Opinion
HP 306014/2020
06-23-2021
Sharina DOYLE, Jeremiah Aviles, Petitioner, v. Luis RIQUELME, Carlos Barbosa, and New York City Department of Housing Preservation and Development, Respondents.
Recitation, as required by CPLR 2219(a) :
Notice of Motion and Affidavits Annexed 1,2
Order to Show Cause and Affidavits Annexed 3
Answering Affidavits 4
Replying Affidavits 5
Exhibits 6
Stipulations 7
Other 0
Petitioners commenced this HP proceeding by Order to Show Cause seeking an order to correct and a finding of harassment. The subject premises are located at 422 54th Street, 3rd FL, Brooklyn, NY 11220 ("premises" or "attic apartment"). Petitioners seek an order directing Respondents Luis Riquelme and Carlos Barbosa ("Respondent Owners") to correct conditions which resulted in both the New York City Department of Housing Preservation and Development ("HPD") and the New York City Department of Buildings ("DOB") issuing vacate orders for the premises. In addition to seeking civil penalties and a finding of harassment, Petitioners also seek an order directing Respondent Owners "to correct the conditions by legalizing the apartments, if feasible, rather than by restoring them to an uninhabitable attic." Respondent Owners interposed a Verified Answer and issue is joined. All parties are represented by counsel.
On February 18, 2021, Respondent Owners filed a motion for summary judgment. The parties stipulated to a briefing schedule on March 18, 2021. The Court conducted virtual Court appearances via Microsoft Teams, and on May 17, 2021, the Court heard oral argument and reserved decision. HPD did not oppose Respondent Owners' motion for summary judgment.
Factual History of the Attic Apartment :
The following facts are not in dispute. Respondent Owners purchased the building located at 422 54th Street, Brooklyn, NY 11220 ("building") on or about September 19, 2005. The building has a landmark designation. The 2-story building contains 2 Class "A" apartments and a third apartment located in the attic. Petitioners have resided in the attic apartment for many years, since at least 2009, and have signed lease renewals over the years with Respondent Owners. There is disagreement as to whether Petitioners are month-to-month tenants or whether their lease runs through December 2021, however, under either scenario it is undisputed their tenancy is unregulated. It is also undisputed that the attic apartment is illegal and that on July 31, 2020, HPD enforced their vacate order and Petitioners were relocated to a hotel. Respondent Owners commenced a summary holdover proceeding in December of 2020 under L & T Index No. 310004/20 to recover possession of the attic apartment that remains pending.
Petitioner contends that the historical use of the attic apartment has been for living purposes since approximately 1959, but the fact that the attic apartment is illegal remains undisputed.
HPD Violations and Vacate Order:
In June and July of 2020, Petitioners called 311 to file complaints concerning conditions in the attic apartment. HPD did not place any violations for the complaints received, however, as a result of Petitioners' complaints HPD inspected the premises and posted an Order to Repair/Vacate Order (No. 154980) on July 20, 2020 that directed all persons in the attic apartment to vacate by July 21, 2020 ("HPD Vacate Order"). ( See , R. Ex. D).
The HPD Vacate Order provides that, "said dwelling is dangerous to life, and detrimental to the health and safety of the occupants and others and is unfit for human habitation because of the following conditions:
1. Illegal Apartment: Other: Illegal Class "A" Apartment Created in the Attic.
2. Illegal Apartment: Inadequate Second Means of Egress: No Second Means of Egress (One way in same way out)
3. Illegal Apartment: Other: Drop from the Window Sill to Street Level Exceeding 25 Feet.
4. Illegal Apartment: Other: Low Ceiling Height (Approximately 3.5 Feet at Lowest Point)." ( See , R. Ex. D).
HPD also issued 5 violations for the building. An HPD Violation Summary Report for the building is attached hereto as Schedule A. The HPD violations are as follows:
1. Violation ID 13742514: post, in a form approved by the commissioner, and maintain a notice in a common area of the building regarding the procedures that should be followed when a gas leak is suspected.
