Opinion
L&T Index No. 321367/23
12-04-2023
ANNA AGHEDO, ET AL Petitioner, v. 80 CLARKSON LLC ROSE PROPERTY MANAGEMENT GROUP LLC LELAND ROTH SEBASTIAN ACOSTA Respondent v. Department of Housing Preservation and Development of the City of New York Co-Respondent v. Subject Premises: 80 CLARKSON AVENUE BROOKLYN, NY 11226
Unpublished Opinion
PART B
DECISION/ORDER
Remy Smith, J.H.C.
Recitation, as required by CPLR §2219(a), of the papers considered in the review of motion and cross-motion:
Papers Numbered
Respondents Motion to Dismiss ..........................................................................1
Petitioner's Cross-Motion ...................................................................................2
Respondents Opposition &Reply .......................................................................3
Petitioners' Reply................................................................................................4
This is an HP proceeding in which Petitioners, Anna Aghedo and other tenants, sought an order to correct, civil penalties, and harassment based on Housing Maintenance Code Violations (hereinafter "HMC") which were placed on the property located at 80 Clarkson Avenue, Brooklyn, NY 11226, including but not limited to apartments, 1 A, 2A, IB, 2B, 3A, 3B, 4A, 4B, 5A, 5B, 6C & 6E and common areas of the building (hereinafter "Subject Premises").
The matter first appeared on this Court's calendar on August 7, 2023, at which time the proceeding was adjourned to August 28, 2023, for Respondent-Landlord to serve and file an answer herein on or before August 21, 2023. Additionally, that same day, the proceeding was simultaneously scheduled for trial on September 8, 2023 See NYSCEF COMMENT dated August 7, 2023.
On August 28, 2023, the parties appeared in court and after extensively conferencing the matter the proceeding was further adjourned until September 8, 2023.
In the interim, Respondent-Landlord filed and served the instant motion to dismiss on or around September 5, 2023.
On September 8, 2023, the parties appeared in court, with counsel, and the matter was further adjourned until October 13, 2023, for motion practice. See NYSCEF DOC#48
In the interim, on or about September 28, 2023, Petitioner-Tenants filed and served the instant cross-motion. See NYSCEF DOC#49-64
On October 13, 2023, the parties appeared in court, with counsel, and proceeded to oral arguments. The Court reserved decision thereafter.
RESPONDENT-LANDLORD'S, ROSE PROPERTY MANAGEMENT GROUP LLC &SEBASTIAN ACOSTA, MOTION TO DISMISS HARASSMENT PURSUANT TO CPLR 3211(A)(7) &(1)
On or about September 1, 2023, Respondents, Rose Property Management Group LLC &Sebastian Acosta, filed the instant motion seeking dismissal of the harassment claim as against them solely.
CPLR 3211(a)(7) reads as follows:
"Motion to dismiss cause of action. A party may move for judgment dismissing one or more causes of action asserted against him on the ground that... the pleading fails to state a cause of action"
It is well-established that "when a party moves to dismiss a complaint pursuant to CPLR § 3211 (a) (7), the standard is whether the pleading states a cause of action, not whether the proponent of the pleading has a cause of action. In considering such a motion, the court must accept the facts as alleged in the complaint as true, accord plaintiffs the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory." Sokol v. Leader, 74 A.D.3d 1180, 1181 (2d Dept. 2010) (citations omitted); see also Guggenheimer v. Ginzburg, 43 N.Y.2d 268, 275 (1977).
