In re Brown

• Citation: 43 N.Y.S.3d 701,54 Misc.3d 515,2016 N.Y. Slip Op. 26361
• Parties: In the Matter of the Application of Reena BROWN, Judith Garcia, Deciree Otero and Andres Serrano, Petitioners-tenants, For Judgment Pursuant to Article 7a of the Real Property Actions and Proceedings Law, appointing a court designated administrator for the premises known as 314 MacDougal Street, Brooklyn, N.Y. 11223 Block 1535. Lot 10.
• Decision Date: 04 November 2016
• Court: New York Civil Court

54 Misc.3d 515
43 N.Y.S.3d 701
2016 N.Y. Slip Op. 26361

In the Matter of the Application of Reena BROWN, Judith Garcia, Deciree Otero and Andres Serrano, Petitioners-tenants,

For Judgment Pursuant to Article 7a of the Real Property Actions and Proceedings Law, appointing a court designated administrator for the premises known as 314 MacDougal Street, Brooklyn, N.Y. 11223 Block 1535. Lot 10.

Civil Court, City of New York, Kings County.

Nov. 4, 2016.

43 N.Y.S.3d 703

Brooklyn Legal Services Corp. A, by Gregory E. Louis, Esq., Rachel Nager, Esq., Brooklyn.

DHPD—Housing Litigation Division by Will Muniz, Esq., New York.

Becker & Pollakoff, LLP by Glen Spiegal, Esq., New York.

SUSAN F. AVERY, J.

54 Misc.3d 516

Petitioners commenced this proceeding by filing an order to show cause, notice of petition and petition seeking the appointment of a Real Property Actions and Procedure Law ("RPAPL") Article 7A administrator¹ for the premises known as 314 MacDougal Street, Brooklyn, N.Y. 11223. The proceeding was unable to be resolved, and the matter proceeded to trial.

Upon the commencement of the trial, the court took judicial notice of the violations of record placed at the subject property by the Department of Housing Preservation and Development ("DHPD") (which was admitted into evidence as petitioner's exhibit 1), the Department of

43 N.Y.S.3d 704

Buildings ("DOB") and complaints filed with the Environmental Control Board ("ECB") (petitioner's exhibits 2–A through L).

THE APPLICATIONS CURRENTLY BEFORE THE COURT

Respondent's Application

At the close of the petitioners' case in chief, counsel for the respondent orally moved for dismissal of the proceeding, upon the contention that the petitioners failed meet their prima facie burden. The court denied the oral application without prejudice to commencing the application in writing, and the proceeding was adjourned for the court to hear oral argument on the written application.

However, rather than submitting a written motion seeking a directed verdict, counsel for the respondent submitted a memoranda of law, in support of the argument that the proceeding should be dismissed, based upon the contention that the petitioners failed to meet their prima facie burden.

54 Misc.3d 517

Respondent contends that the proceeding must be dismissed, because following the submission of petitioners "case in chief" in which the petitioners called only one (1) witness and submitted numerous documents into evidence, the petitioners failed to meet their prima facie burden to support that a RPAPL 7A Administrator should be appointed. Therefore, respondent contends that CPLR § 4401 and RPAPL § 776² require dismissal of the instant proceeding.

Petitioners' Application

In opposition, petitioners contend that the documents contained within the court file, including the certified documents of DHPD and the DOB, as well as court documents including affidavits, coupled with Ms. Garcia's unrebutted testimony, are sufficient for this court to appoint an administrator and to defeat the respondent's application for a directed verdict.³ Petitioners also request that the matter proceed to trial on the respondent's defenses. The court notes that the petitioners' initial moving papers seek judgment as a matter of law pursuant to CPLR § 409 and RPAPL Article 7A.⁴ As a result, this court will address both contentions.

Additionally, petitioners assertion that the respondent's application for a directed verdict is not properly before the court and is without merit. Following the respondent's oral application for a directed verdict, the court requested that the respondent "make the application in writing" and the proceeding was adjourned, on the record for that purpose. Contrary to the petitioners' assertion, the respondent was not required to submit a formal motion on notice.