2. Violation ID 13716302: abate the nuisance consisting of partitions erected creating rooms for living with water closet, wash basin shower stall and sink installed at illegal class "a" apt created in the attic.
3. Violation ID 13716303: discontinue unlawful cooking space or file plans and application with this department to legalize same, if lawfully feasible gas range installed at illegal class "a" apt created in the attic.
4. Violation ID 13716315: file plans and application and obtain a certificate of occupancy to legalize the conversion from a private dwelling to a multiple dwelling if lawfully feasible or restore to lawful occupancy.
5. Violation ID 13730257: the premises or apts. have been vacated by the department and cannot be reoccupied until so ordered after proof of compliance for illegal class "a" apt created in the attic vacate #154980 posted 7/20/2020.
Article 78 Proceeding and DOB Vacate Order :
In response to the HPD Vacate Order, Petitioners commenced an Article 78 proceeding in Kings County Supreme Court under Index No. 513645/20 on or about July 29, 2020 which sought injunctive relief staying enforcement of the HPD Vacate Order ("Article 78 Proceeding"). The Order to Show Cause for the Article 78 proceeding was signed, however, the language granting a temporary restraining order was stricken and on July 31, 2020, the HPD Vacate Order was enforced and Petitioners were relocated to a hotel.
In the Article 78 Proceeding, Petitioners argued that HPD was arbitrary and capricious in issuing the vacate order and/or that issuance of the vacate order was an abuse of discretion. Petitioners argued that the class "B" violations gave Respondent Owners more than a month to complete the underlying repairs, and that HPD should have provided Respondent Owners or HPD the opportunity to repair the underlying conditions before enforcing the HPD Vacate Order. Petitioners also argued that HPD should have sought alternate methods of keeping Petitioners safe inside the apartment, such as installing a fire escape, and questioned whether the HPD Vacate Order was necessary. By Decision/Order dated September 1, 2020, the Hon. Richard Velasquez granted Petitioners' motion for a preliminary injunction enjoining enforcement of the HPD Vacate Order. ( See , Petition, Ex. C).
Only days later, on September 9, 2020, DOB placed its own vacate order for the attic apartment (Order No. B 268/20) pursuant to NYC Admin. Code § 28-207.4 and § 28-201.1 ("DOB Vacate Order"). ( See , R. Ex. E). The DOB Vacate Order provides that:
"A legal 2 family 2 story NFP building has been illegally converted into 3 families by creating a Class A apt. at attic level. Attic has an illegal gas line near lone exit, no secondary means of egress and no sprinkler system. No permits or certificate of occupancy issued for this conversion." ( See , R. Ex. E).
The DOB Vacate Order further states that the conditions/violations "are imminently perilous to life, public safety and the safety of occupants or danger to property." ( See , R. Ex. E).DOB also issued 3 violations for the building. A DOB Violation Report for the building is attached hereto as Scheduled B along with Violations Details for the 3 DOB violations. The DOB violations are as follows:
The certification status for all 3 DOB violations is "Resolved — Certificate Accepted." ( See , Schedule B).
1. Violation # 35477070L: Residence converted maintained or occupied as a dwelling for more than the legally approved # of families authorized by the C of O or official Dept. records. DOB records indicates premises to be 2 families w/BAS.
2. Violation # 35477069Y: Work without a permit. Noted; at attic installed water and waste lines to (3) three piece bathroom (shower, sink and toilet) and residential sink. Installed unpermitted gas line to gas stove. Remedy: Obtain permit.
3. Violation # 35485165Y: Occupancy contrary to that allowed by C of O and or Department of Buildings Records an illegal Class "A" apartment creating at attic unlawful gas range and kitchen sink present also full bathroom completed with [sentence ends as is on OATH/ECB Violation Details.]
The OATH/ECB Violation Number 35477070L corresponds with DOB Violation Number 09092020C07AD02.
