BAD YELP IS USUALLY OPINION NOT LIBEL OR DEFAMATION

No one likes bad reviews but why make a case out of it.

Mirza v. Amar, Dist. Court, ED New York January 12, 2021:

"As an initial matter, I must account for the context in which the allegedly defamatory statements were made, as this can "signal[] to the reader that what is being conveyed is likely to be opinion rather than fact." Levin v. McPhee, 119 F.3d 189, 196 (2d Cir. 1997). Here, the context is a review on Yelp, an Internet forum. "New York courts have consistently protected statements made in online forums as statements of opinion rather than fact." Ganske, 2020 WL 4890423, at *4 (collecting cases). Statements made on Internet forums are made in a unique context in that they are generally informal and unedited. See id. This context leads "readers [to] give less credence to allegedly defamatory remarks published on the Internet than to similar remarks made in other contexts." Id. (quoting Sandals Resorts Int'l Ltd. v. Google, Inc., 86 A.D. 3d 32, 44, 925 N.Y.S.2d 407 (1st Dep't 2011)). That defendant's allegedly defamatory statements appeared on Yelp — an Internet forum specifically designed for the publication of crowd-sourced opinionated reviews about businesses — "conveys a strong signal to a reasonable reader" that the statements are defendant's opinion. Id. When a posting "viewed in its full context, reveals that defendant is a disgruntled consumer and that [her] statements reflect [her] personal opinion based upon [her] personal dealing with plaintiff," the context strongly suggests that the statements are merely "subjective expressions of consumer dissatisfaction" and thus nonactionable opinion. Penn Warranty Corp. v. DiGiovanni, 10 Misc. 3d 998, 1005, 810 N.Y.S.2d 807, 815 (Sup. Ct. 2005).

Because Yelp reviews are used by consumers to provide their positive or negative opinions of businesses, the context strongly signals to readers that the review merely reflects the writer's opinion. As described below, the allegedly defamatory statements here do not overcome that context and are not actionable. Defendant's language is full of opinion and hyperbole and, to the extent that any isolated statement within the review might be construed as factual, when the review is read as a whole and in context, the message conveyed is merely the negative but protected opinion of a disgruntled customer.

Plaintiffs first point to defendant's statements that she "suspect[s] [Dr. Mirza] just uses watered-down Botox for every `filler' procedure" and implying that Dr. Mirza uses "fugazzi fillers," based on her dissatisfaction with the results of the procedure and belief that "Voluma doesn't go in the lips nor nasal folds" and "Voluma has a VERY pin-point thing needle." Plaintiffs claim that these statements are false because Dr. Mirza uses authentic products that are not "fugazzi" (fake) and the product Voluma can be injected anywhere and does not come packed with any special type of needle.

The statement that defendant "suspect[s]" that Dr. Mirza uses watered-down Botox for fillers clearly is a statement of opinion and not fact. Even if the statement is viewed in isolation, the use of the phrase "I suspect" demonstrates that defendant is providing her opinion or belief about the quality of the fillers used by Dr. Mirza.

A statement of opinion may be actionable if it "implies that it is based upon facts which justify the opinion but are unknown to those reading or hearing it." Sorvillo v. St. Francis Preparatory Sch., 607 F. App'x 22, 24 (2d Cir. 2015) (citation omitted). In such a situation, the "actionable element of a `mixed opinion' is not the false opinion itself — it is the implication that the speaker knows certain facts, unknown to his audience, which support his opinion and are detrimental to the person about whom he is speaking." Id. (citation omitted). However, "a statement of opinion that is accompanied by a recitation of the facts on which it is based or one that does not imply the existence of undisclosed underlying facts" is not actionable. Id. (citation omitted).

Here, defendant's opinion that Dr. Mirza did not use Voluma but instead used watered-down Botox does not imply that she has knowledge of facts undisclosed to the audience. Instead, defendant discloses the alleged facts on which she bases her opinion — her belief that the Voluma product is not meant to be injected in the places in which Dr. Mirza offers it and that it requires a different type of needle, and the (unchallenged) fact that Dr. Mirza used a pre-filled syringe rather than mix the product in front of her. According to Dr. Mirza, defendant is wrong about the use and packaging of Voluma. Although the statements about Voluma are facts capable of being proven true or false, `[r]ather than sifting through a communication for the purpose of isolating and identifying assertions of fact, the court should look to the over-all context in which the assertions were made and determine on that basis whether the reasonable reader would have believed that the challenged statements were conveying facts" about the plaintiffs. Enigma, 194 F. Supp. 3d at 280 (quoting Davis, 24 N.Y.3d at 270, 998 N.Y.S. 2d 131). Defendant's false statements about the Voluma product do not convey facts about plaintiffs, but merely serve to support her stated opinion about Dr. Mirza's fillers. Moreover, defendant's opinion was based in part on stated facts about Dr. Mirza's procedure that he does not contend are false. Accordingly, the opinion is not actionable.

The suggestion that Dr. Mirza uses "fugazzi fillers" is not actionable for similar reasons. As an initial matter, the statement actually refers to injections she received from a different doctor, which she states were "not fugazzi fillers," although I agree that the comparison suggests that defendant believes Dr. Mirza does use "fugazzi fillers." However, "fugazzi" is slang and strikes me as the type of loose, figurative or hyperbolic statement that is not generally actionable. Dillon v. City of New York, 261 A.D.2d 34, 38, 704 N.Y.S.2d 1 (1st Dep't 1999). Moreover, the context of the statement adequately signals to readers that this is just defendant's opinion as a disgruntled customer.

Plaintiffs next point to defendant's suggestion that Dr. Mirza is not a "REAL and legitimate doctor" and that readers should save their money to see a "reputable" or "real" doctor. Plaintiffs argue that this statement is false because Dr. Mirza is a licensed medical professional who operates a legitimate business. Viewed in their context, the statements that Dr. Mirza is not a "real" doctor are unactionable figurative and hyperbolic statements, even if they are deprecating to plaintiffs. See Dillon, 261 A.D.2d at 38, 704 N.Y.S.2d 1. Defendant is not implying that she has undisclosed knowledge that Dr. Mirza, in fact, is not a licensed physician, and no reasonable reader would interpret the statements in that way. Instead, the context demonstrates that these are figurative statements meant to highlight defendant's dissatisfaction with Dr. Mirza and the procedure he performed on her.

Plaintiffs next point to defendant's statement that readers should "[a]void this sociopathic doctor who uses multiple aliases, works out of a gym bag, and watered down BS filler." Defendant challenges the first and last part of the statement, arguing that they are false because he does not have any mental health condition and he uses authentic fillers. For the same reasons as described above, the claim that Dr. Mirza uses "watered down BS filler" is not actionable. As to the claim that Dr. Mirza is a sociopath, although it is certainly a hostile statement, it is not actionable defamation. Instead, it is unactionable hyperbole and fiery rhetoric. See Ganske, 2020 WL 4890423, at *5 (collecting cases demonstrating that hyperbole and fiery rhetoric are not actionable defamation). The statement is made in an update to the Yelp review, authored sometime after defendant learned of this lawsuit against her. Defendant writes, "LMAO! He tried suing me for a million dollars because of my review. . . . Too funny. Loser. In your dreams." She tells him that he should get "some serious psychological help instead of suing people who don't like your crappy service and attitude." Given the context and the fiery and excessive language, no reasonable audience could conclude that defendant's statement about Dr. Mirza's mental health has any basis in fact. See Treppel v. Biovail Corp., No. 03-CV-3002, 2004 WL 2339759, at *12 (S.D.N.Y. Oct. 15, 2004) ("[A]n opinion may be offered with such excessive language that a reasonable audience may not fairly conclude that the opinion has any basis in fact."). Accordingly, the statement is not actionable defamation.

The last allegedly defamatory statement is defendant's claim that plaintiffs are "going against state orders to be closed as you are not an essential business." Although this isolated statement is technically one of fact that is capable of being proven true or false, the context of the statement again mitigates against a finding of defamation. This statement was made at the end of a new Yelp review that is best described as a two-paragraph rant about Dr. Mirza, his business, and this suit. Defendant writes, "this sick man is still suing people during a global pandemic. peoples [sic] families and kids are dying mirza [sic]." It goes on for several sentences in which defendant tells the readers that she is "so tired of the bs" and tells Dr. Mirza to "get some ethics already" and that she is reporting his practice to Yelp because she's "done with the fear mongering threats because you don't like your bad reviews." The review demonstrates defendant's significant hostility towards Dr. Mirza. But looking at "the content of the whole communication, its tone and apparent purpose" — namely, to criticize Dr. Mirza for suing authors of negative reviews — no reasonable reader could view the post as expressing any facts about plaintiffs. See Penn Warranty Corp., 10 Misc. 3d at 1004, 810 N.Y.S.2d at 815.

