Cite as: Brown v. NYCHA, HP 1885/10 & 116/12, NYLJ 1202625719927, at *1 (Civ., NY, Decided October 17, 2013)

HP 1885/10 & 116/12

Justice Phyllis Saxe

Decided: October 17, 2013

Recitation as required by CPLR 2219(a), of the papers considered in the review of the petitioner's order to show cause motion for contempt.

Papers… Numbered

Order to Show Cause, Affidavit, & Affirmation… 1

Respondent's Affirmation in Opposition… 2

Petitioner's Post Hearing Memorandum of Law… 3

Respondent's Post Hearing Memorandum of Law… 4





Upon the foregoing cited papers, and the testimony and evidence adduced at the hearing the Decision/Order of this court is as follows:

Petitioner, Cheryl Brown, resides at 448 East 105th Street, New York, N.Y. 10029, a building owned and operated by Respondent, New York City Housing Authority ("NYCHA") and part of the complex of buildings known as East River Houses.

Petitioner commenced a Housing Part ("HP") proceeding in December 2010 (HP 1885/10) requesting NYCHA restore hot water in her apartment. In January 2012 Petitioner commenced another HP action (116/12) against Respondents for the same premises and once again claimed she did not have hot water.




Petitioner now submits two motions for civil and criminal contempt against NYCHA claiming, in each that Respondent acted in defiance of multiple court orders and so-ordered stipulations by not restoring hot water. Petitioner appeared in court over twenty-four times in an effort to get NYCHA to restore hot water over the course of two years and on the date that she filed these two motions for contempt she still did not have hot water.

Respondents in these contempt proceedings are NYCHA, John B. Rhea. its Chair, and Clara Pabon, the Housing Manager for the building in issue. Petitioner asks that Respondents be held in contempt and that fines be assessed and imprisonment be imposed until such time as the hot water is restored and until Ms. Brown is transferred to another NYCHA apartment which is both larger than her existing apartment and meets housing maintenance standards including providing hot water.

On the relocation issue, Petitioner explains that NYCHA agreed to relocate Ms. Brown to another (larger) apartment in a July 2011 stipulation in exchange for Petitioner withdrawing with prejudice her then pending motion for contempt in HP 1885/10. Petitioner now asserts that such transfer never took place and that in fact NYCHA agreed to transfer Ms. Brown but only to "get out from under" the then pending contempt motion and to avoid being punished for contempt. Petitioner also claims that Respondents should be held in contempt for failing to relocate her after having agreed to before Judge Kraus.

On the return date of the contempt motion, February 13, 2013, the court addressed procedural issues and made the following rulings. First, the court consolidated for disposition purposes HP 1885/10 and HP 116/12 and the contempt motions therein. Civil Court Act §110 and CPLR §602 support consolidation where the same facts, law, parties and premises exist in




both actions. Here, in HP action 116/12 Petitioner seeks the same repairs that were part of the earlier HP action. Thus, the testimony and evidence in both actions should be presented once so that the adjudication process can be streamlined. Moreover, the lack of hot water time line allegedly began in 2010 when HP 1885/10 was commenced, allegedly continued unabated, thereby precipitating the bringing of HP 116/12. The lack of hot water existed even as the court conducted the contempt hearings.

Second, NYCHA's counsel argued that the court did not have jurisdiction over that branch of the motion for criminal contempt. Respondents argued that Judiciary Law §761 requires that service in a criminal contempt proceeding be made by personal delivery pursuant to CPLR §308. Petitioner only served NYCHA's attorney and even though this court only directed that service be made on NYCHA's counsel my order can not override the personal service requirements contained in the Judiciary Law. Respondents are correct. That branch of Petitioner's motion seeking criminal contempt against respondents NYCHA, John Rhea and Clara Pabon is dismissed.

