In the Matter of Leonardo Enriquez, Respondent,v.Department of Housing Preservation and Development of the City of New York, Appellant.

Brief

N.Y.February 9, 2017

Reproduced on Recycled Paper APL-2016-00042 To be argued by: JEREMY W. SHWEDER 30 minutes requested Court of Appeals State of New York In the Matter of the Application of LEONARDO ENRIQUEZ, For an Order Summarily Vacating and Discharging of Record Alleged Notice of Lien, Dated 11/18/11 filed by the Division of Enforcement of the Department of Housing Preservation and Development of the City of New York, Against Moneys Alleged for the Amount Unpaid to the Lienor for the Expenses Incurred for the Relocation Costs Allegedly Incurred 6/24/10-6/23/11 for Premises 2341 Waterbury Avenue, Bronx, New York, Petitioner-Respondent, against DEPARTMENT OF HOUSING PRESERVATION AND DEVELOPMENT OF THE CITY OF NEW YORK, Respondent-Appellant. REPLY BRIEF RICHARD DEARING DEVIN SLACK JEREMY W. SHWEDER of Counsel August 22, 2016 ZACHARY W. CARTER Corporation Counsel of the City of New York Attorney for Appellant 100 Church Street New York, New York 10007 Tel: 212-356-2611 or -2501 Fax: 212-356-2509 jshweder@law.nyc.gov TABLE OF CONTENTS Page i TABLE OF AUTHORITIES ........................................................ ii PRELIMINARY STATEMENT ................................................... 1 ARGUMENT ............................................................................... 4 ENRIQUEZ FAILS TO DEMONSTRATE HOW HPD’S LIEN WAS FACIALLY INVALID AND SUBJECT TO SUMMARY DISCHARGE UNDER THE LIEN LAW ...... 4 A. HPD’s Relocation Costs Are Lienable Expenses. ......... 4 B. Nothing in the Relevant Rules and Regulations Limits HPD to Recouping Less than a Year’s Worth of Relocation Expenses. .............................................. 11 C. Whether the Displaced Tenant Received Notice of the Vacate Order Has No Relevance in a Summary Discharge Proceeding. ................................................ 19 CONCLUSION .......................................................................... 26 TABLE OF AUTHORITIES Page(s) ii Cases Aaron v. Great Bay Contracting, Inc., 290 A.D.2d 326 (1st Dep’t 2002) ............................................ 8, 10 Bralus Corp. v. Berger, 307 N.Y. 626 (1954) ............................................................... 9, 24 Matter of Bridge View Tower, LLC v. Roco G.C. Corp., 69 A.D.3d 711 (2d Dep’t 2010) ..................................................... 8 Bryan’s Quality Plus, LLC v. Dorime, 80 A.D.3d 639 (2d Dep’t 2011) ..................................................... 8 Fyfe v. Sound Dev. Co., 235 N.Y. 266 (1923) ................................................................... 21 Gaines v. New York State Div. of Hous. & Cmty. Renewal, 90 N.Y.2d 545 (1997) ................................................................. 18 Matter of Retek v. City of New York, 14 A.D.3d 708 (2d Dep’t 2005) ..................................................... 6 Robert Plan Corp. v. Greiner-Maltz Co., 229 A.D.2d 122 (2d Dep’t), lv. denied, 90 N.Y.2d 808 (1997) ............................................................................................ 7 Roberts v. Tishman Speyer Props., L.P., 13 N.Y.3d 270 (2009) ................................................................. 16 Matter of Toolsee v. Department of Housing Preservation and Development of the City of New York, 299 A.D.2d 209 (1st Dep’t 2002), lv. denied, 100 N.Y.2d 502 (2003) .......................................................... 22, 23, 24 TABLE OF AUTHORITIES (cont’d) Page(s) iii Westage Towers Assocs. v. ABM Air Conditioning & Refrigeration, Inc., 187 A.D.2d 600 (2d Dep’t 1992) ................................................... 8 Statutes and Regulations 28 RCNY § 18-01 (2015) ................................................................. 14 28 RCNY § 18-01(b)(3) (1991) ........................................................ 11 28 RCNY § 18-01(o)(2) (1991) .................................................. 17, 18 N.Y. Aband. Prop. Law § 214 ......................................................... 14 N.Y. Lien Law § 9 ......................................................................... 5, 8 N.Y. Lien Law § 19(6) ............................................................ passim N.Y. Lien Law § 23 ......................................................................... 21 N.Y.C. Admin. Code § 26-301(1) .................................................... 18 N.Y.C. Admin. Code § 26-301(1)(a)(v) .................................. 5, 20, 21 N.Y.C. Admin. Code § 26-305 ................................................. passim N.Y.C. Charter § 1802(2)................................................................ 18 N.Y. C.P.L.R. 6401(c) ..................................................................... 