The OATH/ECB Violation Number 35477069Y corresponds with DOB Violation Number 09092020C07AD01.
The OATH/ECB Violation Number 35485165Y corresponds with DOB Violation Number 06302020HPD.
After issuance of the DOB Vacate Order, HPD sought to reargue and renew the Supreme Court's September 1, 2020 Decision, which by Order dated January 19, 2021, was granted and the Hon. Richard Velasquez vacated the earlier decision. ( See , R. Ex. F). The DOB Vacate Order weighed heavily on the Court's decision, as did the fact that Petitioners are out of possession. In his Decision/Order, the Hon. Richard Velasquez cited the affidavit of DOB Construction Inspector Allan Duke, who noted that "gas, water and waste lines installed without a permit, and a lack of second means of egress without a sprinkler system, are not only illegal, but are hazardous conditions ." ( See , R. Ex. F). The Hon. Richard Velasquez found that "it is clear that the subject premises is in an unsafe condition," noted that the building has a landmark designation, and that "in light of this new information it is clear that the HPD vacate order was not arbitrary and capricious, nor is the DOB partial vacate order." ( See , R. Ex. F). As a result of the January 19, 2021 Decision, Petitioners' Article 78 proceeding was unsuccessful.
Motion for Summary Judgment :
At this juncture, Respondent Owners move for summary judgment pursuant to CPLR § 3212. Respondent Owners contend that documentary evidence clearly establishes that there are no triable issues of fact, that they are entitled to judgment as a matter of law, and that this proceeding should be dismissed with prejudice.
Respondent Owners' argument for judgment as a matter of law concerning HPD and DOB violations is twofold. First, Respondent Owners argue that the attic apartment has been determined by both HPD and DOB to be illegal, and that the Court does not have jurisdiction to direct Respondent Owners to change the usage, obtain a certificate of occupancy or legalize the illegal attic apartment. Second, Respondent Owners contend that their obligation was to correct the violations underlying the vacate orders, which they have done by removing the illegal characteristics of the attic apartment. ( See , Aff. of L. Riquelme, dated February 15, 2021). To document that all violations were corrected and that the premises were restored to their lawful use as an unoccupied attic, Respondent Luis Riquelme affirms that Respondent Owners removed the partitions for the water closet, wash basin, shower stall, and the sink, and that a notice was posted in the common areas of the building which indicates what to do if there is a gas leak. ( See , Aff. of L. Riquelme, dated February 15, 2021). Respondent Owners also attached pictures documenting that the shower stall, toilet, bathroom sink, kitchen sink and kitchen stove were all removed from the premises. ( See , R. Ex. I). Lastly, Respondent Owners attached proof that DOB Violation # 35477070L and Violation # 35477069Y are resolved. ( See , R. Ex. H). The Court takes judicial notice that the certification status for all 3 DOB violations is "Resolved — Certificate Accepted." ( See , Scheduled B). Since all violations have been corrected, Respondent Owners contend no civil penalties should be assessed.
Petitioners also have a harassment claim. Respondent Owners argue that the allegations do not constitute a cause of action for harassment and that the claim should be dismissed as a matter of law. Respondent Owners note that it was Petitioners who called 311, not Respondent Owners, which resulted in the HPD and DOB Vacate Orders, and that HPD did not place any violations for the conditions Petitioners complained of. Respondent Owners argue that non-receipt of mail without anything more cannot constitute harassment, that they had no knowledge the attic apartment was illegal, and that it is not harassment for Respondent Owners to correct violations underlying the vacate orders in the manner which was done because Respondent Owners are not required to legalize an illegal attic apartment.
