THIS WAS WRITTEN IN 2005 AND REFERS TO A PREVIOUS HOUSING CASE. IT PROVIDES A GENERAL BACKGROUND AND THERE ARE SOME COMMON ELEMENTS THAT MAY REFER TO MY CURRENT HOUSING COURT CASE. Monday, July 30, 2007
I've lived at the above address for 11 years, since July of 1994. My landlord, William Pokora, lived in apartment 3 at the same address until quite recently, then moved next door to a new building he had constructed. That building's address is 270 12th Street. I've had a rent stabilized lease at that address in my name since January of 1995; I'd originally moved in as subtenant, as a roommate of Portia Adams, who had the lease at the time I moved in. When she moved out that winter I received my own lease from the landlord, and later got a roommate to share the apartment. My husband, Paul van Linden Tol, moved into the apartment in July of 1999, and our son was born that month. We've lived at this address continuously since that time. I currently have two cats, and have had two cats since I originally moved in; the landlord is aware of them and gave me permission to have pets on the premises when I originally moved in. I believe the original lease was for one year, but since then I've always signed two year leases because I intended to stay long-term, and the rent increase percentages seemed more favorable on two-year leases than on one-year leases. During most of my tenancy at this address, I didn't have any significant problems with the landlord, management or his employees , and the relationship was reasonably civil and uncomplicated. However, in 2003, Mr. Pokora started harassing me and my husband, often in front of our young son, and matters have escalated dramatically within the last few months. 2002 During the winter, Mr. Pokora wanted us to look at a vacant ground level apartment in another building he owns at 249 13th Street; he told us that it was newly renovated and painted and had more rooms that the apartment we currently occupy. We weren't really interested in moving, but we were curious about the apartment and decided to look at it before turning it down. He took us to see the apartment , and we didn't like it because although it had more rooms, they were quite small, and many of them didn't have windows. They all connected to a windowless centrally located kitchen; the size of the apartment was equivalent to the one we're living in now, and our impression was that the rooms were so small because they were subdivisions of what had once been larger rooms. It seemed cramped, dark, and potentially poorly ventilated . The rent was slightly higher than what we were already paying , and we thanked Mr. Pokora for showing it to us, but let him know that we weren't interested in it. Our existing lease expired on 12/31/04, but we'd already signed a rent stabilized lease renewal late in the summer. 2003 JANUARY Our lease renewal took effect on January 1, AUGUST Our landlord, William Pokora, started telling us that he didn't want to renew our rent-stabilized lease because he wanted us out so he could renovate the apartment. At that point, he didn't give us any other reasons for wanting us to leave, either verbally or in writing. He has always renovated apartments in the building as soon as tenants move out anyway. I don't know why he suddenly wanted to renovate the apartment at that point and get us to leave; in the late summer, we had signed a two year renewal lease on our apartment that took effect on January 1, 2003, and we were only halfway through the first year of the lease. He'd offered us the lease and there hadn't been any discussion of problems when I signed the lease. SEPTEMBER William Pokora started construction of a new building on the vacant lot next door to our building - this would be at what's now 270 12th Street. Construction continued for most of a full year, seven days a week and including most holidays, creating months of loud noise (jack hammers, power tools running, etc.) starting early in the morning (generally by 7 a.m.) and continuing through most of each day. Needless to say, this was a stressful period of time, especially since we couldn't count on having a break from the noise even on the weekend. 2004 JANUARY On the weekend of the 10th-11th, our downstairs neighbor Vera Dalcamo complained of an enormous, cascading flood of water coming through her bathroom ceiling. The toilet was not flushing properly - it was flushing poorly for several days, and then became completely plugged up. The landlord spent several days testing various parts of the plumbing throughout the building to track down the source of the flood into the apartment below. We'd never allowed the toilet to actually overflow, and we've never let the sinks or bathtub overflow. There was never water on our floor to indicate any flooding or leaking - I'd have noticed because I'd have had to mop it up , and at that point I would have been able to tell him that we had a problem - and I would have apologized to the neighbor below us for the damage. Any water damage to his property was not our fault because we weren't allowing flooding or leaks to occur either intentionally or through carelessness. Mr. Pokora was finally able to get a plumber to come in on Monday afternoon. The flooding to the apartment below had been sporadic; Mr. Pokora kept insisting that we must be doing something to cause it, and that the source was probably our toilet. The plumber disconnected our toilet and checked the pipes below it, and discovered that the out let pipe below the toilet was completely rotted out - it had a hole in it that I could put my hand through - and the pipe was replaced. This is not something that we had any control over, and certainly wasn't something we'd done to the plumbing either intentionally or accidentally - the pipe was below the floor and was completely inaccessible to both us and our downstairs neighbor. Our building is at least 80 years old, and at least some of the plumbing is as old as the building; pipes wear out after years of water running through them, and need to