Opinion
17693/2020
03-16-2021
Krista SANJURJO, Petitioner, v. Carmelo MILIO, Respondent, and New York City Department of Housing Preservation and Development (DHPD), Co-Respondents.
Hai Dao, Esq., Mobilization for Justice, Inc., Attorneys for Petitioner, Via email [hdao@mfjlegal.org] Mark Cohen, Esq., Attorney for Respondent, Via email [bronxevictions@aol.com] DHPD, eddisons@hpd.nyc.gov, sylvests@hpd.nyc.gov, yurnetm@hpd.nyc.gov, vealee@hpd.nyc.gov
Hai Dao, Esq., Mobilization for Justice, Inc., Attorneys for Petitioner, Via email [hdao@mfjlegal.org]
Mark Cohen, Esq., Attorney for Respondent, Via email [bronxevictions@aol.com]
DHPD, eddisons@hpd.nyc.gov, sylvests@hpd.nyc.gov, yurnetm@hpd.nyc.gov, vealee@hpd.nyc.gov
Shorab Ibrahim, J.
Recitation, as required by C.P.L.R. § 2219(a), of the papers considered in review of this motion.
The court has reviewed petitioner's motion to dismiss respondent's defenses and for summary judgment and all papers attached thereto [NYSCEF No. 3-25], respondent's cross-motion to amend his answer and for summary judgment/dismissal and all papers attached thereto, petitioner's reply and all papers attached thereto [NYSCEF No. 27-36], and all contents of the court's file in reaching this decision.
Respondent is directed to immediately upload the cross-motion and attachments to NYSCEF.
HISTORY AND PROCEDURAL POSTURE
Krista Sanjurjo, the petitioner in this this proceeding ("petitioner"), commenced this Housing Part ("HP") proceeding seeking correction of conditions at 758 Kelly Street, Apt. 2D, Bronx, New York 10455 (the "subject premises") by Carmelo Milio, the respondent in this proceeding ("respondent").
There is no dispute that petitioner is the lawful tenant of the subject apartment or that the respondent is a proper party to this proceeding. The matter was commenced while petitioner was pro-se by order to show cause and petition dated December 17, 2020. Said order to show cause directs service of process on respondent by certified mail, return receipt requested by December 19, 2020.
On or about January 20, 2021, prior to respondent serving or filing an answer, petitioner, represented by counsel, mailed a verified amended petition to respondent by certified mail, return receipt requested. The amended petition lists five (5) causes of action: order to correct, civil penalties, unlawful eviction, civil penalties for unlawful eviction, and treble damages for unlawful eviction. The amended petition's wherefore clause additionally seeks relocation costs from DHPD or respondent. Respondent, represented by counsel, interposed an answer dated January 21, 2021; it raises six (6) affirmative defenses in addition to a general denial and allegation that the petition fails to state a cause of action.
See affidavit of service from Sadria Dominguez dated January 20, 2021.
After a conference on January 26, 2021, the case was adjourned to March 4, 2021 for trial. In the interim, motion practice ensued.
Petitioner moves to dismiss respondent's affirmative defenses pursuant to CPLR§ 3211(b) and for summary judgment pursuant to CPLR § 3212. Respondent cross-moves for leave to file an amended answer, for partial summary judgment and for partial dismissal pursuant to CPLR § 3211(a)(7).
THE AMENDED PETITION AND AMENDED ANSWER
CPLR § 3025(a) states in relevant part, "[a] party may amend his pleading once without leave of court within twenty days after its service, or at any time before the period for responding to it expires, or within twenty days after service of a pleading responding to it."
Amended pleadings served within these parameters are served as "of right." When an amended pleading is not "as of right" and is done without leave of court, ( see CPLR § 3025(b) ), it is considered a nullity. ( Walden v Nowinski , 63 AD2d 586, 404 NYS2d 635 [1st Dept 1978] ; Nikolic v Federation Employment and Guidance Service, Inc. , 18 Ad3d 522, 524, 795 NYS2d 303 [2nd Dept, 2005] ). Here, however, the amended pleading was served [via certified mail, return receipt requested] on January 20, 2021, which was prior to respondent serving an answer [the answer is dated January 21, 2021]. As such, the twenty (20) day limitations encapsulated in CPLR § 3025(a) never started to run, much less expire. ( Gowen v Helly Nahmad Gallery, Inc. , 60 Misc 3d 963, 979, 77 NYS3d 605 [Sup Ct, New York County, 2018] ("Despite the age of the instant matter, the Defendants have not yet filed an Answer. Therefore, pursuant to CPLR§ 3025(a), the amendment of the complaint is proper as of right."); Empire Blue Cross and Blue Shield v Various Underwriters of Lloyds, London, England , 5 Misc 3d 1024[A] at *2, 2004 NY Slip Op 51528[U] [Sup Ct, New York County, 2004] ; Jones v State of New York , 67 Misc 3d 1201[A] at *3, 2020 NY Slip Op 50351[U] [Court of Claims 2020] ("Moreover, the Court notes that Claimant's time to amend the Claim as of right under CPLR 3025 (a) has not yet expired as Defendant has not served an answer to the Claim."); Hedgepeth v Wing , 5 Misc 3d 1009[A] at *4, 2004 NY Slip Op 51300[U] [Sup Ct, Westchester County 2004] ).
