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Wind Change Consider stirring things up and making some major changes in your life. Sun 8.29 Dealing with the big boys now. My opponent seems a little shaky, and thinks he can play his dirty tricks here too. A very bad thing happened to him in Housing Court where they are trying to evict. As per my usual of coming in on a wing and a prayer, not having the rent money that I had to keep paying while DHCR was in the process of reaching a decision, I appealed to my state representative to see if pressure could be applied to get the decision quicker. My guy's name is Keith Wright and he runs a cracker jack office. I am so impressed with the service I got from his special assistant, Corey Ortega, who, although he couldn't prod DHCR, came to court with me. He then found a lawyer he knew and asked her about my case. This woman not only helped him out but agreed to take my case on, on contingency. She's in another court with a client, but will come down as soon as she's free. I am so tense at this point I feel ready to explode. Our judge has cleared his work hearing cases and we are the only ones in the room waiting for the lawyer to show up. Everybody waits. And when she arrives, she completely takes over and I'm not asked to say a word; she's my defender. Things are happening very fast and they are out of opposing lawyer's hand. He absolutely wants to have the matter settled today, and he makes a motion. Judge Capella says it is a ridiculous motion. Lawyer is taken aback by this and can't gather his thoughts. He states something to the effect that this has never happened to him before. The judge then says, That's not true. I speak to other judges, you've heard this before. And my lawyer, oh gosh, a true bitch. I fell in love with her when she told opposing lawyer, "You've got 5 minutes!" strutting down the hall in her high heels clip clopping along when he attempted to stall. She was merciless with him. Below are initial steps in my appeal of the non-payment/mold case. SUPREME COURT OF THE STATE OF NEW YORK APPELLATE TERM, FIRST DEPARTMENT ----------------------------------------------x Sonja Aris/517 Manhattan Ave. Corp Petitioner Ð Landlord Against Appellant Ð Tenant ----------------------------------------------x State of New York, County of New York ss: Lorraine St. Pierre, 517 Manhattan Ave. #1, New York, New York 10027 does hereby affirm upon penalty of perjury, as follows: 1. This reply is respectfully submitted in response to 517 Manhattan Ave Corp/Sonja Aris's (hereafter "petitioner") affirmation in opposition. 2. I am the Appellant in this action, and I respectfully submit this reply to the Affirmation in Opposition motion made by Geovanny Fernandez, attorney for the Petitioner. Relevant Facts: 3. According to Petitioner's Affirmation in Opposition, point 2: 2."I make this affirmation in opposition to appellants application for an order staying the enforcement of the money judgment . .".4. Appellant did not ask for a stay of the enforcement, she asked merely to place the money with the court in two installments of $804.76, one at present and the next installment in the next 30 days. 5. The ambiguity of the language in the rest of the paragraph leads me to assume that either petitioner believes Judge Schneider rendered a decision entitling petitioner to "such other or further relief, including, but not limited to reasonable attorney fees for preparation and filing of instant opposition." (Not true, see Petitioner's exhibit C. The judgment is solely for the amount of $1609.52), or is it that Petitioner, through her attorney is asking for attorney fees for present opposition if she prevails? 6. According to Petitioner's Relevant Facts and Procedural History, point 3: 3. A detailed procedural history of the extensive litigation between the parties is attached, herein as exhibit A, "Petitioner's exhibit A documents about matters presently before Housing Court, and which the court has yet to resolve, bear no relevance to the question before this court, and can be interpreted as a guileful attempt to prejudice the court. 7. According to Petitioner's Argument, point 6: 6. "First instant application must be rejected as your deponent did not receive adequate notice for instant motion, having received same motion by hand on August 19, 2010 less than the eight day requirement for notice on motion, pursuant to CPLR."It was entirely the court's decision as to the date of notice to petitioner and date of response. 