PROCEDURAL BACKGROUND

Petitioner filed this HP action by order to show cause in November 2022, seeking an order to correct violations and a finding of harassment and related relief. Counsel appeared for the owner-respondents and interposed an answer. This court issued orders relating to repairs and petitioner's harassment claims were set down for trial. The trial was commenced on January 19, 2024, and continued over several days. The trial concluded on April 12, 2024, and the court reserved decision upon its conclusion.

Petitioner K. J. testified first. She testified as follows. She lives at the subject premises. [*2]On September 19, 2022, she heard a noise around 9:45-10:00 AM. She looked out her window and saw Kazimierz Gradzki (hereinafter "Mr. Gradzki") and another man giving away her belongings. After she went outside to speak to the men, the man with Mr. Gradzki initially did not want to give the belongings back. Eventually, he gave the belongings back, but there were holes in the bag that contained them. Next, Wioletta Gradzki (hereinafter "Ms. Gradzki") started screaming, though Ms. J. believed it was an "act." Ms. Gradzki took her glasses off and said some words in Polish. Mr. Gradzki then called Ms. J. a "Black bitch" and accused her of hitting his wife (Ms. Gradzki) with a bottle. Mr. Gradzki also "beat" her with his cane. Ms. J. tried to go to her apartment, but she was locked out. Thereafter, the police and an ambulance were called and responded to the premises. Ms. J. stated that she was assaulted but that Mr. Gradzki insisted that she be arrested. At the conclusion of Ms. J.'s direct testimony, the court admitted into evidence the following: a temporary criminal order of protection dated September 19, 2022, issued against Kazimierz Gradzki and listing K. J. as the protected person; WebCriminal case details from Case # CR-023533-22QN, listing Kazimierz Gradzki as defendant; and a plenary order of protection dated February 9, 2023, issued against Kazimierz Gradzki and listing K. J. as the protected person.

On cross-examination, Ms. J. was asked what the items were that Mr. Gradzki and the other man were removing on the morning of September 19, 2022. She replied that they were soda cans, that she was planning to cash in for deposit money. After being asked where the cans were stored, she replied that they were outside, on the property line of the grocery store. Several questions followed about the resolution of a commercial landlord-tenant proceeding between the parties (Index No. 307982/21) involving the exterior areas and sheds of the subject property. The court took judicial notice of the orders in that proceeding. Ms. J. denied that the bag of soda cans was on the Gradzkis' property. Ms. J. also denied that she took the bag from the man who was holding them with such force that the bag broke. However, she did acknowledge that a bottle fell out of the bag and shattered. She denied that the bottle hit Ms. Gradzki. She also denied observing any glass in Ms. Gradzki's eye.

At the conclusion of cross-examination, Ms. J. testified that Mr. Gradzki was arrested on September 19, 2022. She also stated that after the events that she described on that date, she went to the hospital.

On redirect, Ms. J. specified that she went to the hospital in an ambulance. She added that Ms. Gradzki was not taken to the emergency room. Ms. J. rested on her prima facie case after her testimony concluded. The court denied an oral motion to dismiss by respondent's attorney after Ms. J. rested.

Wioletta Gradzki was called as respondents' first witness. She testified as follows. She and her husband own the subject premises and had owned it for 3 years. K. J. and J. B. live on the third floor of the subject building. On September 19, 2022, she was outside, cleaning the front of the property. She stated that her husband was with her, "for protection." She saw Ms. J. sitting on the steps. She was pulling weeds on the right side of the property and was hit on the left side of her head with some object. She said she "saw glass." She asked her husband if she was bleeding. She was not bleeding but she felt woozy and had a pain near her eye. Her husband called an ambulance and after it arrived, she was treated with a solution for her eye, her blood pressure was checked, and her head was assessed since she was in pain. She asked the EMT staff to take her to the hospital, but when she told her husband she was going to the hospital, he told her that he was being arrested.

Ms. Gradzki denied that she made any derogatory statements to Ms. J. and denied hearing her husband making any derogatory statements. She also denied seeing her husband hit Ms. J. Her husband was not sure why he was being arrested. She specified that ultimately, she ended up going to the hospital the following day. Her hospital discharge summary from St. Johns Episcopal Hospital was admitted into evidence. The court also admitted a photograph that Ms. Gradzki testified was a depiction of her face after she came home from the hospital. She testified that it showed bruising at the temple, which resulted from a bottle hitting her. She acknowledged that her husband was arrested but denied knowing the outcome (of the criminal case).

Ms. Gradzki next testified extensively about photographs that were admitted into evidence, showing the exterior of the subject property. The crux of Ms. Gradzki's testimony was that Ms. J. and Mr. B. were improperly storing their belongings, including bags of cans and bottles, in the backyard, contrary to the orders in the commercial landlord-tenant case. She stated that on September 19, 2022, she heard Ms. J. yelling from her window, "don't touch my stuff."