Respondent argued that the Petitioner Ms. Brown is precluded from seeking contempt arising from any court orders or stipulations in HP 1885/10. Respondent claims that Ms. Brown settled that case and withdrew a then pending motion for contempt with prejudice. Respondents point to a stipulation dated July 2011 which contains the following language:

Petitioner's case is settled:

(1) Petitioner's motion for contempt is withdrawn with prejudice

(2) NYCHA will offer petitioner the next available apartment…for her priority of appropriate size provided she is eligible for a transfer in accordance with NYCHA Procedures.

It was signed by Petitioner Cheryl Brown, the housing assistant, and Elizabeth Curran.




NYCHA's counsel.

Respondents argue that this court should not take testimony nor find for contempt on any court order arising from HP 1885/10.

In opposition, Petitioner argues that Ms. Brown was unrepresented when she signed the stipulation and did not understand the legal consequences of withdrawing a case with prejudice. Moreover, Petitioner claims that the stipulation itself is defective because it lacks a default provision which would allow Ms. Brown to restore the motion in event that she was not relocated and continued to live in an apartment without hot water.

In fact, that was exactly what occurred here. Ms. Brown withdrew her contempt motion and NYCHA ultimately "buried" her transfer approval and Ms. Brown continued to live in the same apartment without hot water.

Petitioner, in fact, seeks a contempt finding against NYCHA for failing to relocate Ms. Brown as per the terms of the settlement stipulation. NYCHA answers this by pointing to the language in the stipulation that states "…provided she is eligible for a transfer in accordance with NYCHA procedures." NYCHA explained in court that Ms. Brown's transfer was conditioned on complying with certain procedures specifically that Ms. Brown owed NYCHA back rent and that they would not transfer her unless she cleared it up within 45 days, after offering her another apartment.

The essential problems with the stipulation (July 2011) that on its face seemed to resolve Petitioner's case and withdrew her motion for contempt with prejudice, was that the obligation on the part of NYCHA to relocate her was indefinite, illusory and basically precatory. The language in the stipulation referred to "in accordance with NYCHA procedures." There was




considerable testimony as to what was meant by that phrase, which on the record of this case appears confusing and indefinite. It further appears that the NYCHA representatives who appeared on the date this "settlement" was reached, did not even have the authority or discretion to effect the relocation of the tenant.

Few principles are better settled in the law of contracts than the requirement of definiteness. If an agreement is not reasonably certain in its material terms, there can be no legally enforceable contract. Cobble Hill Nursing Home, Inc. v. Henry & Warren Corp., 74 N.Y.2d 475 (1989). Definiteness as to material matter is of the very essence in contract law…and a mere agreement to agree, in which a material term is left for further negotiations is unenforceable. Joseph Martin, Jr., Delicatessen v. Schumacher, 52 N.Y.2d 105 (1981); Matter of 166 Mamaroneck Ave. Corp. v. 151 E. Post Rd. Corp., 78 N.Y. 2d 88 (1991). In as much as this stipulation is an independent contract, it is subject to the principles of contract interpretation. Rainbow v. Swisher, 72 N.Y.2d 106 (1988).

Based on the existing infirmities in the July 2011 stipulation that violate basic prinicples of contract law. I hold that it is unenforceable. The court will not enforce its terms against either party. Ms. Brown is not precluded from seeking contempt from court orders issued in HP 1885/10 and Respondent can not be subject to contempt from failing transfer Ms. Brown to another apartment.

It is painfully obvious to the court, that unrepresented litigants are at a disadvantage in negotiating court stipulations. The court is grateful that Ms. Brown is finally represented by counsel and that her ability to pursue her legal remedies is on an even footing with Respondent.





