Petitioner, Department of Housing Preservation and Development of the City of New York ("HPD"), brought this action for civil penalties pursuant to § 27-2115 (l) (5) of the Housing Maintenance Code as amended by Local Law 1 of 2004 against respondents for the false certification of correction of lead-based paint violations.

At trial, the court heard the testimony of respondent Mr. Alex Bonnet, an employee of SDG Management, Ms. Margaret Ervin, an employee of New York City Lead Abaters, LLC, Ms. Irene Delgato, an employee of ALC Environmental, Mr. Juan Segura, an employee of 157 Broadway Associates, and Mr. Stephen McTernan, a HPD Lead Inspector.

On April 12, 2007 petitioner inspected 3770 Broadway, aka 550 West 157th Street, Apartment No.80 and observed nine Class C lead-based paint violations.^[FN1] On or around April 16, 2007 petitioner issued to respondents a Notice of Violation ("NOV") for violation nos. 6697790, 6697793, 6697794, 6697795, 6697796, 6697797, 6697798, 6697799, 6697800. Respondents had until May 26, 2007 to correct the violations, and May 31, 2007 to certify the corrections. [*2]

Respondents retained New York City Lead Abaters, LLC to correct the violations in Apartment No.80. New York City Lead Abaters completed work on May 1, 2007. At trial, Ms. Irene Delgato, an EPA licenced tester for lead, asbestos, and mold and a general manager at ALC Environmental, testified that ALC took dust wipe samples in the apartment on May 4, 2007. However, Ms. Delgato could not testify as to the condition of the violations on May 4, 2007 since she did not collect the samples and has never been to Apartment #80. The only witness who could testify as to the condition of the violations before HPD's re-inspection was Mr. Alex Bonnet, the property manager for SDG Management. Mr. Bonnet inspected the apartment both during and after New York City Lead Abaters performed their work. However, Mr. Bonnet has no experience or expertise in lead-based paint removal.

On May 9, 2007, respondents certified that all nine violations were corrected. Petitioner received the certification of correction on May 10, 2007. In addition to the certification, HPD received letters from New York City Lead Abaters and ALC Environmental confirming that all violations were corrected and all dust wipe samples tested were below federal guidelines for lead in dust, respectively.

Petitioner sent Inspector Stephen McTernan to Apartment #80 on June 13, 2007 to verify compliance (see Housing Maintenance Code ("HMC") [Admin Code] � 27-2115[l][3]). Mr. McTernan, whom the Court determined to be an expert in lead-based paint removal, found that three of the nine Class C violations, violation nos. 6697797, 6697799 and 6697800, were not in compliance. Per HPD policy, Mr. McTernan photographed the subject violations documenting the three uncorrected lead-based paint conditions. On June 18, 2007, petitioner notified respondents that the certifications of the subject violations were invalid because the violations remained uncorrected.

From June 2007 through May 2008 respondents failed to correct the violations. In May 2008, at the request of respondents, Mr. Juan Segura, an employee of 157 Broadway Associates who is certified by the EPA in lead removal, used the NOV and diagram sent by HPD on April 16, 2007 to identify and correct the three remaining lead-based paint violations in the apartment.

In late 2008, after this proceeding was commenced, Ms. Margaret Ervin, a New York City Lead Abaters supervisor, inspected the apartment and determined that all violations were in compliance with Local Law 1. Apparently unaware that the remaining violations were corrected by Mr. Segura in May 2008, Ms. Ervin assumed that all abatement work in the apartment was performed by New York City Lead Abaters on May 1, 2007.

Petitioner introduced into evidence the property registration identifying respondents as the proper parties, the NOV dated March 18, 2007, respondents' certification of correction dated May 9, 2007, the HPD re-inspection report and the notice of invalidated certification dated June 13, 2007, establishing petitioner's prima facie case for the false certification of correction of lead-based paint violations (see DHPD v Pinnacle Flatbrush LLC and Harry Hirsch, Civ Ct, New York County, September 18, 2006, Gonzales, J., index No. HP 2048/05; DHPD v Varveris, Dodeka Realty, NYLJ, June 16, 1992, at 36, col 6 [Civ Ct, Queens County]). "There [is] a presumption that the condition constituting a violation continues after the affixing of the notice" (HMC [Admin Code] � 27-2115[k][1]). This presumption was bolstered by HPD Inspector Stephen McTernan's credible testimony regarding the failing condition of violation nos. 6697797, 6697799 and 6697800 and by photographs taken during the re-inspection. Thus, the burden was on the respondents to overcome [*3]this presumption (see Varveris at 36, col 6). Respondents' lone defense was that all violations were corrected before the June 13, 2007 re-inspection.

