Dep't of Hous. Pres. & Dev. of City of New York v. France

Full title: Department of Housing Preservation and Development of the City of New…

Court: Supreme Court of New York, Appellate Division, First Department

Date published: Oct 20, 2021

No. 2021-50982 (N.Y. App. Div. Oct. 20, 2021)

Opinion

2021-50982

10-20-2021

Department of Housing Preservation and Development of the City of New York, Petitioner-Appellant, v. Watson France, Respondent-Respondent.

PER CURIAM.

Unpublished Opinion

MOTION DECISION

Petitioner Department of Housing Preservation and Development of the City of New York appeals from (1) an order of the Civil Court of the City of New York, Bronx County (David J. Bryan, J.), dated March 7, 2019, which, sua sponte, dismissed its petition in a Housing Part enforcement proceeding, and (2) an order (same court and Judge), dated July 29, 2019, which denied petitioner's motion, denominated as one to reargue the prior order.

PRESENT: Edmead, P.J., McShan, Hagler, JJ.

PER CURIAM.

Order (David J. Bryan, J.), dated July 29, 2019, reversed, without costs, the dismissal vacated, petition reinstated and the matter remanded for further proceedings. Appeal from order (David J. Bryan, J.), dated March 7, 2019 dismissed, without costs, as nonappealable.

Petitioner's motion, denominated as one to reargue, was, in effect, one to vacate the March 7, 2019 order which, sua sponte, dismissed the petition in a Housing Part enforcement proceeding (see Sholes v Meagher, 100 N.Y.2d 333, 335 [2003]; Wilmington Trust, N.A. v Modica, 189 A.D.3d 1675, 1676 [2020]). Thus, the denial of petitioner's motion is appealable as of right (see 5701[a][3]).

Civil Court's sua sponte dismissal of the petition was procedurally improper and substantively incorrect. The power of a court to dismiss an action or proceeding sua sponte "should be used sparingly and only in extraordinary circumstances" not present on this record (Ray v Chen, 148 A.D.3d 568, 569 [2017][internal quotation marks omitted]). As to the merits, the court erroneously concluded that the notice of violation served by petitioner was defective. The pertinent Housing Maintenance Code provision to apprise a building owner of an inadequate heat and hot water violation is Administrative Code of City of NY § 27-2115(k)(2) (see Department of Hous. Preserv. & Dev. of City of NY v DeBona, 101 A.D.2d 875 [1984][citing to the predecessor statute]), and the subject notice of violation served upon respondent satisfied the requirements of that provision.