Opinion
112035/11
02-09-2012
Washington Heights Holding, LLC, Plaintiff, v. Raul Soto, Defendant.
Geza Toth, Esq. by Geza Toth, Esq. Attorneys for Plaintiff Northern Manhattan Improvement by Matthew J. Chachère, Esq., of Counsel Attorneys for Defendant
Geza Toth, Esq.
by Geza Toth, Esq.
Attorneys for Plaintiff
Northern Manhattan Improvement
by Matthew J. Chachère, Esq., of Counsel
Attorneys for Defendant
, J.
Upon a reading of the foregoing cited papers, ORDERED and ADJUDGED, that defendant's motion to dismiss this declaratory judgment action pursuant to CPLR §3211[a] [7], is granted, to the extent that the complaint is dismissed, the remainder of the motion is denied. Plaintiff's cross-motion to amend the Complaint to add additional parties, is denied.
Defendant makes this motion to dismiss this declaratory judgment action pursuant to CPLR §3211[a][7], for failure to properly state a cause of action. Defendant also seeks attorneys fees, costs and sanctions.
Plaintiff opposes the motion claiming it is entitled to a declaratory judgment as to the relief sought. Plaintiff cross-moves pursuant to CPLR §3025[b], CPLR §1001[b] and CPLR §1003, to amend the caption and add defendant's wife and other tenants in the building as additional parties as indicated in their proposed Amended Verified Complaint.
A motion to dismiss pursuant to CPLR §3211[a][7], requires a reading of the pleadings to determine whether a legally recognizable cause of action can be identified and it is properly pled (Leon v. Martinez, 84 NY2d 83, 614 N.Y.S., 2d 972, 638 N.E. 2d 511 [1994] and Guggenheimer v. Ginzberg, 43 NY2d 268, 401 N.Y.S. 2d 182, 372 N.E. 2d 17, [1977]). Documentary evidence that contradicts the allegations, or pleadings that consist of bare legal conclusions will not be presumed to be true and are a basis for dismissal (Morgenthow & Latham v. Bank of New York Company, Inc., 305 AD2d 74, 760 N.Y.S. 2d 438 [N.Y.A.D. 1st Dept.,2003]).
The Complaint asserts three causes of action. The first seeks a declaratory judgment concerning whether the owner of the building, for the purpose of removing violations and to ensure the welfare and safety of tenants, may replace the staircase. The second cause of action requires that the defendant relocate for approximately ten days to allow completion of work. The third cause of action seeks attorney fees pursuant to the lease (Cross-Mot. Exh. B). Defendant claims that the plaintiff has completely failed to set forth the necessary elements of the relief sought or follow the proper procedures for ensuring the welfare and safety of the tenants.
A lease granting the landlord access to perform necessary repairs, does not allow the temporary relinquishment of possession, "repairs are not the equivalent of renovation"(33 Christopher Corp. v. Friedman, 2010 NY Slip. Op. 33441(U), 2010 WL 5172423 [Sup. Ct., NY, 2010]).
A building owner's right to temporarily evict or relocate tenants protected by the New York City rent control laws, is governed by the Administrative Code of the City of New York. The New York City rent control law and the Rent Stabilization Code give the Department of Housing and Community Renewal (DHCR) the responsibility of adjudicating claimed violations of the rules, preventing landlords from harassing tenants to induce them to leave their apartments. The New York City Department of Housing Preservation and Development (HPD) must also be permitted to consider the issues of temporary eviction and relocation. The Supreme Court lacks subject matter jurisdiction to make factual determinations that pursuant to the statutory scheme designed by the legislature with respect to rent-stabilized housing, demonstrates the intent to vest original exclusive jurisdiction within an administrative agencies' authority (Sohn v. Calderon, 78 NY2d 755, 587 N.E.2d 807, 579 N.Y.S. 2d 940 [1991]). The doctrine of primary jurisdiction applies where there is concurrent jurisdiction and an administrative agency has the necessary expertise to dispose of an issue. Under those circumstances, in the exercise of discretion, a judicial determination should be withheld pending resolution of administrative proceedings (Wong v. Gouverneur Gardens Housing Corp., 308 AD2d 301, 764 N.Y.S. 2d 53 [N.Y.A.D. 1st Dept., 2003]).
