LANDLORD HARASSMENT IN NYC

Butler v. Thomas , NYLJ August 26, 2020, Date filed: 2020-08-19, Court: Civil Court, Kings, Judge: Judge Zhuo Wang, Case Number: 989/20-KI:

"“The owner of a dwelling shall not harass any tenants or persons lawfully entitled to occupancy of such dwelling as set forth in [HMC §27-2004(A)(48)]” (see HMC 27-2005[d]). As relevant here, the aforementioned section provides that:

“Except where otherwise provided, the term “harassment” shall mean any act or omission by or on behalf of an owner that (i) causes or is intended to cause any person lawfully entitled to occupancy of a dwelling unit to vacate such dwelling unit or to surrender or waive any rights in relation to such occupancy, and (ii) includes one or more of the following acts or omissions, provided that there shall be a rebuttable presumption that such acts or omissions were intended to cause such person to vacate such dwelling unit or to surrender or waive any rights in relation to such occupancy…other repeated acts or omissions of such significance as to substantially interfere with or disturb the comfort, repose, peace or quiet of any person lawfully entitled to occupancy of such dwelling unit and that cause or are intended to cause such person to vacate such dwelling unit or to surrender or waive any rights in relation to such occupancy…” (HMC §27-2004[a][48][g]).

The credible testimony adduced at trial shows that, after purchasing the subject building, the Thomases as new owners sought to have Butler move out of her bedroom. But the record also reveals that the parties engaged in a joint effort to find Butler and her daughter alternative housing. Indeed, it was Butler who asked to be served with a termination notice in order to qualify for a housing voucher. Butler was also willing to speak with De Falco and Brookes in assisting her to move.

Because the record is unclear to which acts to relocate Butler were consented to by her and which were not, Butler does not meet her burden of proof that her occupancy was “substantially” disturbed from the time the Thomases purchased the property to the date of the termination notice. To the extent Butler contends that certain statements or acts during this period constituted harassment, her role as a willing participant to find alternative housing rebuts this argument.

But what began as a cooperative effort to relocate Butler turned into a pressure campaign ultimately intended to cause Butler to vacate the premises. The credible evidence shows that, following unsuccessful efforts to have Butler move out voluntarily, the Thomases grew increasingly frustrated.

But for the eviction moratoriums imposed in response to the Covid-19 pandemic, the Thomases were bent on dispossessing Butler. Indeed, Chinelle admitted as much when she told Butler that she was going to “stress” her until she left.

Unable to remove Butler from the premises through the proper legal channels and under financial strain, the Thomases made the decision in or about early April to move into a portion of the basement apartment. This act is significant as it relates to Butler’s harassment claim but not for the reasons stated by the parties.

Importantly, the credible proof establishes that neither Griffith nor the Thomases conveyed to Butler anything more than one bedroom and the common areas of the basement apartment. Contrary to HPD’s assertion, which is unsupported by any legal authority, the fact that Butler used the second and third bedroom did not give her legal possession of that portion of the subject premises. This Court therefore rejects the argument that harassment lies as a matter of law by virtue of the Thomases’ mere act of entering and occupying a portion of the apartment for which Butler held no occupancy rights. While moving into the premises without Butler’s permission may constitute a separate violation of the Housing Maintenance Code, e.g., an illegal SRO, the act alone is not harassment per se.

At the same time, this Court is also unpersuaded by Thomases’ argument that their entitlement to enter and occupy the premises entirely precludes Butler’s harassment claim. Rather, the harassment statute looks at the respondent’s intent and the effect on the occupant from the predicate acts. In this respect, the manner by which the Thomases entered and began occupying the premises, that is, their unannounced arrival at the premises with their belongings, immediate removal of Butler’s belongings in the other bedrooms, and nonconsensual partition of the kitchen, bathroom, and common areas evince both an intention to cause Butler to vacate and an utter disregard for her comfort, peace, and quiet at the subject premises. The credible testimony by Butler of feeling “shaken” and “scared” also establishes that these acts substantially disturbed her occupancy.

The Thomases’ newly aggressive campaign continued. Ten days after they moved in, while Butler left to purchase groceries, the Thomases contacted the authorities to accuse Butler of neglecting her daughter. The intent of this act was to intimidate Butler into moving out and the clear effect was an interference with her peace and quiet at the subject premises.

