Opinion
HP 2384/2018
10-12-2018
In the MATTER OF the APPLICATION OF Tyrone BRODIE, Nathaniel Griffith, Ellison McKnight, Moses Witty, Michael Edwards, and Tyrell Peace, Petitioner-Tenant, for a Judgment, Pursuant to Article 7A of the Real Property Actions and Proceedings Law, Appointing a Court Designated Administrator for the Premises Known as 92 Crystal Street, Brooklyn, N.Y. Block 4191 Lot 43 (Kings County) v. Mazed ALAM, City of New York, PNC Mortgage a Division of PNC Bank, National Association, Wells Fargo Bank National Association, (Other Parties With Possible Interest in the Property)
Veterans Justice Project of Brooklyn Legal Services, By Vance Gathing, Esq., for Petitioners Gross Polowy, LLC, By Austin R. Caster, Esq. for Respondent PNC Mortgage Bass & Associates of NY, PLLC, By Alyson Bass, Esq. for Respondent Mazeda Alam DHPD Housing Litigation Bureau, Martha Ann Weithman, Esq., By Molly Davis, Esq. for Interested Party DHPD
Veterans Justice Project of Brooklyn Legal Services, By Vance Gathing, Esq., for Petitioners
Gross Polowy, LLC, By Austin R. Caster, Esq. for Respondent PNC Mortgage
Bass & Associates of NY, PLLC, By Alyson Bass, Esq. for Respondent Mazeda Alam
DHPD Housing Litigation Bureau, Martha Ann Weithman, Esq., By Molly Davis, Esq. for Interested Party DHPD
Jeannine Baer Kuzniewski, J.
Decision/Order in this motion pursuant to CPLR § 3212 dismissing the Petition and a cross-motion for summary judgment on the Petition for an order appointing a 7A administrator is as follows:
The Petitioners commenced this action seeking an order appointing a 7A administrator to the property at 92 Crystal Street, Brooklyn, NY The Petitioners are all veterans that are living in this building that has a certificate of occupancy providing for it to be a 2 family home. It has been partitioned into at least six separate units; tenants have alleged that there have been 10 to 12 units. On July 18, 2018 the Honorable Kimberly Slade issued an Order determining that the tenants are entitled to rent stabilization status. The Department of Housing Preservation and Development (DHPD) has moved pursuant to CPLR § 3212 for an Order dismissing the proceeding. The Petitioners oppose the Motion and cross-motion for summary judgment for an order appointing the 7A administrator. It is noted that the court file does not contain the original petition. The Notice of Petition is in the file but someone has removed all staples.
The proceeding was noticed to be heard on July 24, 2018. On that date the parties appeared and the proceeding was adjourned to July 31, 2018. The notation on the court jacket provides that the adjourn date was for a conference and for an answer to be served and filed. Additionally, Wells Fargo was released from the proceeding. The Court notes that on the initial date, the appearances were before a "covering" judge. On the same day that the proceeding was first noticed to be heard, and apparently after the court appearance, the Petitioner's attorney prepared a motion which was filed with the court on July 27, 2018 and made returnable on July 31, 2018. The motion sought to reargue the court allowing the respondents to file an answer and asked to join another tenant as a petitioner. On July 31, 2018 the Department of Housing Preservation and Development (DHPD) appeared and requested the opportunity to submit an answer. The Petitioners' motion was granted on consent to add Tyrell Pearce as a petitioner, the parties on consent stipulated to access for repairs but over the Petitioners' objections adjourned to proceeding to August 24, 2018, 2:15 PM, for trial. The Court noted on the court jacket that the DHPD was granted to August 10, 2018 to file an answer. The DHPD filed the answer on August 13, 2018 and on August 21, 2018 the Petitioners' attorney filed a rejection of the answer dated August 21, 2018. On the return date of August 24, 2018, the DHPD motioned for summary judgment dismissing the proceeding. A submission schedule was set providing for opposition by August 31, 2018 and reply by September 10, 2018. On September 7, 2018 the Petitioners filed a cross-motion for summary judgment for the appointment of a 7A administrator.