Whether petitioner could serve an amended petition as of right prior to respondent's answer is essentially academic since petitioner could, without question, serve the amended petition within twenty (20) days after the answer was served. Thus, the amended petition is deemed served and filed.
Respondent's motion to file an amended answer is granted and the verified amended answer attached to the cross-motion is deemed served and filed. CPLR 3025(b) provides that leave to amend a pleading shall be freely given upon such terms as may be just. ( Norwood v City of New York , 203 AD2d 147, 148-149, 610 NYS2d 249 [1st Dept 1994] ). Amendment can be at any time, especially where there is not significant prejudice to the opposing party. ( National Union Fire Ins. Co. v Schwartz , 209 AD2d 289, 290, 619 NYS2d 542 [1st Dept 1994] ).
Here, there is no prejudice alleged. As to the merit of the defenses, ( see generally , Thomas Crimmins Contracting Co. v New York , 74 NY2d 166, 170, 544 NYS2d 580 [1989] [proposed defenses which "plainly lack merit" should be denied]), the court will discuss each defense individually in context of petitioner's motion to dismiss the affirmative defenses.
RESPONDENT'S AFFIRMATIVE DEFENSES
Respondent's first affirmative defense alleges service of the December 17, 2020 order to show cause and petition was not timely made on respondent by December 19, 2020 and that service was not via certified mail, return receipt requested. Petitioner's affidavit of service, however, alleges service on respondent at 165 W. 127th Street, Apt. 101, New York, NY 10027 via certified mail, return receipt requested on December 19, 2020. The affidavit lists the tracking number and attaches a copy of the certified mail receipt. This affidavit creates a presumption of proper service. ( see Kihl v Pfeffer , 94 NY2d 118, 122, 700 NYS2d 87 [1999] ; In re de Sanchez , 57 AD3d 452, 454, 870 NYS2d 24 [1st Dept 2008] ).
NYSCEF Doc. No. 8 and 9.
Respondent does not allege the service address is improper or otherwise contest proper service with specificity. In fact, the address served is the one on file with DHPD. In light of a facially proper affidavit of service that shows compliance with NYC Admin Code § 27-2115(j) [allowing for service of in tenant-initiated HP proceedings to be by registered or certified mail, return receipt requested], respondent's first affirmative defense is dismissed. ( see Benjamin v Avis Rent-A-Car Systems, Inc. , 208 AD2d 449, 450, 617 NYS2d 719 [1st Dept 1994] ; Genway Corp v Elgut , 177 AD2d 467, 575 NYS2d 899 [2nd Dept 1991] ).
See Multiple Dwelling Law ("MDL") § 325(1).
( see also Ebanks v Skyline NYC, LLC , 70 AD3d 943, 945, 896 NYS2d 369 [2nd Dept 2010] ).
Respondent's second affirmative defense alleges the amended petition was not timely or properly served because it was not served by certified mail, return receipt requested and was not served by December 19, 2020. As to the form of the mailing, petitioner's affidavit of service alleges service by certified mail, return receipt requested to the same registered address the original order to show cause and petition were served at. The presumption of proper mailing is not rebutted by the answer's conclusory allegations. ( see Kihl v Pfeffer, supra ).
NYSCEF Doc. No. 11 and 12.
In any event, once this court had jurisdiction over the respondent by virtue of proper service of the December 17, 2020 order to show cause and petition, there is no requirement that an amended pleading be served in the same manner. ( Patrician Plastic Corp. v Bernadel Realty Corp. , (25 NY2d 599, 607, 307 NYS2d 868 [1970] ) ("Extensive research fails to yield either statute or decisional precedent which would require in all cases that a defendant already in an action be served with original process if a new claim is to be made against it"); Doyle v Happy Tumbler Wash-O-Mat, Inc. , 113 Add 818, 820, 493 NYS2d 578 [2nd Dept 1985] ("It is well settled that a defendant who is already properly in an action need not be served with original process when a new claim is to be made against it."); Rohany v State , 144 Misc 2d 940, 942, 545 NYS2d 513 [Ct of Claims 1989] ; Park Ave. Bank v Cong. & Yeshiva Ohel Yehoshea , 29 Misc 3d 446, 449, 907 NYS2d 571 [Sup Ct, Kings County 2010] ).