14 Other Authorities Local Law No. 65, Report of the Infrastructure Division (May 12, 1997), reprinted in New York Legislative Services’ New York City Legislative History, 1997 Local Law #65 ............................................................................ 15 PRELIMINARY STATEMENT Petitioner Leonardo Enriquez and respondent Department of Housing Preservation and Development of the City of New York (HPD) appear to agree on three basic propositions regarding HPD’s relocation liens: first, there is a difference between the proof required at (a) a proceeding to summarily discharge a notice of lien, which typically involves only a review of a lien’s facial sufficiency, and (b) a foreclosure trial, where HPD must prove the lien’s underlying validity; second, courts may summarily discharge a lien only for the reasons specified in Lien Law § 19(6); and third, HPD in general has the right to file a lien to recoup relocation expenses, including shelter expenses. Once these three propositions are established, the disagreements that remain about the length of the relocation expenses listed in HPD’s notice of lien are irrelevant at the summary discharge stage, which is where this case lies. Whether, as the Appellate Division found, the notice of lien that HPD filed was “not reasonable” because it sought payments for a year’s worth of shelter expenses is an issue reserved for a foreclosure 2 trial. It is not an issue to be decided at the summary discharge stage, before the parties have had an opportunity to present evidence on the reasonableness of the relocation expenses sought. At this early stage, the relevant questions under the Lien Law are simply whether the notice (a) seeks payments for expenses that are of a character generally lienable under the law, (b) lists the basic information required by the Lien Law, and (c) was properly filed. This review typically involves looking only at the face of the notice of lien itself, and nothing else. Understanding this state of the law, Enriquez contends that HPD’s expenses are not of a lienable character, because HPD sought payments for shelter expenses lasting a year, and a year of shelter should not be considered “temporary” under HPD’s rules. This argument fails on Enriquez’s own admissions. He and the Appellate Division both acknowledge that HPD is permitted by law to file a lien for some amount of relocation costs, including shelter expenses. Because HPD is permitted to file such a lien, the expenses it seeks here-mostly for shelter payments-are of a 3 lienable character, and not subject to summary discharge on that ground. Enriquez’s other argument, that HPD’s payment of shelter expenses for a year, or more, is contrary to the meaning of “temporary shelter” within its own rules, is not based on law or fact. HPD’s shelter payments last only until a displaced tenant finds suitable permanent housing, which could include a return to the property if the at-fault landlord remedies the conditions that caused displacement. This period is limited and defined, even if, due to the difficulties of obtaining affordable housing in New York City, it can take a year, or longer. Enriquez does not contend that the meaning of the word “temporary,” on its own and no matter what the circumstances, is tied to a specific amount of days, weeks, or months. The Appellate Division’s new rule that “temporary” cannot mean a year is simply arbitrary and created out of thin air. There is no basis to conclude, as a matter of law, that “temporary” within HPD’s rules must mean less than a year in all cases. The Appellate Division’s decision should be reversed. 4 ARGUMENT ENRIQUEZ FAILS TO DEMONSTRATE HOW HPD’S LIEN WAS FACIALLY INVALID AND SUBJECT TO SUMMARY DISCHARGE UNDER THE LIEN LAW Enriquez bases his argument on two fundamental fallacies. He contends that summary dismissal, based only on the lien’s facial sufficiency, was appropriate because payments for relocation expenses that last for a year or more are not among the “character” of lienable expenses that the law permits. He further contends that HPD’s relocation services cannot be “temporary” if they last for a year or longer, because, according to him, “temporary” can only mean something shorter than a year. HPD addresses these arguments in turn, demonstrating that both are entirely wrong and contrary to legal authority. A. HPD’s Relocation Costs Are Lienable Expenses. As described in HPD’s opening brief, when the City Council established the relocation lien as a means for HPD to recover relocation expenses in 1968, lawmakers elected to borrow the well- established principles enshrined in New York’s Lien Law (HPD 5 Br. 9-10). Under the provision of the Lien Law relevant here, Lien Law § 19(6), a property owner may only summarily discharge a lien where, (a) the face of the notice of lien demonstrates that the claimant has no