Here, Respondents argue dismissal is warranted in this matter since: "As clearly stated in the annexed affidavit of Ryan Kramer, an employee of Respondent Rose Property, Respondent Rose property only started to manage the subject building where the fire incident occurred four months after the fact, in or around April 2023. Further, Respondent Acosta is an employee of Respondent Rose property and works with Ryan Kramer. Respondent Acosta was never employed by the prior management of the subject building. Respondent Acosta was never employed by the Respondent-Landlord, 80 Clarkson LLC." See NYSCEFDOC#43, paragraph 22 -25
Additionally, Respondents contend "with respect to any violations which is the subject of this proceeding that issued prior to April 2023, neither Respondent Rose Property nor Respondent Acosta had any relationship to or responsibility for anything having to do with the subject Building or the repairs therein." See NYSCEF DOC #43, paragraph 26
Lastly, Respondents argue "Petitioners-tenants cannot show and/or remotely demonstrate that Respondent Rose Property and/or Respondent Acosta allegedly "harassed" the petitioner since their tenancy at the subject building and/or since the fire incident in mid-late December 2022. Petitioners-tenants' alleged claims against Respondent Rose Property and Respondent Acosta are patently frivolous and without any merit whatsoever. See NYSCEF DOC 43, paragraph 32.
In opposition, Petitioners contend that Respondents Rose Property and Sebastian Acosta are both proper parties as they are both the identified as the registered managing agent pursuant to the current multiple dwelling registration on file for the building. See NYSCEF DOC #50, paragraph 131.
In support, Petitioners cite to New York City Administrative Code 27-2004(a)(45) which states: which states in pertinent part:
The term "owner" shall mean and include the owner or owners of the freehold of the premises or lesser estate therein, a mortgagee or vendee in possession, assignee of rents, receiver, executor, trustee, lessee, agent, or any other person, firm or corporation, directly or indirectly in control cf a dwelling...."
Additionally, Petitioners cite to MDL §4(44) which states in pertinent part:
"The term "owner" shall mean and include the owner or owners of the freehold of the premises or lesser estate therein, a mortgagee or vendee in possession, assignee of rents, receiver, executor, trustee, lessee, agent, or any other person, firm or corporation, directly or indirectly in control cf a dwelling."
Moreover, Petitioners cite to Dep't of Hous. Pres. & Dev. Of City of New York v. Livingston, 169 Mise. 2d 660, 661-2 (App. Term 1996) to bolster their claims that Respondent Rose Property and Respondent Acosta are proper parties in the instant proceeding. There the Court held:
"Housing Maintenance Code (Administrative Code of City of NY) § 27-2004 (45) and Multiple Dwelling Law § 4 (44) define the term "owner" as being an "agent, or any other person, firm or corporation, directly or indirectly in control cf a dwelling." It is clear that the person registered as the managing agent is an "owner" under those sections [***2] (Department of Hous. Preservation &Dev. v 849 St. Nicholas Equities, 141 Mise 2d 258, 266-268; see also, Housing &Dev. Admin, v Johan Realty Co., 93 Mise 2d 698, 701; Housing &Dev. Admin, v Bryant Westchester Realty Corp., 90 Mise 2d 816, 818). As to whether an officer of a corporation is an "agent" under these provisions, one of the indicia of agency is whether that person is directly or indirectly in control of the premises. The Appellate Term, First Department, has found that a corporate officer is an agent [**197] where said officer is involved with the operations of the building (see, Department of Hous. Preservation &Dev. v Chana Realty Corp., NYLJ, June 7, 1993, at 29, col 1; Department of Hous. Preservation & Dev. v Pirlamarla, NYLJ, Feb. 28, 1983, at 13, col 1; Housing &Dev. Admin, v Schneider, NYLJ, June 16, 1982, at 6, col 2)."
Lastly, Petitioners contend that "Respondent-Landlord fails to cite any authority to support its implicit novel argument that new owners or agents do not step into the shoes of its predecessor in interest and are immune from liability or cannot be sued for harassment." See NYSCEF DOC #50, paragraph 137
In reply, Respondents merely contend that "it is undisputed that Rose Property Management Group LLC had no involvement with the building prior to April 2023, and cannot possibly be subject to any harassment allegation as set forth in the Petition." See NYSCEF DOC #68, paragraph 29.
Here, the Court agrees with Petitioner-Tenants that Respondent Rose Property Group LLC &Respondent Sebastian Acosta are proper parties. The instant proceeding was commenced via Order to Show Cause on or about July 14, 2023. As previously noted, its undisputed that Respondent Rose Property Management Group LLC and Respondent Acosta are the registered managing agent for the subject building since at least April 2023.