be replaced periodically. It was at this point that Mr. Pokora began to threaten to evict us; he was quite upset about the water damage to his property, and angry that he'd had to have the plumber come in to do an extensive - and I'm sure expensive - repair; our downstairs neighbor was also quite upset about the damage to her ceiling. That afternoon, he screamed at us abusively- in front of our son, who was 4-1/2 - that he was going to evict us; it was insulting and he was swearing at us, and he was obviously quite angry. He continued to verbally harass us throughout the rest of the week every time he saw us in the hallway or on the street - he was abusive to both my husband and myself on separate occasions, and this often occurred in front of our son, who was quite upset by it. In addition, when the plumber was finished removing our old toilet and replaced it with a new one, he took the old toilet out onto the landing in front of our apartment door, and broke the back of the toilet - the area that would feed into the outlet pipe in the wall if it were installed. That part of the toilet was totally empty at the time. We saw the old toilet later that day in front of the building stacked up with other trash inside the gate; the back of the toilet was facing upwards, and someone had placed a blue toy ball in the channel at the back of the toilet. I was outside the building with my son within a day of this and the ball was still there; Mr. Pokora came out of the building and pointed at the blue ball and told me that the ball was what had been plugging up our toilet . I denied it because it was completely impossible according to the laws of physics; the ball had been nowhere near the toilet until it was placed out side the building, and the ball itself was a hollow ball which would have floated had it fallen into the bowl of the toilet - and even if it had been solid and not floated, it would have been physically impossible to wedge anything of that size into the channel at the back of the toilet because it was larger than the diameter of the porcelain tubing within the toilet that gives access to the channel at the back. Mr. Pokora insisted anyway, and I refused to discuss it any longer with him because the discussion was ridiculous, and he was becoming angry and threatening again. SEPTEMBER Mr. Pokora asked my husband whether we'd be interested in looking at another apartment in his other building at 249 13th Street; it was listed as available on www.craigslist.com as renting for $1600 per month, but Mr. Pokora said he'd be willing to charge us only $1300 per month for it. Paul told me about it and told me that he'd told Mr. Pokora that he'd have to take it up with me. Mr. Pokora asked Paul about whether we were planning on looking at the apartment several times that month because he wanted to rent it out as quickly as possible. I wasn't interested in looking at it because we're only currently paying $1095 monthly rent, and I felt that we couldn't realistically afford a nearly $300 rent increase . In addition, I also found out that since the listed rent on the apartment was actually $1600, any renewal increases could legally be based on the higher amount rather than the preferential rent of $1300. It didn't seem like a reasonable choice at all to me. Mr. Pokora approached me on the street one afternoon late that month and asked whether we'd decided to look at the apartment, and I told him that we weren't interested because it was too expensive, we weren't interested in moving because we'd prefer to renew our lease instead. He told me several times that he wasn't going to renew our lease, and although this seemed to upset him a great deal, I calmly repeated that we were legally entitled to a lease renewal. He finally agreed that yes, I was legally entitled to a lease renewal, but that he wasn't interested in renewing my lease, and that I'd have a serious problem. He stomped off, making a rude hand gesture at me. NOVEMBER On November 4, we received a notice from Mr. Pokora (that I assume the rest of the building also received ) telling us to expect a visit the next afternoon from the exterminator he'd hired. The note said that we didn't have to be home because either he or his super (Junior) would give the exterminator access to our apartment. This didn't leave us much opportunity to respond and either agree or disagree with needing pest control service; we don't have an insect problem in our apartment, and I don't like using spray poisons in my home because I have a small child and pets - I'm allergic to the spray poison, and don't want my son or pets to be exposed to the spray either. There are other methods I find more acceptable, such as Combat disks, which can be placed (plentifully, if necessary) in areas that need treatment - and it's a contained system that goes exactly where you want it. On November 5, the exterminator showed up in the morning, accompanied by Mr. Pokora, and I allowed them to spray the kitchen and bathroom. This is a service he'd never provided in the past, ever, and I assumed at the time that it was a one-time arrangement. Mr. Pokora, who used to live in apartment 3 of this building, moved to an apartment next door at 270 12th Street - the new building he recently completed construction on. Since we hadn't received a lease renewal yet, I sent Mr. Pokora a written request for a lease renewal, and then filed a complaint with the DHCR regarding the failure to provide a renewal lease. The requests were dated November 30, 2004. DECEMBER At the beginning of the month, Mr. Pokora told my husband, Paul van Linden Tol, that he wouldn't accept any more of our rent checks; my husband had asked him whether we should hand-deliver or mail the checks since Mr. Pokora had moved next door. On our lawyer's advice, we started mailing the rent checks to Mr. Pokora via registered/return receipt. He declined to accept delivery or go to the post office to claim that check and the next three (January, February and March) as well. On or around December 6, we received a