valid lien because of the “character of the labor or materials furnished”; (b) the notice of lien fails to include the information listed in Lien Law § 9; or (c) the notice of lien was improperly filed. N.Y. Lien Law § 19(6). Courts may not summarily discharge a notice of lien under § 19(6) for any reason other than those three (see HPD Br. 11-12).1 Enriquez does not disagree. Although the Appellate Division determined that HPD’s notice of lien here was “facially invalid” and subject to summary discharge (R153), it never explained which of the three categories of invalidity under Lien Law § 19(6) applied. Enriquez now contends that HPD’s notice of lien was invalid because it was for “items which are not lienable” (Enriquez Br. 22). In other words, 1 For relocation liens, the Administrative Code further provides that the notice must state that the expenses were incurred for relocation services provided pursuant to Administrative Code § 26-301(1)(a)(v). See N.Y.C. Admin. Code § 26-305(4)(a). 6 Enriquez argues that because “charges for an entire year may not be the subject of a lien” (id. at 24), HPD’s notice of lien was facially invalid under the part of § 19(6) authorizing dismissal where the lienor’s notice is invalid “by reason of the character of the labor or materials furnished.” N.Y. Lien Law § 19(6). But Enriquez’s understanding of the Lien Law is incorrect. Putting aside the question of whether temporary shelter lasting for a year or longer is among the “reasonable allowances” that the City Council authorized HPD to pay, and recoup, under Administrative Code § 26-305 (this is addressed in the next section), there is no question that HPD’s relocation costs in general are expenses that are of a lienable “character.” The Appellate Division itself recognized this in the decision challenged on appeal, stating that “[h]otel expenses[2] are recoverable pursuant to Administrative Code § 26-305” (R152, citing Matter of Retek v. City of New York, 14 A.D.3d 708, 709 (2d Dep’t 2005)). 2 As explained in HPD’s opening brief, while the agency colloquially refers to some temporary shelter facilities as “hotels,” these are single-room-occupancy apartments, and not “hotels” as that word is commonly used (HPD Br. 7). 7 Enriquez’s attempt to categorize relocation liens that cover expenses lasting for a year or more as somehow of a different “character” from liens covering expenses over a shorter period is unmoored from the law and common sense. Whether HPD’s notice of lien describes relocation costs incurred for a day, a week, a month, or a year, the nature-or “character”-of the expenses sought are the same. All are within the category of lienable expenses, subject to a finding of underlying reasonableness at a foreclosure trial. This Court need not look beyond the cases that Enriquez cites on pages 22 and 23 of his brief. Those cases, non-binding to begin with, actually illustrate why § 19(6)’s “character of the labor or materials furnished” clause does not support summary dismissal here. For instance, in Robert Plan Corp. v. Greiner- Maltz Co., 229 A.D.2d 122 (2d Dep’t), lv. denied, 90 N.Y.2d 808 (1997), the Appellate Division found summary dismissal appropriate under § 19(6) when the lienor filed a mechanics’ lien based on the lessee’s failure to pay brokerage fees, because brokerage services provided to a lessee are never lienable. Id. at 8 123-25. The Appellate Division came to similar conclusions about how to apply § 19(6)’s “character” clause in Bryan’s Quality Plus, LLC v. Dorime, 80 A.D.3d 639, 640 (2d Dep’t 2011) (summary dismissal under § 19(6) improper because charges for “standby time” may be the subject of a lien), and in Aaron v. Great Bay Contracting, Inc., 290 A.D.2d 326, 326 (1st Dep’t 2002) (question about whether a final payment was due not a reason to dismiss under § 19(6)’s “character” clause).3 In these cases, the Appellate Division implicitly concluded that when determining whether to summarily dismiss a notice of lien under § 19(6)’s “character” clause, the proper analysis involves examining the type of expenses or services that are the basis of the lien, not the length or amount of the services provided. Yet Enriquez suggests the opposite: that because HPD’s lien was 3 Enriquez cites several cases where courts dismissed a notice of lien for failure to contain the elements required by Lien Law § 9. See Matter of Bridge View Tower, LLC v. Roco G.C. Corp., 69 A.D.3d 711, 712 (2d Dep’t 2010); Westage Towers Assocs. v. ABM Air Conditioning & Refrigeration, Inc., 187 A.D.2d 600, 600 (2d Dep’t 1992). Those cases have no bearing here because Enriquez does not contend that HPD’s notice of lien failed to contain the elements required by Lien Law § 9 and Administrative Code § 26-305(4)(a) (see Enriquez Br. 22-24). And as explained in HPD’s opening brief (HPD Br. 28-29), HPD’s notice of lien complied with both provisions. 