New York City Administrative Code §27-2098(a)(3) states in pertinent part:
"The registration statement shall include the following information:.... If the dwelling is a multiple dwelling, the name and address cf a managing agent designated by the owner to be in control cf and responsible for the maintenance and operation cf such dwelling and to authorize, on behalf of the owner, the correction cf any emergency conditions or the making cf any emergency repairs for which the owner is responsible under the provisions cf the multiple dwelling law or this code. "
In Dept, of Hous. Preserv. & Dev, v. 849 St. Nicholas Equities, 141 Mise 2d 258, 267 [Civ Ct, New York County 1988] the Court held:
"The RMA is required by the HMC to be "in control of and responsible for the maintenance and operation of such dwelling" (Administrative Code § 27-2098 [a] [3]; see, Amsterdam v Goldstick, 128 Mise 2d 374, rearg granted and determination adhered to 131 Mise 2d 131, affd for reasons stated below 136 Mise 2d 946 [App Term, 1st Dept]). The RMA, who must be an individual, must personally consent to the registration [***23] (§ 27-2098 [b]). In light of the statutory degree of control, an RMA is, by operation of law, an "owner" (Housing & Dev. Admin, v Johan Realty Co., 93 Mise 2d 698, 701 [App Term, 1st Dept]; Housing &Dev. Admin, v Bryant Westchester Realty Corp., 90 Mise 2d 816, 818 [App Term, 1st Dept]). The statement in the affidavits on each of the summary judgment motions by the RMA that "I am not now nor have I ever been in control of the subject building" is unavailing to create an issue of fact. By operation of law, the RMA is "in control" of the building; proof of the specific agent's relation to the property is irrelevant (cf, Gardner v 1111 Corp., 286 A.D. 110, affd 1 N.Y.2d 758)."
Additionally, the Court notes that although Respondent-Landlord represent to have no relationship to the subject premises and/or Respondent 80 Clarkson LLC prior to April 2023, such statements are merely self-serving and Respondent-Landlord's motion is completely devoid of any documentary evidence to support this argument.
Moreover, the Court notes that the related proceeding via index #311123/2023 was commenced in or around April 2023, the same month in which Respondent Rose Property Management Group LLC &Sebastian Acosta represent they first started managing the subject building; neither are of them, however, are parties therein. Additionally, the June 12, 2023, Consent Order therein was entered into between DHPD and 80 Clarkson LLC as well as three other persons, Edgar Ortiz, Brian Ritter, Calynne Oyolokor, whom are identified as "[the registered managing agent of the subject premises and/or an owner(s)..." that date being nearly two months following Respondent Rose and Acosta's employment as managing agent/management of the subject premises. See NYSCEF DOC#41
Thus, as Respondents instant motion is completely devoid of any documentary evidence evincing their lack of dealing and/or employment prior to April 2023, the Court finds such representations to be merely self-serving, conclusory, and without merit to permit a finding that neither Respondent Rose nor Acosta had any dealings and/or direct/indirect control of the subject premises prior to April 2023.
Therefore, Respondent-Landlords motion seeking dismissal pursuant to CPLR 3211(a)(7) is denied in its entirety.
RESPONDENTS MOTION SEEKING DISCOVERY PURUSANT TO CPLR 408 & CPLR 3102
The second branch of Respondent-Landlord's motion seeks an Order "pursuant to C.P.L.R. §408 and §3102 ordering Petitioner-Tenants to produce evidence concerning its alleged 'harassment' claim against the Respondents-Landlords." See NYSCEF DOC #43 paragraph 39.
C.P.L.R. §408 states:
"Leave of court shall be required for disclosure except for a notice under section 3123. A notice under section 3123 may be served at any time not later than three days before the petition is noticed to be heard and the statement denying or setting forth the reasons for failing to admit or deny shall be served not later than one day before the petition is noticed to be heard, unless the court orders otherwise on motion made without notice. This section shall not be applicable to proceedings in a surrogate's court, nor to proceedings relating to express trusts pursuant to article 77, both of which shall be governed by article 31."