In opposition, Petitioners argue that merely correcting the underlying violations is not sufficient and note that the HPD violations still exist on the HPD Violation Summary Report. The crux of Petitioners' argument is that Respondent Owners needs to correct the conditions by legalizing the attic apartment unless Respondent Owners can show economic infeasibility. Petitioners argue that the I-Card on file for the building indicates that the third floor (attic) was occupied by a transient tenant or "roomer" since at least 1959, and that in the time period between 1959 and the vacate orders there are no changes to the use and occupancy on the I-Card, so the attic apartment has potentially been used for living space for approximately 60 years. ( See , P. Ex. 2). Petitioners tie-in the long-term use of the attic apartment as a living space as further justification for their argument that Respondent Owners should bear the burden of proving to the Court why the premises cannot be legalized as of right. Petitioners contend that Respondent Owners need to legalize the attic apartment if feasible, and if it is not feasible, that Respondent Owners should have to prove infeasibility as a defense.
Petitioners also argue that they have established a prima facie claim for harassment which should not be dismissed because a vacate order and the underlying violations for the attic apartment still exist. In support of their prima facie case, Petitioners note that "failing to comply with the provisions of subdivision c of section 27-2140 of this chapter" creates a rebuttable presumption of harassment under Housing Maintenance Code § 27-2004(a)(48)(c). The referenced subdivision concerns HPD vacate orders, which "shall require that the owner correct the conditions which render the dwelling or part thereof unfit for human habitation within a period of time, not to exceed ten days, to be stated in the order." ( See , N.Y.C. Admin. Code § 27-2140(c) ). Therefore, Petitioners argue that by merely removing fixtures and restoring the premises to their lawful use as an unoccupied attic, Respondent Owners have failed to correct the conditions which render the dwelling "unfit for human habitation," and that such failure constitutes harassment.
In reply, Respondent Owners note that Petitioners' opposition solely consists of an attorney affirmation, not an affidavit from a person with personal knowledge, and reiterate their position that there is no obligation to legalize the illegal apartment, which is no longer considered a dwelling unit for purposes of the Housing Maintenance Code ( See , N.Y.C. Admin. Code 27-2004(a)(13) ["Dwelling unit shall mean any residential accommodation in in a multiple dwelling or private dwelling]).
Of note, HPD did not oppose Respondent Owners' motion for summary judgment.
Standard of Review and Legal Analysis :
To obtain summary judgment, the moving party has the burden of establishing its cause of action or defense sufficiently to justify judgment in its favor as a matter of law. ( See , CPLR § 3212(b) ; Friends of Animals, Inc. V. Associated Fur Mfrs. Inc. ,390 N.E.2d 298 [1979] ). If there is any doubt as to the existence of a triable issue, summary judgment should not be granted. ( Glick & Dolleck, Inc. V. Tri-Pk Export Corp. , 239 N.E.2d 725 [1968] ). As summary judgment is a drastic remedy, "the facts must be viewed in the light most favorable to the non-moving party." ( Vega v. Restani Construction Corp. , 18 NY3d 499, 503 [2012] ). "To grant summary judgment it must clearly appear that no material and triable issue of fact is presented." ( Sillman v. Twentieth Century-Fox Film Corp. , 3 NY2d 395, 404 [1957] ; citing, Di Menna & Sons v. City of New York , 301 NY 118 [1950] ).
The proponent of summary judgment is required to "make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of material fact." ( Alvarez v. Prospect Hosp. , 68 NY2d 320, 324 [1986] ). Only upon making of this showing does the burden then "shift to the party opposing the motion for summary judgment to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action." ( Id. )
Courts have repeatedly held that the party "opposing a motion for summary judgment must produce evidentiary proof in admissible form sufficient to require of material questions of fact on which he rests his claim or must demonstrate acceptable excuse for his failure to meet the requirement of tender in admissible form; mere conclusions, expressions of hope or unsubstantiated allegations or assertions are insufficient." ( Zuckerman v. City of New York , 49 NY2d 557, 562 (1980) ; see also, Alvord v. Swift & Muller Constr. Co. , 46 NY2d 276 [1978] ; Platzman v. American Totalisator Co. , 45 NY2d 910 [1978] ). An attorney affirmation has been deemed insufficient, as "such an affirmation by counsel is without evidentiary value and thus unavailing." ( Zuckerman v. City of New York , 49 NY2d at 563 ).
