Burden as trustee of Burden Irr[ev]ocable Trust v. Glenridge Mews Condo

Decision Date23 May 2022
Docket NumberIndex No. L & T 302717/22
Citation75 Misc.3d 1026,172 N.Y.S.3d 818
Parties Crystal BURDEN AS TRUSTEE OF BURDEN IRR[EV]OCABLE TRUST, Petitioner, v. GLENRIDGE MEWS CONDO, Delkap Management, Respondents, New York City Department of Housing Preservation and Development (HPD), Respondent.
CourtNew York Civil Court

75 Misc.3d 1026
172 N.Y.S.3d 818

Crystal BURDEN AS TRUSTEE OF BURDEN IRR[EV]OCABLE TRUST, Petitioner,
v.
GLENRIDGE MEWS CONDO, Delkap Management, Respondents,

New York City Department of Housing Preservation and Development (HPD), Respondent.

Index No. L & T 302717/22

Civil Court, City of New York, Queens County.

Decided on May 23, 2022


172 N.Y.S.3d 819

Crystal Burden, Esq., Petitioner, pro se

Mark Axinn, Esq., Jeremy Bachrach Siegfried, Esq., Phillips Nizer LLP, 485 Lexington Avenue, 14th Floor, New York, NY 10017, Attorneys for Respondent Glenridge Mews Condominium

Department of Housing Preservation and Development, Housing Litigation Bureau, 100 Gold Street, New York, NY 10038, Respondent

Clinton J. Guthrie, J.

172 N.Y.S.3d 820

Review of respondent Glenridge Mews Condominium's motion to dismiss pursuant to CPLR §§ 3211(a)(2), (3), and (7) and petitioner's cross-motion pursuant to CPLR § 3025 to amend the petition.

The decision and order on respondent's motion and petitioner's cross-motion (consolidated for determination herein) is as follows.

PROCEDURAL HISTORY

This HP action for an order to correct and other relief was commenced by order to show cause in March 2022. Following an initial adjournment, respondent Glenridge Mews Condominium (hereinafter "Glenridge Mews"), through counsel, made a motion to dismiss and petitioner (appearing pro se) made a cross-motion to amend the petition to add a petitioner, Elizabeth Burden, and to "include pertinent section of the applicable laws of the city and state of New York." After the motions were briefed, the court heard argument on them on April 13, 2022. Upon the conclusion of the argument, the court reserved decision.

RESPONDENT'S MOTION

Respondent Glenridge Mews seeks dismissal pursuant to multiple subsections of CPLR § 3211(a). Glenridge Mews first argues that the court lacks subject matter jurisdiction ( CPLR § 3211(a)(2) ) because there is no "landlord-tenant relationship" between the parties. Glenridge Mews annexes the deed for the subject condominium unit (showing Crystal Burden as Trustee of the Burden Irrevocable Trust as owner) and the by-laws in support. Petitioner does not specifically address this basis for dismissal but asserts in her affirmation in support of her cross-motion and in opposition to respondent's motion that Glenridge Mews is an "owner" as defined by the Housing Maintenance Code and that it can be compelled to repair common area conditions.

It is well established that this court is "vested with subject matter jurisdiction over housing matters by statute ( NY City Civ. Ct. Act § 110 )." 170 West 85th Street Tenants Ass'n v. Cruz , 173 A.D.2d 338, 339, 569 N.Y.S.2d 705 [1st Dept. 1991] ; see also 433 West Assocs. v. Murdock , 276 A.D.2d 360, 360-361, 715 N.Y.S.2d 6 [1st Dept. 2000] ; 716 Realty, LLC v. Zadik , 38 Misc. 3d 139[A], 2013 N.Y. Slip Op. 50194[U], 2013 WL 530380 [App. Term, 2d Dept., 2d, 11th & 13th Jud. Dists. 2013]. Moreover, while Glenridge Mews is correct that the relevant appellate caselaw has foreclosed statutory warranty of habitability claims between condominium owners and associations (see Frisch v. Bellmarc Mgt., Inc. , 190 A.D.2d 383, 597 N.Y.S.2d 962 [1st Dept. 1993] ), the Appellate Division, Second Department has recognized that condominiums are not exempted from "the generally beneficial requirements of Article 27 of the [N.Y.C.] Administrative Code." Board of Managers v. Lamontanero , 206 A.D.2d 340, 341, 616 N.Y.S.2d 744 [2d Dept. 1994]. Nonetheless, NYC Admin. Code § 27-2115(n), which became effective on February 5, 2018, specifically provides that the harassment provisions of the Housing Maintenance Code "shall not apply where the owner of record of a dwelling unit owned as a condominium, or those lawfully entitled to reside with such record owner, resides in such condominium unit[.]" See Kossoff v. 910 Fifth Ave. Corp. , 2021 N.Y. Slip Op. 32737[U], *3, 2021 WL 6051421 [Sup. Ct., N.Y. County 2021]. As the deed annexed by Glenridge Mews establishes that petitioner is the record owner of the subject condominium unit and the petition pleads that petitioner is the "residential" tenant/shareholder (¶ 7), the court

172 N.Y.S.3d 821

lacks subject jurisdiction of over the harassment claims (under the Housing Maintenance Code) raised in the petition.1 Accordingly, the prong of Glenridge Mews’ motion made pursuant to CPLR § 3211(a)(2) is granted to the extent that petitioner's harassment claims made pursuant to NYC Admin. Code § 27-2005(d) are dismissed.

Glenridge Mews next moves to dismiss pursuant to CPLR § 3211(a)(3), upon the assertion that petitioner lacks standing and/or capacity to proceed herein. In the Second Department, "lack of standing" has been interpreted as being within the ambit of CPLR § 3211(a)(3). See Wilmington Sav. Fund Socy., FSB v. Matamoro , 200 A.D.3d 79, 89, 156 N.Y.S.3d 323 [2d Dept. 2021]. Nonetheless, it is the movant's burden "to establish, prima facie, the [petitioner's] lack of standing as a matter of law." Id. at 90, 156 N.Y.S.3d 323. Glenridge Mews’ main argument under CPLR § 3211(a)(3) is that since petitioner does not reside in the subject condominium unit, she does not have standing to proceed herein. Under the Housing Maintenance Code, a "lawful occupant or group of lawful occupants" may apply to this court for an order to correct violations. See NYC Admin. Code § 27-2115(h)(1). The Code does not require a person to be in actual physical possession to seek an order to correct. See e.g. Parker v. 92-98 Morningside Av LLC , 2003 NY Misc LEXIS 2066 [Civ Ct, NY County, Sept. 10, 2003, Index No. 000181/2003].

Glenridge Mews also argues that petitioner is the "owner" of the subject unit and that it (Glenridge Mews) is a "non-owner." While this is technically correct, various courts have held that the Housing Maintenance Code can nonetheless be enforced against condominium associations for common-area conditions. See e.g. Pershad v. Parkchester South Condo. , 174 Misc. 2d 92, 95, 662 N.Y.S.2d 993 [Civ...

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