Reid v. 590 Maple Ventures LLC

• Decision Date: 03 November 2021
• Docket Number: Index 300288/2021
• Citation: Reid v. 590 Maple Ventures LLC, 2021 NY Slip Op 32255(U), Index 300288/2021 (N.Y. Civ. Ct. Nov 03, 2021)
• Parties: TRACEY REID, Petitioner, v. 590 MAPLE VENTURES LLC, Respondent.
• Court: New York Civil Court

2021 NY Slip Op 32255(U)

TRACEY REID, Petitioner, v. 590 MAPLE VENTURES LLC, Respondent.

Index No. 300288/2021

Civil Court of the City of New York, Kings County

November 3, 2021

Unpublished Opinion

Present: Hon. Jack Stoller Judge, Housing Court.

DECISION/ORDER

JACK STOLLER JUDGE.

Recitation as required by CPLR §2219(a), of the papers considered in the review of this motion:

Pages

Numbered

Notice Of Motion and Supplemental Affidavit and Affirmation

1, 2, 3

Affirmation and Affidavit In Opposition

4, 5

Order To Show Cause and Supplemental Affirmation and Affidavit

6, 7, 8

Affirmation In Opposition

9

Upon the foregoing papers, the Decision and Order on this motion are as follows:

Tracey Reid, the petitioner in this proceeding ("Petitioner"), commenced this proceeding against 590 Maple Ventures LLC and Pierre Hurley("Respondents"), and the Department of Housing Preservation and Development of the City of New York("HPD"), seeking an order to correct violations in 590 Maple Street, Apartment 1, Brooklyn, New York ("the subject premises").After trial, the Court entered into an order dated August 6, 2021("the Order") directing Respondents to correct violations in the subject premises to effectuate the lifting of a vacate order on or before October 5, 2021.Respondents now move for an order extending the time by which they can correct the violations.Petitioner moves for contempt and civil penalties.

The Court resolves both of these motions by this order.

The Order found that a fire struck the subject premises in October of 2020 and that HPD placed a vacate order^[1] on the subject premises on November 10 2020 that prohibited anyone from occupying the subject premises due to fire damage, a lack of electricity, a lack of gas service, and broken windows and plywood.HPD also placed "C" violations for fire damage on October 23, 2020.No party disputes that Respondents have not obeyed the Order nor that the violations and the vacate order remain uncorrected as of this writing.

Respondents' motion for an extension

Respondents assert that they cannot afford to correct violations because their tenants other than Petitioner have not paid their rent.Even though Respondents do not claim that Petitioner had not paid her rent, they argue that their lack of financial resources releases them from an obligation to correct violations on a theory of defenses to performance of a contract.However, Respondents' duty to repair is not contractual but statutory, MDL §78(1), to advance a policy of promoting health and safety.N.Y.C. Admin. Code§27-2005.

Even if Respondents' financial situation does not relieve them of their obligation to repair the subject premises, Respondents argue that widespread nonpayment of rent in their building occasioned by the COVID-19 pandemic warrants an extension of their time to repair.Respondents' documentation of this factual assertion suffers from several shortcomings, however.To start with, most of the factual detail supporting Respondents' position comes from Respondents' counsel's affirmation, which has no probative value.Thelen LLP v. Omni Contr. Co Inc., 79 A.D.3d 605, 606(1st Dept.2010), leave to appeal denied, 17 N.Y.3d 718(2011).Respondents also supply an affidavit of a managing agent ("the Managing Agent"), but his allegations of nonpayment of rent are bare and conclusory, bereft of any detail about how many apartments are in the building in which the subject premises is located ("the Building"), what the rental amounts are, and what the arrears are.Underscoring the unreliability of the managing agent's affidavit is his averment that Respondents have not collected "any" rent, which is inconsistent with Respondent's counsel's affirmation in reply that Petitioner was one of the only tenants who paid her rent prior to the fire in October of 2020.

In their reply submission, Respondents purport to submit rent breakdowns for other tenants in the Building.The function of reply papers is to address arguments made in opposition to the position taken by a movant, not to permit the movant to introduce new arguments in support of, or new grounds for the motion.Stang LLC v. Hudson Square Hotel, LLC, 158 A.D.3d 446, 447(1st Dept.2018), All State Flooring Distribs., L.P. v. MD Floors, LLC, 131 A.D.3d 834, 836(1st Dept.2015).But even assuming arguendo that the Court were to consider the rent breakdowns supplied on reply, the rent breakdowns are not in admissible form, insofar as no affiant with personal knowledge of Respondents' business establishes a foundation for them.But even assuming arguendo that the Court would consider the content of the rent breakdowns, the records are not reliable.The rent breakdowns contain no running balances or apartment numbers and some of them do not even contain last names of the tenants.One tenant is only identified as "Andre."One tenant is only identified as "Chuckie," which seems to be duplicative of another rent breakdown with identical amounts for a tenant named "Charles Grant."

