Department of Hous. Preserv. & Dev. of City of New York v Food First HDFC, Inc. (2014 NY Slip Op 50226(U))

Department of Hous. Preserv. & Dev. of City of New York v Food First HDFC, Inc.

2014 NY Slip Op 50226(U) [42 Misc 3d 142(A)]

Decided on February 7, 2014

Appellate Term, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and will not be published in the printed Official Reports.

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

Department of Housing Preservation and Development Of the City of New York, Respondent,

against

Food First HDFC, Inc., ALFRED THOMPSON and BRYAN THOMPSON, Appellants.

Appeal from an order of the Civil Court of the City of New York, Kings County (Hannah Cohen, J.), dated November 1, 2011. The order, after a nonjury trial, granted a petition by the Department of Housing Preservation and Development of the City of New York for the imposition of civil penalties against appellants Food First HDFC, Inc., Alfred Thompson and Bryan Thompson.

ORDERED that the order is reversed, without costs, the petition is denied, the proceeding is dismissed, and the civil penalties, if paid, are remitted.

The Department of Housing Preservation and Development of the City of New York (HPD) commenced this proceeding for the imposition of civil penalties, pursuant to section 27-2115 (a) of the Housing Maintenance Code of the Administrative Code of the City of New York, against appellants Food First HDFC, Inc., Alfred Thompson and Bryan Thompson, on the ground that they had wilfully made a false certification of correction of violations. Section 27-2115, entitled "Imposition of civil penalty," provides, in part, that "(a) . . . A person wilfully making a false certification of correction of a violation shall be subject to a civil penalty of not less than fifty dollars nor more than two hundred fifty dollars for each violation falsely certified, in addition to the other penalties herein provided." The term "willful" is defined, in a civil regulatory context, to mean
" no more than intentional or deliberate' " (Matter of American Tr. Ins. Co. v Corcoran, 76 NY2d 977, 979 [1990] quoting Matter of Old Republic Life Ins. Co. v Thacher, 12 NY2d 48, 56 [1962]).

At a nonjury trial, HPD limited its false certification claims to violation # 8441781 (replace the defective or broken glass of west window 1 in the second room of apartment 3B), violation # 8441782 (repair the defective or broken window counter balance at west window 2 in the third room of apartment 3B), and violation # 8441783 (repair the defective or broken window counter balance at west window 2 in the first room of apartment 3B). By a certification dated June 17, 2010, appellants stated that the foregoing violations had been corrected. However, a reinspection report by HPD, dated June 23, 2010, stated that the violations had not been [*2]corrected. Appellants' sole witness at the trial stated that, on June 15, 2010, he had repaired the window counter balances, but he provided no testimony regarding the broken glass in the window of the second room. However, the documentary evidence established that the broken glass window was replaced in the room referred to in violation # 8441781. Consequently, we find that appellants did not wilfully falsely certify that violation # 8441781 had been corrected. Moreover, HPD now concedes that appellants did not willfully falsely certify that violations # 8441782 and # 8441783 had been corrected.

Accordingly, the order is reversed, the petition is denied and the proceeding is dismissed.