On cross-examination, Ms. Gradzki was asked if she saw Ms. J. hit her with a bottle. She replied in the negative. She also denied giving notice to the tenants that she and her husband were coming to the property on September 19, 2022 to clean. She reiterated that she saw Ms. J.'s bags in the backyard. When asked why she did not go to the hospital on September 19, 2022, she replied that she had to clean up and lock the garage door, since her husband was arrested. She could not recall how long it took to clean up.

Kazimierz Gradzki was called as respondents' second and final witness. He testified as follows. On September 19, 2022, he came to the property with his wife to do a "daily" cleanup. He stated that another man, who does recycling work, was there with them. When the other man placed garbage on a moving cart on the sidewalk, he (Mr. Gradzki) heard screaming from the third-floor window. He saw that Ms. J. was screaming. A short time later, on the steps, Ms. J. accused them of stealing her property. The other man gave the plastic bags he was holding to Ms. J. He stated that Ms. J. was "swinging" the bags and a glass bottle swung out of one of them. He described the bottle as bouncing off the pavement, breaking, and hitting his wife in the head. He stated that Ms. J. continued to swing the bag and referenced him trying to evict her. He saw that his wife looked out of balance and called for an ambulance and the police. He stated that his wife was treated in the ambulance for five-to-ten minutes. As for the police, he showed them the court order from the commercial landlord-tenant case. They then told him that they had to arrest him. He stated that he believed he was arrested for violating a restraining order. He was then taken to central booking. He saw a judge and was told to come back to court. He then stated that he was arrested for assault. However, he denied assaulting Ms. J. and denied calling her names.

The court next admitted the certified certificate of disposition for Mr. Gradzki's criminal case (CR-023533-22QN) into evidence. The disposition states that Mr. Gradzki pled guilty to a charge of disorderly conduct related to an incident on September 19, 2022. Mr. Gradzki testified that the District Attorney made the plea offer and he accepted it. He was required to submit to anger management and a "limited" restraining order. He reiterated that he was not convicted for assault. He stated that he accepted the conviction because he did not have the time and money to spend on a trial.

On cross-examination, Mr. Gradzki was asked if Ms. J.' bags were his to throw away. He [*3]replied that he had a duty to clean. He was asked directly if he assaulted Ms. J. with his cane. He denied that he did. He also denied pleading guilty to assaulting Ms. J. He next testified that Ms. J. hit his wife in the face with a bottle. He denied being aware that Ms. J. was taken in an ambulance on September 19, 2022. When asked what his wife was treated for, he replied that she had a piece of glass in her eye and her head was swollen. He confirmed that his wife went to the hospital the following day. As to where he was when his wife was hit with a bottle, he replied that he was in the driveway, 8 feet from Ms. J. and 8 feet from his wife. He denied removing any items on September 19, 2022, except for the bags of cans and bottles. Upon the conclusion of Mr. Gradzki's testimony, respondents rested. The court heard closing statements and the trial concluded.

The trial testimony and evidence established that respondent Kazimierz Gradzki engaged in harassment against petitioner in violation of NYC Admin. Code § 27-2005(d). The testimony and evidence established acts by Mr. Gradzki that constituted "force against [and] making express or implied threats that force will be used against . . . [a] person lawfully entitled to occupancy of such dwelling unit" (NYC Admin. Code § 27-2004(a)(48)(ii)(a)) and "threatening [a] person lawfully entitled to occupancy of [the] dwelling unit based on such person's actual or perceived . . . race[.]" (NYC Admin Code § 27-2004(a)(48)(ii)(f-5)). Ms. J.'s testimony was credible in describing Mr. Gradzki beating her with his cane. Although Mr. Gradzki was not convicted of assaulting Ms. J., the criminal conviction for a lesser charge related to an incident on September 19, 2022 and the issuance of both temporary and plenary orders of protection against Mr. Gradzki (and listing Ms. J. as the protected person), corroborated Ms. J.'s testimony that Mr. Gradzki used force against her. Although the answer raises a defense of self-defense, even accepting respondents' testimony that Ms. J.' actions contributed to Ms. Gradzki's injury, there was no credible demonstration that Mr. Gradzki was threatened by Ms. J.^[FN1] Moreover, while there was significant testimony and evidence presented by respondents to attempt to show that Ms. J. was not adhering to the orders in the commercial landlord-tenant case requiring her to remove her belongings from the backyard, even taken as true, such noncompliance would not warrant physical violence. Thus, the court does not find that the use of force by Mr. Gradzki was justified.

Additionally, Ms. J. credibly testified that Mr. Gradzki referred to her as a "Black bitch" before using force against her. The harassment statute specifically defines racial threats as a separate category of actionable conduct. Although both Mr. Gradzki and Ms. Gradzki denied that Mr. Gradzki made any derogatory comments towards Ms. J., the court found their testimony to be less credible than Ms. J.'s testimony as to this event (see 5539-181 & 182 Prospect Park W. Brooklyn, LLC v. Caseres, 74 Misc 3d 128[A], 2022 NY Slip Op 50062[U], *1 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2022] ["The determination of a trier of fact as to issues of credibility is given substantial deference, as a trial court's opportunity to observe and evaluate the testimony and demeanor of witnesses affords it a better perspective from which to assess their credibility."] [internal citations omitted]).