8. According to Petitioner's point 7 Argument: 7. ". . [r]espondent's chief complaint at trial [] that there was toxic dust being blown into her apartment from the cellar under the apartment, noting that ' [a]n inspection by the New York City Department of Health [made part of the record and attached as Exhibit E] revealed nothing but ordinary house hold dust in respondent's apartment. "Petitioner cannot pick and choose which part of the Department of Health and Mental Hygiene (herein known as the Department of Health) Report best favors her argument, specifically the "initial" indoor air quality investigation. See attached exhibit 1. As to petitioner's remarks on the matter of "toxic dust being blown into her apartment," it brings up a point worth clarifying. When I first began to exhibit symptoms, having never been exposed, or even cognizant of mold and its effects on human beings, I had no idea what was happening to me. I knew that the cause of my illness was coming up through the cellar, and was cyclic in nature, happening at certain times of day or night, that it would immediately clog my nostrils and coat on my tongue when activated. Thus began my odyssey to find out what was causing my troubles. I had no idea what the problem was when I asked the Department of Health to come and investigate the situation or when I communicated with landlord about it. (See exhibit 2 and 3.) 9. According to Petitioner's point 8 Argument: 8. "Respondent now appeals same Decision/Order dated December 19, 2009 . . . "Appellant did not ask for a stay of the enforcement, she asked merely to place the money with the court in two installments of $804.76, one at present, and the next installment in the next 30 days. 10. According to Petitioner's Argument, point 9: 9. "Respondent's Affidavit in Support . . fails to make any such representation [that Housing Court made reversible error in finding/failed to consider some evidence] or provide any document to support respondent's application."The below court's ruling that "There is no credible evidence that mold and other friable material in the cellar affected respondent's apartment." is too narrow and doesn't take into account N. Y. Real Prop ¤, 235-b(3)(a) that a tenant "need not require any expert testimony." To have gone beyond the Department of Health's Report and provide what below court sought would have entailed costly environmental air quality inspections and/or expert medical testimony, which is not the intent of the Warranty of Habitability. Under the Warranty of Habitability, according to Housing Court's own fact sheet (CIV-LT-91) (see exhibit 4) are listed any number of violations beside mold that would fail below court's test for affecting a tenant's apartment. How does a broken front door lock affect tenant in his apartment on the 5th floor? What are the probabilities that a thief, murderer, or rapist would bother to go up there instead of choosing a lower floor apartment closer at hand? The question is immaterial; there is a threat and it must be corrected. Concerning same tenant, how does a ground floor courtyard strewn with garbage affect him on the fifth floor? In POYCK v.BRYANT et al., 13 Misc.3d 699 (2006 )820 N.Y.S.2d 774 the court ruled in favor of a tenant suffering from second hand cigarette smoke coming from a neighbor's apartment. Less than 6 inches from the un-insulated floor that I walk on, in a structure built at the turn of the century, a floor that I exercise on, and sit and lie on to play with my cat, is the cellar ceiling with its 9 feet of mold growing and sending off spores that cause health problems, and have been deemed by the Center for Disease Control and Prevention, the Federal Emergency Management Agency, the U. S. Environmental Agency, the New York State Department of Health, the Department of Housing Preservation and Development, and the New York City Department of Health and Mental Hygiene, to cause adverse health effects. DEPARTMENT OF HEALTH HAS THE NECESSARY AUTHORITY to make pronouncements and decisions concerning mold in the cellar and to advise petitioner "to abate physical mold conditions, and to repair any sources of water leaks and moisture infiltration that may contribute to mold condition[,]" on behalf of aggrieved tenant, which it did to no avail. Petitioner never read the department's report. I then took it upon myself to withhold rent money in hopes it would influence petitioner to correct situation. It did not. City Charter, Section 556, confers on the Department of Health the jurisdiction to regulate all matters affecting the health in the City of New York. City Charter, Section 556, C (2) also confers on Department of Health the power to "Supervise the reporting and control of communicable and chronic diseases and conditions hazardous to life and health; exercise control over and supervise the abatement of nuisances affecting or likely to affect the public health [e.g. mold]." Section 558, (b) and (c ) of the Charter: "Empowers the Board of Health to amend the Health Code to include in the Health Code all matters to which the Department extends. Section 1043 of the Charter grants the Department of Health rule making