In any event, even if this last statement could be considered defamatory, I could not find that it was made with the requisite level of fault. Where content is arguably within the sphere of legitimate public concern, the standard is whether the publisher acted in a grossly irresponsible manner without due consideration for the standards of information gathering and dissemination. See Ratajack v. Brewster Fire Dep't, Inc., 178 F. Supp. 3d 118, 160 (S.D.N.Y. Mar. 31, 2016). New York interprets matters of public concern very broadly. Defendant's reviews of plaintiffs' public business qualify as commenting on a matter of legitimate public concern and render plaintiffs limited purpose public figures. See Romeo & Juliette Laser Hair Removal, Inc. v. Assara I LLC, No. 08-CV-0442, 2016 WL 815205, at *9 (S.D.N.Y. Feb. 29, 2016) (hair removal company was limited purpose public figure). Thus, plaintiffs must show that defendant published the statements with "actual malice," i.e., "knowledge that the statements were false or with reckless disregard as to their falsity." Id. Here, there are no allegations or evidence to establish that defendant knew that plaintiffs' business is an essential business that could legally operate under New York State guidelines during the COVID-19 pandemic, or that she made this statement in reckless disregard of that truth.

Because all of the allegedly defamatory statements in defendant's Yelp review are nonactionable statements of opinion, plaintiffs' defamation claim is dismissed as a matter of law.

Finally, I note that defendant's posts probably disclose a lot more about her than they do about plaintiffs. This is clearly someone with an axe to grind and I do not believe any reasonable reader could give her posts any credit. It would unduly raise her platform to elevate her philippics to the level of defamation."

ON YELLOWSTONE INJUNCTIONS AND COVID

HEALTHY CHOICE CONCEPTS INC. v. GLENS FALLS HOSP., 2020 NY Slip Op 20337 - NY: Supreme Court, Warren December 16, 2020:

"....Plaintiff commenced this action by the filing of a summons and complaint on August 7, 2020, seeking a declaratory judgment that it is not in violation of the Lease Agreement. In this regard, plaintiff alleges that "during the period in question, due to the COVID-19 global health pandemic, the Governor of the State of New York declared a State of Emergency and issued numerous Executive Orders which both prohibited and substantially limited [its] operations" and, as a result, the defaults must be excused under § 28 of the Agreement. This section provides as follows:

"In the event that either party shall be delayed or hindered in or prevented from the performance of any covenant, agreement, work, service, or other act required under this Lease to be performed by such party and such delay or hindrance is due to strikes, lockouts, failure of power or other utilities, injunction or other court or administrative order, governmental law or regulations which prevent or substantially interfere with the required performance, condemnations, riots, insurrections, martial law, civil commotion, war, fire, flood, earthquake, or other casualty, acts of God, or other causes not within the control of such party, the performance of any covenant, agreement, work, service, or other act shall be excused for the period of delay and the period for the performance of the same shall be extended by the period."

...... 

At the outset, the Court notes that Executive Order 202.28 — issued on May 7, 2020 — prohibited the initiation or enforcement of an eviction against a commercial tenant for nonpayment of rent until August 20, 2020. Executive Order 202.55 — issued on August 5, 2020 — then extended this prohibition to September 4, 2020; Executive Order 202.64 — issued on September 18, 2020 — extended it to October 20, 2020; Executive Order 202.70 — issued on October 20, 2020 — extended in to January 1, 2021; and finally, Executive Order 202.81 — issued on December 11, 2020 — extended it to January 31, 2021. Defendant is thus prohibited from commencing an eviction proceeding against plaintiff until January 31, 2021 — notwithstanding the outcome of this motion — with that date subject to further extension by future Executive Orders. The issues raised in the motion have not been rendered moot, however, as the moratorium cannot be extended indefinitely.

That being said, a Yellowstone injunction has been described by the Court of Appeals "as a `creative remedy' crafted by the lower courts to extend the notice and cure period for commercial tenants faced with lease termination" (159 MP Corp. v Redbridge Bedford, LLC, 33 NY3d 353, 365-366 [2019], quoting Graubard Mollen Horowitz Pomeranz & Shapiro v 600 Third Ave. Assoc., 93 NY2d 508, 514, [1999]). More specifically, "[a] Yellowstone injunction maintains the status quo so that a commercial tenant, when confronted by a threat of termination of its lease, may protect its investment in the leasehold by obtaining a stay tolling the cure period so that upon an adverse determination on the merits the tenant may cure the default and avoid a forfeiture" (Graubard Mollen Horowitz Pomeranz & Shapiro v 600 Third Ave. Assoc., 93 NY2d at 514).^[1] "The party requesting a Yellowstone injunction must demonstrate that:

`(1) it holds a commercial lease; (2) it received from the landlord either a notice of default, a notice to cure, or a threat of termination of the lease; (3) it requested injunctive relief prior to the termination of the lease; and (4) it is prepared and maintains the ability to cure the alleged default by any means short of vacating the premises'" (id., quoting 225 E. 36th St. Garage Corp. v 221 E. 36th Owners Corp., 211 AD2d 420, 421 [1995]).

Here, plaintiff has clearly satisfied the first three elements necessary to obtain a Yellowstone injunction. Indeed, defendant concedes this point. Insofar as the fourth element is concerned, plaintiff contends that "there is a material dispute regarding the existence of a default" with respect to both rental arrears and hours of operation. More specifically, plaintiff contends that it has been "hindered in or prevented from" making rental payments and maintaining required hours of operation by a "cause[] not within [its] control" — namely, the ongoing COVID-19 pandemic — and as such, the defaults must be excused under § 28 of the Lease Agreement.

.......

It has "long [been] recognized that the law . . . disfavors forfeiture" of a lease (WPA/Partners LLC v Port Imperial Ferry Corp., 307 AD2d 234, 237 [2003]), and the standard for granting a Yellowstone injunction is "far less than the showing normally expected for the grant of preliminary injunctive relief" (Golub Corp. v Northeastern Indus. Park, 188 AD2d 729, 730 [1992]; see Post v 120 E. End Ave. Corp., 62 NY2d 19, 25-26 [1984]). Indeed, in WPA/Partners LLC v Port Imperial Ferry Corp. (supra), the Appellate Division, First Department described this standard as follows:

"[T]he tenant need not at this juncture prove its ability to cure; rather, `[t]he proper inquiry is whether a basis exists for believing that the tenant . . . has the ability [to cure] through any means short of vacating the premises'" (id. at 237, quoting Herzfeld & Stern v Ironwood Realty Corp., 102 AD2d 737, 738 [1984]).

Here, the Court finds that plaintiff has satisfied the fourth element necessary to obtain a Yellowstone injunction. Without making any determination as to whether § 28 of the Lease Agreement is applicable, plaintiff's contentions in this regard are at least reasonable. Indeed, many businesses are struggling to survive amidst the ongoing pandemic — this is the very rationale underlying Executive Order 202.28 and its progeny. Plaintiff has also demonstrated its ability to make the January 2020 payment, and expressed its willingness to increase its hours of operation once the pandemic begins to subside.

DEALING WITH A PROBLEM TENANT

400 W. 59th ST. PARTNERS LLC v. OYOLESI, 2020 NY Slip Op 34334 - NY: Supreme Court December 31, 2020:

"Plaintiff 400 West 59th Street Partners LLC is the owner and landlord of premises located at 1 Columbus Place (the building) in Manhattan and moves for a preliminary injunction: 1) directing Defendant Tobi Oyolesi to grant access to his apartment S30C in the building so that plaintiff can inspect and repair a water leak; 2) enjoining and restraining defendant Travis Lilley from entering the building; 3) enjoining and restraining Lilley from assaulting, harassing, menacing, recklessly endangering, intimidating, or threatening building residents and occupants; and 4) enjoining and restraining Lilley from creating unreasonable health or safety risks to residents and occupants of the building. Oyolesi is a tenant in the building and Lilley is his invitee.

BACKGROUND

In support of its order to show cause, plaintiff submits, inter alia, the affidavit of Genie Wright, property manager for the building. According to Wright after receiving reports of a water leak from Oyolesi's apartment in July, 2020, plaintiff attempted to investigate and repair the leak but Oyolesi refused to provide access to his apartment (NYSCEF Doc No 4 ¶¶ 4-14). Attached to Wright's affidavit is a copy Oyolesi's lease and renewal lease (NYSEF Doc No 5). Paragraph 15 of the lease allows plaintiff access to Oyolesi's apartment during reasonable hours with reasonable notice to perform inspections and repairs.