On the first hearing date, on February 13, 2013 the court took judicial notice of the contents of files HP 1885/10 and HP 116/12 (Pet. Ex. 1). In evidence was a stipulation of settlement dated January 11, 2011 (Pet. Ex. 3) in which Respondent agreed to provide hot water in the bathroom and kitchen within 48 hours and to paint and plaster the bedroom east wall within 90 days. Petitioner on February 8, 2011 restored the matter for compliance and civil penalties based on the failure to provide hot water per the stipulation of January 11, 2011 (Pet. Ex. 4). On March 4, 2011 the court ordered Respondent to provide hot water on or before 3/11/11 and if hot water was not restored, Petitioner could move for contempt (Pet. Ex. 6). On May 25, 2011 Petitioner moved by order to show cause for contempt against Respondent, NYCHA for failure to comply with the March 4, 2011 order to restore hot water (Pet. Ex. 7). The motion for contempt was settled by stipulation on July 15, 2011 (Pet. Ex. 9). Petitioner in the stipulation agreed to withdraw her contempt motion with prejudice in exchange for NYCHA offering her.. "the next available apartment (in Manhattan) for her priority of appropriate size provided she is eligible for a transfer in accordance with NYCHA procedures." (Pet. Ex. 9)

However, Petitioner on January 17, 2012 filed another HP action no. 116/12 against Respondent (Pet. Ex. 10). The petition in support of her order to show cause showed Ms. Brown residing at the same premises (448 East 105th St., Apt. 5C, N.Y., N.Y. 10029) as the earlier HP action and once again claimed inadequate hot water (Pet. Ex. 10). Judge Verna Saunders issued an order dated February 8, 2012 ordering Respondent to repair per the Department of Housing Preservation and Development ("HPD") report of January 25, 2012, the bedroom crack in ceiling that leaks in thirty (30) days and that there was no hot water throughout apartment within 24




hours. (Pet. Ex. 11 & Pet. Ex. 12). On March 2, 2012 Petitioner moved to restore the HP action 116/12 for compliance hearing and civil penalties claiming no hot water provided pursuant to the February 8, 2012 order. (Pet. Ex. 13). Judge Saunders granted Petitioner's motion to the extent of ordering Respondent to restore the hot water forthwith. (Pet. Ex. 14). Petitioner once again on December 14, 2012 moved to restore the HP action 116/12 for a compliance hearing and civil penalties claiming no hot water pursuant to the March 2, 2012 order (Pet. Ex. 14). Lastly, Petitioner on January 18, 2013 moved by order to show cause for contempt in HP action 116/12. The matter was adjourned to January 25, 2013 and then to February 13, 2013 for a contempt hearing. Now, for the first time Petitioner appeared with counsel who moves by order to show cause for civil and criminal contempt against NYCHA, John Rhea, its Chair and Clara Pabon, the building manager for East River Houses.


Petitioner, Cheryl Brown, testified on her own behalf. Ms. Brown testified that she has been residing in this apartment for eleven (11) years. Ms. Brown has three children, Tyler her daughter is thirteen (13) years old; Jonathan her son is eight (8) years old and Noah, her infant daughter was born while this proceeding was pending and is now 2 years old. Ms. Brown testified that she was pregnant with Noah when the first stipulation was executed.

Her courtroom testimony was that her lack of hot water began in about December 2010. In order to get her children bathed and dressed for school she got up at 6 a.m. each day to boil 3-4 large pots of water. Sometimes she had to make a few trips to fill up the tub and the large type pots were heavy to lift at 6 months pregnant.

Nevertheless, her older daughter attended a charter school and therefore Ms. Brown




made sure that she was clean and properly dressed for school. When it came to cooking, Ms. Brown tried to find simple food that did not require her to wash so many dishes. Every dirty dish, pot, and utensil had to be cleaned with boiled water. This effort took at least another extra hour of her time in the morning towards breakfast. Eventually, Ms. Brown arranged for the children to eat breakfast at school.

Her daughter Noah was born and soon developed a medical condition which caused her anxiety because Ms. Brown did not have hot water to keep her baby clean. Although she did her best to keep herself and her children clean, it became obvious after a while that they all stopped taking regulars bathes, the school noticed their dirty condition, and Ms. Brown was forced to explain to school personnel about the lack of hot water. This particularly caused stress because the school could have involved Administration for Children's Services if they believed that this was a situation of parental neglect.