Ten Day Notice to Cure from the landlord; he claimed we were causing an extreme nuisance, including the following points: •• multiple leaks and floods allegedly caused by us •• noise issues - citing alleged yelling and screaming at all hours of the day & night •• unsanitary conditions including bags and debris piled up to the walls creating a hazard •• Garbage by the door •• The landlord also claimed that other tenants below us were allegedly frightened of us •• Cat urine and feces causing a smell to emanate into the hallway The exterminator came again during the first week of the month, accompanied by the super. I asked the super why the exterminator wanted access again, when he'd been by just the month before and we didn't have an insect problem; the super told me that the exterminator would be coming by on a monthly basis from then on. The exterminator sprayed poison all around the sink before I had an opportunity to move my cleaning supplies, including the sponge, detergent and scrubbers I use to wash dishes out of the way, and poison was sprayed all over the clean silverware I had drying in a container on the back of the sink. I pointed out to the exterminator that I'd appreciate it if he'd give me a second to move things out of his way so that these items wouldn't be contaminated - and I received a rather surly response. Trash started accumulating inside the gated area immediately in front of our building. This was different from the construction materials that had been temporarily stored there during construction of the building next door. I'm pointing this out because trash had never been stored there before the construction project began. I found out later that the trash came from the tenants next door at 270 12th Street; their trash cans are still kept directly under the windows of Apartment 1 in our building. The smell that comes from them in the summer is revolting, and I feel sorry for the woman who lives in that apartment because she's forced to live with that smell coming through her window if she opens it during warm weather. In addition, it's an unsightly mess in front of our building that we never had to deal with before - aside from the trash cans (which are often left without lids and overflowing, there are often many cardboard boxes and other trash stacked up next to them). Our lease expired on December 31. 2005 JANUARY The exterminator came again during the first week of the month, accompanied by the super. This visit was very similar to the December visit, only the exterminator was even more rude and surly than before. On January 12, we received a 10-Day Notice to Terminate reiterating the accusations that had appeared in the 10-Day Notice to Cure. There were new accusations of leaking/flooding on January 15. Trash continued to accumulate in the gated area in front of our building - most notably a large blue mattress that was propped vertically against the building for nearly 3 weeks, and a broken two-drawer filing cabinet that sat there for two weeks. Some of the trash has included boards with rusty nails protruding from the ends, and plastic bags of household trash (bottles , boxes ) and larger materials. There is a trash area for the building - it's in an inside alley, next to the door to the building's basement. FEBRUARY On the 4th, the landlord turned off the water without prior warning; the landlord claimed there'd been another leak. On the 7th, we had a Petition Holdover. On the 27th, the exterminator arrived again, and I refused to let him spray in our apartment. This time , neither the super or the landlord accompanied him, and he had me sign a form that listed all the apartments in the building, noting that I'd refused the service. I noticed that two other tenants (in apartments 1 and 3) had also refused service, and that a number of other tenants were noted as ""not home"". We had a hearing on February 28th. MARCH The following is taken directly from a fax sent to my lawyer, Dawn Kelly, at Koehler and Isaacs, and was sent on March 31: I've had Paul type up his conversation and other details of his interaction with the landlord; it appears below in the indented section. I thought it was important to include an account in his own words since I was out of the room for parts of the conversation. At about 6:45 Paul came and met me on Fifth Avenue a few blocks from our house to help me carry the groceries home, and told me that when he'd left our building, Bill Pokora, our landlord, had stopped him and asked him to let him into our apartment so he and a contractor could measure our windows. Paul told me that he'd told Bill that he'd rather talk to me about it before agreeing. We hurried home and when we entered the building, our landlord came out of one of the first floor apartments with another man and followed us up the stairs. I told him that Paul had told me that he wanted to measure our windows, and asked him whether we couldn't do it tomorrow instead because we were just getting home and I had to prepare dinner quickly, and it just wasn't a convenient time for us. He told me that this was the only time we could do it because it was the only time the contractor could make it to take the measurements. We continued up to our apartment; Bill and the contractor stopped at several other apartments on the way up. When they rang our doorbell, I answered the door, and returned to the kitchen where I was putting groceries away and making dinner. Paul talked to Bill a moment, and I came to the door because it seemed to be taking a bit longer than I'd anticipated and I wanted to find out what was going on. Paul had been speaking to Bill in a courteous, calm and professional tone of voice, but I could hear from the kitchen that Bill sounded rather hostile. Paul's account covers the conversation they had up to that point; when I came to the door, I asked whether the windows really had to be measured at that particular time, and Bill insisted that they did - and that if we didn't allow the contractor to measure, we'd be responsible for replacing the