Concerning Lilley, Wright states that an investigation, including interviews with building staff showed that Lilley threatened and/or verbally abused building personnel on multiple occasions, in the months of April, May and June 2020. Wright also quotes from an email received by plaintiff from another tenant in the building concerning Lilley's conduct. Wright does not attest that he personally witnessed any of Lilley's conduct detailed in his affidavit (NYSCEF Doc No 4 ¶¶ 15-29).

DISCUSSSION

A preliminary injunction will only be issued if plaintiff demonstrates, with convincing evidentiary support, a likelihood of success on the merits, irreparable injury absent granting of a preliminary injunction, and that a balancing of equities favors its position. CPLR 6301; Nobu Next Door, LLC v. Fina Arts Housing, Inc., 4 N.Y.3d 839, 840 (2005); LAIG v. Medanito S.A., 130 A.D.3d 466 (1st Dep't 2015). And "a mandatory preliminary injunction (one mandating specific conduct), by which the movant would receive some form of the ultimate relief sought as a final judgment, is granted only in `unusual' situations, where the granting of the relief is essential to maintain the status quo pending trial of the action" (Jones v Park Front Apts. LLC, 73 AD3d 612 [1st Dept 2010]).

Access to inspect and repair

Plaintiff has shown a likelihood of success on its claim of breach of its contractual and statutory right of access to Oyelesi's apartment to inspect and repair the water leak through the affidavit of Wright. Oyelesi's affidavit in opposition is insufficient to rebut plaintiff's showing of a likelihood of success on the merits since he merely states that he discontinued using the air-conditioner that caused the water leak. Merely discontinuing use of the air-conditioner does not resolve the problem and under the terms of the lease, plaintiff has the right to repair the air conditioner to ensure that the leak does not reoccur. Moreover, as plaintiff correctly points out, Housing Maintenance Code § 27-2008 grants plaintiff the right to access Oyolesi's apartment to make repairs. Likewise, plaintiff has established irreparable injury and a balancing of the equities in its favor on its right to access claim, since plaintiff may be found to have breached its obligations to other tenants if the leak and any damage caused by the leak are not repaired.

Accordingly, that portion of plaintiff's motion seeking access to Oyolesi's apartment to inspect and repair the leak must be granted.

Enjoining Lilley's conduct

Plaintiff has not demonstrated with convincing evidence a likelihood of success on its nuisance claim concerning Lilley's conduct. In the residential landlord-tenant context nuisance is defined as "a condition that threatens the comfort and safety of others in the building" and is evidenced by "a pattern of continuity or recurrence of objectionable conduct" (Frank v Park Summit Rlty. Corp., 175 AD2d 33, 35 [1st Dept], mod on other grnds 79 NY2d 789 [1991]). While plaintiff may ultimately establish its nuisance claim based on Lilley's conduct there has been an insufficient showing of a likelihood of success on the merits because the sole affidavit offered in support of the motion is from Wright, the property manager, who does not state that he personally witnessed any of Lilley's conduct. Instead, Wright bases his allegations against Lilley on interviews with building staff and an email received from another tenant in the building. Such hearsay offered for the truth is insufficient to establish a likelihood of success on a nuisance claim (cf Water Quality Ins. Syndicate v Safe Harbor Pollution Ins., LLC, 2014 NY Slip Op 30003(U), 2014 NY Misc LEXIS 33 *12 [SC NY Co 2014] [holding "the court cannot grant the extreme remedy of a preliminary injunction based on such hearsay"]; Brownstone Agency Inc. v Distinguished Programs Grp., 2008 NY Slip Op 32131(U), 2008 NY Misc LEXIS 8992 *1 [NY Co 2008] [holding proof offered in support of a motion for a preliminary injunction "is insufficient because it consists primarily of hearsay, conjecture and/or conclusory allegations"]).

However, plaintiff very well may suffer irreparable injury in the absence of an order enjoining Lilley's conduct and a balancing of the equities are in plaintiff's favor. Lilley did not submit an affidavit in opposition and Oyolesi in his affidavit, apologizes on behalf of Lilley. Accordingly, continuation of the order imposed against Lilley enjoining him from assaulting, harassing, menacing, recklessly endangering, intimidating, threatening building staff, tenants and occupants of the building and requiring him to wear a mask in the building is warranted. This injunction provides "some security to the building personnel (and others) ... while merely restraining (Lilley) from continuing any unlawful or wrongful activities" (Park S. Assoc. v Blackmer, 171 AD2d 468, 469-470 [1st Dept 1991]).

CONCLUSION

Based on the foregoing it is

ORDERED that the motion is granted to the extent that defendant Oyolesi shall grant access to his apartment to plaintiff and its workers to inspect and repair the water leak and until such time as the repairs are complete; and it is further

ORDERED that the motion is granted to the extent that defendant Lilley is enjoined from assaulting, harassing, menacing, recklessly endangering, intimidating, threatening building staff, tenants and occupants of the building and must comply with the building's rules requiring wearing a mask; and it is further

ORDERED that the motion is otherwise denied."

NO PRIVATE CAUSE OF ACTION FOR CIVIL PENALTY UNDER RPAPL 768

Avignone v. VALIGORSKI, 2020 NY Slip Op 20336 - City Court of Cohoes, December 12, 2020:

".....Pursuant to Real Property Law § 235-b, every residential lease contains an implied warranty of habitability which is limited by its terms to three covenants: (1) that the premises are fit for human habitation, (2) that the premises are fit for the uses reasonably intended by the parties, and (3) that the occupants will not be subjected to conditions that are dangerous, hazardous or detrimental to their life, health or safety. Despite the expansive language of the statute, the Court of Appeals has specifically rejected the contention that the warranty was intended to make the landlord a guarantor of every amenity customarily rendered in the landlord-tenant relationship and held that the implied warranty protects only against conditions that materially affect the health and safety of tenants or deficiencies that "in the eyes of a reasonable person ... deprive the tenant of those essential functions which a residence is expected to provide" (Solow v. Wellner, 86 NY2d 582, 588 [1995] [internal citations and quotations omitted; emphasis in the original]).

Usually, RPL § 235-b is raised as a defense to a non-payment proceeding—that is, the tenant claims that she is justified in not paying her rent due to the breach of warranty of habitability. Here, Avignone uses the statute as a sword rather than a shield. While the statute does not explicitly provide tenants with a private cause of action, RPL § 235-b(1), makes its protections part of every lease. A breach of the law, therefore, is a breach of the lease and creates a cause of action in contract. Thus, the tenant is "entitled to assert their claim of breach of the warranty of habitability either by way of action or counterclaim, and their right to assert [of such a] claim was not dependent on [a] claim by landlord for rent arrears" (R & O Mgmt. Corp. v. Ahmad, 12 Misc 3d 85, 86 [App Term 2d Dept 2006]).

When a landlord fails to provide hot water, they violate RPL § 235-b (Pantalis v. Archer, 87 Misc 2d 205, 209 [Suffolk Dist Ct 1976]). The failure to provide adequate water pressure violates the statute as well. (H & R Bernstein v. Barrett, 101 Misc 2d 611 [Civil Ct., 1979]). This latter breach becomes more compelling during a pandemic. In this case, plaintiff's lack of water pressure translated directly to the inability to wash her clothes. Keeping clothes clean helps prevent the transmission of the virus. Moreover, since the low water pressure forced plaintiff to go to a public laundromat to wash her clothing, she was subjected to an increased risk of getting sick. Thus, because defendants breached the implied warranty of habitability, they breached the lease and are liable to plaintiff.

Having determined a breach of the lease, the court must determine damages—which tends to be uncomfortably amorphous in warranty of habitability cases. This is because such "damages are not susceptible to precise determination" (Park W. Mgmt. Corp. v. Mitchell, 47 NY2d 316, 329 (1979]). The proper measure of damages is "the difference between the [rent] and the value of the premises during the period of the breach" (id ). Moreover, "[i]n ascertaining damages, the finder of fact must weigh the severity of the violation and the duration of the conditions giving rise to the breach as well as the effectiveness of steps taken by the landlord to abate those conditions" (id). Based upon the totality of the credible evidence and implementing the calculus described by the Court of Appeals, the court awards Avignone $300 for the month of July and $600 for the month of August as damages under RPL § 235-b.