Ms. Brown soon suspended family holiday dinners and celebrations and began to send her children to friends and family to take bathes. Her older daughter who had begun menstruating suffered because she did not want to go to school because she sometimes smelled.

Ms. Brown discussed the hot water problem with her children but was unable to give them a comforting explanation. The obvious sentiment became frustration and constant aggravation. It was dehumanizing for her, but a reality for her children, who became accustomed to living without hot water. "Living in public housing." explained Ms. Brown, "you kind of expect substandard condition…urine on the elevators, graffiti on the walls..but to not have hot water for two take my children to relatives houses just to clean up..makes me feel less than a human being."




Petitioner on cross examination stated that she did not keep log books showing the hot water temperatures. She did not submit receipts for the extra paper goods that she had to buy to avoid washing dishes nor did she provide any medical or psychiatric expert testimony of the effects that lack of water had taken on her. Petitioner did bring to court 4 gigantic soup pots in which she boiled water a couple of times a day. It was difficult to imagine how a woman 6-7 months pregnant would be able to safely lug those boiling pots of water to the bathroom.

Petitioner testified that in February 2013 she sporadically got hot water and on or about February 14, 2013, she finally had adequate and constant hot water.

Petitioner subpoenaed two HPD inspectors as witnesses, Inspector Christopher Rivera and Inspector Wayne Vestry. Inspector Rivera's inspection report dated December 22, 2010 found "no hot water at Bathroom and Kitchen." (Pet. Ex. 21). NYCHA work order was entered into evidence dated February 22, 23, and 28, 2011, May 27, 2011 and June 9, 2011 all of which showed water temperatures under 110 degrees. In Petitioner's Exhibit 19 A-F (c)there was an entry in that document indicating that Ms. Brown wanted to move for contempt because there was no hot water, since the hot water situation in her apartment had no immediate resolution (NYCHA Ex. 5, A-F). An HPD inspection report dated January 25, 2012 states "no hot water throughout apartment." (Pet. Ex. 23).

On March 2, 2011 in connection with one of Petitioner's contempt motions NYCHA's own counsel explained the situation to Judge Kraus that "there is a complex-wide issue with the hot water actually. Capital Projects has become involved …and they think it's a problem with the shower bodies and are right now are working on one building and if its works then they will get the O.K. to go on and fix the rest of them." (Pet. Ex. 15 FTR recording).




Respondent called four witnesses to testify on its behalf. The witnesses were Moshin Zaman (Housing Assistant for East River Houses), Clara Pabon (Manager for East River Houses), Elizabeth Allen (Assistant Superintendent for East River Houses), and Joseph Roeder (Deputy Director of Skilled Trades in Manhattan).

Ms. Pabon testified that she is the manager for East River Houses. She came to Ms. Brown's apartment along with the superintendent and heating technician to check on the hot water problem. She stayed less than 10 minutes and found there was hot water. She therefore concluded that there was no hot water problem and/or it was fixed. Ms. Pabon dismissed the technician without so much as letting him re-check the level for how long the hot water lasted. Ms. Pabon testified that the hot water was completely restored in July 2011 and to her knowledge Ms. Brown did not complain about hot water from the summer 2011 to November 2011.

Ms. Pabon also testified that she was responsible for approving Ms. Brown's transfer request to another apartment which was part of the stipulation of settlement in HP 1885/10. Ms. Pabon in fact completed and approved the transfer request on June 22, 2011 and testified that she had read the so-ordered stipulation and was aware of the court orders generated in HP 1885/10. Ms. Pabon testified that she interacted with the Housing Assistant was aware of all the orders and so ordered stipulations relating to Ms. Browns HP cases, and was intimately involved with negotiating the terms of the July 2011 stipulation withdrawing the contempt motion. Ms. Pabon eventually admitted that she refused to transfer Ms. Brown because she had a rent arrears balance and then administratively "buried" her transfer approval.