The Court first turns to the violations underlying the DOB and HPD Vacate Orders. There is no genuine issue of material fact that the DOB violations are corrected, as the certification status for all 3 violations are "Resolved — Certificate Accepted." ( See , Schedule B). This documentary evidence shows that Respondent Owners restored the subject building to a legally approved 2-family house (DOB Violation #35477070L), that permitting issues were resolved (DOB Violation # 35477069Y), and that occupancy is now in compliance with the Certificate of Occupancy for the building as the illegal Class "A" apartment with an unlawful gas range, kitchen sink and full bathroom has been removed (DOB Violation # 35485165Y).
The Court agrees with Respondent Owners that the corrected DOB Violations mirror the HPD Violations. For example, HPD Violation ID 13716302 requires Respondent Owners to abate the nuisance consisting of partitions erected which create rooms for living in the illegal Class "A" attic apartment, which matches the requirements contained in DOB Violations #35477070L and # 35485165Y. The same applies for HPD Violation ID 13716303 and HPD Violation ID 13716315. The Court notes that contrary to Petitioners' assertion that there is an unequivocal requirement for Respondent Owners to legalize the attic apartment, the aforementioned violations both use permissive language. HPD Violation ID 13716303 gives Respondent Owner the option to " discontinue unlawful cooking space or file plans and application with this department to legalize same" and HPD Violation ID 13716315 gives Respondent Owner the option to "legalize the conversion from a private dwelling to a multiple dwelling if lawfully feasible or restore to lawful occupancy ." [emphasis added]. Therefore, based on the plain language of the HPD violations, Respondent Owners were presented with a choice on how to correct the violations. Respondent Owners complied and corrected HPD Violation ID 13716303 and Violation ID 13716315 by discontinuing the unlawful cooking space and by restoring the premises to their lawful use as an unoccupied attic. Respondent Luis Riquelme affirms that Respondent Owners removed the partitions for the water closet, wash basin, shower stall, and the sink. ( See , Aff. of L. Riquelme, dated February 15, 2021). Respondent Owners also attach pictures which document that the shower stall, toilet, bathroom sink, kitchen sink and kitchen stove were all removed from the premises. ( See , R. Ex. I). The 5th HPD Violation ID 13730257 is for the HPD Vacate Order.
The one exception where an HPD violation does not mirror those from DOB is HPD Violation ID 13742514, which concerns an HPD requirement to post procedures that should be followed when a gas leak is suspected. Respondent Luis Riquelme affirms that the required notice was posted in the common areas of the building which indicates what to do if there is a gas leak. ( See , Aff. of L. Riquelme, dated February 15, 2021). Petitioners' opposition is by attorney affirmation only, and Petitioners' attorney does not have personal knowledge to rebut Respondent Luis Riquelme's sworn affidavit that HPD Violation ID 13742514 is corrected. An attorney affirmation has been deemed insufficient, as "such an affirmation by counsel is without evidentiary value and thus unavailing." ( Zuckerman v. City of New York , 49 NY2d at 563 ). HPD also did not submit opposition papers to challenge Respondent Luis Riquelme's affidavit concerning the corrected condition.
Based on the foregoing, it is clear to the Court that as a matter of law Respondent Owners have corrected all the violations underlying the DOB and HPD Vacate Orders, which they have done by removing the illegal characteristics of the attic apartment. The DOB violations are already closed.