Up to this point in the case, the court has dealt with the mundane—everyday courts deal with cases involving living conditions, rent and the warranty of habitability. Plaintiff, however, invokes RPAPL § 768 and asks the court to award her a civil penalty for the violation. RPAPL § 768 is of recent vintage, enacted by the legislature in 2019 as part of the Housing Stability and Tenant Protection Act (L 2019, Ch 36).

A violation of RPAPL § 768 subjects the violator to both civil and criminal penalties. RPAPL § 768 provides in pertinent part; "It shall be unlawful for any person to attempt to evict an occupant of a dwelling unit by: engaging in a course of conduct which interferes with or is intended to interfere with or disturb the comfort, repose, peace or quiet of such occupant to induce the occupant to vacate the dwelling unit [by] the interruption or discontinuance of essential services" (RPAP § 786[1][a] & [a][ii]).Such person shall also be subject to a civil penalty of not less than one thousand nor more than ten thousand dollars for each violation. Each such violation shall be a separate and distinct offense (RPAPL § 768[2][b]).

Two statutory questions must be addressed. The initial question is whether defendants violated RPAPL § 768. Here, in the court's opinion, is what happened. The defendants were frustrated by the tenant's phantom complaints along with her nonpayment of rent. Initially, they sought to resolve this grievance properly—defendants filed a non-payment proceeding to evict Avignone (RPAPL § 711[2]). However, pursuant to a flood of ever changing Executive and Administrative Orders that constantly altered eviction proceedings, the pro se defendants were not able to adjudicate their case.^[2] Without a prompt judicial remedy, defendants became understandably frustrated. So, they resorted to tactics that made residing in the apartment unpleasurable for Avignone in an effort to get her to leave.^[3] Thus, based upon the evidence and the reasonable inferences drawn therefrom, the court concludes that defendants intended to interfere with plaintiff's enjoyment of her apartment to induce her to vacate it by tampering with the water, an essential service in violation of RPAPL § 768[1][a].

The next statutory question, and the one upon which this case hinges, is whether a court, in a private civil action, may award the plaintiff a civil penalty under RPAPL § 768[2][b]. Normally, "[t]he words of the statute and what those words convey, in context, is what the statute means" (Morning Light Realty, LLC v. Brown, 62 Misc 3d 274, 280 [Cohoes City Ct, 2018]). But here, the statutory language is oddly silent. It is not just that the legislature never mentioned whether RPAPL § 768's civil penalty may be enforced via a private lawsuit; rather, it failed to identify any entity which has civil enforcement power. In the face of this silence, the court must take a cautious approach neither to be too restrictive nor too liberal in its statutory interpretation. To do this, the court will look at three factors: the law involving implied private causes of action, the purpose of a statutory penalty and the separation of powers doctrine.

Initially, to unravel the issue, it is helpful to reason by analogy from the law regarding the creation of a private cause of action. To start with, "[a] statute's mere prohibition of a certain act does not imply creation of a private right of action for its violation" (Antonin Scalia & Bryan Garner, Reading Law: The Interpretation of Legal Texts § 51, p 313 [1st ed 2012]). A private cause of action exists only if the legislature intended to create one. And "courts may not create one, no matter how desirable that might be as a policy matter, or how compatible with the statute" (Alexander v. Sandoval, 532 US 275, 286-87 [2001]). Considering the statutory silence, the court doubts that RPAPL § 768 creates a private cause of action. Moreover, where a statute creates criminal liability, as RPAPL § 768[2][a] does, then, generally, no private cause of action may be implied (Sheehy v. Big Flats Cmty. Day, Inc., 73 NY2d 629, 634-35 [1989]). Thus, if the legislature did not create a private cause of action under RPAPL § 768, it seems unlikely that the legislature intended to allow a private party to enforce a civil penalty provision.

Additionally, a private statutory cause of action is designed to compensate while a statutory penalty is designed to punish. Imposition of a penalty is a powerful tool. A court should hesitate before allowing it to be wielded by those who are focused upon their private interests and not the public's. Indeed, "[t]he availability of civil penalties [which are] vastly disproportionate to the individual injury [as is the case here] gives citizen plaintiffs massive bargaining power," by allowing public fines to be leveraged for their private interest (Friends of the Earth, Inc. v. Laidlaw Envtl. Servs., Inc., 528 US 167, 209-10 [2000] [Thomas, J dissenting]). Without an express statutory transfer of governmental power from democratically accountable officials to private parties, the court should not infer one.

Finally, and perhaps most importantly, even if the court were to construe RPAPL § 768 to mean that the legislature delegated to a private party the power to punish a landlord, such a construction would raise a separation of powers issue. This is because no function cuts more to the heart of the executive's constitutional power than its discretion to seek the imposition of penalties. Thus, while the legislature has the power to define a penalty and the court possesses the judgment over the severity of the penalty, neither branch may compel the executive to enforce a penalty nor delegate that authority to another (Soares v. Carter, 25 NY3d 1011, 1013 (2015); see also Morrison v. Olson, 487 US 654, 708-11 [1988] [Scalia, J dissenting]). Simply put, the legislature may not transfer enforcement power belonging to executive to a private party. Therefore, the court should interpret the statute to avoid rendering it unconstitutional (National Federation of Independent Business v Sebelius, 567 US 519, 562 [2012]).

In light of the law governing implied private causes of action, the purpose a civil penalty and constitutional concerns, the court holds that while defendants violated RPAPL § 768, plaintiff may not, in the context of a private civil action, seek to enforce the statute's civil penalty provision under RPAPL § 768[2][b].

This brings the case to defendants counterclaimed for unpaid rent. Plaintiff has admitted not paying rent from July through November. Five months' rent at $975 a month amounts to $4,875. The amount of rent owed is reduced by the award to plaintiff for the breach of the warranty of habitability of $900. Therefore, the courts awards judgment to defendants on their counterclaim in the amount of $3,975.

.....

[2] Not only did the multitude of orders complicate eviction proceedings during the pandemic, but the RPAPL is a special proceeding with all the rigors associated therewith (Cat Hollow Estates, Inc. v. Savoia, 46 AD3d 1293, 1294 [3d Dept 2007]). If defendants had retained counsel, there were several actions that could have been taken (and can be taken) to alleviate frustration.

[3] Unreasonable delays and denial in the administration of justice breeds contempt for the law. Indeed, it was the delay occasioned in common law ejection proceedings that birth the summary proceedings (L 1820, ch 194). An ejectment action was "an expensive and dilatory proceeding which in many instances amounted to a denial of justice" (Reich v Cochran, 201 NY 450, 453-454 [1911]). Significantly, delays in the evicting tenants caused social breakdowns by "prompt[ing] landlords to short circuit the judicial process by resort to self-help" (Velazquez v Thompson, 451 F2d 202, 204 [2d Cir 1971]). Thus, what happen in this case was not entirely unpredictable (see George Santayana, Reason in Common Sense p 284 [Charles Scribner's Sons 1905] [coining the aphorism "those who cannot remember the past are condemned to repeat it"]).

ALTERNATIVE DISPUTE RESOLUTION SERVICES AVAILABLE

 

DIVORCE - IT'S NOT BUSINESS IT'S STRICTLY PERSONAL

A divorce is personal... it can't be commenced, etc. by a guardian or agent, only by the spouse. Although one wonders why the wife in this case wanted to set aside the stipulation, only the parties to a divorce, not an agent, can make decisions, etc. 

Schneider v. Schneider, NYLJ January 22, 2021,  Date filed: 2021-01-19 , Court: Supreme Court, Nassau, Judge: Justice Jeffrey Goodstein,     Case Number: 201612/2018:

"PRELIMINARY STATEMENT Plaintiff (“Wife”) brings this Order to Show Cause seeking an Order vacating the Stipulation of Settlement dated March 17, 2020 (“Stipulation”), Attorney fees and costs and disbursements. The Defendant (“Husband”) opposes the motion in its entirety. BACKGROUND

This action was commenced by the Wife in 2018 but a Preliminary Conference was not held until January 2020. The Wife explains that the Defendant (“Husband”) lost his job and they were unable to meet their mortgage payments with Bethpage Federal Credit Union (“BFCU”). BFCU brought a foreclosure action entitled: Bethpage Federal Credit Union v. Schneider, Index Number 603660/2018. Wife explains that the foreclosure was almost completed as there was a sale/auction scheduled for March 31, 2020. Wife contends that her father, Christian Matthiessen, provided the parties a loan in the sum of $74,771.66 to bring the mortgage current.