powers." THE DEPARTMENT'S HEALTH CODE, ¤131.05 Daily Responsibility for Violations: a)Duty: "The owner, manager, agent lessee, tenant occupant or other person who manages or controls all or part of a building or part thereof in a safe condition and in a manner that maintains structural integrity, prevents infestation . . . " b) Violations: "The owner (et al) shall be jointly and severally liable for the existence of such building of a nuisance or condition dangerous to life or health." HEALTH CODE, ¤131.13 Control of Unsafe Conditions "A public health nuisance, whether it is caused by a violation of other applicable law, remains subject to the nuisance abatement powers of the Department. (emphasis added) . . . which was upheld as constitutional in the predecessor of the Health Code, New York City Sanitary Code ¤ 181 in People ex rel. Styler V Commonwealth Sanitation Co., 107 N.Y.S. 2d 982, 985 (Magistrates Ct.1951)" OTHER APPLICABLE LAW: DEPARTMENT OF HOUSING PRESERVATION AND DEVELOPMENT (DHPD) Housing Maintenance Code Subtitle II: Maintenance, Services and Utilities Section D26-10.01 Duties of the Owner a) "The owner of a multiple dwelling shall keep the premises in good repair . . [is] responsible for compliance with the requirements of this code, except insofar as responsibility for compliance is imposed upon the tenant alone." Section D26-54.01 Power to Cause or Order Correction of Violations: a) "Whenever the Department determines that whenever any violations of this title or other applicable law any dwelling or part of its premises is dangerous to human life and safety or detrimental to health, it may: 1. correct such conditions, or 2. order the owner of the dwelling or other responsible party to correct such conditions." NEW YORK STATE MULTIPLE DWELLING LAW: Title 3, Section 78: "Repairs: Owner shall be responsible for keeping premises in good repair. Department has right when a condition or its effects is deemed dangerous to life and health it may take such action necessary to remove such danger." Section 80 of the Multiple Dwelling Law: Cleanliness: Thoroughly cleanse and keep clean at all times to the satisfaction of the department every public or service part thereof, including every room, passage, stair, floor, window, door, wall, ceiling, water closet or toilet compartment, cesspool, drain, hall and cellar (emphasis added). 11. According to Petitioner's Argument, point 10: 10. " . . [R]espondent continues to make allegations that respondent was seen at the emergency room and has burnt lips and sore throat and somehow demands that this Court deem same representations as reversible error on the part of Housing Court with respect to respondent's defense and claim of warrant of habitability."Appelant's Affidavit made no such claim, quite the opposite, seeing that approach, what with the variety of symptoms and degree of allergic susceptibility exhibited by those who are exposed to mold for any extended period, not to mention the question of causality, as a costly sink hole providing dubious rewards. But the question of how I came to discover that there was mold in the cellar needs to be clarified for the court. I was providing necessary background information. 12. According to Petitioner's Argument, point 11: 11. "Given respondent's education and ability sufficient to maneuver and understand procedure to get to the point of filing an appeal, respondent's more likely intent is admitted by respondent's journal attached herein as Exhibit F: to continue to use the judicial system to extort from landlord a new radiator that is not required by law . . " "Current law (Exempt Income Protection Act of 2008), however protects those judgment debtors from having their bank accounts raided by judgment creditors, and so respondent's relief herein is mute."Petitioner's knowledge or lack thereof, about my education and capabilities, or her exhibit F of my journal entry bear no relevance to the central question before this court. And her allegation that using the judicial system to extort a new radiator again bears no relevance, and on the face of it, makes no sense. If Income Protection Act of 2008 protects my account, why then is petitioner opposing what she perceives as my request for a stay of the money judgment? And furthermore, why, knowing for several months of this appeal, still pursues me through a collection agency? Informed of the Income Protection Act, my request to deposit the judgment for lawyer fees in two installments with the Department of Finance is now moot and I respectfully ask the court to put aside my request. I declare under penalty of perjury that the foregoing is correct. Dated_________________ Signed_____________________________ Lorraine St. Pierre 517 Manhattan Ave. # 1 New York, NY 10027 luhren@gmail.com
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