C.P.L.R. §3102 states:
(a) Disclosure devices. Information is obtainable by one or more of the following disclosure devices: depositions upon oral questions or without the state upon written questions, interrogatories, demands for addresses, discovery and inspection of documents or property, physical and mental examinations of persons, and requests for admission.
(b) Stipulation or notice normal method. Unless otherwise provided by the civil practice law and rules or by the court, disclosure shall be obtained by stipulation or on notice without leave of the court.
(c) Before action commenced. Before an action is commenced, disclosure to aid in bringing an action, to preserve information or to aid in arbitration, may be obtained, but only by court order. The court may appoint a referee to take testimony.
(d) After trial commenced. Except as provided in section 5223, during and after trial, disclosure may be obtained only by order of the trial court on notice.
(e) Action pending in another jurisdiction. Except as provided in section three thousand one hundred nineteen of this article, when under any mandate, writ or
commission issued out of any court of record in any other state, territory, district or foreign jurisdiction, or whenever upon notice or agreement, it is required to take the testimony of a witness in the state, he or she may be compelled to appear and testify in the same manner and by the same process as may be employed for the purpose of taking testimony in actions pending in the state. The supreme court or a county court shall make any appropriate order in aid of taking such a deposition; provided that no order may be issued under this section in connection with an out-of-state proceeding relating to any legally protected health activity, as defined in paragraph (b) of subdivision one of section 570.17 of the criminal procedure law or gender-affirming care which occurred in this state, unless such out-of-state proceeding (1) sounds in tort or contract, (2) is actionable, in an equivalent or similar manner, under the laws of this state, and (3) was brought by the patient who received reproductive health services or gender-affirming care, or the patient's legal representative.
(f) Action to which state is party. In an action in which the state is properly a party, whether as plaintiff, defendant or otherwise, disclosure by the state shall be available as if the state were a private person."
In summary proceedings, a party requesting discovery is required to obtain leave of Court. See Civil Practice Law and Rules § 408.
In order to obtain leave, the moving party must sufficiently demonstrate "ample need". See Antillean Holding Co. v. Lindley, 76 Misc.2d 1044, 1047 (Civ. Ct. N.Y. Co. 1973).
Further, "discovery is not available as a matter of right in summary eviction proceedings" and the legal standard, "is that discovery is only allowed with leave of court, coupled with a showing of special circumstances". 244 Madison LLC v Pearson. 233 N.Y.L.J. 80 [NY Civ Ct, Kings County 2005]; Matter of Shore. 109 A.D.2d 842, 843,486 N.Y.S.2d 368 (2d Dept 1985); Clark v Kellogg. NYU, July 28, 1982, at 6, col 1 [App Term, 1st Dept] (disclosure should be available only when "special circumstances" exist which warrant it).
Discovery in a summary proceeding shall not be utilized by a tenant to establish a defense to the proceeding. See, Museum of Modem Art v. Duncan, N.Y.L.J., April 23, 1997, p.27, c.2 (Civ. Ct. NY Co.).
The leading case of New York University v. Farkas, 121 Mise.2d 643 (Civ. Ct., N.Y. Co. 1983) sets forth specific guidelines in order to determine whether a discovery request is appropriate and whether "ample need" for such discovery has been established.
In determining whether a party has established ample need, courts consider a number of factors, including:
1) whether, in the first instance, the petitioner has asserted facts to establish a cause of action. Thus, a fishing expedition utilized by the landlord for the purpose of formulating a cause of action or by the tenant to establish a defense, should never be permitted;
(2) whether there is a need to determine information directly related to the cause of action;
(3) whether the requested disclosure is carefully tailored and is likely to clarify the disputed facts;
(4) whether prejudice will result from the granting of an application for disclosure;
(5) whether the prejudice can be diminished or alleviated by an order fashioned by the court for this purpose, e.g., conditioning a grant of a motion for discovery upon the payment of use and occupancy; ordering that all discovery must be done, if at all, within a relatively short time period; and
(6) whether the court, in its supervisory role can structure discovery so that pro se tenants, in particular, will be protected and not adversely affected by a landlord's discovery requests.Id. At 647.