The Stipulation acknowledged the loan to her father, but also set forth that the Husband was giving her a portion of his interest in the marital residence in exchange for an offset of child support. The Husband did not sign the Stipulation, but the Husband’s mother, using a Power of Attorney (“POA”), executed same on his behalf. Wife now requests that the Stipulation of Settlement be deemed void and she be awarded counsel fees and costs for having to bring this motion.

The Stipulation sets forth, in pertinent part as follows:

Eric Schneider has designated his mother, Diane Schneider, as his Agent with Power of Attorney which will be utilized to execute this Stipulation and the Note and Mortgage attached hereto. Said Power of Attorney is attached herewith as Exhibit “B”. Notwithstanding the utilization of the Power of Attorney, it is represented that Eric J. Schneider, the Husband, has had an opportunity to review and has approved the terms of this agreement.

(ARTICLE II, paragraph 8)

DISCUSSION

Wife argues that the POA itself is invalid and therefore, anything acted thereupon is void. Wife contends that the POA states that there are to be other agents aside from the Husband’s mother, but no other agents are designated. The POA also indicates that there shall be successor agents, as indicated by the Husband’s initials, but none were ever designated. Wife further contends that although the Husband signed the POA, his mother did not which invalidates it under the New York State General Obligations Law Sec. 5-1501B(1)(c). In addition, it was the Husband who signed the page entitled Acceptance of Agent, when it should have been his mother.

Wife further argues that the POA was being used because the Husband was entering, or had already entered, into an alcohol treatment program. She contends that the Husband was not restrained, unconscious, mentally incompetent in any other way and entered the treatment voluntarily.

As a general matter stipulations entered into between parties are upheld by the courts. In McClorey v. McClorey, 153 AD3d 1252 (2D Dept. 2017), the Appellate Division held:

Stipulations of settlement are favored by the courts and not lightly cast aside (Hallock v. State of New York, 64 NY2d 224 [1984]; see Matter of Galasso, 35 NY 319 [1974]. This is all the more so in the case of “open court” stipulations (Matter of Dolgin Eldert Corp., 31 NY2d 1 [1975] pursuant to CPLR 2104, where strict enforcement “not only serves the interest of efficient dispute resolution but also is essential to the management of court calendars and integrity of the litigation process” (Hallock v. State of New York, 64 NY2d at 230). “Only where there is cause sufficient to invalidate a contract, such as fraud, collusion, mistake or accident, will a party be relieved from the consequences of a stipulation made during litigation” (id, see Libert v. Libert, 78 AD3d 290 [2010].

But the Wife argues that the instant action and Stipulation do not fit into this general standard because this is a matrimonial action and because the POA was invalid.

In Matter of Weschler, 3 AD3d 424 (2004), the Appellate Division was presented with the issue of whether a guardian over a party can bring and maintain a divorce proceeding against the spouse of the incompetent individual. Id. The Court held, in pertinent part, as follows:

This matter is governed by the decision in Mohrmann v. Kob (291 NY 181 [1943] [construing Civ Prac Act Sec 1377]), which is wholly dispositive of the issue of whether “an action for absolute divorce [may] be maintained by the [guardian] of an insane husband against the latter’s wife.” The Court noted that whether to pursue divorce proceedings is a personal decision in which the element of volition is implicit (id. at 188), and that the husband lacked the capacity to make a competent decision. As to the powers of the guardian to maintain proceedings, it observed that “the use of the word ‘any’ did not include an action for divorce which the Legislature has always treated separately and completely” (id at 189). The Court held that absent statutory authority permitting a guardian to commence a divorce action on behalf of a ward, the courts may not assume to grant such power (id. At 190; see also, Matter of Babushkin, 176 Misc 911 [1941].

While the Court in Matter of Wechsler was dealing with a Guardianship situation, Wife argues that the POA must be treated the same way. She argues that the POA was a standardized Durable Power Of Attorney that did not become valid upon condition precedent. Wife points out the Husband’s arguments that the POA was used for a stipulation that was unrelated to the divorce proceeding and therefore enforceable as it focused on the foreclosure issues with the Marital Residence. However, the Stipulation bears the caption and the index number of the matrimonial action; the Stipulation refers to the property as the Marital Residence; the Stipulation identifies the parties throughout as Husband and Wife; the Stipulation specifically states and mentions that the Marital Residence will be distributed in accordance with the agreement and in lieu of the provision of the Domestic Relations Law; Paragraph 16 specifically states that “Wife shall be entitled to a prepaid Child Support offset made by the Husband to the Wife…which will satisfy the Husband’s child support obligation for the period of 24 months” from the date of the signing of the Stipulation; Article 2 of the Stipulation talks about the child support offset mentioned in paragraph 16 of the Stipulation.

Wife therefore argues that the Stipulation was meant for the matrimonial action. The Appellate Court in Mallory v. Mallory, 113 Misc 2d 912 (Sp. Term. 1982) held that a Power of Attorney is not valid in matrimonial actions. Specifically, the Court held that

[moveant is not one of the parties to the matrimonial action and in fact, she seeks to dissolve the parties’ married state. The public policy of New York does not permit such interference in the marital state by a third party. The fact that the movant possesses a power of attorney is of no assistance to her. It appears that on this motion…is relying on that portion of the power which give the donee the power to act in “all other matters”. This, however, does not give the donee carte blanche authority because of the statutory construction imposed by Sec. 5-1502L of the General Obligations Law, which states in pertinent part”

‘The language***’all other matters,’ must be construed to mean that the principal authorizes the agent to act as an alter ego of the principal with respect to any and all possible matters and affairs which are not enumerated in section 5-1501A to 5-1502K, inclusive *** and which the principal can do through an agent.’

While a principal might very well be bound by the acts of his agent if the agent were to purchase a car on behalf of the principal, or if the agent were to sell certain goods on behalf of the principal, such is not the case where an agent seeks to obtain a divorce for the principal. In such a situation, you are not dealing with commonplace affairs of the marketplace, but rather in an area of extremely personal concern and one over which there will be strict surveillance by our courts. (Christian v. Christian, 42 NY2d 63.) To read section 5-1501L of the General Obligations Law so as to authorize this agent to obtain a divorce on behalf of her principal would be ludicrous. The only logical application of this statute to these facts would be to exclude the obtaining of a divorce by an agent on behalf of a principal.

See also, In re Alan G.W., 51 Misc.3d 998 (Supr Ct. 2016). Wife therefore argues that even had the POA in this instant case been valid it could not be used in this matrimonial action.

As set forth above, the Husband failed to submit an affidavit with personal knowledge of the situation revolving around the signing of the Stipulation with the POA. Through an affirmation of his counsel, Husband contends that the Stipulation does not pertain to the matrimonial action and only revolves around the prevention of the foreclosure action. He further contends that if the Wife wants certain clauses to be invalidated, a motion can be made for that, but that should not affect the portion of the agreement which saved the Marital Residence. Husband further argues that Wife was represented by counsel and signed an agreement which provided her what she wanted.

The Stipulation clearly saves the Marital Residence from foreclosure with the loan from the Wife’s father, and also provides a child support offset. Further, the Wife admits that she knowingly, based upon advice from counsel, entered into the Stipulation. Her affidavit completely fails to set forth any reasoning for her request to vacate the Stipulation. She does not claim fraud, duress or unconscionability.

There is no doubt that the Stipulation is one regarding this divorce action. It is titled with this case, addresses child support in depth and specifically deals with the distribution of the Marital Residence. Accordingly, based upon the case law set forth above which delineates the clear precedent with regard to the use of a Power of Attorney in a matrimonial action, it is hereby

ORDERED, that the Stipulation is hereby VACATED in its entirety."

UNEMPLOYMENT BENEFITS - WHEN YOU HAVE TWO JOBS

If you hold several jobs (or have one job and side gigs) and you’re laid off from one, you may qualify for partial unemployment (MATTER OF VARGAS, 185 AD 3d 1339 - NY: Appellate Div., 3rd Dept. July 23, 2020) if you lost that job through no fault of your own. Some states award partial unemployment benefits based on your hours worked. However, some, like New York, base your benefit amount on the number of days worked during the week. 