Elizabeth Allen testified that she was an Assistant Superintendent since April 2010. She has a certificate as a heating plant technician and went to Ms. Brown's apartment to check for




cross-water conditions and cartridges in the shower bodies in the summer of 2011. Although new cartridges were installed in most of the buildings, in fact, it did not solve the inadequate hot water problem. After a whole year of complaints of lack of hot water, NYCHA finally hired plumbers to investigate the problem and in 2012, the plumbers concluded all the shower bodies in the hot water system were defective and had to be replaced.

Joseph Roeder testified that he has been the NYCHA Deputy Director of Skilled Trades in Manhattan for six years. He explained that in 2009-2010 NYCHA had replaced the old and conventional hot water heaters in East River Houses to instantaneous hot water heaters because they were more economical and safer. Mr. Roeder testified that in this instantaneous hot water system the hot water reached each apartment through a shower body. Each apartment had a shower body controlling the hot water flow. Mr. Roeder explained that NYCHA Directors were aware of hot water complaints beginning in 2011.

Mr. Roeder testified however, that by 2012 the definitive problem was faulty shower bodies. NYCHA then replaced the faulty shower bodies in building #7 at East River. It took about 3 weeks for all of the shower bodies in one building to be replaced. The shower bodies themselves cost $140 each. Mr. Roeder testified however, that for budgetary reasons the NYCHA Directors and his boss refused to appropriate more funds to work on other buildings and instead budgeted the other repairs as a "capital" project improvement. It was not until January 2013 just weeks before this hearing that NYCHA released the funds and replaced the faulty shower bodies in the other East River buildings. By February 16, 2013 the shower bodies in Ms. Brown's building were replaced and over 740 days after first coming to court, Ms. Brown finally had hot water in her apartment.





Civil contempt is aimed to vindicate a private right of a party to litigation and the penalty imposed is designed to compensate the injured private party for the loss of or interference with that right. However, criminal contempt addresses vindicating an offense against public justice and it utilized to protect the dignity of the judicial system and its mandates. McCormick v. Axelrod, 59 N.Y.2d 574 (1983).

Judiciary Law Section 753 addresses a court's power to make a civil contempt finding. It states that a court "…has power to punish, by fine and imprisonment…by which a right or remedy of a party to a civil action or special proceeding, pending in the court may be defeated, impaired, impeded, or prejudiced, in any of the following cases:…3. A party to the action or special proceeding……for any disobedience to a lawful mandate of the court." Moreover, in order to make a finding of civil contempt it must be determined that a lawful order of the court expressing an unequivocal mandate was in effect and the order was disobeyed. McCormick v. Axelrod, supra. The party to be held in contempt must have knowledge of the court's order but it is not necessary that the order was actually served on the party and there must be a showing of prejudice to the right of a party in the litgation. McCormick v. Axelrod, supra.

Under Judiciary Law §773,

If an actual loss or injury has been caused to a party to an action or special proceeding, by reason of the misconduct proved against the offender, and the case is not one where it is specially prescribed by law, that an action may be maintained to recover damages for the loss or injury, a fine, sufficient to indemnify the aggrieved party, must be imposed upon the offender, and collected, and paid over to the aggrieved party….where it is not shown that such an actual loss or injury has been caused, a fine may be imposed, not exceeding the amount of the complainant's costs and expenses, and two hundred and fifty dollars in addition thereto….