9 for relocation expenses lasting for a year, the expenses could not be subject to a lien, even though he acknowledges that HPD could legally file a lien for expenses for the exact same services provided on a shorter basis. Neither the Lien Law nor the cases interpreting § 19(6) support Enriquez’s reading. Meanwhile, Enriquez does not address this Court’s decision in Bralus Corp. v. Berger, 307 N.Y. 626 (1954). There, this Court rejected summary discharge of a lien covering work preparing preliminary architects’ plans. Id. at 627-28. Although the Court did not directly reference the “character” clause of § 19(6), it declined to dismiss the notice of lien outright, finding that whether the drawings at issue were sufficiently formal to constitute “preliminary plans,” and thus to be lienable, was a factual matter for a foreclosure trial. Id. In other words, this Court was concerned only with whether the plans fit into the type of services that were legally subject to a lien; the overall amount of the lien or length of the services provided was irrelevant at the summary discharge stage. 10 Enriquez attempts to align the Appellate Division’s decision here with the law, but this is like forcing the proverbial square peg into a round hole. None of the authorized reasons for summary discharge under § 19(6) apply. As both the Appellate Division and Enriquez agree, HPD is permitted to file a notice of lien for relocation expenses, in general. Thus, the notice of lien here was not facially invalid “by reason of the character of the labor or materials furnished.” N.Y. Lien Law § 19(6). Nor does Enriquez contend that HPD’s lien was subject to dismissal for any other reason provided by § 19(6). Finally, although Enriquez agrees that HPD is permitted to seek a lien on some portion of its relocation expenses, he never attempts to explain why it was proper for the Appellate Division to summarily dismiss the entirety of HPD’s lien. This is another example of the faulty reasoning that improperly led to summary discharge of HPD’s lien, and why issues involving the proper amount of a lien are meant to be addressed after the presentation of evidence at a foreclosure trial. See Aaron, 290 A.D.2d at 326 (declining to reduce the amount listed on a notice of lien in a 11 summary discharge proceeding). Because Enriquez cannot demonstrate that HPD’s lien is subject to summary discharge for any reason permitted by the Lien Law, the Appellate Division’s decision should be reversed. B. Nothing in the Relevant Rules and Regulations Limits HPD to Recouping Less than a Year’s Worth of Relocation Expenses. Because even the Appellate Division recognized that HPD was permitted to file a notice of lien to recoup some portion of its temporary shelter expenses, the court should not have dismissed the lien in a summary discharge proceeding. Nor was the Appellate Division’s rationale for dismissing the lien persuasive on its own terms. The court reasoned that “HPD’s financing of the tenant’s residence in a hotel for an entire year was not reasonable” under Administrative Code § 26-305(2), and that the agency’s “payment of a year’s worth of hotel charges” could not qualify as the payment of “temporary shelter benefits” under the former 28 RCNY § 18-01(b)(3) (R152-53). But questions about the “reasonableness” of HPD’s lien and whether the agency’s listed shelter payments qualify as “temporary” must be assessed on the 12 totality of the circumstances, after the presentation of evidence in a foreclosure trial. Nothing in the Administrative Code or HPD’s rules support the Appellate Division’s conversion of those fact- intensive questions into arbitrarily rigid and across-the-board limitations, suitable for resolution in a summary discharge proceeding. Enriquez attempts to prop up the Appellate Division’s decision, arguing that the word “temporary” in HPD’s rules can only mean less than a year. Notably, Enriquez does not actually contend that any authority directly supports a definition of “temporary” as meaning less than a year. Rather, he sets up a straw man, contending that while temporary means “limited,” HPD has wrongly interpreted the word to mean “indefinite” or “unlimited” (see Enriquez Br. 10-12). He then concludes that because the definition that he (falsely) attributes to HPD is incorrect, the Appellate Division’s new categorical rule that “temporary” cannot mean a year or more must be correct. Enriquez’s error starts with his first premise. HPD does not contend that temporary means indefinite, or that it can seek to 13 recoup shelter costs covering an unlimited period of time. To the contrary, the period for which HPD can seek to recoup its shelter expenses is definite and limited: it involves only the period of time between when a tenant is displaced by a vacate order and either (a) HPD or the displaced tenant locates alternate permanent housing; or (b) the landlord remedies whatever violations led to the vacate order and the displaced tenant is able to return.4 As explained in its opening brief, HPD faces profound challenges in finding suitable permanent housing for tenants displaced from their homes due to the fault of the landlord (HPD Br. 13-18). Because of the uniquely constricted nature of New York City’s housing market, particularly for affordable and subsidized housing, displaced tenants currently remain in HPD’s temporary shelter for an average of more than 500 days. But the fact that displaced tenants may remain in temporary shelter for a year, or longer, does not make HPD’s shelter services something 4 Enriquez contends that in its opening brief, HPD “omitted” the possibility that a displaced tenant could find his or her own alternate permanent housing (Enriquez Br. 12 n.7). But the cited portion of HPD’s opening brief contemplates this possibility (see HPD Br. 35). 14 other than “temporary.” This is especially true as landlords themselves have the power to cut off the need for services by remedying the conditions that caused displacement so tenants can return home. As HPD described in its earlier brief, lawmakers are explicit when they intend to cabin the meaning of “temporary” to a specific time period (see examples listed at HPD Br. 32 n.8). Enriquez has no response to this, other than to acknowledge that the relevant laws and regulations here contain no such rigid time limitation (Enriquez Br. 13), and instead specify how shelter services will terminate upon the occurrence of defined events. See, generally, 28 RCNY § 18-01 (2015). It is not unusual for a law or regulation, like those at issue here, to provide for temporary or limited actions that expire upon the occurrence of future events, without a date certain for those future events. See, e.g., N.Y. C.P.L.R. 6401(c) (providing for the appointment of a temporary receiver and specifying that it shall terminate “after final judgment unless otherwise directed by the court”); N.Y. Aband. Prop. Law § 214 (authorizing courts to appoint a receiver to conserve abandoned 15 property “during the pendency” of an action to recover such property). The legislative history of the 1997 amendment to Administrative Code § 26-305 is perhaps the best evidence demonstrating that the word “temporary” in HPD’s rules does not limit the agency to recouping only relocation expenses provided for less than a year. The 1997 amendment strengthened HPD’s ability to recoup its relocation expenses from at-fault landlords by permitting the agency to place a lien while relocation services were ongoing, rather than only after all relocation services had been finalized. See Local Law No. 65, Report of the Infrastructure Division at 4 (May 12, 1997), reprinted in New York Legislative Services’ New York City Legislative History, 1997 Local Law #65. The City Council, in describing why lawmakers should pass the amendment-landlords were gaming the system by transferring title to their properties before HPD could legally file a lien-explained that the average stay in HPD’s shelter program for displaced single adults was one year, which created the delay during which some landlords were transferring title. Id. The City 16 Council thus passed the amendment with the full knowledge that HPD already paid for and sought recoupment of temporary shelter expenses lasting at least a year-the exact amount of time that Enriquez now claims cannot possibly have been intended by the law. Indeed, the entire point of the 1997 amendment was to make it easier for HPD to recoup its relocation expenses, which regularly lasted for at least a year, on average. Enriquez has little to say about this legislative history, other than to argue that the City Council was never directly asked to state whether it approved of HPD recouping relocation expenses of a year or more (Enriquez Br. 19-20). Enriquez also suggests that there is some relevance to the fact that the City Council did not amend § 26-305 “to include a statute explicitly allowing [ ] HPD to place a lien for one year’s worth of expenses” (id. at 20). But as Enriquez himself points out, courts may not draw such affirmative inferences merely from legislative inactivity (id., quoting Roberts v. Tishman Speyer Props., L.P., 13 N.Y.3d 270, 287 (2009)). And further, there is good reason that the City Council would not specify rigid time limitations on HPD’s shelter expenses, as the 17 provision of such services in a city like New York is not suited to categorical constraints. None of Enriquez’s arguments undercuts the fact that the City Council has long known of HPD’s practice of recouping a year, or more, of relocation expenses through the filing of liens, and that the City Council has taken steps to