As to the date of the mailing, respondent implies that the amended pleading must be served by the date the original pleading was required to be served. This argument strains credulity since CPLR § 3025 allows for service of an amended petition up to (20) days after service of the original. As such, respondent's second affirmative defense is dismissed.
The court is perplexed by respondent's argument that "[u]nlike in an amended answer, where leave may be freely granted, the Court does not have the option to grant leave to amend a Petition that was made with an Order to Show Cause." CPLR § 3025 applies to all pleadings, not just answers. ( see also, Bishop v Maurer , 83 AD3d 483, 485, 921 NYS2d 224 [1st Dept 2011] [A motion for leave to amend the complaint pursuant to CPLR 3025(b) should be freely granted unless the proposed amendment is palpably insufficient to state a cause of action or is patently devoid of merit] (emphasis added)). Respondent offers no authority holding that a case commenced by order to show cause should be treated differently.
Respondent's third affirmative defense, which responds to petitioner's illegal eviction claim, will be discussed infra.
Respondent's fourth affirmative defense essentially claims it is difficult for the landlord to ascertain when the repairs will be completed because it will be difficult to obtain permits from the Department of Buildings ("DOB") and other government entities. While it may, in fact, take time to obtain permits, this is not a recognized defense to an order to correct. ( see D'Agostino v Forty-Three E. Equities Corp. , 12 Misc 3d 486, 489-490 [Civ Ct, New York County 2006]aff'd on other grounds , 16 Misc 3d 59 [App Term, 1st Dept 2007] ; Vargas v 112 Suffolk St. Apt. Corp. , 66 Misc 3d 1214[A] at *3 [Civ Ct, New York County 2020] [lack of standing, lack of jurisdiction, completed repairs, that the conditions are not code violations, that a notice of violation is facially insufficient, that a respondent is no longer an owner, and economic infeasibility recognized as valid defenses]). The Housing Maintenance Code ("HMC") contemplates the delay an owner might encounter in obtaining permits. However, such delays are specifically referenced as a defense to civil penalties. ( see § 27-2116(b)(2)(ii)). § 27-2116 is entitled, "Enforcement of civil penalty; powers of housing part of the civil court, collection of judgment." As such, respondent's fourth affirmative defense is dismissed.
The court notes that petitioner withdrew her second cause of action, seeking civil penalties, without prejudice. Respondent may raise delay in obtaining permits as a defense to civil penalties and/or contempt if sought in the future.
Citing to HMC § 27-2115(b), respondent's fifth and sixth affirmative defenses allege that no affidavits of proper mailing of each notice of violation exist and that the notices of violations were not properly served on respondent. Thus, respondent argues, the time frame for correction of conditions described in the notices of violations never began. Here, again, respondent conflates a defense to the imposition of civil penalties with a defense to an order to correct. While improper service of a notice of violation might constitute a defense to the former, it is not a defense to the latter.
Furthermore, the court notes that service of a notice of violation on an owner is of no import in this tenant-initiated action. While the HMC does require DHPD to serve a notice of violation upon an owner, and a failure to do so can constitute a defense to a DHPD-initiated HP proceeding, ( § 27-2115(b)) ; D'Agostino v Forty-Three E. Equities Corp. , 12 Misc 3d 486, 489-90 (Civ Ct, New York County 2006), aff'd on other grounds , 16 Misc 3d 59 (App Term, 1st Dept 2007), a tenant "may ... apply to the [H]ousing [P]art for an order" if HPD "fail[s] to issue a notice of violation ...." (HMC § 27-2115(h)(1) ). As such, in a tenant-initiated HP proceeding, DHPD's putative failure to serve a notice of violation can constitute a basis for a tenant's cause of action , not a defense to the tenant-initiated proceeding. ( Vargas v 112 Suffolk St. Apt. Corp. , 66 Misc 3d 1214[A] at *3 ). Thus, respondent's fifth and sixth affirmative defenses are dismissed.