window if it needed to be. I asked him what he meant by ""responsible"", and he said we'd have to pay for it. At that point Bill angrily pointed out that not only were we refusing to let his contractor measure the windows, we were refusing to let the exterminator in - and I told him that we don't have an insect problem, that we don't want to keep having the exterminator come in, and that we'd initially cooperated by letting the exterminator in the first three times he came (November, December, and January). I also pointed out that other tenants in the building have refused to let the exterminator in as well, because I've had to sign a list the exterminator carries with him for the entire building, and at least two other apartments (#1 and #3 on the first floor) have also refused. At that point I was concerned with getting back to preparing dinner, because Max was waiting to eat in the kitchen, and the conversation was taking much longer than I'd anticipated. Because I couldn't see any other way to resolve the issue quickly at the time, I let the contractor in to take his measurements and showed him up to the front room. The room happens to be pretty messy at the moment for two reasons - it's the room Paul and I have always used as a work room, where our desks and computers and most of our files are; earlier in the day I'd pulled a batch of files from a filing cart for a project I'm working on and hadn't put them away yet because I'd been out for most of the afternoon. I'd left the files and paperwork stacked up on the floor at noon because I needed to reorganize how I had it filed, and had planned on taking care of it after dinner. I've also been rearranging how that room is organized, as well as the living room, and there are piles of papers, books, and boxes from both the living room and the work room on the floor in there because I've been sorting through them as I dispose of quite a bit of outdated material and file away the rest - it's a wreck at the moment, but it's because I'm in the middle of reorganizing. The contractor commented that it looks like a fire hazard, and I briefly explained why it looks that way. I'd planned on continuing to clean the room up this week and over the weekend anyway and have it much more sorted out much more neatly by the beginning of next week. As the contractor was leaving, I asked him why the windows needed to be measured, and he said that they were going to be replaced. I asked him whether this was supposed to be part of a capital improvement project that would increase our rent permanently, and he smiled and said yes. He also said that the windows in our front room look like they need to be replaced anyway because there appears to be water damage and that the panel of wood along the top where the Venetian blinds attaches seems to be sagging. When I saw Bill Pokora waiting out in the hall, he looked quite angry; I'd heard the sound of Paul and Bill talking while I was up front with the contractor, and while I couldn't make out the words, it had sounded as though Bill was quite angry with Paul - his voice was raised. Paul's account: About 15 minutes to seven, I (Paul) went outside to meet Emily with the Shopping. Outside the building was our landlord Bill Pokora talking to a gentleman with a clipboard. When he saw me he asked: Paul can you let me in , we have to measure the windows. Can you let me in, I answered I rather not, I meeting Emily. He said When will you be Back? I said ten minutes. He said to other guy . After Emily and I came Back, we met Bill Pokora and the Contractor on the Stairs. Emily Asked : Do you need to do it today. They affirmed. At home we decided that he had not giving us fair warning and that it was dinner time for us. I promised to answer the door and tell Bill that it was rather inconvenient for us and we rather have the windows measured tomorrow. Bill and the contractor came and basically the contractor told us that today was the only day they could do it and he asked if we were willing to pay for the windows. We were not and we let the Contractor in. Bill said we are refusing to let people in. He said we did not let the exterminator in. Emily told him that actually we had him three times already. We don't have roaches and other people in the building refused too and that she saw the List. The contractor and Emily went to the front room. Bill sat in the Hallway and I stood in front of the door. Bill the said to me : You can't refuse to let the Contractor in. I said: we are not refusing, we would have like to have a fair notice. Bill said ""Paul you are lucky that I didn't pursue the suit."" I responded, ""you would have lost!"" Bill said ""Don't fuck with me"" and I said ""Can you stop the abusive language"". Bill said ""Paul you want to Fuck with me"" and he started to approach in a menacing way poking his finger. I said ""Calm down Bill, and I started to close the door. Bill said ""you better start closing the door."" At that point Emily came back with the contractor. I want to point out here that Paul kept very calm throughout the whole transaction - I didn't hear him raise his voice or use nasty language at any point, but I could hear Bill raising his voice from several rooms away. Paul (obviously) doesn't like being threatened, and he told me that Mr. Pokora was standing quite close to him by the time he closed the door, and that his hand gestures and finger pointing were too close for comfort, and that he thought about calling the police if Mr. Pokora had continued. Our 5 year old son was home with us at the time this took place, and essentially witnessed and overheard the whole thing. It was extremely upsetting for him, and I'm furious with the landlord for doing this in front of a child. The windows that the contractor measured consist of three panes connected by a metal frame; the contractor measured only the height and the combined total width of the entire window section rather than the width of each segment; he didn't even appear to accurately level the tape measure when he measured the