Assuming arguendo that the breakdowns for "Chuckie" and "Charles Grant" are for the same apartment, Respondents supply rent breakdowns for four apartments, without providing information about how many apartments are in the Building.^[2]

The Managing Agent avers that the onset of the COVID-19 pandemic has not only prevented landlords from evicting tenants, but also from "seeking rent …."The Managing Agent's statement is incorrect as a matter of law.In response to the COVID-19 pandemic, the Legislature has enacted the COVID-19 Emergency Rental Assistance Program, according to which landlords as well as tenants can apply for a grant covering rent arrears.L. 2021, c. 56, part BB, § 6(3), L. 2021, c. 56, part BB, § 6(5).If the Managing Agent is referring to restrictions on evictions, those apply only to those tenants who interpose a document called a "hardship declaration," L. 2021, c. 417, Part C, Subpart A, §4, the validity of which landlords may challenge.L. 2021, c. 417, Part C, Subpart A, §10.And no provision of law prevents a landlord from pursuing a plenary judgment against a tenant for nonpayment of rent during the pandemic.To the extent that collection of a money judgment presents challenges, such challenges adhere to judgments obtained in summary proceedings as well.

All of the above problems with Respondents' arguments, of course, assume arguendo that a rent roll constitutes the universe of resources available to a landlord to discharge its statutory duty to maintain real property.It does not.Significantly, Respondents say nothing about the availability of insurance, a conspicuous omission that causes the Court draws an adverse inference that Respondents lack adequate, if any, insurance.^[3]Respondents' argument, if it prevailed, would perversely reward owners who irresponsibly neglect to adequately insure their properties, with all sorts of undesirable policy consequences to follow.CompareBing Chung Chan v. 60 Eldridge Corp., 129 Misc.2d 787, 791(Civ. Ct. N.Y. Co.1985)(declining to consider the availability of insurance in a determination of an economic infeasibility defense in an HP proceeding on the ground that doing so would encourage underinsurance).

Respondents also omit any reference to any ability to finance the cost of repairs.One of the exhibits indicates that the cost of restoring the subject premises to habitability is approximately $21, 000.Assuming arguendo that the subject premises has six units, ^[4]Respondents' failure to explain why an owner of a six-unit building in New York City is unable to finance $21, 000, whether by a secured loan or a line of credit or some other mechanism renders wholly unsatisfactory Respondents' profferred rationale for failing to obey the Order.

Finally, Respondents' counsel's statement that Petitioner does not have the standing to pursue this case is untimely and incorrect as a matter of fact and law.The Court has already made a finding after a full trial that Petitioner is a tenant of record of the subject premises, which is law of the case.Be that as it may, Respondents themselves annex to their motion a lease showing that Petitioner is a rent-stabilized tenant of the subject premises.Assuming arguendo the truth of Respondents' allegation that Petitioner has improperly failed to execute a lease renewal, then Respondents have a remedy, 9 N.Y.C.R.R. §2524.3(f), but in the interim a rent- stabilized tenant maintains her status as such a tenant even upon the expiration of the lease.NYSANDY12 CBP7 LLC v. Negron, 64 Misc.3d 1238(A)(Civ. Ct. BronxCo. 2019), citing9 N.Y.C.R.R. §2523.5(d), FAV 45 LLC v. McBain, 42 Misc.3d 1231(A)(Civ. Ct. N.Y. Co.2014).Furthermore, an occupant need not be a tenant in order to maintain an HP proceeding, only be a "lawful occupant."N.Y.C. Admin. Code§27-2115(h)(1).Thus, even assuming arguendo that Petitioner failed to renew her lease, rendering her a tenant at will or a tenant at sufferance, that would have no effect on her standing to bring this proceeding.Dep't of Hous. Pres. & Dev. v. Vabre, 2021 N.Y. Slip Op. 32021(U)(Civ. Ct. Kings Co.).

Accordingly, the Court denies Respondents' motion to extend the time to comply with the Order.Respondents therefore remain out of compliance with the Court's order and the Court considers Petitioner's motion for contempt and civil penalties.

Petitioner's motion for contempt

Civil contempt requires a determination that a lawful order of the court, clearly expressing an unequivocal mandate, was in effect; that the contemnor disobeyed that order; that the contemnor knew of the Court's order, El-Dehdan v El-Dehdan, 26 N.Y.3d 19, 29(2015), Matter of First Am. Title Ins. Co. v. Cohen, 163 A.D.3d 814, 816(2nd Dept....