Respondent's seventh, eighth, and ninth affirmative defenses each attack aspects of the Order to Repair/Vacate Order [No. 159757] allegedly posted and mailed on January 19, 2021, with an effective date of January 20, 2021. Whether the Vacate Order is facially sufficient or whether it was properly served on respondent are not defenses to the petition. While the amended petition references the Vacate Order, it does not seek enforcement of the Vacate Order. Rather, petitioner seeks correction of the conditions that gave rise to violations that gave rise to the Vacate Order. Here, DHPD placed violations on or about January 11, 2021. As there is no dispute this court has the authority to enter an order to correct violations, ( see Allen v 219 24th Street LLC , 67 Misc 3d 1212[A] at 2 [Civ Ct, New York County 2020] ), the seventh, eighth and ninth affirmative defenses are dismissed.
The tenth affirmative defense is essentially a rehash of respondent's fourth affirmative defense. Again, that it might take months for proper permits to issue is not a defense to an order to correct. This court has found that orders to correct have the effect of incentivizing owners in acting promptly to, among other things, obtain required permits. ( see Chambers v Old Stone Hill Road Associates , 66 AD3d 944, 946, 889 NYS2d 598 [2nd Dept 2009] [in acting diligently to obtain permits, party did not "disobey" court order]). Thus, the tenth affirmative defense is dismissed.
The eleventh affirmative defense, like the third affirmative defense, denies petitioner's unlawful eviction claim. That claim and defense to it will be discussed infra.
Finally, the twelfth affirmative defense, which responds to the petitioner's request to pay her relocation expenses, is not dismissed. Petitioner does not affirmatively seek dismissal of the twelfth affirmative defense and, in any case, the submissions create issues of law and fact regarding whether it is respondent-landlord's obligation to relocate petitioner and, if so, whether he has already complied by offering alternate housing. However, for reasons stated infra , the court dismisses the cause of action seeking relocation and costs directly from the respondent-landlord.
SUMMARY JUDGMENT
Summary judgment is a drastic remedy, to be granted only where the moving party has tendered sufficient evidence to demonstrate the absence of any material issues of fact and then only if, upon the moving party's meeting of this burden, the non-moving party fails to establish the existence of material issues of fact which require a trial of the action. ( Vega v Restani Constr. Corp. , 18 NY3d 499, 503, 942 NYS2d 13 [2012] ). When deciding a summary judgment motion, the court views the alleged facts in the light most favorable to the non-moving party. ( Sosa v 46th St. Dev. LLC , 101 AD3d 490, 492, 955 NYS2d 589 [1st Dept 2012] ).
"To grant summary judgment it must clearly appear that no material and triable issue of fact is presented.... This drastic remedy should not be granted where there is any doubt as to the existence of such issues, ... or where the issue is ‘arguable’ ...; ‘issue-finding, rather than issue-determination, is the key to the procedure’." Thus, it is "[t]he proponent of a summary judgment [who] must make a[n initial] prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case.... Failure to make such showing requires denial of the motion, regardless of the sufficiency of the opposing papers." ( Pirelli v Long Island R.R. , 226 AD2d 166, 641 NYS2d 240 [1st Dept 1996] [citations omitted]).
A. Order to Correct
Here, petitioner is entitled to summary judgment on her first cause of action seeking an order to correct. There is no dispute that petitioner and respondent are proper parties. In addition, the court finds there is no dispute that conditions constituting violations are present in the subject apartment. While respondent spends considerable effort disputing service of the notices of violations, and argues that the violations are nullities, he does not deny the existence of the underlying conditions. In any case, even if the notices of violations were not properly served on respondent, the violations themselves are prima facie proof that the conditions exist, ( see MDL 328(3) ; Allen v 219 24th Street LLC , 67 Misc 3d 1212[A] at 2 ; In re Morataya , 53 Misc 3d 242, 249, 37 NYS3d 375 [Civ Ct, Kings County 2016] ), particularly where there is no dispute of the underlying conditions. ( see also CPLR § 409(b) ["The court shall make a summary determination upon the pleadings, papers and admissions to the extent that no triable issues of fact are raised. The court may make any orders permitted on a motion for summary judgment."]).
As respondent's answer raises no true defense to an order to correct, petitioner's motion for summary judgment on her first cause of action is granted.
B. Unlawful Eviction
Petitioner's third, fourth and fifth causes of action are grounded in her alleged unlawful eviction. The petition's third cause of action states "Petitioner requests that the Court direct Respondent-Owner restore complete possession of the Premises, including restoration of the essential services of water and electricity to the Premises, the divestment of which constitutes an unlawful eviction pursuant to RPAPL§ 768."