width. If it's at all relevant, the middle section is wider than each of the window segments to either side of it. I'd think that if getting an accurate measurement was a real concern in order to make sure that the new windows fit properly, that might be important. I have several questions: How do I find out whether the replacement of the windows is going to be an actual legitimate capital improvement and whether (and how much) this will increase my rent? (Note: as of October 2005, our current rent doesn't appear to include any capital improvement charges.) On March 30, I went to the offices of Koehler and Isaacs to meet with Dawn Kelly to sign the stipulation agreement that she - and the landlord's attorneys - had drawn up; essentially I agreed, without confirming or denying that the accusations made were truthful, to avoid causing the problems outlined in the 10 Day notices for a period of one year (March 2005 through March 2006). Contingent upon this, we'd get a two year lease renewal. This arrangement had been worked out between the two lawyers rather than having a trial or oral argument. The stipulation was to be sent to the opposing council via Federal Express. I also paid the four months of rent that the landlord had refused and took care of the increase in security deposit as well. APRIL On the second, I signed the leases I'd received the previous Friday via mail; I faxed a copy directly to the landlord, and faxed a copy my lawyer's office. On April 4th, I mailed the signed leases to the landlord, and withdrew the DHCR complaint regarding non-renewal of the lease. I received a countersigned copy of the lease by April 12th, and faxed an acknowledgment to the landlord. The landlord had also made a written request that we turn in future rent checks to the tenant in apartment 1 of our building (Margaret Voss) for collection. The windows in the front room of the apartment were replaced in early April, and the job took one day, and was done by a team of subcontractors. MAY - AUGUST There were no incidents of note during this time period, and no contact with the landlord, super or any of the landlord's agents - other than the monthly visit from the exterminator, who I continued to deny access to on the grounds that I don't want poisons sprayed in my household. SEPTEMBER On or after the 16th, Bradley Funnye from Koehler & Isaacs contacted me by phone to let me know that his office had received a fax from Mr. Pokora's lawyers' office claiming that I had caused substantial flooding in my building during the week of September 14th, and that based on this breach of our stipulation agreement, the landlord wanted to evict us. I hadn't caused any flooding, and we discussed the situation and he drew up an order to show cause based on our conversation. I signed the order to show cause at the end of the month, and a court date was scheduled for Wednesday October 12th. OCTOBER On the 12th, Mr. Pokora did not appear in court himself, but his lawyer did, and requested that another date be set to present oral arguments. She said that when Mr. Pokora contacted her about alleged problems he claimed we were causing in the building, she'd had difficulties contacting my previous lawyer, Dawn Kelly at Koehler & Isaacs because Ms. Kelly is on maternity leave until January, and then she started bringing up additional complaints that Mr. Pokora had with me (she seemed disturbed that I won't let the exterminator in; I'm not clear about what additional issues she wanted to present, but she made it sound as though there were multiple complaints against me). Mr. Funnye reminded me not to respond to issues other than the complaint about flooding that allegedly occurred in mid-September, because that was the core issue that Mr. Pokora used to bring us into court. Mr. Funnye told me that Mr. Pokora was planning to bring other tenants in to court on November 3rd to testify against us. NOVEMBER Our hearing occurred on November 3rd, 2005. The landlord's lawyer wanted to adjourn the hearing again because of a mistake they'd made, but Mr. Funnye and I agreed that we were ready to present our side of the case and declined to agree to adjourn the case again. My husband was present to testify that day as well. Mr. Pokora didn't show again; only his lawyer and the superintendent he employs (Manuel Perez) appeared as a witness. During the course of the hearing, Mr. Perez claimed that I had caused multiple episodes of flooding in my summer through the course of June, July and August. He claimed that he'd been painting and doing repairs in apartment 7, below mine, and had not only seen water streaming through the ceiling and down the walls of apartment 7, but that he'd come up to my apartment and found water overflowing from the kitchen sink and the toilet. He further claimed that he'd had to unclog the kitchen sink and the toilet multiple times, using a snake to get grease out of the kitchen sink, and newspapers and a toy ball out of the toilet. He was vague and unspecific about exact dates, and neither he nor the lawyer presented printed work orders, bills, receipts, or any other written documentation of the alleged work done or parts required for the repairs on my premises. None of these events actually occurred; I have been incredibly careful not to let either my kitchen sink or my toilet to become clogged or to overflow at any time, especially after having signed a stipulation at the end of March that essentially stated that if I allowed this type of damage to occur in my apartment, it would be grounds for eviction. The superintendent also claimed that on several occasions, he'd knocked on my door to gain access to my apartment and that although he was convinced I was home because he heard footsteps inside my apartment, I didn't let him in. This is also untrue. On one of the dates he claimed that he'd had to work on the plumbing in my apartment and had claimed that I was present (July 10 and/or 11), I was in fact out of town. My son's birthday is July 10; we were visiting my mother that day, and she lives