PHA Didn't Follow Court-Ordered Mold Remediation Timeline

Facts: In December 2013, several households filed a class action complaint seeking injunctive relief against the local PHA for failing to abate mold and excessive moisture in their units. In February 2014, the court certified a settlement class of current and future residents of the PHA who have asthma that substantially limits a major life activity and who have mold and/or excessive moisture in their housing. Instead of contesting the allegations, the PHA elected to settle and in April 2014 entered into a consent decree.

The consent decree established a new mold and moisture abatement program for the PHA. Under the consent decree, the PHA is required to abate mold and excessive moisture by completing “simple” repairs within seven days and “complex” repairs within 15 days. The consent decree established the acceptable level of compliance as “process[ing] to completion” at least 95 percent of the work orders for simple or complex repairs within seven or 15 days, on average, respectively. The consent decree also required the PHA to follow up with residents to determine whether their mold or excessive moisture problems were remediated, and produce quarterly reports to their attorneys setting forth the number of residents contacted and the percentage of complaints left unresolved.

The PHA altered its practices and began opening multiple “parent” and “child” work orders for each “repair” needed to address mold or excessive moisture in a resident’s unit. The PHA opened a “parent” work order when a complaint was received. That “parent” work order was closed after staff identified the nature of the problem. Then, multiple “child” work orders were opened serially for each “repair requiring a separate skilled trade.” Each “child” work order would restart the clock on the original work order. Since the entry of the consent decree, when “parent” and “child” work orders were paired, the PHA’s average service level for “simple” repairs increased from 6.8 days to 8.7 days in the first quarter, and from 6.3 days to 9.5 days in the third quarter. Thus, the effect of the PHA’s change in its practices has been to extend the time it takes to address a mold or moisture condition in a resident’s unit—to weeks or even months—while maintaining nominal compliance with the time requirements in the consent decree.

Residents claimed that the PHA failed to comply with the time requirements in the consent decree. They sought a court order reiterating the PHA’s obligation to complete “simple” mold remediation repairs in no more than seven days, and “complex” repairs in no more than 15 days, on average. They also asked the court to appoint a special master to monitor the PHA’s compliance with the consent decree.

Ruling: A New York district court granted the residents’ request to enforce the consent decree and for appointment of a special master.

Reasoning: According to the court, it has a duty to supervise and enforce the terms of its orders where “one party threatens to frustrate the purpose of the decree.” The court ruled that the terms of the consent decree are straightforward and the PHA must remediate mold and excessive moisture by completing “simple” repairs within seven days and “complex” repairs within 15 days, on average. The purpose of the consent decree is indisputable. And the PHA must apply “remediation techniques designed to eliminate or control mold and/or excessive moisture at their source.”

According to the court, the PHA has been out of compliance with the consent decree from the day it was entered by the court. The court ruled that the PHA’s justifications for its failure to comply are inadequate. Thus, the court held that the consent decree requires the PHA to complete “simple” repairs in no more than seven days and “complex” repairs in no more than 15 days, on average—and that the clock begins to run when a “parent” work order is opened in response to a resident’s complaint.

Baez v. New York City PHA, December 2015