The Court now turns to the more general issue concerning the illegality of the attic apartment. Respondent Owners argue that as a jurisdictional matter the Court cannot even address this issue. The Court does not adopt that position, however, the Court agrees with Respondent Owners' argument concerning the futility of the economic feasibility analysis that Petitioners contend defeats summary judgment. The cases that Petitioners cite to support their argument that an economic infeasibility analysis is necessary largely concern rent regulated apartments. ( See , Allen v. 219 24th St. LLC , 126 NYS3d 854 [Hous Part, New York County 2020] [calculations for Single-Room Occupancy building with rent stabilized tenants]; 625 West End, Inc. v. Howard , 2001 NY Misc. LEXIS 729 [App Term, 1st Dep't 2001] [holdover proceeding, rent stabilized tenant]; Hart-Zafra v. Singh , 21 Misc 3d 1142(A) [Sup Ct, New York County 2004] [owner allegedly converting rent-stabilized building into a single family residence]).
For example, there are cases concerning de facto rent stabilized buildings and issues concerning legalizing rent regulated apartments that are within the purview of the Court but not presented at this time.
The Court also notes that contrary to cases in which a landlord aggressively utilizes a vacate order as a "sword" to obtain an objective, such as in an ejectment proceeding or summary holdover proceeding, the case as bar was not commenced by Respondent Owners. In addition, it was Petitioners' calls which resulted in the vacate orders. As such, Respondent Owners reliance on the vacate orders herein is more akin to a "shield" as opposed to proactively using a vacate order to achieve an objective such as removing tenants from occupying a space. The "sword" and "shield" analogy distinguish our present case from case law that Petitioners cite. ( See , McDonnell v. Sir Prize Contracting Corp. , 300 N.Y.S.2d 696 [2nd Dep't 1969] [vacate order as basis for holdover proceeding]; Sima Realty LLC v. Philips , [2nd Dep't 2001] [ejectment proceeding]; K & G Co. v. Reyes, 276 NYS2d 20 [Civ Ct, New York County 1966] [proceeding to dispossess tenant from rent-controlled apartment]; East 82 LLC v. O'Gormley, 743 NYS2d 473 [1st Dep't 2002] [ejectment proceeding, tenant offered rent stabilized apartment]).
A distinguishing feature of the case at bar, and a salient fact that guides the Court, is that there is no genuine issue of material fact that the attic apartment is illegal and that Petitioners' tenancy is unregulated. There is disagreement as to whether Petitioners are month-to-month tenants or whether their lease runs through December 2021, however, under either scenario it is undisputed the tenancy is unregulated. As such, Petitioners do not, as of right, have any long-term interest in the premises. It is undisputed that there is a summary holdover proceeding pending under L & T Index No. 310004/20, and that even without the pending holdover Petitioners would still be subject to a 90-day notice of termination. ( See , RPL § 226-c(2)(d) ).
Even without undertaking an economic feasibility analysis, the Court notes the findings of the Hon. Richard Velasquez, who cited the affidavit of DOB Construction Inspector Allan Duke, which provides that "gas, water and waste lines installed without a permit, and a lack of second means of egress without a sprinkler system, are not only illegal, but are hazardous conditions ." ( See , R. Ex. F). The Hon. Richard Velasquez found that "it is clear that the subject premises is in an unsafe condition," noted that the building has a landmark designation, and that "in light of this new information it is clear that the HPD vacate order was not arbitrary and capricious, nor is the DOB partial vacate order." ( See , R. Ex. F). The HPD Vacate Order provided further elaboration on the illegal attic apartment, noting that there was no second means of egress, that the drop from the window sill to street level exceeded 25 feet, and that the attic ceiling was only 3.5 feet at the lowest point. ( See , R. Ex. D).