three hours away in Long Island. We had been there for several days, in fact, and had planned to return to Brooklyn that evening, but had missed the last train back to the city. We had to take the first train back on the morning of July 11th, and we didn't walk into our apartment until sometime between 9:00 and 9:30 that morning. My son was starting camp that day, and we were supposed to be in Red Hook by 10:30, but we decided to take a few minutes to have something to since we'd skipped breakfast in order to catch the train. We were out the door again by 10:30, reached Red Hook around 11:00, and I stayed with my son for about 45 minutes to help him settle in. I didn't get back home again until after 1:00, and had to leave again at 4:00 in order to pick him up by 5:00. I spent the time I was home during the afternoon unpacking from our trip and putting things away, and loading the clothing we'd had with us on the trip into the laundry hamper. That is the only specific date that I recall the superintendent being able to provide for any of the alleged incidents he claims occurred over the summer, and I know exactly what I was doing that day. His claim that he not only witnessed a flood but came to my apartment to stop it and spoke to me is completely false; I was only home for a few hours during the course of the day, and I didn't even use the kitchen sink until much later, when I washed the day's dishes after dinner. I pointed this out to the court during the hearing. The hearing concluded shortly before 5:00, and we're waiting for the judge's decision at this time. My lawyer tells me that it may take several weeks to receive the judge's decision, and that he'll pass on the information as soon as he gets it. I'm enclosing a copy of his order to show cause because it accurately represents my position on the landlord's accusations against me. GENERAL In the past 11 years, the only part of my apartment that the landlord has applied new paint to has been my bathroom. There has been a substantial tenant turn-over within my 12-unit building during that time as well; there are only 3 other tenants in the building who have been here longer than I have now - and two of them are elderly women who have been here for a considerable time - so that means that out of 12 apartments, only 4 have not had vacancies and then new tenants in the past decade. Every time a tenant has moved out of an apartment in the building, Mr. Pokora has done an extensive renovation of the apartment, including re-doing the floors and plumbing . Until about 5 years ago, our landlord had a woman come in and clean the hallways of the building on a regular, weekly schedule; she mopped the stairs and halls. That stopped about 5 year s ago, and the super only occasionally comes in to mop - and when he does, he grumbles and complains the entire time - it's quite audible for most of the time he's in the building's common areas. It seems to upset him a great deal if we happen to come in or out of the hallways while he's cleaning; he swears and mutters under his breath and glares at us, but since it's impossible to predict when he'll be doing this chore, it seems equally impossible to try to avoid getting in his way while he's doing it. Perhaps if there were a regular schedule for this, we'd be able to time our use of the hallway and errands in and out of the building accordingly. The hallways and stairs are generally filthy because they're left uncleaned for so long; in addition to grit and grime and sticky patches where things have been spilled on the floors, leaves often blow in through the windows (which don't have screens) and accumulate in the corners on each landing. Worse than that, flies and mosquitoes have free access to the halls in the building as well. I can't afford to move out right now. I have no savings to cover moving expenses or a new apartment. I'm looking for work right now, and if I am able to remain in my apartment until the end of the current lease, I anticipate being able to both set aside moving expenses and find an acceptable new place to live. I doubt that I'll be able to do this in less than a year, however, and it's extremely important to me not to be evicted. I'm not only speaking on behalf of myself, but on behalf of my son, who is now 6, and who is entitled to a secure home. His welfare depends upon this basic matter . In addition, Mr. Pokora is threatening my potential livelihood as well as my home by threatening to evict me; for many years, I did freelance work at home, working as grant writer, researcher, typist and transcriber, and before I was married, paid my share of the household bills and personal living expenses through this work. Although I'm also considering seeking other types of employment at this time, I'd also like to be able to have a stable enough situation at home that I can resume freelancing again while I look for other work. It's been incredibly stressful for me to deal with Mr. Pokora's allegations and legal actions; it also makes it very difficult for me to make other plans, including seeking employment, because I don't know when he's going to trump up false charges against me again and force me to appear in court. CIVIL COURT OF THE CITY OF NEW YORK COUNTY OF KINGS: HOUSING PART F BJB REALTY CORP., petitioner -against- EMILY BROWN, PAUL VAN LINDEN TOL respondent ORDER TO SHOW CAUSE L & T Index No.: 57165/05 PLEASE TAKE NOTICE that upon reading and filing the annexed affirmation of EMILY BROWN, sworn to on September 26, 2005, and upon all prior pleadings and papers had herein, LET the petitioner or petitioner's attorney show cause before this Court located at 141 Livingston Street, Rm. 612. Part F. p.m. the 12th day of October, 2005 at 9:30 a.m., or as soon thereafter as counsel can be heard, WHY an Order should not be entered staying execution of the warrant of eviction to allow for a thorough and complete investigation of the validity of the allegations set forth in the Petitioners Notice of Default, and returning this matter back to the status quo of the