The DHPD argues that they are opposed to the appointment of an administrator, while the tenants are rent stabilized, the building cannot be legalized as the certificate of occupancy is for a two family. At the time of the Motion there were 10 violations of record (VSR) for the premises. There were 9 "B" and 1 "C" violation. The "C" violation was cited on April19, 2017 for a lack of hot water to the first floor. Two of the "B" violations required the discontinuance of rooms for living, cooking space and discontinue the plumbing fixtures for sink, water closet, wash basin and shower at the cellar. Three additional "B" violations existed to discontinue the three rooming units on the first floor. One "B" violation existed to discontinue the rooming unit on the second floor. Accordingly, 6 out of the 10 VSR that existed at the time the proceeding was commenced were to discontinue the illegal use of the premises. The DHPD argues that the facts before the Court dictate that the units do not fall into an exception that would allow the illegal rooms to be legalized pursuant to the Housing Maintenance Code § 27-2077(a). Further, it is undisputed that the alterations took place without the proper permits. It is argued that the appointment of a 7A is to require the curing of the VSR which would be to convert the premises back to be in compliance with the certificate of occupancy for a two family dwelling. This would entail commencing holdover proceedings against these rent stabilized tenants. The argument continues with alleging that the VSR are not of such severity as to warrant the appointment. The final argument is that an appointment is futile as there will not be funds to allow the repairs as HPD will not be providing funds. The Department argues that under RPAPL § 778(1) they are not required to provide the funding and that to do so would be condoning the continued occupancy contrary to the certificate of occupancy and the violations of record.
See Notice of Cross-Motion Exhibit H.
The Petitioners oppose the motion to dismiss and have moved for summary judgment for an Order appointing the 7A. The Petitioners argue that the DHPD has no standing to make the motion as they are not a party to the proceeding under RPAPL § 776. In support of the argument for summary judgment, the movant argues that the rent stabilized veterans living in the dwelling have been suffering under an infestation by rodents and harassment for at least five days. The argument recites the additional alleged repairs for which no violation has been placed, the prior court proceedings commenced by the landlord against the tenants, the offer of $ 300.00 to relocate and the failure to offer rent stabilized leases pursuant to the ruling of Judge Slade.
"The proponent of a motion for summary judgment must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact. Failure to make such prima facie showing requires a denial of the motion, regardless of the sufficiency of the opposing papers." ( Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986] [citations omitted]; see also Friends of Animals v Associated Fur Mfrs., 46 NY2d 1065 [1979] ).
There are many assertions that the Court and the movants agree. These tenants are currently protected under the rent stabilization laws pursuant to the Order of the Honorable Kimberly Slade, L & T Index 56899/18. The Affidavit In Support of HPD's Summary Judgment Motion and Opposition to Petitioner's Notice of Cross Motion submitted by the owner does little to support the arguments before this Court. The credentials of Dr. Alam are irrelevant to this proceeding and this Court will not entertain what is basically re-argument of Judge Slade’s decision. Further, while the Court disagrees with the dates argued in the Notice of Rejection of the DHPD answer, it was nonetheless late as the Court allowed to August 10, 2018 and it was filed August 13, 2018. As the answer was filed late without leave of court, the court will not consider the answer. The movant spends a great deal of time reminding the Court that the tenants are veterans and that they have been living with violations of record for far too long. The Court has expressed it's gratitude for the service these men have given to this country, however, that is not a determinative factor in this case. The Court further does not dispute that they are entitled to a safe and habitable living environment.
CPLR § 3212(b) further provides that "if is shall appear that any party other than the moving party is entitled to summary judgment, the court may grant such summary judgment without the necessity of a cross-motion."
Pursuant to CPLR § 3212(b) the Court will deny the cross-motion seeking an Order appointing a 7A administrator and will grant summary judgment in favor of the landlord and dismiss the proceeding. "The Court has reviewed the Bill Jacket for RPAPL § 7A which discusses the legislative intent of the sponsor, Senator Wilson, of the Bill. The Bill was intended to be a remedial measure to allow tenant groups to have an expeditious method of obtaining repairs when:
‘there exists in such dwellings or in any part thereof a lack of heat or of running water or of light or of electricity or of adequate sewage disposal facilities, or any other condition dangerous to life, health or safety, which has existed for five days, or an infestation by rodents, or any combination of such conditions; or course of conduct by the owner or the owner's agents of harassment, illegal eviction, continued deprivation of services or other acts dangerous to life, health or safety, ....’
NY Real Prop. Acts. Law § 770 (McKinney)
The intention was not to be punitive to the owners but to allow the tenants to expeditiously take their rent money to be used for emergency repairs. ‘Article 7—A Real Property Actions and Proceedings Law is clearly remedial as it opens up this judicial forum to protect the rights of tenants whose multiple dwelling occupancies are within the purview of the legislative mandate, endangering life, health or the safety of the occupants thereof.....’ In determining the constitutionality of the statute, case law held that ‘[t]his statutory scheme for tenants suffering from dangerous living conditions to petition this Civil Court to have their rent moneys used to correct such conditions is reasonably calculated in this court's opinion to curb a danger to the public welfare. Evidently the Solons intended—to paraphrase the French satirist—that the law in its majestic equality should protect the opulent, as well as the indigent, tenant from the indifferent attitude of an unfriendly landlord.’ "
See index number HP 210/2108.