But not any more. The NY DOL issued the following email yesterday:

Dear New Yorker: At Governor Cuomo’s direction, NYS DOL has changed the way partial unemployment benefits are determined for those who are working part-time. With the new regulation, partial unemployment insurance (UI) and Pandemic Unemployment Assistance (PUA) benefits will now be based on the number of hours you work in a week instead of the number of days you work. This update will go into effect for work completed during the benefit week of Monday, January 18, 2021 to Sunday, January 24, 2021 – and all benefit weeks going forward. The first time you certify under this new system will be on or after Sunday, January 24, 2021. Under the new approach, you can work up to 30 hours in a week and still receive some unemployment benefits if you earn $504 or less in gross pay. Instead of having your benefits reduced by 25% for each day you engage in part-time work, reductions will be based on hours worked. NYS DOL's certification system will still ask for the number of days you worked — you should use this chart to convert the hours you worked into the number of “days” to report. When totaling hours for each week, you should only count up to 10 hours per day. That means if you worked 12 hours in one day, you will only count 10 of those hours in your weekly total for that day. For more information and FAQs, go to on.ny.gov/partialui. Again, this certification change will go into effect starting on Sunday, January 24, 2021. Please screenshot and bookmark this page so that you can refer back each week when you certify. Thank you. Click here to opt-in to additional updates from the NYS Department of Labor.

LANDLORD'S REFUSAL TO PROVIDE ESSENTIAL SERVICES

A landlord's refusal or failure to make essential repairs may constitute harassment.

Madera v. 76-66 Austin Owners Corp., NYLJ January 15, 2021, Date filed: 2021-01-11, Court: Civil Court, Queens, Judge: Judge Enedina Pilar Sanchez, Case Number: 6338/19:

"Decision/Order After Trial This HP proceeding commenced in October 2019 seeking an order directing the correction of violations, a finding of harassment and a restraining order. The subject premises are located at 76-66 Austin Street, Apartment 2N, Forest Hills, NY 11375. Respondents-owners filed an Affirmation in Opposition. DHPD does not take a position on this harassment claim. Due to the COVID19 pandemic, the matter was adjourned several times. On August 7, 2020, the parties appeared via Skype teleconferencing pursuant to the protocols established by the Administrative Orders. On August 14, 2020, the Court granted petitioner’s order to show cause and the matter was scheduled for pre-trail conference and a trial.

At the pre-trial conference, the Court was advised that the parties reached a settlement. The attorneys were supposed to submit a stipulation of settlement. The settlement fell through and the case was rescheduled for a trial. The trial ensued via Microsoft Teams video conference.

Petitioner’s Testimony

Petitioner was provided with a Spanish Interpreter and sworn in. Petitioner was. Petitioner testified that she moved into the apartment 45 years ago with her spouse and daughter. Petitioner testified that she is a rent stabilized tenant and although the building was converted to a “co-op” she remains a rent stabilized tenant.

The Court was asked to take judicial notice of the DHPD website. The Court took judicial notice of the inspection report found on the DHPD website, www.nyc.gov/hpd. The inspection report confirms that conditions in the apartment are in violation of the Housing Maintenance Code (HMC).

Petitioner described the premises. Petitioner testified that Hugo Barrio, the manager of the building, gave her oral permission to replace the kitchen cabinets. Petitioner referred to Mr. Barrio as Hugo throughout her testimony. Petitioner testified that she asked Hugo for permission to change the kitchen cabinets because the cabinets were falling apart. The doors, the drawers, the handles were damaged — she could not open a drawer without it falling out and she could not open the cabinet doors. She testified that Hugo told her that she can change the cabinets but not the bathroom tub. Petitioner testified that this conversation took place sometime during the first week of February 2019. Petitioner testified that sometime on or about March 18, 2019, the superintendent named Alex, came to her apartment and removed the stove from the kitchen. Petitioner believes that the stove was placed in the basement. Petitioner offered into evidence photographs of the kitchen space without the cabinets or a stove.

She testified that after the work in the kitchen commenced, Hugo told her that she needed to stop the work and speak to the “legal department.” Thereafter, in November 2019, a “TenDay Notice to Cure” was issued by the landlord. The notice was admitted into evidence. The Notice to Cure alleged “you have completely removed the kitchen cabinets, and installed new cabinets.” The Notice refers then to Paragraph 5 of the lease. Petitioner testified that contrary to the Notice to Cure, no one came to her apartment on October 2, 2019. She was home all day and waited for someone to arrive.

During cross-examination, petitioner testified that she was not asked to present plans or explain what materials or workers that would be used to replace the kitchen cabinets. Petitioner testified that she usually does not ask the management for repairs except when the bathroom ceiling fell. When questioned, petitioner testified that she called Hugo on the telephone. She knows his voice, so she knows it was Hugo that gave her permission over the telephone.

Petitioner testified that on March 28, 2019, Hugo “stopped the work.” After he stopped the work, he would not take her calls. Petitioner testified that she had spoken to Hugo about the stove back in January 2019 when her stove broke. She was given a replacement stove. The replacement stove lasted one month, and this was another time that petitioner spoke to Hugo. The next conversation she had with Hugo was her conversation about the kitchen cabinets.

Petitioner stated that she has been without a stove since March 2019. On or about November 21, 2019, DHPD issued violations for missing kitchen cabinets, sink, uncapped gas supply line, plaster and paint bathroom ceiling, kitchen ceiling and walls, missing floor tiles and electrical outlet. Petitioner testified that no work has been done in the kitchen since the violations issued. She continues to live without kitchen cabinets, a sink or a stove.

Francia Madera, petitioner’s daughter, was called as a witness and was sworn in. She testified that she lives in the apartment with her mother. She testified that Alex, the superintendent, removed the stove in order for the cabinets to be removed. Respondent did not cross-examine this witness.

Respondent’s Testimony

Respondent-owners called petitioner as its first witness. Petitioner was asked to identify her lease. Petitioner identified the lease and stated that she has lived in the apartment for the last 45 years. The lease dated March 23, 1977 was admitted into evidence. No further questions were asked of the petitioner regarding the lease.

Respondent-owners called Hugo Barrio as its second witness. Mr. Barrio was sworn in and testified that he is employed by United Management and they are the owners of the apartment. They take care of the apartment for the company. Mr. Barrio testified that “petitioner called many times about cabinets.” He stated that he went to the apartment, looked at the cabinets, “believe [sic]them to be ok” and did not believe that they had to be changed. Mr. Barrio testified that he did not give permission to replace the cabinets. Mr. Barrio testified that he did not know about the superintendent removing the stove.1

On cross-examination, Mr. Barrio testified that he is not always notified when the superintendent does work because Almir “does many things in the building.” Mr. Barrio does not remember what repairs the superintendent has done in petitioner’s apartment in the past.

Discussion:

I. Correction of Violations

The violations issued by DHPD have not been corrected. Since November 2019, respondent has been on notice that petitioner is without a kitchen sink, kitchen cabinets and a stove. No steps have been taken by the respondents to correct the violations. No steps have been taken to allow petitioner to correct the conditions. This impasse cannot possibly benefit either side. On the one hand, the respondent is subject to civil penalties that may exceed the cost of doing the repairs. On the other hand, petitioner is denied a basic service required under the Housing Maintenance Code (HMC) and pursuant to her rent stabilized lease.

The violations of record must be corrected. Failure to correct the violations may result in the imposition of civil fines and penalties.

The Court finds that petitioner’s testimony was credible. Her account of what happened was clear and believable. Petitioner contacted the building manager and asked for permission to replace the kitchen cabinets. Once she was given verbal permission, petitioner proceeded to have the kitchen cabinets removed so that they can be replaced. After the cabinets were removed, Mr. Barrio informed petitioner that she had to contact the legal department before she continues the work. Petitioner attempted to follow the directives, but she was ignored. The situation was just allowed to fester. No sink, no stove, no kitchen cabinets, no usable kitchen.

Petitioner wanted to replace the kitchen cabinets at her own expense. There was no explanation or reason as to why the permission to replace the cabinets could not be given. There was no testimony that the cabinets were antique, special or that they could not be replaced. Nor was there any testimony as to the value of the cabinets. Mr. Barrio testified that he examined the cabinets, however, there were no notes or pictures showing the condition of the cabinets. Mr. Barrio simply stated that the cabinets were “good.” The apartment owner may have benefited by the replacement of the kitchen cabinets at petitioner’s expense.

The testimony offered by Mr. Barrio was not credible. He could not remember how many times or when he visited the apartment. He did not have any notes, work orders or any other business record as to the apartment and its condition. There was no testimony about alternations that would change the layout of the apartment. There was no testimony that replacing the kitchen cabinets would impose an economic hardship on the owner. Indeed, the petitioner was ready to foot the bill for replacing the kitchen cabinets and the stove. There was no testimony that replacing the kitchen cabinets would disrupt the functioning of the building, or the daily activities of other tenants or render the apartment unmarketable or uninhabitable.