Here Respondents argue they "have a reasonable basis to be granted discovery. Specifically, should Respondents-landlords be granted discovery to ascertain specific information, including without limitation: a) whether the Petitioner-tenants notified and/or communicated with the Respondent-landlords of any alleged conditions and/or repairs in their respective units; b) whether the Respondent-landlords were placed on notice regarding alleged conditions in the Petitioners-tenants respective apartments and whether the Respondents-landlords allegedly failed to do the requested repairs to Petitioner-tenants respective apartments" see NYSCEF DOC #43, paragraph 42.
Further, Respondents contend that the discovery requested is "absolutely essential to the instant matter". Additionally, Respondents contend that although delay may result from granting the instant motion, "the advantages of granting discovery outweigh the disadvantages of the slight delay." Lastly, Respondents contend the delay is not prejudicial to Petitioner-tenants as the documents requested are narrowly tailored and "all requested discovery is within the sole possession of the Petitioner-tenants." See NYSCEF DOC #43, paragraph 44-46
In opposition, Petitioner-Tenants contend that Respondent-Landlords have failed to establish ample need for such disclosure and thus failed to satisfy their burden to entitle them to discovery.
Here, Petitioner-Tenants argue that the documents sought by Respondent-Landlord, including but not limited to email correspondences regarding each and every Petitioner-Tenants request for inspection and/or repairs for their respective apartment, are not necessary as they "... .seek information that is not exclusively in Petitioners' control" see NYSCEF DOC#50, paragraph 161.
Specifically, Petitioner-Tenants contend that Respondent-Landlords assertion that" '[a] 11 the requested documentation is within the sole possession of the Petitioner-Tenants'.... Is nonsensical for any communications sent by Petitioners to landlord-Respondents would by definition be within Landlord-Respondents possession, custody and control." See NYSCEF DOC 50, paragraph 167
Lastly, Petitioner-Tenants argue that "the Housing Maintenance Code contemplates that landlord-respondents are best situated to produce their own documentation in a civil penalties hearing and 'are the best custodians of the repair records'" see NYSCEF DOC 50, paragraph 168
On reply, Respondent-Landlord simply contend that "the law is clear that landlord should be granted discovery under these circumstances" and "Petitioners have not meaningfully opposed the application for discovery." See NYSCEF DOC#68, paragraph 24, 28
Respondent-Landlord attempt to bolster its claim that discovery is proper in the instant proceeding citing to DHPD V. Simply Better Apartment Homes, 67 Mise.3d 1225(A) (Civ. N.Y. 2020). Specifically, Respondent-landlord attempt to splice together portions of the decision therein to support their claim to be entitled to discovery in this matter. Specifically, Respondent-Landlord argues:
""Discovery has been granted in similar cases where HPD has commenced a proceeding for an order to correct at a building damaged by fire . . . Respondents here are entitled to discovery regarding the names and badge numbers of inspectors who (i)nspected the subject premises, of the inspections, inspection reports and pictures . . . ." see NYSCEF DOC#68, paragraph 24.
Moreover, DHPD V. Simply Better Apartment Homes, 67 Mise. 3d 1225(A) (Civ. N.Y. 2020) cited in support by Respondent-Landlord, granted discovery only after applying the "ample need" test set forth in New York University v. Farkas, 121 Mise.2d 643 (Civ. Ct., N.Y. Co. 1983). Specifically, the Court held:
"Respondents, on the other hand, have adequately stated ample need for discovery. Respondents argue that there are inconsistencies between the notices of violation and vacate orders, that certain violations are vague and to not adequately explain the scope of repairs, that violations were issued for 48 units when only 46 units exist, that it is questionable whether all units were, in fact, inspected, and that HPD will need to prove at trial that all units and common areas where violations were placed were inspected and that such conditions did, in fact, exist."(Dept, of Hous. Preserv. & Dev, of the City of NY v Simply Better Apt. Homes, 67 Mise 3d 1225[A], 2020 NY Slip Op 50637[U], *10 [Civ Ct, Bronx County 2020])
Whereas here, Respondents-Landlord have failed to establish ample need for discovery nor have they articulated a coherent reason why such communications are not within their own possession.