The Court has broad discretion pursuant to N.Y.C. Civil Court Act § 110(c) to craft remedies for the enforcement of housing standards. When exercising this discretion, common sense solutions should remain at the forefront, and when deciding to exercise discretion the Court must take into consideration the undisputed facts of the case. Here, the Court recognizes that there is an overarching sense of futility in requiring Respondent Owners to prove that the illegal apartment cannot be converted to a legal unit. The Court is not persuaded by Petitioners' argument that the Court must make Respondent Owners undergo an economic infeasibility analysis. To do so ignores the salient facts that the attic apartment is illegal and unregulated, and that Petitioners do not have any long term right to remain in possession thereof. The commonsense approach of applying the doctrine of futility is well founded. ( See , 110-45 Queens Blvd. Garage, Inc. v. Park Briar Owners, Inc. , 696 NYS2d 490, 491 [2nd Dep't 1999] ["it is clear from this record that restoring the petitioner to possession would be futile, because the appellants would prevail in a summary proceeding to evict the petitioner"]; Bernstein v. Rozenbaum , 867 NYS2d 372 [App Term, 2nd Dep't 2008] [petitioner did not have a right to remain in possession subsequent to the expiration of the lease so the proceeding to be restored to possession should have been dismissed as futile]; Cordova v. 1217 Bedford Realty LLC, 126 NYS3d 620 [Hous Ct, Kings County 2020] [petitioner is at best a month-to-month tenant in a space that he is occupying in contravention of the certificate of occupancy, therefore restoring him to possession would be futile]).
Therefore, there is no genuine issue of material fact that the attic apartment was illegal, that Petitioners' tenancy is unregulated, and the Court finds as a matter of law that the illegal attic apartment has been restored to its lawful use as an unoccupied attic and that by doing so Respondent Owners have complied with the HPD and DOB Vacate Orders. An economic infeasibility analysis would be an exercise in futility and is not warranted. This determination is without prejudice to any fines or civil penalties that DOB and HPD have already imposed or may seek to impose at a future date. In the event of default, DOB and HPD may seek all appropriate relief.
Lastly, the Court turns to the issue of harassment. The Court takes judicial notice that in June and July of 2020, Petitioners called 311 to file complaints concerning conditions in the attic apartment, however, HPD did not place any violations for the complaints received. Therefore, Petitioners contention that Respondent Owners engaged in harassment by failing to make required repairs runs contrary to documentary evidence. The Court also notes that Petitioners' opposition solely consists of an attorney affirmation, and that Petitioner's attorney does not have personal knowledge to rebut Respondent Owners' affidavit or the documentary evidence presented. An attorney affirmation has been deemed insufficient, as "such an affirmation by counsel is without evidentiary value and thus unavailing." ( Zuckerman v. City of New York , 49 NY2d at 563 ). HPD also did not submit opposition papers to challenge Respondent Owners' summary judgment motion to dismiss the harassment claim.
The Court is also not persuaded by Petitioners' assertion that they have established a prima facie claim for harassment based upon Respondent Owners alleged failure to comply with the HPD Vacate Order. Petitioners' argument in favor of a prima facie finding of harassment is not that Respondent Owners took too long to comply with the HPD Vacate Order, rather, their argument relies on the already rejected notion that Respondent Owners did not comply with the HPD Vacate Order because they were required to legalize the premises and failed to do so. The Court already noted the permissive language in the underlying HPD violations, and that Respondent Owners have corrected all the violations underlying the DOB and HPD Vacate Orders, which they have done by removing the illegal characteristics of the attic apartment. As all violations are now corrected, harassment does not lie. ( See , N.Y.C. Admin. Code § 27-2115(h)(2)(i) ). As to the other allegations in the Petition, the Court finds they do not rise to the level of harassment as defined by Housing Maintenance Code § 27-2004(a)(48).
Therefore, for the reasons stated, Respondent Owners' motion for summary judgment is granted, this proceeding is dismissed, and HPD is directed to remove HPD Violation ID 13716302, Violation ID 13716303, Violation ID 13716315, and Violation ID 13730257, and to reinspect Violation ID 13742514 (posting procedures in common areas for gas leak). This determination is without prejudice to any fines or civil penalties that DOB and HPD have already imposed or may seek to impose at a future date. In the event of default, DOB and HPD may seek all appropriate relief.
This constitutes the Decision/Order of the Court, which shall be uploaded to NYSCEF.