In relevant part, RPAPL § 768(a) states that it is unlawful to evict or attempt to evict a lawful occupant except to the extent permitted by law" including "a governmental vacate order by:" use of or threatening the use of force to induce the occupant to vacate or conduct [including interruption or discontinuance of essential services] which interferes with or is intended to interfere with or disturb an occupant's "comfort, repose, peace or quiet" to " induce the occupant to vacate." ( §§ 768(a)(i) and (ii) [emphasis added]). § 768(a)(iii) prohibits "engaging or threatening to engage in any other conduct which prevents or is intended to prevent lawful occupancy or to induce the occupant to vacate including changing the locks on such entry door without supplying the occupant with a key." ( see also NYC Admin Code § 26-521 —Unlawful Eviction).
The facts here do not support unlawful eviction as a matter of law. None of the subsections of § 768(a) or (b) are applicable. While it is undisputed that water and electricity services were discontinued, it is also undisputed that it resulted from the October 24, 2020 fire. In other words, petitioner vacated the apartment through no fault of respondent.
On October 24, 2021, there was a fire at the apartment. Respondent avers that the premises were damaged and dangerous to enter. As such, he changed the locks. According to respondent, petitioner accessed the apartment when she needed to. Petitioner acknowledges in her affidavit that the October 24, 2020 fire destroyed much of the kitchen, bathroom, living room and the bedrooms. There is no dispute that the premises were uninhabitable after the fire and that the petitioner "temporarily vacated the [p]remises due to fire on October 24, 2020." There is no dispute that petitioner had a key to the apartment since January 6, 2021.
February 22, 2021 Milio affidavit at 4-7.
Sanjurjo affidavit at 3.
Amended petition at 28.
As to the argument that respondent illegally evicted petitioner when he changed the unit's locks, the court first notes that claim is not termed a cause of action in the attorney prepared amended petition. However, since the primary function of a pleading is to apprise an adverse party of the pleader's claim and to prevent surprise, ( see CPLR § 3018(b), Cole v Mandell Food Stores , 93 NY2d 34, 40 [1999], Giacobbe v 115 Mulberry, LLC , 2018 NY Slip Op. 30415[U] at 7 [Sup Ct, New York County 2018]), the court liberally construes the amended petition, giving the pleader the benefit of whatever can fairly be gathered from the pleading. ( see Hucey v Frezza , 2021 NY Slip Op 50186[U] [Civ Ct, Kings County 2021]citing Rich v Lefkovits , 56 NY2d 276, 281 [1982] ).
Id at par. 25 and wherefore clause at no. 3.
As to the merits of the claim under RPAPL § 768, this court finds no support for the proposition that not having a key to an uninhabitable apartment constitutes an unlawful eviction. § 768 is replete with references to "occupancy," and mentions disturbing an occupant's "comfort, repose, peace or quiet."
Respondent did not cause and was not responsible for petitioner's loss of occupancy and there is no "comfort, repose, peace or quiet" to be had in a burned-out apartment. It has long been the case that an unlawful eviction requires a "wrongful act by the landlord which deprives the tenant of the beneficial enjoyment or actual possession of the demised premises." ( Barash v Pennsylvania Terminal Real Estate Corp. , 26 NY2d 77, 82, 308 NYS2d 649 [1970] ; Marchese v Great Neck Terrace Associates, L.P. , 138 AD3d 698, 699, 29 NYS3d 432 [2nd Dept 2016] ). There is no allegation in any pleading that the fire was caused by the respondent's wrongful act or omission. Even if changing the locks were a wrongful act, that act did not deprive the petitioner of "beneficial enjoyment or actual possession" of the apartment; the October 24, 2020 fire did that.
Further, the court notes that by the time the amended petition was served, petitioner had, in her words, "changed the locks and got access to my apartment again." In essence, petitioner's claim that she had been unlawfully evicted because the locks were changed from October 24, 2020 through January 6, 2021 is, and was, moot. ( Berger v Prospect Park Residence, LLC , 166 AD3d 937, 938, 87 NYS3d 572 [2nd Dept, 2018] ["courts ordinarily may not consider questions that have become moot by passage of time or change in circumstances and when a determination would have no practical effect on the parties, the matter is moot and the court generally has no jurisdiction to decide the matter"] (internal citations omitted); see also, Saratoga County Chamber of Commerce, Inc. v Pataki , 100 NY2d 801, 810-811, 766 NYS2d 654 [2003] ).
February 11, Sanjurjo affidavit at 9.