HPD may issue a Vacate Order, and can provide additional relief, including paying to relocate rent stabilized tenants of privately owned buildings. A Vacate Order issued by HPD and relocation services are required pursuant to the New York City Administrative Code, "where the displacement of such tenants results from the enforcement of any law, regulation, order or requirement pertaining to the maintenance or operation of such building or the health, safety and welfare of its occupants"(Toolsee v. Department of Housing Preservation and Development of the City of New York, 299 AD2d 209, 750 N.Y.S. 2d 24 [N.Y.A.D. 1st Dept. 2002]).
An exception to the procedural requirements of the New York City rent control laws and the Administrative Code of the City of New York, can occur when the record establishes an immediate hazard to the life and health of the tenants, creating an emergency situation, in which the requirement of a hearing prior to the taking of a property interest is excused. In those emergency situations, the landlord is still required to show that the tenants, "were not being put out on the street," but relocated to proper accommodations (Mendez v. Dinkins, 226 AD2d 219, 640 N.Y.S. 2d 889 [N.Y.A.D. 1st Dept., 1996]).
Defendant provides as documentary evidence, a copy of a notice from the New York City Department of Buildings (DoB) of intent to revoke approvals and permits orders and to stop work immediately (Reply, Exh. S) and the Notice of Audit Objections, which states in relevant part that the tenant safety plan does not state how the work is to be, "...conducted in order to insure the tenants have safe egress available at all times..." (Reply, Exh. S). Defendant also provides a copy of the DoB, "Special" Audit Objections which states that the plaintiff failed to notify the DoB that work was to be performed in rent regulated apartments (Reply, Exh. T). Defendant has incorporated a color copy of the Stop Work Order issued by the DoB affixed to the door of plaintiff's building into their reply papers. Plaintiff's architect has withdrawn professional responsibility for the renovation work to be performed which includes the staircase (Reply Exh. V).
Plaintiff is seeking to temporarily evict or relocate the tenants from their apartments for ten days. Plaintiff has not provided sufficient proof that the replacement of the staircase is an emergency situation requiring immediate relief that would permit circumvention of the procedures in place for temporarily evacuating the building pursuant to New York City Rent Control Laws and the Administrative Code of the City of New York. Plaintiff has not provided sufficient proof that it followed the appropriate procedures for obtaining a building permit from the DoB or that it currently has permits to either renovate or build a staircase. It has not submitted evidentiary proof that full evacuation of the building to replace the staircase is the only alternative. The DoB Notice of Audit Objections (Reply, Exh. S) only states that the plaintiff is to explain how it will provide the tenants with safe egress, there is no mention of evacuation of the building.
Raul Soto is a rent stabilized tenant, plaintiff did not provide proof that HPD or DHCR had been contacted for purposes of assisting in the temporary evacuation of the building or that a Vacate Order was applied for and issued or denied by HPD. Plaintiff has not sufficiently established that this Court has subject matter jurisdiction to make a declaratory judgment or provide the related relief.
Pursuant to CPLR §3025, leave to amend pleadings, "shall be freely granted upon such terms as may be just..." the decision to disallow the amendment is at the Court's discretion (McCaskey, Davies & Associates, Inc. v. New York City, 59 NY2d 755, 450 N.E. 2d 240, 463 N.Y.S. 2d 434 [1983]). An examination of the merits of the proposed amendment to the causes of action is warranted to save judicial resources. Leave to amend a pleading will be denied where the proposed pleading fails to state a cause of action or is patently insufficient as a matter of law (Davis & Davis, P.C. v. Morson, 286 AD2d 584, 730 N.Y.S. 2d 293 [N.Y.A.D. 1st Dept. 2001] and Non-Linear Trading Company, Inc. v. Braddis Associates, Inc., 243 AD2d 107, 675 N.Y.S. 2d 5 [N.Y.A.D. 1st Dept. 1998]).