PETITIONERS' WITNESS

At trial, the petitioners called Ms. Judith Garcia as a witness. Ms. Garcia stated that she has lived in apartment 2R at 314 MacDougal Street, for fourteen (14) years. She stated that she brought this action because she is afraid for the health and safety of herself and her family at the premises. She stated that construction

43 N.Y.S.3d 705

work is being done in the apartments located on the floor above where her apartment is located. She said as a

54 Misc.3d 518

result of the construction, she felt that her safety was jeopardized because there was constant banging, free falling plaster, noise, pipes shaking and that the ceiling "caved in."

A document was marked for identification as petitioners' exhibit 3. Ms. Garcia testified that she recognized the document marked for identification as petitioners' exhibit 3 as a photograph she took with her phone, which depicts the ceiling in her child's room, showing there is a hole in the ceiling. Ms. Garcia stated that the photograph depicts a true and accurate representation of the condition of the ceiling in the room. The document was admitted into evidence.

Admitted into evidence as petitioners' exhibit 4 was a photograph which Ms Garcia stated that she took on May 10, 2016 and it accurately depicts the condition of the bed in her child's room, full of debris, following the collapse of the ceiling.

Ms. Garcia testified that the building she lives in contains six (6) units and that the two (2) units located on the third floor, are vacant. She then named the co-petitioners as occupants of the other apartments in the building which is the subject of this action.

At the request of the petitioners' counsel, judicial notice was taken of the contents of the entire court file, with a special emphasis on the respondent's affidavit in support of its order to show cause.⁵

Following Ms. Garcia's testimony, counsel for the petitioners sought to have additional documents admitted into evidence, which over counsel for the respondent's objection, were admitted into evidence by the court. The petitioners then rested.

RESPONDENT'S ARGUMENTS IN SUPPORT OF DISMISSAL OF THIS ACTION

It is respondent's contention that in support of their case, petitioners failed to submit "credible evidence" and submitted "only suspect testimony" and certified documents which fail to demonstrate by "a preponderance of the evidence" that conditions exist which are "dangerous" to health and safety. Additionally, respondent argues that not every violation placed is dangerous to health and safety. Additionally, respondent asserts, there was not even "a scintilla of evidence" to support the petitioner's harassment claims.

54 Misc.3d 519

ARTICLE 7A OF THE REAL PROPERTY ACTIONS AND PROCEEDINGS LAW

Article 7A of the RPAPL authorizes the commencement of a "special proceeding by tenants of a dwelling in the city of New York ... for a judgment directing the deposit of rents into court and their use for the purpose of remedying conditions dangerous to life, health or safety ... in the civil court of the city of New York ..."⁶

RPAPL § 770(1) details the grounds upon which an article 7A proceeding may be maintained. The statute provides that:

"One-third or more of the tenants occupying a dwelling located in the city of New York.... may maintain a special proceeding ... upon the ground that there exists in such dwellings or in any part thereof a lack of heat or of running water or of light or of electricity or of adequate sewage disposal facilities, or

43 N.Y.S.3d 706

any other condition dangerous to life, health or safety, which has existed for five days, or an infestation by rodents, or any combination of such conditions; or course of conduct by the owner or the owner's agents of harassment, illegal eviction, continued deprivation of services or other acts dangerous to life, health or safety....." RPAPL § 770(1).

Once one third or more of the tenants/petitioners demonstrate the existence of "a lack of heat or of running water or of light or of electricity or of adequate sewage disposal facilities, or any other condition dangerous to life, health or safety, which has existed for five days, or an infestation by rodents, or any combination of such conditions; or course of conduct by the owner or the owner's agents of harassment, illegal eviction, continued deprivation of services or other acts dangerous to life, health or safety....." as required by RPAPL § 770(1), the burden shifts to the owner⁷ to demonstrate the existence of one (1) or more of the three (3) defenses specifically authorized by statute.

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