There was no dispute that Mr. Gradzki is an "owner" of the subject premises, as defined [*4]by the Housing Maintenance Code (NYC Admin. Code § 27-2004(45)). Ms. Gradzki testified that she and Mr. Gradzki had owned the property for 3 years. The court's review of the DHPD website pursuant to Multiple Dwelling Law (MDL) § 328(3) also reveals that Kazimierz Gradzki is registered as managing agent and joint owner for the subject property (see Department of Hous. Preserv. & Dev. of City of NY v. Livingston, 169 Misc 2d 660, 661 [App Term, 2d Dept, 2d & 11th Jud Dists 1996] [Registered managing agent is an "owner" under the Housing Maintenance Code]). The court also finds that the subject premises is part of a multiple dwelling. The subject building contains 3 "A" units, according to the DHPD online database (NYC Admin. Code § 27-2004(a)(7)). As the subject premises is a multiple dwelling, there is a rebuttable presumption that Mr. Gradzki's acts constituting harassment were intended to cause petitioner to vacate or otherwise surrender or waive her rights (see NYC Admin. Code § 27-2004(a)(48)(ii); Berg v. Chelsea Hotel Owner, LLC, 203 AD3d 484, 485 [1st Dept 2022]). The court does not find that Mr. Gradzki adequately rebutted the presumption at trial. Indeed, a substantial part of respondents' testimony and evidence was comprised of denials and/or justifications for the actions that Ms. J. credibly described and established; lack of requisite intent to cause Ms. J. to give up her rights, on the other hand, was not proven by Mr. Gradzki.

While the court finds that Kazimierz Gradzki engaged in harassment, petitioner did not adequately demonstrate that Wioletta Gradzki engaged in harassment under the Housing Maintenance Code. There was no testimony or other evidence presented to demonstrate that Ms. Gradzki engaged in any act or omission defined as harassment under the Housing Maintenance Code, nor does the court find that any of Mr. Gradzki's acts can be imputed to Ms. Gradzki.^[FN2] Accordingly, the proceeding is dismissed against Wioletta Gradzki after trial.

Having determined that Kazimierz Gradzki engaged in harassment against petitioner under the Housing Maintenance Code, the court hereby ORDERS following relief pursuant to NYC Admin. Code §§ 27-2115(m) and § 27-2115(o):

(A) The court finds that a class "C" violation existed as a result of the harassment and that such violation existed at the time that this action was commenced (November 9, 2022). The violation is not deemed to be continuing;

(B) The court restrains Kazimierz Gradzki from violating NYC Admin. Code §§ 27-2005(d) and 27-2004(a)(48), and he is directed to ensure that no further violation occurs;

(C) The court imposes a civil penalty against Kazimierz Gradzki in the amount of $3,000.00, which shall be subject to a judgment in favor of DHPD;

(D) The court awards statutory compensatory damages in the amount of $1,000.00 to petitioner, which shall be subject to a judgment in favor of petitioner and against Kazimierz Gradzki. Petitioner did not present any evidence of actual damages at trial. Accordingly, the statutory amount is imposed;

(E) The court awards statutory punitive damages in the amount of $7,000.00 to petitioner, which shall be subject to a judgment in favor of petitioner and against Kazimierz Gradzki. The inquest testimony and evidence established that Mr. Gradzki used physical force against [*5]petitioner immediately after calling her a derogatory term referencing her race. As the Court of Appeals for the Second Circuit has observed, race-based private violence, particularly against Black Americans, has historically had the deleterious effect of "interfering with and discouraging the . . . exercise of civil rights[.]" (United States v. Nelson, 277 F3d 164, 190 [2d Cir 2002]). In the context of a landlord-tenant relationship, Mr. Gradzki's morally-culpable conduct necessarily had a detrimental effect on petitioner's dignity, safety, physical and emotional well-being, and the ability to enjoy the rights belonging to her as a tenant in New York City. The imposition of punitive damages here is necessary to deter Mr. Gradzki, "as well as others who might otherwise be so prompted, from indulging in similar conduct in the future." Walker v. Sheldon, 10 NY2d 401, 404 [1961]; see also Leung v. Zi Chang Realty Corp., 74 Misc 3d 126[A], 2022 NY Slip Op 50034[U] [App Term, 1st Dept 2022].

This Decision/Order will be mailed to petitioner and emailed to the attorneys for respondents and DHPD. The parties are directed to pick up their exhibits within 35 days or they will be sent to the parties or destroyed at the court's discretion in accordance with DRP-185.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.