Opinion
No. HP 6138/10.
2010-10-5
Domingo CRUZ, Petitioner, v. SQUARE BLOCK ASSOC., INC., Respondent, and Department of Housing Preservation and Development (DHPD), Respondent.
Domingo Cruz New York, Petitioner (Pro Se). Steven Sperber, Esq., Sperber Denenberg & Kahan, P.C., New York, Attorney for Respondent.
Domingo Cruz New York, Petitioner (Pro Se). Steven Sperber, Esq., Sperber Denenberg & Kahan, P.C., New York, Attorney for Respondent.
Mark Roeder, Esq., of Counsel, Deborah Rand Esq., Department of Housing Preservation and Development of the City of New York, Housing Litigation Bureau, New York, Attorney for HPD.
DAVID J. KAPLAN, J.
Petitioner, Domingo Cruz, commenced this HP proceeding seeking an order directing respondent, Square Block Assocs., Inc., to correct various alleged conditions in the apartment, including leaks and a broken window. An inspection of the premises on July 28, 2010 by Department of Housing and Preservation (“HPD”) revealed 15 violations at the premises, including one Immediately Hazardous Class “C” violation. Respondent now moves to dismiss this proceeding on the ground that petitioner lacks standing. HPD and petitioner oppose the motion.
On February 17, 2010, Square Block Associates was awarded a judgment of possession against Cruz in the context of a holdover proceeding ( see Square Bock Assoc. Inc., v. Fernandez, et al., Civ Ct, Hous Part, N.Y. County L & T index No. 66724/08). A warrant was permitted to issue forthwith and execution of it was stayed through June 30, 2010 ( Id.). However, enforcement and execution of the warrant of eviction have subsequently been further stayed by the Appellate Term pending determination of Cruz's appeal and contingent on payment of ongoing use and occupancy ( see Square Block Assoc. v. Fernandez, et al., 2010 N.Y. Slip Op 83447[U] [App Term 1st Dept] ).
Respondent argues that the issuance of a warrant of eviction in the holdover proceeding undermines petitioner's standing to proceed in the instant HP proceeding. Contrary to respondent's contention, the inquiry is not solely whether a warrant has issued but whether the petitioner has a “lawful right to the premises” (Various Tenants of 515 East 12th Street v. 515 East 12th Street, Inc., 128 Misc.2d 235, 238 [Civ Ct, N.Y. County 1985] ). Here, petitioner does have a lawful right to stay at the premises pursuant to the stay issued by the Appellate Term. The fact that a warrant of eviction may have issued is not dispositive in this instance as petitioner is paying use and occupancy and residing at the premises pursuant to a court order ( cf. In re Muniz, 1999 WL 182588 [SDNY] [Noting that while the “warrant of eviction may terminate the legal relationship ... the tenant possesses [certain] right[s] incident to his [or her] possessory status and subject to the court's jurisdictional and equitable jurisdiction” and thus has standing to maintain a HP proceeding]; Shapiro v. Townan Realty Co., 162 Misc.2d 630, 632 [Civ Ct, N.Y. County 1994] [Holding that issuance of a warrant of eviction in a nonpayment proceeding did not deprive tenant of standing to commence HP proceeding] ).
To the extent that respondent relies on Various Tenants of 515 East 12th Street for the proposition that the issuance of a warrant of eviction deprives an individual of standing to commence an HP proceeding, the court notes that portion of the decision is dicta ( see Shapiro, 162 Misc.2d at 634–35). Regardless, the facts in this instance give rise to a different result.
Although petitioner was determined not to be a rent regulated tenant in the holdover proceeding which is currently on appeal, he is still entitled to essential services and protection from hazardous violations while he continues to reside at the premises pursuant to a court order.
Petitioner's standing is consistent with the legislative intent of the HP part which is, in part, to “ “protect and preserve existing housing, regardless of whether the proceeding is commence [ sic ] by HPD or a tenant, and regardless of whether the apartment or building is vacant or occupied” ( D'Agostino v. Forty–Three Equities Corp., 12 Misc.3d 486, 487 [Civ Ct, N.Y. County 2006] affd on other grounds16 Misc.3d 59 [App Term, 1st Dept 2007] ). To hold otherwise, would undermine an essential enforcement mechanism—commencement of a proceeding by the occupant who has first hand knowledge of the dangerous conditions—for proper maintenance of the city's housing stock that the legislature put in place when it enacted Civil Court Act § 110(a) ( cf. Carrasquillo v. 197 Columbia Realty Co., NYLJ Dec. 2 1992, at 25, col 5 [Civ Ct, Kings County] [“ “To suggest that this Court is powerless to order a landlord to make repairs once a vacate order has been issued would make a mockery of the mission of the housing part to maintain housing standards”] ).
The court is cognizant of the fact that circumstances may render the correction of violations impractical based on an occupants likely imminent departure and that some violations written by HPD and other agencies do not give rise to a hazard. To this extent, the court has the power under Civil Court Act § 110(c) to consider these factors when fashioning an appropriate remedy.
Furthermore, the court notes that conferring standing on petitioner here is not only consistent with the legislature's intent in establishing the HP Court, it is also consistent with sound public policy in this instance. To hold otherwise would give carte blanche power to a landlord to force an occupant who is residing in the premises pursuant to a lawful court order to vacate or suffer without due process. Whether it be by turning off heat or electricity or neglecting the premises, a landlord could easily foster conditions that could effectively force a lawful occupant out of possession long before his or her appeal ran its course. Nor can the court find prejudice against the landlord in this instance by requiring it to do what it is otherwise required to do—maintain the premises in a safe and habitable manner. Accordingly, respondent's motion to dismiss is denied.
This constitutes the decision and order of this court.