March 31, 2005 Stipulation so that the parties can continue to be governed by the terms and conditions therein, and for such other and further relief this Court may deem just and proper, and it is ORDERED, that pending determination of respondent's application, the petitioner, petitioner's attorney, Marshal George G. Essock (#58) and any persons acting on their behalf are stayed from taking steps to enforce the judgment and execute the warrant of eviction, and it is further ORDERED, that service of a copy of this ORDER together with the papers upon which it was granted upon petitioner's attorney, Slochowsky & Slochowsky, LLP, 26 Court Street, Suite 304, Brooklyn, New York 11242 and on the Marshal, George P. Essock (#58), 41-02 Bell Blvd., Bayside, NY 11361, 718-423-7500, by regular and overnight mail on or before the 29th day of September 2005 deemed sufficient service. Dated: September 26, 2005 New York, New York Signed by Hon. Michael J. Pinckney CIVIL COURT OF THE CITY OF NEW YORK COUNTY OF KINGS: HOUSING PART F BJB REALTY CORP., Petitioner -against- ORDER TO SHOW CAUSE L & T Index No.: 57165/05 EMILY BROWN, ""PAUL"" BROWN (amended to PAUL VAN LINDEN TOL), Respondent, STATE OF NEW YORK) )ss.:COUNTY OF KINGS ) EMILY BROWN, being duly sworn, deposes and says: 1. I am the respondent-tenant herein and make this affidavit in support of my motion to stay execution of the warrant of eviction. 2. On Monday, September 19, 2005, my attorneys received a Notice of Default via fax and then they contacted me by telephone. A copy of this Notice of Default is annexed hereto as Exhibit ""A"". 3. That on the morning of Monday September 26, 2005 I received a copy of the Marshal's Notice scotch taped to the outside of my mailbox. A copy of the Notice is annexed hereto as ""Exhibit ""B"". 4. On March 31, 2005, the landlord and I settled the within proceeding by stipulation. A copy of the March 31, 2005 stipulation is annexed hereto as Exhibit ""C"". 5. Pursuant to paragraph (2) of the March 31, 2005 stipulation, there was a final judgment of possession and issuance of the warrant of eviction, execution stayed to March 31, 2006. See Exhibit ""C"". 6. Pursuant to paragraph four (4) of the March 31, 2005 stipulation, consents to the respondent seeking an Order to Show Cause in order to dispute the petitioners allegations of default. See Exhibit ""C"". 7. Pursuant to paragraph two (2) of the September 15, 2005 Notice of Default, on or about September 14, 2005, an alleged flood caused unspecified damage to the line of apartments below mine. See Exhibit ""A"". 8. That I work from my home and on or about September 14, 2005 I was at home the vast majority of the day and there was no source of a liquid leak, overflow or flood coming from my apartment. 9. That on or about September 14, 2005, none of my downstairs neighbors called me or rant my apartment door to complain about or even inquire about any water damage coming from above. 10. That neither the landlord or any of the landlord's representatives made any attempt to contact me pertaining to the alleged flood in the building. 11. That neither the landlord nor any of the landlord's representatives made an attempt to investigate the source of the alleged flood by making an inspection of my apartment. 12. That to date a professional plumber was not called to come to my apartment to investigate the source of any alleged flooding. 13. That I have been extremely careful and hyper vigilante to make sure that I did nothing that could even be remotely construed as a violation of the March 31, 2005 Stipulation, which would put in jeopardy my right to continue living in this apartment with my husband and 6 year old son. 14. That the last time I was accused of causing a flood from my apartment, it was ultimately determined by a professional plumber that the flood was caused by a corroded pipe underneath the base of the toilet, beneath the floor totally outside of my view and dominion and control. 15. That it is an 80 year old building and other leaks have occurred behind the walls of the apartment below me from aging and decaying pipes that also required professional assistance to repair. This is the same line of pipes that service all the apartments on this vertical line including my apartment. 16. That given the building's old age and ongoing history of defective and aging plumbing, the entire premises should be inspected by professional plumbers to determine if the ultimate source of the alleged leak was yet another pipe in the walls, floor or ceiling. 17. That the accusation that I caused a flood on this occasion through my actions or inactions are utterly without any foundation in fact, much in the same way as prior allegations of like conduct that were made against [me]. 19. That paragraph ""3"" of the March 31, 2005 Stipulation of Settlement clearly states that it was entered into ""without admitting..."" any of the allegations contained in the predicate 10 Day Notice to Cure. See Exhibits ""A"" and ""C"". 20. That this apartment and this neighborhood have been home to myself and my family for 11 years and I do not wish to be forced to move. 21. That I feel I have made every diligent effort to be a model tenant and a good neighbor and even if I were to accidentally cause a flood I would contain, clean it up and inquire of my neighbors if it caused any damage to their apartment or property. 22. Accordingly, I respectfully request that the Court orders an investigation of this alleged flooding incident so that the ultimate cause and responsibility can be definitively established, issuing a stay on the warrant of eviction preventing any party from making an attempt to execute on the warrant of eviction, and restoring the status of this matter to the terms and conditions of the March 31, 2005 Stipulation of Settlement so that I can continue to diligently respect and follow all of the terms and conditions of the stipulation like I have done from its inception. 