Manhattan Plaza, Inc. v. Snyder

• Decision Date: 07 November 1980
• Citation: 435 N.Y.S.2d 449,107 Misc.2d 470
• Parties: MANHATTAN PLAZA, INC., Petitioner-Landlord, v. Michelline SNYDER, Respondent-Tenant.
• Court: New York City Court

Page 449

435 N.Y.S.2d 449

107 Misc.2d 470

MANHATTAN PLAZA, INC., Petitioner-Landlord, v. Michelline SNYDER, Respondent-Tenant.

Civil Court of the City of New York, New York County,

Special Term, Part 49B.

Nov. 7, 1980.

Finkelstein, Borah, Schwartz, Altschuler & Goldstein, P. C., Brooklyn (Lawrence S. Borah, Brooklyn, of counsel), for petitioner.

Michelline Snyder, pro se.

Office of General Counsel, Dept. of Environmental Protection (Richard E. Joseph, New York City, of counsel), for N. Y. C. Department of Environmental Protection.

JAY STUART DANKBERG, Judge.

How summary should a summary proceeding be? Too summary to permit an impleader?

In this non-payment summary proceeding, respondent-tenant, acting pro se, moves by order to show cause to implead the New York City Department of Environmental Protection ("EPD"). Petitioner-landlord, by letter dated July 17, 1980, responds by stating that it "welcomes ... inspection of the apartment" by "representatives of the Environmental Protection" Department.

The EPD Office of General Counsel, served with the order to show cause, defaulted on the return date, after being contacted concerning their default, an EPD attorney appeared the next day. Although no papers were submitted either to vacate their default or oppose or consent to the application, he did orally argue that the Court had no jurisdiction to thus implead the EPD. A brief decision was then placed on the record and it was stated that a more detailed decision would be forthcoming. This is such written decision.

The Court's research into the question of impleading third parties into summary proceedings has uncovered decisions involving the New York City Department of Social Services (allowed see, e. g., Merlin Realty Corp. v. Santiago, NYLJ, October 3, 1979, p. 14, col. 1 (Civil Ct., Kings Co., Miller, J., n. o. r.) and Henry Phipps Plaza South v. Torres, NYLJ, September 26, 1974, p. 17, col. 7 (Civil Ct., NY Co., Levy, J., n. o. r.); not allowed see, e. g., Estate of Samuel Weiss v. Downing, NYLJ, February 13, 1975, p. 18, col. 7 (App.T., 2nd & 11th Jud.Dist., n. o. r.) and Allison v. Medina, NYLJ, July 11, 1974, p. 11, col. 2 (Civil Ct., NY Co., Shorter, J., n. o. r.)); the United States Veterans Administration (not allowed Marcy Realty Co. v. Glassy, 79 Misc.2d 925, 361 N.Y.S.2d 802 (Civil Ct., Bx Co., 1974, Nolan, J.)); the New York State Public Service Commission and Consolidated Edison (allowed Bryant Hoe Corp. v. Valentine, 83 Misc.2d 5, 7 (Civil Ct., Bx Co., 1975, Peck, J.)); a private insurance carrier, after a fire (allowed Welsh v. Lubin, NYLJ, March 28, 1975, p. 13, col. 8 (Civil Ct., NY Co., Milano, J., n. o. r.)); the Comptroller of the City of New York, President of the City Council and unnamed elected officials, government agencies and community groups (not allowed 233, 233 Co. v. City of New York, NYLJ, September 28, 1979, p. 5, col. 1 (App.T., 1st Jud.Dist., n. o. r.)); a Community Board established under the City Charter (allowed Housing and Development Administration v. Ruel Realty Co., NYLJ, January 31, 1979, p. 10, col. 6 (Civil Ct., NY Co., Cohen, J., n. o. r.)); and even a co-tenant of the originally named tenants (72nd Tenants Corp. v. Rosen, NYLJ, December 26, 1973, p. 16, col. 2 (Civil Ct., NY Co., Marks, J., n. o. r.)).

However, no reported case has been found involving the attempted impleader of the NYC Department of Environmental Protection. Accordingly, this is a case of apparent first impression.

BACKGROUND TO THE LITIGATION

Both residents and tourists have in recent years adopted what originally was a musician's description of New York City as "the Big Apple". Television and radio commercials inform us that there are streets and avenues in New York on which the ethnic and cultural diversity of the world appear. So, too, are there streets and avenues on which appear both the heights and depths of the economic and social life of our city, state, nation and world.