The Court agrees with Petitioner-Tenants and finds that Respondent-Landlord has failed to satisfy its prima facie burden evincing "ample need" for such disclosure. Therefore, Respondent-Landlord's motion for discovery pursuant to CPLR 408 and/or CPLR 3102 is denied.
PETITIONER-TENANTS MOTION FOR SUMMARY DETERMINATION PURSUANT TO CPLR 409(B)
Petitioner-Tenants cross-move for summary determination pursuant to CPLR 409(b) seeking an Order to Correct, civil penalties, harassment, and sanctions.
STANDARD OF REVIEW
In a special proceeding, such as this summary landlord-tenant action, the court is required to review the "pleadings, papers and admissions" and make a summary determination where appropriate. Sukaj Group LLC v Mallia, 66 Mise 3d 1223(A) [Civ Ct 2020] citing Brusco v. Braun, 199 A.D.2d 27, 31-32, 605 N.Y.S.2d 13 [1st Dept 1993]; FR Holdings, FLP v. Homapour, 154 A.D.3d 936, 938, 63 N.Y.S.3d 89 [2nd Dept 2017]; 1646 Union LLC v. Simpson, 62 Mise 3d 142[A], 2019 NY Slip Op 50089[U] [App Term, 2nd Dept 2019], CPLR § 409(b) states:
"Summary Determination. The Court shall make summary determination upon the pleadings, papers, and admission to the extent that no triable issues of fact are raised. The Court may make any orders permitted on a motion for summary judgment."
Subdivision (b) of CPLR 409 makes clear that the special proceeding is to be adjudicated in the same manner as a motion for summary judgment. Friends World College v, Nicklin, 671 N.Y.S.2d 489 (2d Dep't).
"CPLR 409 (subd [b]) requires the court to make a summary determination of a special proceeding to the extent that the pleadings and papers raise no triable issues of fact and the same test and standards used when disposing of a motion for summary judgment in an action apply in resolving that question (Matter cf Javarone [De Rizzo], [***2] 49 A.D.2d 788)." (Lefkowitz v McMillen, 57 A.D.2d 979, 979 [3d Dept 1977])
Absent any issues of fact regarding these allegations, the Court is mandated to grant judgment in favor of Petitioner as a matter of law.
Alternatively, the Court may enter an order pursuant to CPLR §409(b) making summary determination with regard to allegations of the Petition that are undisputed, hold a trial on the limited issues in dispute pursuant to CPLR § 410, and require Respondent to furnish all documents in their possession related to such limited issues on or before such hearing pursuant to CPLR § 409(a).
The drafters [of the CPLR] explained that the final sentence of CPLR 409(b) incorporated the concept of partial determination available on a motion for summary judgment: "The last sentence..., by allowing partial determination, affords an opportunity for the summary disposition of as great a portion of the case as possible" [Note to CPLR 409(b)], Alexander, Practice Commentary, McKinney's CPLR Rule 409, NY CPLR Rule 409
ORDER TO CORRECT
The first branch of Petitioner-Tenants cross-motion seeks an order to correct pursuant to HMC §27-2115.
In support, Petitioner-Tenants annex HPD's open violation report for the building as of September 28, 2023, which evinces five hundred fourteen ("514") open violations exist within the building as of such date. See NYSCEF DOC#50, paragraph 34, See NYSCEF DOC#58 >.
In support, Petitioner-Tenants cite to MDL §328(3) which states:
"In any action or proceeding before the housing part of the New York city civil court either (a) the visually displayed or (b) the printed computerized violation files of the department responsible for maintaining such files and all other computerized data as shall be relevant to the enforcement cf state and local laws for the establishment and maintenance cf housing standards, including but not limited to the name, address and telephone number of the present owner of the building and whether or not he is a member in good standing of the rent stabilization association or registered pursuant to the emergency tenant protection act of nineteen seventy-four or the rent stabilization law of nineteen hundred sixty-nine where one or more dwelling units therein are subject to the rent stabilization law, shall be prima facie evidence of any matter stated therein and the courts shall take judicial notice thereof as if same were certified as true under the seal and signature of the commissioner of that department."