II. Harassment

Respondents’ actions rise to the level of harassment and demonstrate acts that could and would have the effect to cause petitioner, a long-term tenant, to pack up and move out, or worse to be evicted. This is a novel issue, where the petitioner undertakes the cost of repairs and replacement and turns into a harassment claim.

Why would there be such a refusal to address and correct a condition which the petitioner was willing to pay for out of her own pocket? Could better kitchen cabinets make living in the apartment more comfortable and less likely for petitioner to want to move out? Petitioner has a 45-year tenancy. Her adult daughter lives with her, and petitioner may want to stay longer with an improved kitchen. The downside for the owner maybe that this rent stabilized tenant may be more comfortable with working kitchen cabinets. Being more comfortable in the apartment is reason to continue residing in the rent stabilized apartment. While the apartment is rendered habitable at the expense of the rent stabilized tenant. The apartment may not be as attractive in the real estate market because it is occupied. This scenario is unusual to the extent that instead of seeking repairs, petitioner offered to cover the cost to get the job.

This case was commenced before the COVID-19 pandemic. The continuing COVID-19 pandemic makes the necessity of having a working kitchen even more pressing. The ability to stay inside and cook meals at home is more important than ever to prevent COVID-19 exposure. Despite the pandemic and despite the open DHPD violations, no steps have been taken to restore the kitchen. Instead, respondent now seeks to evict the petitioner in a holdover case.

Section 27-2005 of the NYC Admin Code states that “[t]he owner of a dwelling shall not harass any tenants or persons lawfully entitled to occupancy of such dwelling.” Harassment is defined as “any act or omission by or on behalf of an owner that 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” (NYC Admin Code §27-2004 [a][48]). Harassment includes “repeated interruptions or discontinuances of essential services, or an interruption or discontinuance of an essential service for an extended duration or of such significance as to substantially impair the habitability of such dwelling unit” NYC Admin Code §27-2004 [a][48][2][b], and “an interruption or discontinuance of an essential service that (i) affects such dwelling unit and (ii) occurs in a building where repeated interruptions or discontinuances of essential services have occurred “NYC Admin Code §27-2004 [a][48][2][b-1]. Upon a finding of harassment, tenants may seek an order from a court restraining an owner from engaging in such conduct, and to impose civil penalties of not less than $2,000.00 and not more than $10,000.00 NYC Admin Code §27-2115 [m][2].

Petitioner does not need to establish intent. NYC Admin Code §27-2004(a)(48)(ii) states that the term harassment “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 a person to vacate such dwelling unit or to surrender or waive any rights.”

In Cartagena v. Rhodes 2 LLC, 2020 NY Slip Op 30290(U); 2020 NY Misc. Lexis 458, in an analysis of a harassment claim, the Court examined the “repeated interruptions of gas, heat, running water, and hot water. Such interruptions of essential services fit squarely into the definition of harassment.” See, Dani Lake LLC v. Torres, 64 Misc.3d 1231(A) (NYC Civ. 2019); Butler v. Thomas, 200 NY Slip Op 20230 (NYC Civ. August 2020).

Petitioner has established a prima facie case of harassment. Harassment is not always blatantly manifested; they become evident as insidiously intertwined and tangled with other events. Repairs, lack of repairs or interruption of essential services are a form of harassment. This harassment finding could have been avoided by doing repairs or providing essential services. While petitioner arranged for the removal of the stove and the kitchen cabinets, she did so with the verbal consent and knowledge of the managing agent. Petitioner’s testimony that she was given permission to replace the kitchen cabinets was credible and dispositive. The testimony that consent was not given, is not credible.

Respondent is directed to correct the violations and restore the kitchen forthwith. In the alternative, respondent must allow petitioner to proceed with the plan to replace the kitchen cabinets at her expense. All work must follow the NYC Building Code, House Rules and all other applicable rules including COVID-19 safety protocols.

This Court finds that petitioner was granted verbal approval to replace the kitchen cabinets. Rescinding said approval after the cabinets were removed, and the apparent refusal to take any steps to correct the situation, constitutes harassment under the law.

The Court is mindful that during this pandemic all sides have been affected and impacted in ways that we may not fully be able to assess at this time. The complete disregard, however, for essential services recognized under the Housing Maintenance Code cannot be denied. Petitioner has been without a kitchen since March 2019. As such, the Court is required to impose a civil penalty under the harassment law. The law requires a minimum penalty of $2,000. The penalty of $2,000 is imposed against the respondent 76-66 Austin Owners Corp.

NEW RULES EFFECTIVE FEBRUARY 1?

In a recent email, the NYS Academy of Trial Lawyers has advised attorneys that pursuant to Administrative Order 270/20, many Commercial Division Rules will now be incorporated into the Uniform Rules for the Supreme Court and County Court. As of today, this order is not listed on http://nycourts.gov/latest-AO.shtml but the NYS Academy of Trial Lawyers has summarized some important changes as follows:

"- Appearance Counsel MUST have knowledge and authority of the case (Exhibit A)

- Interrogatories LIMITED to 25 in number (Exhibit G)

- LIMIT on number of depositions and number of hours per deponent (Exhibit J)

- Sanctions PERMITTED for non-compliance with a discovery schedule (Exhibit M)

 - Prior to submission of a discovery motion, the attorney MUST attempt to resolve discovery issues. In the event a motion is the only means to resolve the issue, the attorney affirmation MUST include attempts at resolution as set forth in rule 14 (Exhibit N)

 - Adjournments of conferences will only be granted UPON A SHOWING OF GOOD CAUSE (Exhibit P)

 - Parties may appear by electronic means when requested and the Court is encouraged to grant such requests (Exhibit P)

 - LIMIT as to the length of motion papers (submitted in Rule 17) (Exhibit R)

 - SIGNIFICANT CHANGES to how motions for summary judgment are prepared (eg. now movant is required to annex a short concise statement to demonstrate no issue of fact) (Exhibit U)

 - Important CHANGES TO TRIAL PRACTICE and Procedure regarding exhibits, witnesses, trial memoranda and testimony (Exhibit X through BB)

 - STAGGERED COURT APPEARANCES - in order to increase efficiency, courts will schedule each appearance at a set time interval of time. To ensure all parties receive notice of the appearance, counsel on every matter is required to exchange email addresses and notify each other of notices of court appearances. (Exhibit CC)"

 

FOR THE HOLIDAY - DR. KING

 

ALTERNATIVE DISPUTE RESOLUTION SERVICES AVAILABLE

 

DRUG ADDICTION AND PARENTING

Matter of D.J., NYLJ January 04, 2021, Date filed: 2020-09-30, Court: Family Court, Bronx, Judge: Judge Ronna Gordon-Galchus, Case Number: NN-06164-65/20 (italics supplied):

"....In the case at bar, the extensive documentary evidence, coupled with the in-court testimony requires continued removal of the subject children, as they would be at “imminent risk” if returned to RM’s care. RM has a long, protracted history with child protection services in Florida, an extensive history of using flakka and cocaine, and her two older, though very young, children have been adopted by her mother who resides in Florida. RM tested positive for cocaine and marijuana, as did SC F.J. at the time of her birth in February of 2020 and RM admitted using cocaine during her pregnancy with F.J. during her testimony. The child D.J. is 16 months old and F.J. is 7 months old, and thus particularly vulnerable.