make it easier for HPD to do so. This legislative history strongly supports a conclusion that HPD’s relocation liens are not limited to shelter expenses covering less than a year. Finally, Enriquez does not argue merely that temporary shelter expenses cannot include a full year of expenses. He goes much further, proposing that the law allows HPD to recover from at-fault landlords only 45 days of its temporary shelter expenses (Enriquez Br. 15-16). To support this argument, Enriquez relies on a provision of HPD’s former rules-not the Administrative Code-that permitted the agency to provide a “relocation incentive payment” to displaced tenants who quickly left HPD’s temporary shelter by finding permanent shelter on their own. That provision, former 28 RCNY § 18-01(o)(2) (1991), does not exist in HPD’s 18 current rules, which were revised in 2015. Enriquez contends that because the incentive payment allowed under former § 18-01(o)(2) took into account the “projected cost of temporary housing for the relocatee for a period of [45] days,” then it is “evident” that 45 days was the intended “target period” that should be used to understand the meaning of “temporary shelter” (Enriquez Br. 16).5 It is certainly unusual for Enriquez to argue that HPD, which contends that its rules do not provide a strict numerical limitation on the meaning of “temporary shelter,” misunderstands the regulations it promulgated. See Gaines v. New York State Div. of Hous. & Cmty. Renewal, 90 N.Y.2d 545, 548-49 (1997) (explaining deference due to agency’s interpretation of its own rules). It would be even stranger if HPD intended to set for itself a maximum recoupment amount of only 45 days of shelter expenses, yet decided to specify its intent in only the most oblique and 5 Enriquez refers to HPD’s rules as “indicative” of the intent of “lawmakers” (Enriquez Br. 15). But HPD’s rules are not laws-they are agency rules, drafted by HPD under the authority granted by the New York City Charter and the City Council. See N.Y.C. Charter § 1802(2); N.Y.C. Admin. Code § 26- 301(1). 19 hidden fashion, within a provision of its former rules governing relocation incentive payments. Further, that HPD specified a rigid numerical time period in one context-computing the relocation incentive payment-but declined to do so in another-the allowable length of temporary shelter benefits-undermines, rather than supports, Enriquez’s argument. Enriquez’s attempt to drastically limit the period for which HPD can recoup its relocation expenses has no basis in HPD’s rules, no support in the Administrative Code, and is inconsistent with the legislative history of § 26-305, as discussed above. C. Whether the Displaced Tenant Received Notice of the Vacate Order Has No Relevance in a Summary Discharge Proceeding. As a last-gasp measure, Enriquez raises an issue unaddressed by the First Department and wholly unrelated to the issues on appeal (Enriquez Br. 24-25). He contends that at the summary discharge stage (which is meant to involve only a review of the face of the notice of lien or documents proving improper filing), HPD failed to provide extrinsic evidence that the vacate order was served on the displaced tenant, or that the tenant was 20 notified of the vacate order. He thus concludes that the notice of lien was facially invalid because HPD did not establish that the displaced tenant “vacated the premises in response to [the] vacate order,” and not for some other reason (id. at 25). Enriquez’s argument fails in several ways. First, Enriquez’s argument conflicts with the provisions of Lien Law § 19(6). He essentially contends that HPD failed to prove that its expenses were lienable at all because the agency did not establish that its claimed costs were incurred on behalf of someone who had been displaced for reasons specified in Administrative Code § 26-301(1)(a)(v), the provision allowing HPD to provide tenant relocation services.6 This is another way of saying that summary discharge was appropriate under the “character” clause of Lien Law § 19(6) because the lien was for costs that do not relate to a lienable expense. 6 Administrative Code § 26-301(1)(a)(v) mandates that HPD provide relocation services to tenants of private buildings who have been displaced due to the enforcement of any law, order, or regulation “pertaining to the maintenance or operation of such building or the health, safety and welfare of its occupants.” 