"Under subdivision 3 of section 328 of the Multiple Dwelling Law, the data base is prima facie evidence "of any matter stated therein" and the courts are to take judicial notice of it "as if [the] same were certified". The failure of an owner to file a certification of compliance "shall establish a prima facie case that such violation has not been corrected" (Administrative Code of City of New York, § D26-51.01, subd [f], par [7]. “(Dept. of Hous. Preserv. & Dev, v Knoll, 120 Mise 2d 813, 814 [App Term 1983])
NYC Administrative Code §27-2115(f)(7) states: "Failure to file such certification of compliance shall establish a prima facie case that such violation has not been corrected."
"To overcome the presumptions contained in the HMC, Respondents will need "documentary evidence in the form of a certification of compliance or repair receipts or detailed testimony of repairs being done so as to show when and what repairs were specifically corrected." (Dept. of Hous. Preserv. & Dev. cf City of NY v. Deka Realty Corp., et. al., N.Y.L.J., June 16, 1992, page 36, col, 6 [App Term, 2nd and 11th Jud. Dists. 1992], citing Department of Hous. Preservation & Dev. v. Knoll, 120 Mise. 2d 813, 467 N.Y.S.2d 468 [App Term, 2nd Dep't 1983]). The balancing act between the statutory presumption and ensuing burden is justified "since the knowledge of the work, labor and services performed is within the purview of the owner, it is reasonable to place on him, the burden of properly establishing, through his testimony [*5] and proof, that the violations listed have been properly corrected." (Dept, cf Hous. Preserv. & Dev. cf City of NY v. Deka Realty Corp., et. al., N. Y.L.J., June 16, 1992, page 36, col. 6 [App Term, 2nd and 11th Jud. Dists. 1992]). (Dept, of Hous. Preserv. & Dev, of City of NY v Joseph, 73 Mise 3d 1211[A|, 2021 NY Slip Op 50999[U], *2 [Civ Ct, Kings County 2021])
In opposition, Respondent-Landlord contend that an order to correct is improper and/or premature in this matter since: 1) On June 12, 2023, in a separate proceeding between DHPD and Respondent Landlord 80 Clarkson LLC via index#311123/23, an Order to Correct encompassing the same premises and violations herein was entered into wherein Respondent-Landlord's time to correct the outstanding violations was extended through and until January 15, 2024; and 2) Respondents have raised a triable issue of fact as to whether the violations actually continue to exists via . .an uncontested verified answer concerning corrections of copious amount of the violations as well as an Affidavit attesting with detail by someone with first-hand knowledge of the facts that many repairs are done or access has not been provided" see NYSCEF DOC#68, paragraph 8
Review of the June 12, 2023, Consent Order via index#311123/23 evinces that the January 15, 2024, deadline solely relates to those repairs necessary to lift the Vacate Order dated December 28, 2022. Specifically, paragraph 9 of the Consent Order states in pertinent part:
"Tenants in the apartments subject to the Vacate Order/Order to Repair will be restored to possession by January 15, 2024. Notwithstanding any time constraints or deadlines set forth in paragraphs 1 through 8, any violations in apartments subject to the Vacate Order/Order to Repair referenced herein are required to be corrected no later than January 15, 2024." See NYSCEF DOC#70, paragraph 9.
Additionally, review of Respondents verified answer and the accompanying affidavit of Ryan Kramer annexed to its instant motion explicitly contend that "all violations have been corrected" pertaining to more than one of the subject apartments herein. See NYSCEF DOC#69, paragraph 33,37, 46, 51, 57,93,107,115. Respondents instant motion is, however, completely devoid of any documentary proof evincing such claims, including but not limited to, invoices, cancelled checks, and/or certificate of corrections filed with HPD relating to said violations. See Dept, of Hous. Preserv. &Dev, v Knoll, 120 Mise 2d 813, 814 [App Term 1983], wherein the Court held in favor of the petitioner-tenants therein and found respondent-landlord failed set forth sufficient proof to rebut the presumption under HMC 27-2115(f)(7) i.e. that the violations remain uncorrected.