The exception to the "mootness doctrine" does not apply here: "(1) a likelihood of repetition, either between the parties or among other members of the public; (2) a phenomenon typically evading review; and (3) a showing of significant or important questions not previously passed on, i.e., substantial and novel issues." ( see Coleman ex rel. Coleman v Daines , 19 NY3d 1087, 1090, 955 NYS2d 831 [2012] ). Furthermore, the original petition did not plead the unlawful eviction cause of action.
Finally, the court turns to the allegation that respondent has unlawfully evicted petitioner because he has failed to take all reasonable steps to restore her to occupancy. Petitioner cites to § 768(b) and notes the fact that respondent changed locks and petitioner was prevented from occupying the apartment in reaching this conclusion. For subdivision (b) to apply, however, the court must find that a prescribed act or omission described in subdivision (a) has occurred. ("as the result of any of the acts or omissions prescribed in paragraph (a)."). None do.
Based on the foregoing, petitioner's motion for summary judgment on her third, fourth and fifth causes of action is denied and respondent's cross-motion for summary judgment dismissing petitioner's third, fourth, and fifth causes of action is granted.
C. Relocation and Costs
The sole remaining issue, then, is relocation costs. Petitioner seeks an award for past costs and for future costs until repairs are completed pursuant to NYC Admin Code § 26-301(1)(a)(v) and § 26-305(1)or , alternatively, an order compelling respondent to pay for relocation costs directly.
Amended petition at 25.
Respondent moves to dismiss this claim under CPLR § 3211(a)(7), arguing that DHPD is the party responsible, at least at this point, for any relocation and costs but, in any case, that he already offered suitable alternate housing, which petitioner rejected. Respondent also submits that he must be allowed, at a minimum, to challenge the purported proof of expenses petitioner offers in her papers.
On a motion to dismiss pursuant to CPLR § 3211, the pleading is to be afforded a liberal construction. The court must deem the facts alleged in the complaint as true, accord the non-moving party the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory. ( Leon v Martinez , 84 NY2d 83, 87-88, 614 NYS2d 972 [1994] ). In assessing a motion under CPLR § 3211(a)(7), "the criterion is whether the proponent of the pleading has a cause of action, not whether he has stated one." ( Guggenheimer v Ginzburg, 43 NY2d 268, 275, 401 NYS2d 182 [1977] ). Thus, "a motion to dismiss made pursuant to CPLR § 3211(a)(7) will fail if, taking all facts alleged as true and according them every possible inference favorable to the plaintiff, the complaint states in some recognizable form any cause of action known to our law." ( Shaya B. Pac., LLC v Wilson, Elser, Moskowitz, Edelman & Dicker, LLP , 38 AD3d 34, 38, 827 NYS2d 231 [2nd Dept 2006] ; see Leon v Martinez , 84 NY2d at 87-88 ).
The court addresses the alternative requests in turn. In relevant part, NYC Admin Code § 26-301(1)(a)(v) states, "[t]he commissioner of housing preservation and development shall have the power and it shall be his or her duty : (a) To provide and maintain tenant relocation services (v) for tenants of any privately owned building where such tenants vacate such building during a period when any law, regulation, order or requirement pertaining to the maintenance or operation of such building or the health, safety and welfare of its occupants requires such occupants to vacate such building." This Code "empowers HPD to determine which relocation services are ‘necessary, useful or appropriate,’ and, pursuant to this authority, HPD has determined that it will provide temporary shelter for displaced tenants." [emphasis added]. ( see also , Rivera v Department of Housing Preservation and Development of the City of New York , 29 NY3d 45, 49, 52 NYS3d 270 [2017]citing § 26—301[1] ; 28 RCNY 18—01).
Under NYC Admin Code § 26-305, when DHPD provides relocation services, a private landlord must reimburse DHPD's relocation expenses, provided the building owner was responsible for the violation that caused a vacate order. ( id , 29 NY3d at 50 ). On their face, these statutes do not require that the owner-landlord of a private building provide relocation services.
A fundamental rule of statutory interpretation is that a court "should attempt to effectuate the intent of the Legislature" ( Majewski v Broadalbin—Perth Cent. School Dist., 91 NY2d 577, 583, 673 NYS2d 966 [1998] [internal quotation marks and citation omitted]). Since "the clearest indicator of legislative intent is the statutory text, the starting point in any case of interpretation must always be the language itself, giving effect to the plain meaning thereof" ( id. ). Further, "it is a well-established rule that resort must be had to the natural signification of the words employed, and if they have a definite meaning, which involves no absurdity or contradiction, there is no room for construction and courts have no right to add to or take away from that meaning" ( id. [internal quotation marks and citation omitted]). New language should not be "imported into a statute to give it a meaning not otherwise found therein" ( Matter of Chemical Specialties Mfrs. Assn. v Jorling, 85 NY2d 382, 394, 626 NYS2d 1 [1995] ).
