The court awards statutory punitive damages in the amount of $4,000.00 to petitioner, which shall be subject to a judgment in favor of petitioner and against Craig Forlader, as the testimony and evidence established the egregious conduct of Mr. Forlader in failing to provide heat during the entire heat season of 2021-2022 (see e.g. Leung v. Zi Chang Realty Corp., 74 Misc 3d 126[A], 2022 NY Slip Op 50034[U] [App Term, 1st Dept 2022]); and
(E) The court will award petitioner reasonable attorneys’ fees, in accordance with NYC Admin. Code § 27-2115(o), although the fees will be determined on the hearing on civil contempt fees; provided, however, that the court will not grant a duplicative award and will consider any fees imposed as part of the contempt fine to satisfy the harassment statute's mandate.
The court grants petitioner's order to show cause in accordance with the foregoing determinations. A hearing on petitioner's legal fees will be scheduled for August 15, 2022 at 2:30 PM in Part C, Room 407, 89-17 Sutphin Boulevard, Jamaica, New York 11435. Any pre-marked exhibits for the hearing shall be submitted by email to email@example.com on or before August 11, 2022. Upon the court's assessment of reasonable legal fees after the hearing, an Order Directing Punishment on Contempt will issue.
This Decision/Order will be filed to NYSCEF. Petitioner's attorneys shall serve a copy of this Decision/Order upon Craig Forlader's last-known address by first class mail on or before July 19, 2022 and file proof of service to NYSCEF. This Decision/Order will be emailed to the attorneys for DHPD.
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
1. A prior order to show cause for similar relief was withdrawn by letter filed to NYSCEF.
2. The court notes that the violation, which is the same one referenced in Judge Sanchez's January 12, 2022 Default Order, is placed for the address “11-10 1/2 Beach Channel Drive, Queens 11691.” The violation remains open as of the date of this Decision/Order.
3. Nonetheless, the assessment of civil penalties does not require a motion. See Hayes v. Toju Realty Corp., 74 Misc 3d 446, 450 [Civ Ct, Kings Count 2022] [Citing NYC Admin. Code § 27-2115(h)(1)].
Clinton J. Guthrie, J.
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