In evaluating and assessing RM’s testimony, it is apparent that she yearns to have her children return to her care. However, she lacks insight as to the level of care, monitoring, and long-term planning required to address her drug addiction. Although she submitted to drug testing through her out-patient program, such testing was not random, as she knew what days screenings would occur. A review of the lab results submitted by Respondent as Exhibit C show that the screening was done nearly exclusively on Tuesdays and Thursdays. It was not until a time in August 2020 that she began to comply with random testing by the Agency. The evidence shows that she failed to submit to testing by the Agency for the entire month of July as well as August 11 and 13. Her reasons for not being compliant, such as she may have been out of town, had doctor appointments or school were not persuasive and were self-serving. Her testimony that she went to Atlantic City to celebrate her birthday with RF and therefore was not available for screening demonstrates an example of her failed insight and ability to fully appreciate her addiction. Although “laudable” that she completed the outpatient program at Samaritan Village, “that participation does not successfully overcome her prior inclinations and behavior patterns, despite what may be the best intentions.” In re Kimberly H., 242 A.D.2d 35, 39 (1st Dept. 1998); Matter of Nyasia J. v. Francesca J., 41 A.D.3d 478, 479 (2nd Dept., 2007). The Florida child protective history documents are alarming. RM abandoned her older children for periods of time without communication as to her whereabouts. The entries state RM “has a history of leaving the children for long periods. Every time the mother leaves, she gives different explanations.” She required hospitalization when she was six months pregnant with her second child for testing positive for cocaine. This also discredits her affidavit which states: “F.J. was my 10th pregnancy. Right before D.J. I had two miscarriages. I did not use any drugs during the pregnancies of any of my other kids.” When trying to explain this inconsistency, she stated that she “figured my two older kids aren’t part of this case. That’s why I put that in the affidavit.” During her testimony, she referred to the positive toxicology in February of 2020 as a “hiccup,” and her reason for using cocaine in January and February of 2020 was a source of self — medication since she was in pain during her pregnancy. She denied using drugs past 2016, but had a positive test for cocaine in January 2017, as reflected in the reports from Florida. RM’s 2018 psychiatric evaluation reports that “she claims to be sober since April 2017.” RM was in two prior inpatient drug rehabilitation programs in Florida during 2016, 2017 and 2018. She testified that she was court-ordered by “her criminal judge” and thus did not enter of her own volition. Her affidavit specifically states that she was told to either go into an inpatient program or face criminal charges. Although the evidence indicates she was recommended for an inpatient program during her CASAC evaluation, she denied that. She states in her affidavit, “I did not need inpatient.”

This Court had ordered that RF and RM visit the children separately. However, there were times when the two visited the children together. Case planner O. states in her affidavit that when RF was told the visit had to be separate, he replied, “No. We are not doing that.” Although reasons offered for this violation of the court order were that they shared one car, RM also testified that the car is in her mother’s name and belongs to her. Caseplanner O testified that case planner C notified her that during a visit he smelled marijuana emanating from the car and RF D.J.’s “eyes seemed bloodshot.” RF has not complied with agency’s referrals and most recently tested positive for marijuana on July 27 and marijuana and cocaine on August 6, 2020. RF denied using cocaine when he testified on September 14th. Both RM and RF testified that RF travels often and now resides most of the time in Connecticut. However, both he and RM are the lease holders of their current residence, a lease which RM stated expires on September 29, 2020. Both left Florida in 2019 and came together to New York. The child protective documents from Florida state that RM was not interested in reunifying with her older children by moving into her mother’s home where the children lived. Rather, when she was discharged from the halfway house in June of 2018 and “chose to move in with her boyfriend rather than moving in with the MGM.” RM was reported as saying, “I do not want to choose between my children and the man I am about to marry.” At the hearing she denied making that statement and testified. “No, I never told them that. Not to my knowledge.” She testified that she and her older daughter A (not a subject child) visited RF at a halfway house and that he had recently been released from jail, but stated that she could not recall why he had been in jail. RF testified that he was at the halfway house because he violated his probation, and that he was on probation for delivery of cocaine which he admitted was selling cocaine. This Court does not credit RM’s testimony that she could not recall this information. She also denied telling Florida authorities that RF was a drug user, though the Florida documents state, “she reported that her boyfriend whom they call ‘D.J’ is also a drug user.” This Court does not credit RM’s testimony that she cannot recall this information about RF. Though not legally married, both RF and RM refer to each other as husband and wife. RM introduced an August 2018 Florida Court order (Exhibit H) to show that she had unsupervised visits with her older children and there was no prohibition about having RF present. However, the Florida child protective documents include entries that RM was told by the judge that her boyfriend (RF) was not to be present during visits. RM denied this. A new abuse case was called in October 2018 because RM took her daughter, A, to the halfway house to visit RF. A disclosed to her teacher that while she was at her mother’s boyfriend’s home, her mother told her to “put the pillow over my head so I couldn’t see anything.” It should also be noted that Exhibit H has a handwritten entry which states, “the caregiver does not believe the mother has gained insight,” and that the “caregiver believes mother has deserted the family.”

In the past RM has been prescribed various psychotropic medication such as Seroquel, Lexapro, Zoloft, Wellbutrin, and Prozac. She had a psychiatric evaluation in October 2018 where it was reported that RM had a history of being diagnosed with depression, anxiety, and PTSD. It was recommended that she see a psychiatrist monthly to monitor her mood and determine her need for medication. RM did not recall having this evaluation. The report also indicates that RM stated, “I was on medications. I stopped them last April. I do not want to be on meds. I want to see if I can handle it on my own. My depression comes and goes.” In evidence as Respondent’s A is a letter dated August 12, 2020 from RM’s therapist Luiz Lopez. Mr. Lopez did not testify. His letter states that RM had an initial intake appointment with him on June 24, 2020 and attended four sessions and requested that two be rescheduled. The letter indicated that he discusses coping skills and managing stress. She is engaged and asks questions. No other details were provided. This letter was extremely limited in nature. When questioned about taking medication, RM testified:” Me, personally, I don’t believe in medication and I don’t want to take no type of medication.” She also testified that when her therapist asked if she wanted to be referred to a “psych doctor” because I let him know how I’m always in my head” she told him “I don’t need so (sic) psych doctor.” When questioned about her therapy and asked how long she will continue with therapy, she stated, “I am going to do that for a while. I mean, not a long period, but I’m going to continue with it.”

Although the attorney for the child now supports the 1028 application, she had opposed overnight visitation a few months ago and requested that the ICPC process begin so the children can reside with the maternal grandmother in Florida.

The agency’s concerns that RM’s ability to enforce an order preventing RF from being present is only one consideration in this matter. RM’s long standing drug addiction, her failure to address her true needs and the reason for the removal, as well as her failure to report for random tests puts the children at imminent risk. See Matter of Audrey L., 147 A.D.3d 838 (2nd Dept. 2017). RM’s compliance in attending a short outpatient program and her limited engagement in therapy does not negate imminent risk. Her testimony clearly indicates that she wants to dictate the course of services as opposed to getting what she needs for long term recovery. When confronted with questions which are uncomfortable, she denies or does not recall. When RM’s attorney asked if she was willing to participate in additional referrals if asked by ACS, her initial response was, “I mean if I have to. I mean if it’s — yes. I’ll say yes. Yes.” This response also reflects RM’s reluctance at this time. RM often attempted to make excuses for herself and her response to answers were indicative that she lacks insight to the severity of her addiction. Her denial or lack of knowledge of RF’s behavior, her belief that he will not violate any court orders, and her statement in 2018 statement about having to choose between RF and her children further emphasize her inability to be ready to care for her children.

Unlike the situation in In re Gavin S., 52 Misc. 3d 1221(a) (Kings County Family Court 2016), which counsel for respondent referred to in summation, RM in the case at bar lacks “insight” into her “treatment needs.” Similarly, counsel’s reliance on Matter of David G., 29 Misc.3d 1178, 1186 (Kings Family Court 2010) and Matter of Baby Boy D., 127 A.D.3d 1079 (2nd Dept. 2015) is not comparable, as removal in the instant case is not “based on assumptions, guesswork and unsupported predictions of future behavior” but rather after assessing the documentary and testimonial evidence including RM’s credibility, behavior and lack of insight.

The road to recovery and rehabilitation is a long journey. RM has begun that process. It is paramount that she continues to take steps forward, toward the goal of reunification. She has struggled and continues to struggle with her drug addiction. Each relapse and reluctance to participate in a full scope of services and monitoring is a step backwards. This Court does not believe that RM has the current protective capacity to care for F.J. and D.J.. RM must be open to participate in intensive drug counseling, a mental health evaluation which includes any recommendations for medication management, and long-term therapy to address her drug and mental health issues. However, in order to be successful, she must participate in these services because she wants to, not because of an order. She left Florida and came to New York, but now wishes to return to Florida. Her own stability must be addressed before she can care for her own children. F.J. and D.J. are infants and do not have the protective capacity to ensure their own safety in their mother’s care. See Matter of Novelise M., 54 Misc.3d 1202(A) (Bronx Family Court, 2016). RM has made some steps on the road to reunification, but this journey is very much still in process.

This Court finds that continued removal of the children from RM is necessary to avoid imminent risk to their life or health. This decision is made after a thorough evaluation of the documentary and testimonial evidence and counsels’ arguments. At this time, orders cannot be put in place to mitigate that risk. However, the Court does take notice both of RM’s engagement with some services, her recent compliance with random testing, and the importance of the bonding process which is critical for these very young children. Therefore, some sandwich unsupervised community visits will be permitted under the following conditions."