Courts have found that tenants have suffered actual loss or injury pursuant to Judiciary Law §773 and are entitled to an award sufficient to indemnify them for every loss or injury including out of pocket actual monetary damages. Quinn v. Kim, 1/15/97 NYLJ, 26:5 (NY Cty. Civ. Ct).; Resolution GGY OY v. Mixon, 6/11/97 N.Y.L.J., 32:6 (Kings Cty Civ. Ct). Lastly, the Court of Appeals citing Judiciary Law §773 affirmed a lower court's imposition of fines and sanctions payable to homeless families who were forced to spend nights at emergency assistance units because the city failed to comply with court mandates. McCain v. Dinkins, 84 N.Y.2d 216 (1994).

These cases and sections of the Judiciary Law as applied to the testimony and evidence here clearly supports the finding that NYCHA repeatedly disobeyed and disregarded clear and unequivocal court orders to fix or restore the hot water in Ms. Brown's apartment. The orders and so-ordered stipulations that were violated and were disregarded includes but are not limited to those dated January 11, 2011 (to provide hot water within 48 hours); March 4, 2011 (to provide hot water on or before 3/11/11); February 28, 2012 (no hot water throughout the apartment to be repaired within 24 hours on March 2, 2012) (hot water to be restored forthwith). The credible testimony from Ms. Allen and Mr. Roeder was that NYCHA personnel were aware of the hot water problem since 2011. They offered little or no legally acceptable explanation as to why the hot water problem was not dealt with and resolved in 2011 or at the latest in early 2012, when the hot water in only one East River building was restored. When in January 2012 NYCHA executives refused to allocate funds to repair the hot water problem in Ms. Brown's apartment, they acted contumaciously and with clear disregard for the court orders issued here but even more importantly they ignored the health and safety of their tenant, Ms. Brown, and




severly diminished her quality of life.

It is important to note that the Housing Maintenance Code, classifies the lack of hot water as a "C" violation with civil penalties of $250 a day and up to $1,000 a day. The urgency and seriousness of these needed repairs were manifested by court order that required NYCHA to fix the problem within 24 hours, 48 hours and forthwith! Although NYCHA is not subject to the New York City Administrative Code and Housing Maintenance Code, it is bound to adhere to court orders. And if they are found in contempt of these orders, then the court can impose fines for out of pocket expenses and non-pecuniary injury (i.e. pain and suffering for diminution of quality of life within the context of a contempt proceeding). The award may be based upon the effect that the injuries have upon the plaintiff's ability to enjoy normal pursuits. Kavanaugh v. Nussbaum, 129 A.D.2d 559 (2nd Dept 1987) aff'd as modified 71 N.Y.2d 535 (1988).

Probably most infuriating to the court was Ms. Pabon's flippant and disingenuous testimony wherein she unilaterally decided that the hot water had been fixed in 2011 because she ran her hand under the water for a few minutes and did not receive any more complaints from Ms. Brown.

Ms. Pabon's testimony was disturbing and designed to obfuscate truth. In sharp contrast, the intelligent and informative testimony from Mr. Roeder and Ms. Allen highlighted Ms. Pabon's unprofessionalism. Her actions as forth in the record indicates that she was not interested in advocating and facilitating the repair of the hot water system.

Accordingly, the court finds NYCHA and Clara Pabon in civil contempt and awards Ms. Brown a judgment in the amount of $19,205.00 in fines/damages for which they should be held jointly and severably liable. Since no reference was made to John Rhea, during the hearing the




motion is dismissed as to him individually. The court finds that from 1/13/11 to 3/13/11, when Ms. Brown was pregnant she should be awarded $25 per day: from 3/13/11 to 1/13/12 she should be awarded $20 a day as she was no longer pregnant and in physical jeopardy of effecting the health of her unborn baby; from 1/30/12 to 2/8/13 she should he awarded $30 a day, for during this period of time NYCHA absolutely knew the cause of the hot water problem, had restored hot water to one building and then totally disregarded the court orders and proceeding which directed it to repair the problem in Ms. Brown's apartment for at least another entire year!

This is the decision of the court, copies of which are being mailed to the parties. Settle order on notice and append a copy of this decision thereto.

Dated: October 17, 2013

New York, NY