CPLR §1001[b], permits the Court to join a party if failure to do so would result in their being inequitably affected by a resulting judgment, or to afford complete relief to the parties already in the action. The Court in its discretion may order that a party be subjected to jurisdiction based on, "(1) Whether the plaintiff has another effective remedy in case the action is dismissed on account of nonjoinder;
(2) the prejudice which may accrue from nonjoinder of the defendant or to the person not to be joined; (3) whether and by whom prejudice might have been avoided; (4) the feasibility of a protective provision by order of the court or in the judgment; and
(5) whether an effective judgment may be rendered in the absence of the person who is not joined" (Saratoga County Chamber of Commerce, Inc. v. Pataki, 100 NY3d 801, 798 N.E. 2d 1047, 766 N.Y.S. 2d 654 [2003]).
CPLR §1003, permits the Court to join a nonparty at any stage of the action, it also provides that failure to join a party pursuant to CPLR §1001, is a basis for dismissal of the action.
Raul Soto resides in the apartment with his wife and daughter. Plaintiff brought this action only to remove Mr. Soto for ten days, without addressing relocation for the rest of his family (Cross-Mot. Exh. B). Plaintiff seeks to amend the complaint to add defendant's wife Maria Soto, and two other tenants as necessary
parties (Cross-Mot. Exh. A). Plaintiff claims that failure to add Maria Soto was based on unintentional mistake. It claims the other tenants are necessary parties because it seeks an adjudication concerning the temporary relocation of all the remaining tenants. Plaintiff states it was initially unaware that there were tenants other than the Soto's refusing to relocate.
The proposed amended complaint (Cross-Mot. Exh. A) does not provide a sufficient basis for jurisdiction of this Court over Raul Soto or the proposed additional parties. Plaintiff has not established that this Court has jurisdiction to render a decision as to the relief sought, a basis to sustain the proposed causes of action, or the merits of the proposed amendments.
Attorney fees may be awarded to the prevailing party in actions involving lease disputes pursuant to the Real Property Law. A party may be entitled to legal fees as a prevailing party if there is a contractual provision to that effect (Board of Managers of 55 Walker Street Condominium v. Walker Street, LLC, 6 AD3d 279, 774 N.Y.S. 2d 701 [N.Y.A.D. 1st Dept., 2004]).
This action does not involve a lease dispute. Neither of the parties made reference to specific lease provisions as a basis for the relief sought.
Frivolity as defined by 22 NYCRR 130-1.1, requires conduct which is continued when its lack of legal or factual basis should have been apparent to counsel or the party.
Defendant seeks costs and sanctions for alleged harassment and factual misrepresentations by plaintiff in seeking to remove Mr. Soto as the only remaining tenant refusing to relocate. Plaintiff has sufficiently demonstrated that it erred and relied on incomplete information in those statements, which it sought to correct by amending the complaint. Accordingly, the relief sought in the motion for costs, sanctions and attorney fees, is denied.
Upon review of all the papers submitted with this motion and cross-motion, this Court finds that defendant has established a basis to dismiss this action pursuant to CPLR §3211[a][7]. This Court does not have subject matter jurisdiction to grant the relief sought. Plaintiff has not followed the proper procedures to obtain temporary relocation of the remaining rent stabilized tenants. Plaintiff is required to apply to the appropriate agencies for relief and refrain from harassing the tenants. Plaintiff does not have a permit to renovate or build the stairs to remove code violations from the DoB, and has not filed the proper applications to do so.
Accordingly, it is ORDERED and ADJUDGED, that that defendant's motion to dismiss this declaratory judgment action pursuant to CPLR §3211[a] [7], is granted, to the extent that the complaint is dismissed, the remainder of the motion is denied; and it is further
ORDERED, that plaintiff's cross-motion to amend the Complaint to add additional parties, is denied.
This constitutes the order, declaration and judgment of this court.
ENTER:
MANUEL J. MENDEZJ.S.C.