One of these streets, perhaps at the core of the Big Apple, is 42nd Street; song, motion picture and musical play have been dedicated to it. The street traverses mid-town Manhattan; as one travels from East Side to West Side, the difference in economic standards is literally astonishing. On the East, arizen from the depths of what were teeming tenements and smell-sickening As we enter the decade of the eighties, yet another effort at reforming this historical neighborhood is in full swing. In the area around Ninth and Tenth Avenues, with much fanfare and large infusions of government and private funds, the community is having a renaissance. New theaters have been erected, new restaurants opened and a large new multi-story residential building constructed. The building, known as Manhattan Plaza (petitioner herein), houses many people employed in the arts, with rents being subsidized by various programs. The petitioner, with justifiable pride, calls itself "the miracle on 42nd Street".

slaughterhouses are the world headquarters of the United Nations and the massive residential development called Tudor City. Going West, one passes the beautiful, park-like atmosphere of the Ford Foundation Building, the information centers of the Daily News Building and the New York Public Library, the modernity of the Grand Hyatt Hotel and the vastness of Grand Central Terminal and the Chrysler Building once the tallest in the world (AIA Guide to New York City, First Edition, p. 121). However, starting with what was once a potter's field, now known as Bryant Park, the tawdry, "honkey-tonk" part of New York, the Times Square area, begins. If the East Side represents the zenith of New York, Times Square, with its flotsam and jetsam prostitutes, pimps, pornographers and other purveyors of poison, represents the nadir of our society. It is an area that has resisted one clean-up after another.

However, on January 24, 1980, the "miracle" burst for the tenant in Apartment 39S (the subject of this lawsuit) a fire occurred, which severely damaged the dwelling unit. By April 25th, a check for $24,562.00 in settlement of the fire damage was received by the City of New York (as mortgagee), the Department of Housing Preservation and Development and/or the petitioner-landlord.

On or before that date, according to landlord, most (if not all) of the repairs necessary to restore the apartment to habitable condition had been completed. However, tenant contends that such is not accurate. She alleges that on April 25th there were still present air vents full of fire residue and a "musty odor" from the fire, caused by improper repairs.

After informal discussions were not successful in amicably resolving this situation, landlord started the present non-payment proceeding, seeking partial payment of April 1980 rent and complete rent from May 1 forward.

In her answer, inter alia, tenant complained of a "musty odor" throughout the apartment and of improper repair of the fire damage. In requesting a New York City Buildings Department inspection, she stated that "black greasy polyurethane combustion residue from mattress fire was not removed from walls or ceilings after fire. Walls and ceilings were merely covered over with paint causing residual odors to linger in apt making occupants sick."

A Buildings Department inspector visited on June 19, 1980, and reported that he "found smoky odor in apartment."

Thereafter, landlord agreed to do or redo some seven additional items, at least one of which it had previously repaired. However, tenant, fearful that the fire may have resulted in a condition called "outgassing", which might have toxic effects, has moved pro se for an order impleading the EPD so that EPD, the City's "clean air" experts, might be directed to do analysis within the apartment and either lay to rest tenant's fears or instruct landlord how to make the apartment once again habitable. If the EPD were to determine the condition exists and landlord then fails to make such repairs, the Court, pursuant to its powers under CCA 110(c), could compel the EPD as a party respondent to do the same and obtain a lien against any rent otherwise owed petitioner-landlord.

THIRD PARTY IMPLEADER

Before enactment of the Housing Court Act (Chapter 982, Laws of 1972 creating Section 110, Civil Court Act), the general rule has been that third party practice was held not applicable to summary proceedings. Attempted impleader was routinely rejected, with most such cases citing Edaviel Corp. v. Boykin, 205 Misc. 622, 129 N.Y.S.2d 149 (App.T., 1st Jud.Dist., 1954; see also, unreported cases cited in Rothbaum v. Ebel, 77 Misc.2d 965 at 967, 354 N.Y.S.2d 545 (Civil Ct., NY Co., 1974, Nusbaum, J.); cf., Sessa v. Blakney, 71 Misc.2d 432, 336 N.Y.S.2d 149 (City Ct., Yonkers, 1972) and Blackman v. Walker, 65 Misc.2d 138, 316 N.Y.S.2d 930 (District Ct., Nassau Co., 1st Dist., 1970)).

In Edaviel Corp., the Appellate Term held that "there is no provision in the summary statute for third-party practice." That statute was Section 1425 of the Civil Practice Act, which provided that "the court, upon rendering a final order, may determine the amount of rent due to the petitioner and give judgment for the amount found to be due."

Normally, in 1980, civil practice in summary proceedings is governed by various sections of the Civil Practice Law and Rules (CPLR), Real Property Actions and Proceedings Law (RPAPL), Civil Court Act (CCA), and Rules of the Civil Court (22 NYCRR 2900). Edaviel Corp. v. Boykin was decided before the enactment of the CPLR and RPAPL and before the creation of the Civil Court and the Housing Part thereof.

CPLR 401 provides, in pertinent part, that "after a (special) proceeding is commenced, no party shall be joined or interpleaded and no third-party practice or intervention shall be allowed, except by leave of court." This gives the Court discretionary authority to allow impleader in a summary proceeding. Incredibly, and in apparent contradiction...