Aguaiza v. Vantage Properties, LLC

• Decision Date: 07 January 2010
• Docket Number: 105197/08,1527.
• Citation: 893 N.Y.S.2d 19,69 A.D.3d 422,2010 NY Slip Op 62
• Parties: JOSE RICARDO AGUAIZA et al., Respondents-Appellants, v. VANTAGE PROPERTIES, LLC, et al., Appellants-Respondents, et al., Defendants.
• Court: New York Supreme Court — Appellate Division

69 A.D.3d 422

893 N.Y.S.2d 19

2010 NY Slip Op 62

JOSE RICARDO AGUAIZA et al., Respondents-Appellants, v. VANTAGE PROPERTIES, LLC, et al., Appellants-Respondents, et al., Defendants.

1527.

105197/08

Appellate Division of the Supreme Court of New York, First Department.

Decided January 7, 2010.

Order, Supreme Court, New York County (Martin Shulman, J.), entered on May 26, 2009, granting defendants' motion to dismiss the amended complaint to the extent of dismissing the first cause of action against all defendants and the second cause of action only with respect to the individual defendants, unanimously modified, on the law, the local statute governing the second cause of action held to have only prospective application, the matter remanded for reconsideration as to which

claims, if any, fall within the effective date of that statute with respect to the corporate defendants, and otherwise affirmed, without costs.

[Prior Case History: 2009 NY Slip Op 31144(U).]

Plaintiffs' allegations of unlawfully deceptive acts and practices under General Business Law § 349 presented only private disputes between landlords and tenants, and not consumer-oriented conduct aimed at the public at large, as required by the statute (see City of New York v Smokes-Spirits.Com, Inc., 12 NY3d 616, 621 [2009]). Accordingly, this claim was properly dismissed and it is unnecessary to address the parties' other contentions with respect thereto.

The second cause of action alleged violation of Local Law No. 7 (2008) of City of New York, which protects residential tenants from harassment by building owners (Administrative Code of City of NY § 27-2005 [d]). This enactment created a new cause of action (see Administrative Code § 27-2115 [h]) to address a perceived effort by landlords to empty rent-regulated apartments by harassing tenants into giving up their occupancy rights, using such tactics as "commencing repeated baseless or frivolous court proceedings" against those tenants (Administrative Code § 27-2004 [a] [48] [d]). Although the statute is remedial in nature, it specifically provides that its terms are to take effect "immediately" (i.e., March 13, 2008, the date of its enactment) (Local Law No. 7 [2008] of City of NY § 7). No provision was made in the statute for retroactive application of its terms.

The motion court improperly applied the provisions of Local Law 7 retroactively with respect to the corporate defendants. As a matter of statutory interpretation, "[w]here a statute by its terms directs that it is to take effect immediately, it does not have any retroactive operation or effect" (McKinney's Cons Laws of NY, Book 1, Statutes § 51 [b], Comment, at 92; State of New York v Daicel Chem. Indus., Ltd., 42 AD3d 301, 302 [2007]; Morales v Gross, 230 AD2d 7, 10 [1997]; Majewski v Broadalbin-Perth Cent. School Dist., 91 NY2d 577 [1998]). Indeed, it has long been a primary rule of statutory construction that a new statute is to be applied prospectively, and will not be given retroactive construction unless an intention to make it so can be deduced from its wording. As Judge Cardozo put it, "It takes a clear expression of the legislative purpose to justify a retroactive application" (Jacobus v Colgate, 217 NY 235, 240 [1916]).

Although remedial statutes such as Local Law 7 generally constitute an exception to the general rule that statutes are not to be given retroactive construction, this exception is limited to the extent that any retroactive application must not impair vested rights (Statutes § 54 [a]; Dorfman v Leidner, 150 AD2d 935, 936 [1989], affd 76 NY2d 956 [1990]). Stated differently, "Every statute pertaining to a remedy is retroactive in that it operates upon all pending actions unless they are expressly excepted, but this does not apply to a statute whereby a new right is established even though it be remedial" (Statutes § 54 [a], Comment, at...