The Court explained its reasoning stating "The proof of the defendants basically took the form of the testimony of one of the defendants to the effect that the violations were corrected. She further [* * *3] explained that she returned the notices of violation to the municipal building and that one of plaintiffs inspectors took the form from her. However, this witness did not submit one bill, one check or any other evidence to support her testimony that the work was in fact done." Dept, of Hous. Preserv. & Dev. v Knoll, 120 Mise 2d 813, 814 | App Term 1983]
Here, Respondent-Landlords fail to annex any documentary evidence in support of its claims to have corrected such violations within the subject building other than those representations within the accompanying affidavit of Ryan Kramer, which at most are self serving and uncorroborated. Thus, Petitioner's cross-motion seeking summary determination for an order to correct is granted and Respondents are directed to correct all outstanding violations no later than January 15, 2024 without prejudice to Respondent-Landlord ability to seek an extension of time to correct the violations via Ordre to Show Cause.
CIVIL PENALTIES
The second branch of Petitioner-Tenants cross-motion seeks an order awarding civil penalties as against Respondent-Landlord pursuant to NYC Administrative Code §27-2115 is denied without prejudice to renew.
Petitioner-Tenants argue no triable issues of fact exists as to Respondent-Landlord's liability as to civil penalties pursuant to NYC Administrative Code §27-2115 as evinced by Respondent-Landlord's failure to rebut the presumption subjecting them to an Order to Correct as discussed above. See NYSCEF DOC #50, paragraph 43-46
In Opposition, Respondent-Landlords argue that Petitioner's motion is premature as no order to correct exist at the time Petitioner's filed the instant cross-motion. Specifically, Respondent-Landlord cite to NYC administrative code 27-2115(h)(i) in support and contend "the Court first must issue an Order to Correct for the Tenants to be entitled to even seek an order of civil penalties." See NYSCEF DOC #68 paragraph 11.
Additionally, Respondent-Landlord argue lack of access is a defense to civil penalties and that same was explicitly raised as an affirmative defense within its verified answer as well as within the accompanying affidavit of Ryan Kramer. Thus, Respondent-Landlord argue that summary determination pursuant to CPLR 409(b) is improper as triable issues of fact exists surrounding access. See NYSCEF DOC 68, paragraph 7.
As stated above, CPLR 409(b) authorizes this Court render a summary determination upon the pleadings, papers and admissions where no triable issues of fact exists. Review of the court file evinces on or about September 1, 2023, both parties served notices to admit upon the other herein. On or about October 11, 2022, Petitioner-Tenants filed their responses/admissions. Upon review of Petitioner-Tenants admissions therein, its clear triable issues of fact exists surrounding access, or lack thereof. See NYSCEF DOC#65, paragraph 30, 44
These two cited paragraphs are not an exhaustive list of each and every triable issue of fact that exists within Petitioner's notice of admit but merely a couple of examples.
Additionally, the Consent Order entered into between DHPD and Respondent-Landlord within the separate proceeding via index#311123/2023 mandates the Respondent-Landlord to correct the outstanding violations subject to that order by a date certain, some of which are duplicative and identical to the violations herein; including but not limited to, the requirements to correct the violations necessary to lift the Vacate Order within those tenants apartments subject to same.
Thus, at minimum, triable issues of fact exists as to Respondent-Landlord liability to civil penalties pursuant to NYC Administrative Code § 27-2115 with respect to those apartments and corresponding violations which are subject to paragraph 9 of the Consent Order under index # 311123/23; to which Respondent-Landlord's time to correct said violations has been extended through and until January 15, 2024; and those violations are identical to violations at issue herein.
Thus, Petitioner's cross-motion seeking an order awarding civil penalties as against Respondent-Landlord is denied without prejudice to renew after January 15, 2024, and/or without prejudice to Petitioner-Tenant right to intervene and seek such relief within the related action via index # 311123/23.
Therefore, as triable issues of fact exists herein, the remainder of Petitioner-Tenants cross-motion is denied without prejudice to renew as such claims are moot at this juncture.
This is the Order of the Court.