21 The fundamental error in Enriquez’s argument is that Lien Law § 19(6) limits summary discharge under the “character” clause to instances where “it appears from the face of the notice of lien” that the lien is invalid. N.Y. Lien Law § 19(6) (emphasis added). Thus, Enriquez is incorrect that HPD was required by the Lien Law to provide extrinsic evidence in the record that the displaced tenant had been served with the vacate order or otherwise knew of it. The face of the notice of lien is all that matters. Second, and related to the first point, the face of HPD’s notice of lien indicates that the liened expenses were incurred precisely for relocation expenses provided pursuant to § 26- 301(1)(a)(v) (see R46 ¶ 3). The Administrative Code specifically requires HPD to state in the notice of lien that its liened expenses were incurred subject to that provision. See N.Y.C. Admin. Code § 26-305(4)(a). HPD did so here, as it does in all of its notices of lien. This statement on the face of the lien is more than sufficient, at the summary discharge stage, to establish that the liened expenses are of the proper “character” under the Lien Law. See 22 Fyfe v. Sound Dev. Co., 235 N.Y. 266, 270 (1923) (notices of lien must be construed liberally under Lien Law § 23). No further evidence or statement is required, at this stage, to establish that the tenant receiving the relocation services vacated his premises in response to a lawful vacate order. Third, Enriquez’s entire argument is not premised on any legal reasoning, but is instead drawn solely from the holding in a single non-binding decision that was likely improperly decided, addressed a different procedural posture from that in this case, and is irrelevant to the issues in this appeal. In the case he relies on, Matter of Toolsee v. Department of Housing Preservation and Development of the City of New York, 299 A.D.2d 209 (1st Dep’t 2002), lv. denied, 100 N.Y.2d 502 (2003), petitioner sought summary discharge of a relocation lien on the ground that the displaced tenants receiving relocation services had actually vacated the apartment because of eviction proceedings, and not due to any vacate order. Id. at 210. Without citing the Lien Law or acknowledging the distinction between a summary discharge proceeding and a foreclosure trial, the court 23 concluded that HPD had “failed to establish that the tenants in question vacated the apartment as a result of petitioner’s failure to maintain the premises as required by law and in response to HPD’s vacate order,” and it vacated the notice of lien. Id. at 211- 12. The court went on to note that it specifically declined to reach any questions regarding the “reasonableness” of HPD’s claimed expenses, including whether HPD was permitted by law to recover temporary shelter expenses at all. Id. at 212. As an initial matter, Toolsee is irrelevant here, because the court did not reach the question of whether, or to what extent, HPD could recoup temporary shelter expenses. That is the only issue on appeal in this matter. Toolsee also is irrelevant because it reached the Appellate Division on a different procedural posture than this case. There, HPD submitted a verified answer to the petition, and the agency did not raise the jurisdictional issue-the distinction between a summary discharge proceeding and a foreclosure trial-that has been the focus of this case from the beginning (R81-90; R107-128). HPD did not answer the petition in this case (R23-24), and it has always contended that the 24 underlying validity of the lien is a question reserved for a foreclosure trial (R26 ¶ 6). Further, Toolsee appears to have been wrongly decided. As described above, at the summary discharge stage, the court should not have required HPD to provide any evidence beyond the notice of lien that its expenses were actually lienable. See N.Y. Lien Law § 19(6). The Toolsee court did not cite the Lien Law, and apparently did not understand the limited reasons authorized under § 19(6) to summarily discharge a notice of lien (perhaps because the parties failed to fully explain the law). The court’s extended discussion of the evidence in the record and the proof that HPD was required to submit would have been proper in a foreclosure trial, where HPD had the burden to prove the underlying validity of the lien and the amount sought, but it was inappropriate for a summary discharge proceeding. Bralus Corp., 307 N.Y. at 627-28. For these reasons, Toolsee is both incorrect on the law and irrelevant and inapplicable to the issues on appeal. Because HPD’s notice of lien complied with the requirements of the Lien Law and sought recoupment for expenses of a 25 character that are lienable, the Appellate Division erred in dismissing the lien in a summary discharge proceeding. This Court should reverse. 26 CONCLUSION The order of the Appellate Division should be reversed, and the petition should be dismissed. Dated: New York, NY August 22, 2016 RICHARD DEARING DEVIN SLACK JEREMY W. SHWEDER of Counsel Respectfully submitted, ZACHARY W. CARTER Corporation Counsel of the City of New York Attorney for Appellant By: __________________________ JEREMY W. SHWEDER Assistant Corporation Counsel 100 Church Street New York, NY 10007 212-356-2611 jshweder@law.nyc.gov