Alex Bonnet, the property manager for SDG Management, inspected the lead abatement work performed by New York City Lead Abaters and testified that all violations were in compliance before he certified the corrections of the violations. The court must weigh his statements against the fact that Mr. Bonnet, according to his own testimony, has no expertise or experience in lead-based paint removal (see DHPD v Pine Realty, LLC, Civ Ct, New York County, July 29, 2005, Lebovits, J., index No. 642/05). Since Mr. Bonnet does not possess the expertise necessary to determine if lead abatement work is properly performed, his testimony does not overcome petitioner's prima facie proof.

Margaret Ervin, a supervisor for New York City Lead Abaters, testified that all nine violations were corrected before the HPD re-inspection on June 13, 2007. However, Ms. Ervin did not personally inspect the apartment until over a year after the re-inspection. In fact, though she testified that it is New York City Lead Abaters policy to do so, no supervisor was sent to the apartment to inspect the completed work. Though Ms. Ervin testified that all nine Class C violations were corrected when she inspected the apartment in late 2008, her testimony in no way refutes HPD findings that the three subject violations remained uncorrected on the June 13, 2007 re-inspection.

Respondents mistakenly believe that submitting into evidence the lab results of dust wipe samples taken from Apartment #80 proves that the abatement work was completed before June 13, 2007. Dust wipe samples in no way show if a violation was corrected (see DHPD v 712 Realty LLC, 14 Misc 3d 1240[A], 1243 [Civ Ct, New York County 2007]; Pinnacle, supra). Rather, "the fact that the dust wipe tests show acceptable levels speaks to the adequacy of clean up" (see 712 Realty LLC at 1243). Additionally, Irene Delgato, an employee of ALC Environmental, did not collect the samples at the apartment and has never been to the premises. Thus, Ms. Delgato could not testify as to the condition of the violations when the samples were corrected on May 4, 2007.

Finally, the testimony of Juan Segura, an employee of 157 Broadway Associates, makes it clear that until Mr. Segura was asked by respondents to correct the three subject violations, the violations remained uncorrected for over a year after HPD's initial inspection. Since Ms. Ervin was apparently unaware that Mr. Segura corrected the violations in May of 2008, Ms. Ervin incorrectly assumed during her visit to the apartment in late 2008 that New York City Lead Abaters had abated all nine violations on May 1, 2007. Mr. Segura's testimony, along with the other evidence submitted at trial, overwhelming established that respondents falsely certified the correction of three lead-based paint violations.

" Lead is a poison that affects virtually every system in the body' and is particularly harmful to brain and nervous system development" (see New York City Coalition to End Lead Poisoning, Inc. v Vallone, 100 NY2d 337, 342 [2003], citing Centers for Disease Control and Prevention Statement, Preventing Lead Poisoning in Young Children, at 7 [October 1991]). "Even low levels of blood lead have been linked to diminished intelligence, decreased stature or growth and loss of hearing acuity" (see Vallone at 342, citing Centers for Disease Control and Prevention Statement, Preventing Lead Poisoning in Young Children, at 9).^[FN2] The permanent and serious health hazards posed by lead-based paint to children have led the City of New York to require courts to impose a civil penalty of no more than $3,000 and no less than $1,000 for each violation found to have been falsely certified (HMC § 27-2115[l][5]). Although efforts to correct violations may be considered [*4]as a mitigating factor in determining the appropriate civil penalty to impose, respondents efforts in Apartment #80 were woefully deficient (see 712 Realty at 1244; DHPD v 537 Clinton, 11 Misc 3d 327, 330-331 [Civ Ct, Kings County 2005]). Respondents' initial effort to correct was promptly made, however, one-third of the violations were not in compliance on HPD's re-inspection. Moreover, these violations remained uncorrected for approximately 11 months after HPD's re-inspection. As such, the maximum penalty of $3,000 per violation is appropriate in this case. Accordingly, the court awards petitioner civil penalties in the amount of $9,000.

The clerk of the court shall mail a copy of this decision and order to all parties.

This constitutes the decision and order of this court.

Dated: June 19, 2009

New York, New York

__________________________________

DAVID B. COHEN, J.H.C.

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