23. No prior application has been sought for the relief sought herein. WHEREFORE, it is respectfully requested that this court grant respondent the relief sought as well as any other relief as this court deems just and proper. EMILY BROWN Sworn to before me this 26th day of September 2005 (signed by Bradley Funnye) NOTARY PUBLIC WE WON THE CASE! HERE'S HOW: Honorable Michael J. Pinckney made the final decision/order in my favor after hearing oral arguments on November 3, 2005. The following is a verbatim copy. This holdover proceeding was brought against the Respondents by service of a Petition and Notice of Petition in February 2005. As set forth in the predicate Notice to Cure and Termination Notice, the proceeding is based upon nuisance activity including noise, unsanitary conditions, and ""flooding and/or leakage"" occurring in the apartment. The Respondents appeared represented by counsel, and after several adjournments the parties entered into a stipulation on April 19, 2005 whereby the Respondents consented to the entry of a judgment of possession and the issuance of a warrant forthwith. However the execution of the warrant was stayed through March 31, 2006 provided the Respondents did not engage in any of the activities set forth in the predicate notices. The stipulation further provided that in the event the Respondents did violate the stipulation, the warrant would execute only after ""service of a five (5) day notice of default to respondent's counsel……at which time respondent may seek an Order to Show Cause disputing the petitioner's allegation of default"". The Petitioner served a Notice of Default dated September 15, 2005 upon Respondent's counsel, providing that the Respondents are in default ""in that they have violated the Stipulation by continuing to cause flooding, which have caused damages to the tenants in the apartment below, and most recently, on or about September 14, 2005, have flooded the entire line of apartments below"". The Respondents thereafter brought an order to show cause to stay the eviction, and given the factual dispute was sent out for a hearing on the Respondent's default. The hearing took place on November 3, 2005 (Tape # 33030, Counter 3136 –– end; Tape 33031, Counter 1-37), with both parties presenting just one witness each. The superintendent Manuel Perez testified for the Petitioner, while Emily Brown testified on behalf of the Respondents. After hearing, the Court makes the following findings of fact and conclusions of law. As a preliminary matter, the Court will restrict the issue of default to the grounds set forth in the default notice. The default notice alleges that the Respondent breached the stipulation by ""continuing to cause flooding, and most recently, on or about September 14, 2005, have flooded the entire line of apartments below"" (emphasis in the original). The Respondent testified that she did not have any flooding from her apartment since the stipulation, and that no one from management –– including the superintendent –– has been inside her apartment since the stipulation. She testified that no one from management contacted her regarding any water condition. The Petitioner's witness testified to acts of flooding, based upon personal observations which included gaining entry into Respondent's apartment at the time of the flooding while the Respondent was home. No documentation (work order, plumber invoice) was produced to substantiate his claim. The testimony of the two witnesses clearly contradicted each other, and this decision is based primarily on the credibility of the witnesses and an extensive review of the testimony. The Respondent was unwavering in her assertion that there was never any flood from her apartment, and that no one –– including the Petitioner's witness –– had been in her apartment since the time of the stipulation. The testimony of the Petitioner's witness contained several discrepancies, including a key discrepancy regarding his access to the apartment. On direct examination from his counsel, the witness testified that he gained access to the apartment in June 2005 based on water over flowing from the toilet. He testified that he gained access when the Respondent opened her door, and was accompanied by a plumber. The over flow was caused by a ball in the tank. He testified to two other incidents in July 2005. One incident involved the overflow of the kitchen sink. He testified that the Respondent let him into the apartment and that he observed water over flowing from the kitchen sink, caused by an accumulation of grease. He also testified that there was a second incident in July involving the bathroom toilet. However, he repeatedly testified on direct that he never obtained access to the bathroom in July 2005 to observe the cause of that flooding. On cross-examination, the Petitioner's witness now testified that he was able to get access to the apartment in July 2005 and witnessed the bathroom flood. In addition to the discrepancy involving the number of times he witnessed flooding, he also gave conflicting testimony regarding the dates he accessed the dates in July 2005, as well as the work of the plumber. On direct he testified that the plumber was called in June, while on cross-examination the plumber did the work in July 2005. The nature of the work performed by the plumber also changed, from removing a ball from the tank to using a snake to remove the ball from the toilet. With no corroboration from the plumber, supporting documentation or other witnesses who experienced the flooding, the credibility of the two witnesses' testimony is paramount. Given the discrepancies of Petitioner's witness, and the consistency of Respondent's testimony, the Court will grant the Respondent's motion and reinstate the terms of the stipulation, along with the stay of the eviction without prejudice to Petitioner serving another default notice in the event of a default pursuant to the terms of that stipulation. This constitutes the decision and order of this court. November 30, 2005 Brooklyn, New York Honorable Michael J. Pinckney, JHC
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