HATCHER v. Department of Housing Preservation and Development of the City of New York, Respondent-Respondent. (2006)

Order (Kevin C. McClanahan, J.), dated June 24, 2004, reversed, without costs, the finding that respondent-appellants violated specified provisions of the Housing Maintenance Code is annulled, and the petition is dismissed.

This Housing Part (HP) proceeding is based largely upon allegations that respondent-appellants, the board of managers and managing agents of condominium premises containing nearly 40 residential units, failed to provide a resident janitor.   The governing statute, Multiple Dwelling Law § 83, provides in relevant part as follows:  “Whenever there are thirteen or more families occupying any multiple dwelling and the owner does not reside therein, there shall be a janitor, housekeeper or some other person responsible on behalf of the owner who shall reside in said dwelling or within a dwelling located within a distance of two hundred feet from said dwelling, and have charge of such dwelling ․” ( [emphasis added];  see also Housing Maintenance Code [Administrative Code of City of New York] § 27-2054).   Thus, the express terms of MDL § 83 make clear that the statute's janitorial residency requirements do not apply to a multiple dwelling whose owner personally resides in the premises (see Schultz v. Simon, 275 App.Div. 788, 87 N.Y.S.2d 766 [1949] ).   Neither the plain language of the statute nor a fair reading of the counterpart “Janitorial Services” provisions of Article 13 of the Housing Maintenance Code supports petitioner's argument that only a multiple dwelling whose resident owner “personally provide[s] janitorial services” is exempt from the requirement that a janitor live onsite.   It is inappropriate to imply a limitation into a statute or ordinance, thereby giving it a meaning not found within its clear language (see McKinney's Cons Laws of N.Y., Book 1, Statutes § 94).

In view of Civil Court's own conclusion that the board of managers of the subject condominium premises qualifies as a resident owner within the meaning of MDL § 83-a conclusion which petitioner does not and cannot seriously challenge (see Real Property Law § 339-ee[1];  see also Pekelnaya v. Allyn, 25 A.D.3d 111, 116-117, 120, 808 N.Y.S.2d 590 [2005] )-the court's directive that appellants hire a resident janitor finds no support in the governing statutory framework.   Appellants met their statutory and Code obligations by “[p]rovid[ing] a janitor” who, so far is shown on this record, was properly certified as “competent to perform janitorial services” (Housing Maintenance Code §§ 27-2053[b][2], 27-2055[a] ).

Appellants certified the competency of their janitor through the timely submission to the court of an affidavit from the building's registered managing agent (Friedman), a procedure which respondent Department of Housing Preservation and Development, the agency charged with enforcing the Housing Maintenance Code, now acknowledges in its appellate brief does not present a “problem”.   The affidavit satisfactorily complied with the Code's certification requirements by stating that the building's 40-hour-a-week, nonresident superintendent (Rosario) was “competent to perform” the janitorial services required under the Code, was “capable of operating the furnace and boiler ․ in the building,” and “does not service more than 65 dwelling units,” allegations which remain unrebutted on this record.   Notably, petitioner's papers below did not directly challenge Rosario's competency, other than to complain that his 40-hour-a-week schedule left the building without a janitor “at night, or on Fridays and Sundays”-an argument which petitioner does not pursue on appeal and which, even if accepted as true, would not create a statutory or Code violation.

I am constrained to agree with the majority opinion as to the issue of the residence of the janitor but disagree as to the issue of the janitor's proven competence.

Two sections of the Housing Maintenance Code (HMC) are controlling on the janitor residence issue.

Housing Maintenance Code § 27-2053:

a. The owner of a multiple dwelling shall provide adequate janitorial services.

b. In a multiple dwelling of nine or more dwelling units, the owner shall either:

(1) Perform the janitorial services himself or herself, if he or she is a resident owner or

(2) Provide a janitor (emphasis added);  or

(3) Provide for janitorial services to be performed on a twenty-four-hour-a-day basis in a manner approved by [HPD].

Housing Maintenance Code § 27-2054:

The person who performs janitorial services for a multiple dwelling of nine or more dwelling units other than where the janitorial services are performed (on a 24-hour-a-day basis) shall reside in or within distance of one block or two hundred feet from the dwelling, whichever is greater, unless the owner resides in the multiple dwelling.  (Emphasis added).

The subject multiple dwelling is a forty-five unit condominium with thirty-nine residential and six professional units which, under the HMC, is not required to have a janitor either live on the premises or within any specific distance from the dwelling solely because the owner (Board of Managers) is a resident (HMC § 27-2054;  see also Multiple Dwelling Law § 83).   The HMC does not require a resident owner to have any janitorial skills to satisfy the Code so long as it provides a janitor (HMC § 27-2053[2] ).

I am constrained by the clear language of HMC § 27-2054 and the legislative history to agree that this was the intent of the New York City Council as indicated in the Bill Jacket for the former Sec. D26-22.01. The New York City Department of Housing Preservation and Development and the petitioner disagree and would harmonize the statutes to interpret the owner exception in HMC § 27-2054 to apply only if the owner is qualified to act as janitor.   Their position is both logical and practical but unfortunately not provided for in the law as written.  “A Court cannot amend a statute by adding words that are not there” (Matter of DaimlerChrysler Corp. v. Spitzer, 26 A.D.3d 88, 90, 804 N.Y.S.2d 506 [3d Dept. 2005], citing American Tr. Ins. Co., v. Sartor, 3 N.Y.3d 71, 76, 781 N.Y.S.2d 630, 814 N.E.2d 1189 [2004] ).   A Judge should not rewrite statutes under the guise of interpretation even though it is his opinion that the statute is deficient because it fails to provide “for the protection of the health, safety and welfare of the people of the city” (HMC § 27-2002).   Remedial legislation should be considered.

The Trial Court found a violation of HMC § 27-2055 entitled “Certification of competency” which applies to a janitor's qualifications to perform janitorial services including operation of an incinerator, furnace and other machinery.   The Board of Managers was given the opportunity to produce evidence as to the janitor's competence at the trial and failed to do so.   Contrary to what the majority states in its footnote as to HPD saying that the owners' submission does not present a “problem,” the relevant sentences from the HPD brief read as follows:

And then, instead of submitting a certification to HPD with a copy to the Court, he simply submitted a certification directly to the Court [R. 102].   That would not necessarily have been a problem if the certification itself had answered the Court's questions, which it did not.   The Friedman Affidavit of June 22, 2004 stated that the two superintendents were competent, but did not state that neither of them served more than 65 units [R. 100].

The owners' brief “conceded that the back up superintendent Roberto Pineda serviced more than 65 units” which admittedly would prevent certification.

I would affirm the order on different grounds than the Trial Court.   Compliance with HMC § 27-2053(2) requires the owner to “provide a janitor” who is competent.   Since the owners have failed to establish the janitor's competency under HMC § 27-2054 the order should be affirmed.

This constitutes the decision and order of the court.

PER CURIAM.