There is no provision of statutory law that petitioner cites to which contemplates that a landlord provide relocation services or pay for relocation.
However, petitioner cites to several cases, Revilla v 620 W. 182nd Street Heights Associates, LLC , (47 Misc 3d 1211[A] [Civ Ct, New York County 2015] ), Gonzalez v Kwik Realty, LLC , (42 Misc 3d 433, [Civ Ct, New York County 2013] ), and Farber v 535 E. 86th Street Corp , (2002 NY Slip Op 50064[U] [App Term, 1st Dept 2002] ), for the proposition that this court may order the respondent-owner to provide relocation services and/or pay for same in the first instance.
Because each of these cited cases are factually and legally distinguishable from the case at bar, this court declines to follow them.
In Gonzalez v Kwik Realty, LLC , the court surmised that the broad jurisdiction granted by Civil Court Act § 110 "to establish and maintain housing standards" provides the authority for the Housing Part to award relocation expenses "under appropriate circumstances." ( 42 Misc 3d at 437 ). Among the "circumstances" present in Gonzalez , and not present here, is the fact that the vacate order was due to the building's structural insecurity and the landlord was already under a duty to correct the violations that led to the dangerous condition.
In Revilla v 620 W. 182nd Street Heights Associates , the court again cites Civil Court Act § 110(c) and to its holding two years earlier in Gonzales v Kwik Realty, LLC . Again, the facts alleged in Revilla are vastly different than those alleged or known here. There, again, it was the respondent-landlord who caused the conditions which led to the vacate order. Additionally, the petitioner in Revilla alleged he turned down relocation offered by the Department of Buildings based on respondent's representations that he could move into another apartment in the building.
Both Revilla and Gonzales rely on the Appellate Term, First Department holding in Farber v 535 E. 86th Street Corp for the proposition that relocation costs can be sought against a landlord. It must be noted, however, that the Farber decision does not analyze sections 26-301 and 26-305 of the NYC Admin Code. Furthermore, there was no vacate order issued, and the court did not ultimately hold that the respondent-landlord had to pay for relocation costs.
This court recognizes the broad jurisdiction and equitable powers encapsulated in CCA § 110 as the courts in Gonzalez and Revilla did, ( see also B.L.H. Realty Corp. v Cruz , 87 Misc 2d 258, 260, 383 NYS2d 781 [1st Dept 1975] ), and that it may employ restraining orders and injunctions in order to enforce housing standards. ( see Prometheus Realty Corp. v City of New York , 80 AD3d 206, 212, 911 NYS2d 299 [1st Dept 2010] ). Whether relocation costs are sufficiently tethered to "housing standards" is debatable.
Indeed, it does not appear that directing a landlord to provide relocation [and costs], at least where the legislature has established a mechanism for DHPD to do so, falls within the ordinary meaning of enforcement of "housing standards." ( see Prometheus Realty Corp. v City of New York , 80 AD3d 206 [discussing the concept and meaning of "housing standards"]).
This court can only conclude that the drafters of NYC Admin Code § 26-301 intended that DHPD, and not the landlord, provide relocation services when appropriate. This "duty" has been specifically reserved for DHPD. The statute goes as far as creating a "relocation advisory commission" (§ 26-303) which must meet once a month (§ 26-304). This DHPD "duty" is even enshrined in the New York City Charter. ( see § 1802). Surely, this court's judgments about relocation should not be substituted in place of a statutorily created "relocation advisory commission" comprised of persons "concerned with or engaged in the field of tenant relocation generally." (§ 26-303).
The court notes that these relevant statutes have been amended many times, with new amendments set to become effective September 14, 2021. These new amendments do not add the landlord as an entity/person responsible for relocation.
This case presents a clear example why the Housing Court should be wary of inserting itself into the relocation process and determining, for example, what constitutes suitable alternate housing. Petitioner freely admits that she was offered [by respondent] at least one alternate apartment at the same rent in the same neighborhood as the subject premises but did not accept it [for her own stated reasons]. That she might accept a similar offer now is of no import.
The system set up in the administrative code requires DHPD to act [relocate], whether a landlord was at fault or not. It requires the landlord to pay the costs of the relocation only if the landlord was at fault. Ordering respondent here to provide relocation and/or expenses would render §§ 26-301 and 26-305 meaningless.