Thirdly, the construction work by the Thomases in the now-shared living area of the premises constitutes the most recent substantial act constituting harassment. Specifically, the Thomases performed this work without notice to Butler or the Court. Indeed, the thick plastic sheets cordoning off the majority of the living space adjoining the kitchen area rendered most of the common areas unusable. Moreover, the installation of surveillance equipment and constant surveilling of Butler clearly disturbs the comfort and repose that any tenant should have within the confines of an apartment (see e.g. T & G Realty Co. v. Hawthorn, 64 Misc 3d 1214(A) [Civ Ct 2019] [finding 24-hour surveillance video recording to constitute harassing conduct])

The record indicates that the Thomases’ pattern of conduct following their abrupt entry into and occupancy of the premises was calculated to and did substantially disturb Butler’s occupancy. Thus, a finding of harassment is warranted based on these predicate acts during the period from April 5, 2020 through July 1, 2020.

A finding of harassment constitutes an immediately hazardous violation of the Housing Maintenance Code (see §27-2115[m][1]) and subjects the owner to a mandatory civil penalty of not less than two thousand dollars and not more than ten thousand dollars (see §27-2115[m][2]). Moreover, this Court may award where appropriate compensatory damages, reasonable attorneys’ fees and costs, as well as punitive damages (see §27-2115[o]). Lastly, this Court may “issue an order restraining the owner of the property from harassing and direct the owner to ensure that no further violation occurs” in accordance with HMC §27-2121. Specifically, the aforementioned section grants this Court the power to issue “preliminary, temporary, and final orders requiring the owner of property or other responsible person to abate or correct violations of this code, or to comply with an order or notice of the department, or to take such other steps as the court may deem necessary to assure continuing compliance with the requirements of this code” (see HMC §27-2121).

To the extent the Thomases challenges the power of this Court to issue an injunction excluding them from the basement apartment, it is well-established that the New York City Civil Court Act “grants the Civil Court broad powers in landlord-tenant proceedings” (Prometheus Realty Corp. v. City of New York, 80 AD3d 206, 210 [1st Dept 2010]). Specifically, and in contrast to Civil Court’s limited equitable jurisdiction in other matters, “[Civil Court Act] 110[a][4] authorizes the Housing Part to issue equitable relief such as restraining orders and injunctions in order to enforce housing standards” because the court has “specifically been granted the authority to hear such matters and award such relief” (Prometheus Realty Corp., 80 AD3d at 212). Indeed, this applies specifically to harassment claims because the “legislative declaration in the Housing Maintenance Code indicates an intent to protect tenants’ actual occupancy, as well as the physical condition of the premises…” (id [emphasis added]).

Based on the finding of harassment above, it is appropriate to issue civil penalties against the Thomases in the amount of four thousand dollars. Specifically, the duration that Butler had to endure the Thomases’ conduct totaled four months, albeit not continuously. Although Butler’s counsel in her written summation seeks unspecified “damages,” she fails to submit any proof in support of this item. Because “[compensatory damages] cannot be remote, contingent or speculative” (see E.J. Brooks Co. v. Cambridge Sec. Seals, 31 NY3d 441, 448 [2018]), Butler fails to establish her entitlement to such damages. Moreover, this Court is unpersuaded that the above conduct is equivalent to a “self-help” eviction and that punitive damages are warranted as a deterrence measure. Indeed, after the issuance of the TRO on July 1, 2020, Butler has not moved for further injunctive relief based on new allegations of harassment. Butler is, however, entitled to an award of attorneys’ fees and costs, to be determined at a hearing.

Finally, this Court is asked to issue an order enjoining Respondents from residing in the basement unit. In other words, Butler and HPD contend that a de facto eviction of the Thomases from the premises is the only equitable remedy available to ensure that harassment does not occur. Upon a review of the record, this Court does not find it absolutely necessary to exclude the Thomases in order to enjoin the harassment that has occurred to date.

Generally, “a court of equity has an obligation to go no further than absolutely necessary to protect the rights of the complaining parties. The injunction must be framed as narrowly as possible” (Zutt v. State, 80 AD3d 758, 759 [2d Dept 2011]). It bears noting that the Thomases’ mere presence in an apartment, the entirety of which Butler does not have exclusive possession of, does not meet the definition of harassment. Rather, it is the Thomases’ conduct during their occupancy, e.g., removing/discarding Butler’s food and belongings without notice or consent, making frivolous complaints to agencies, denying her access to common areas, or surveilling her at all times, that aggregate to a finding of harassment. Were they to desist in this and other behavior substantially interfering with the comfort and repose of Butler’s occupancy, the harassment would cease.

In issuing this decision, this Court is mindful that this factual scenario and the application of the harassment statute to it may be a matter of first impression. And while the current living arrangement is not per se harassment, conduct that substantially interferes with Butler’s occupancy may give rise to a motion for contempt or a further order pursuant to HMC §27-2121. "