While the Petitioners argue that they will consent to pay rent for the premises, it cannot be disputed that the Court can not order the payment and there is no recourse for a 7A administrator if they fail to make payments. Under the Multiple Dwelling Law § 325 "no rent shall be recovered by the owner of a multiple dwelling who fails to comply with such registration requirements until he complies with such requirements." Petitioners argue that the payment of use and occupancy waives the tenants right to seek reimbursement, however, an administrator would be relying on future and ongoing use and occupancy to make the repairs. During oral argument, counsel for the tenants argued that the Court could dictate the priorities of an administrator in curing the violations of record. Upon doing so the proposed administrator should address any violations other than those for the illegal occupancy. Counsel does not provide case law to support this argument. In the event the Court were to grant summary judgment in favor of the Petitioners, any rent received would have to be used to cure the violations by coming into compliance with the certificate of occupancy. The DHPD has made it clear that they will not approve the funding for an administrator to cure all the violations of record.
The Court recognizes and appreciates the case law relied upon in Judge Slade's Order and has relied upon the same case law in its own decisions. However, the current case law does not provide direction for newly recognized rent stabilized tenants in illegal units. The rent stabilization law provides that
See L & T 85314/2015.
"an action or proceeding to recover possession of any housing accommodation shall be maintainable, after service and filing of the notice by section 2204.3, only upon one or more of the following grounds ‘Occupancy of the housing accommodation by the tenant is illegal because of the requirements of law, and the landlord is subject to civil or criminal penalties therefor, or both; provided, however, that such occupancy shall not be considered illegal by reason of violations placed against the housing accommodations or the building in which same are located by any department or agency of the city having jurisdiction, unless such department or agency has issued an order requiring the tenants to vacate said accommodations or building, or unless such occupancy for such building or such violations relied on by the landlord result from an act, omission or situation caused or created by the tenant.’ "
It will be for the Division of Housing and Community Renewal or the housing court, in holdover proceedings, to determine whose rent stabilized rights may be upheld in this two family dwelling that currently has 6 different rent stabilized occupancies. Until such time, this Court cannot issue an order in compliance with RPAPL § 778(1). Despite the assertion that the tenants will pay their rent, there is no recourse should they fail to pay the rent. At the onset, the Court cannot order the tenants to pay rent because the dwelling is occupied with three or more units and the landlord has failed to register the premises as a multiple dwelling pursuant to MDL § 325. Further there is case law concerning occupancy which is contrary to the certificate of occupancy. "[T]he appointment of an administrator in the proceeding would be a futile gesture, because such administrator would not be able to raise sufficient income to properly repair and maintain the premises." McGovern v. 310 Riverside Corp. , 49 AD2d 949, 949, 374 N.Y.S.2d 137, 138 (1975). The Court has reviewed the case law that offered a negative review of the ruling in McGovern and in those facts there was the option to obtain funding from the city was available. The facts in this case differ. When "HPD endorses appointment of an administrator; it is suggested that an HPD loan may be arranged, ...." Gomez v. S. Williamsburg Better Hous. Corp. , 129 Misc 2d 542, 543, 493 N.Y.S.2d 419, 420 (Civ. Ct. 1985). Under these facts the DHPD has represented that they will not arrange a loan and the law does not require the rent stabilized tenants to pay rent.
Id.
The Petitioners argue that the appointment is their only remedy to have the VSR addressed, however, the Court disagrees with this argument. The Petitioners refer to prior cases where stipulations provided for repairs, however, there is no assertion that the tenants attempted to restore those cases for relief upon default. Further, the tenants have not filed a tenant action seeking an order to correct and a finding of harassment.
Pursuant to the foregoing, the Court dismisses the Order to Show Cause and Petition and Notice of Petition for the appointment of a 7A administrator. The Court cautions the landlord that he is still legally obligated to comply with the order of Judge Slade, to correct the violations of record, to maintain all essential services and to not engage in any conduct that falls within the definition of harassment under the NYC Administrative Code § 27-2004(48). In light of the foregoing, the Court need not address the motion for summary judgment submitted by HPD as it is moot.