The cases petitioner relies on do not require a different outcome. It is clear to this court that Gonzales , Revilla , and Farber , to the extent they hold that a tenant may seek relocation costs in an HP proceeding, do so on purely equitable grounds.
To the extent that the Farber appears to offer a broader basis to hold landlords responsible for relocation and costs, the facts offered in the relatively short decision implicate equity. There is no statutory analysis in the decision while, at the same time, the court recites two facts touching on equity: the tenants did not prove that vacatur was necessary for the repairs to be completed and the weight of the evidence did not show fault on the part of the landlord.
In fact, Farber does not hold that tenants may seek relocation expenses in context of a HP proceeding; it merely makes the implication. The tenants in Farber failed to establish, according to the Appellate Term, that relocation was required. Consequently, it had no reason to make a ruling compelling the landlord to provide and pay for relocation. Thus, any implication that the lower court had the power to order relocation is of limited value [as binding authority]. This court will not read into Farber more than what is there.
In Farber , it was undecided whether the respondent-landlord caused the condition that needed repair. Here, there is no allegation that respondent-landlord [through acts or omissions] caused the apartment fire.
Petitioner also points to Allen v 219 24th Street LLC in support of its position that relocation costs are available in this HP proceeding. Allen simply cites to Gonzales and Revilla and contains no further analysis of the relevant administrative code. Furthermore, the landlord in Allen "deferred maintenance at the subject premises in order to clear the subject premises to the extent that Petitioners lost their homes." ( 67 Misc 3d 1212[A] [Civ Ct, New York County 2020] ).
In fact, the "Fire Incident Report" attached to respondent's cross-motion indicates the fire originated from an "extension cord" in the apartment.
Thus, to the extent that the Farber , Gonzalez , Revilla , and Allen courts allowed tenant(s) to seek relocation costs in an HP proceeding, equity favored those outcomes where the landlord was at fault [ Gonzales , Revilla and Allen ] or might have been at fault [ Farber ]. In other words, this court might be empowered to award relocation costs under when it would be equitable to do so.
( see also Prometheus Realty Corp. , 80 AD3d at 212 [Civil Court Act 110[a] [4] authorizes the Housing Part to issue equitable relief]).
The cases petitioner relies on require landlord fault eventuating in a vacatur. The amended petition does not allege the respondent's actions or omissions caused the October 24, 2020 fire and there is no dispute it was that fire that caused the petitioner to vacate.
For these reasons, respondent's motion to dismiss the cause of action for relocation and/or costs is granted as against respondent-landlord.
ORDER TO CORRECT
a. The respondent, Carmelo Milio, shall correct the class "C" violations placed by DHPD in apartment 2-D at 758 Kelly Street, Bronx, NY 10454 on or about January 13, 2021, within 30 days of service of a copy of this Order upon respondent's counsel via regular mail with certificate of mailing and email, or be subject to civil penalties and/or contempt of court, as appropriate.
b. This court shall retain continuing jurisdiction over this matter.
CONCLUSION
Based on the foregoing, it is Ordered,
Petitioner's motion seeking dismissal of respondent's defenses and summary judgment is granted in part and denied in part. Respondent's first, second, fourth, fifth, sixth, seventh, eighth, ninth and tenth affirmative defenses are dismissed, and petitioner is granted summary judgment on her first cause of action seeking an order to correct. Petitioner's motion to dismiss the third, eleventh and twelfth affirmative defenses is denied. Petitioner's motion for summary judgment on her illegal eviction causes of action is denied. To the extent that petitioner sought summary judgment on her request to have the respondent-landlord provide relocation and/or relocation costs, that is also denied.
It is further Ordered that Respondent's cross-motion is granted in part and denied in part. Respondent's amended answer is deemed served and filed. Respondent is granted summary judgment on petitioner's illegal eviction claims. Judgment shall be entered in respondent's favor dismissing the amended petition's third, fourth and fifth causes of action. Finally, the motion to dismiss the claim for relocation and costs as against respondent is granted.
The sole remaining unaddressed issue is petitioner's cause of action seeking DHPD to provide relocation pursuant to NYC Admin Code § 26-301(1)(a)(v).
The court notes that DHPD did not respond to the motions discussed herein and did not appear at the last conference/oral argument.
DHPD is ordered to serve and file an answer by April 6, 2021. This matter is adjourned to April 12, 2021 at 2:30 PM for a virtual conference and discussion of this unresolved issue.
This constitutes the Decision and Order of the court.