Solomons v. Douglas Elliman LLC

• Decision Date: 05 April 2012
• Citation: 2012 N.Y. Slip Op. 02577,94 A.D.3d 468,941 N.Y.S.2d 595
• Parties: Paul SOLOMONS, Plaintiff–Respondent, v. DOUGLAS ELLIMAN LLC, etc., et al., Defendants,Old Brownsville Renaissance Corp., Defendant–Appellant.
• Court: New York Supreme Court — Appellate Division

2012 N.Y. Slip Op. 02577

94 A.D.3d 468

941 N.Y.S.2d 595

Paul SOLOMONS, Plaintiff–Respondent,

v.DOUGLAS ELLIMAN LLC, etc., et al., Defendants,Old Brownsville Renaissance Corp., Defendant–Appellant.

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

April 5, 2012.

Gleich, Siegel & Farkas, Great Neck (Lawrence W. Farkas of counsel), for appellant.

Giskan Solotaroff Anderson & Stewart LLP, New York (Amanda Masters of counsel), for respondent.

ANDRIAS, J.P., SAXE, ACOSTA, FREEDMAN, RICHTER, JJ.

Order, Supreme Court, New York County (Judith J. Gische, J.), entered December 13, 2010, which denied the motion by defendant Old Brownsville Renaissance Corp. (OBRC) to dismiss plaintiff's complaint as against it, unanimously affirmed, without costs.

Plaintiff, who is disabled and receives Section 8 housing assistance, alleged in the first amended complaint that OBRC and other property owners and real estate brokers violated the New York City Human Rights Law by refusing to rent apartments to him ( see Administrative Code of the City of New York § 8–107[5] ). The first amended complaint further alleged that the apartment plaintiff allegedly tried to rent from OBRC was in a building containing six or more housing units, and accordingly the exemption for buildings with five or fewer apartments did not apply ( see Administrative Code § 8–107[5][a][1],[ o ] ).

OBRC moved for dismissal on the ground that the subject building only contained four apartments. In support, OBRC submitted the affidavit of its president, Tessie Travin, and a copy of the October 1990 certificate of occupancy for the building.

However, in his opposition papers, plaintiff raised a new theory of liability—namely, that the number of units in the subject building was not dispositive because another provision of the Human Rights Law provides that it applies to “any person who has the right to sell, rent or lease or approve the sale, rental or lease” of at least one housing accommodation in New York City with six or more units (Administrative Code § 8–107[5][ o ][ii] ). Plaintiff alleged that Travin owned another apartment building in New York City with six units and a third building with twelve units. The motion court agreed with plaintiff and denied OBRC's dismissal motion on the ground that “the [number] of apartments [in the subject building] is really irrelevant” because the statute “still applies to an owner [that] has at least one housing accommodation with 6 or more units.”

OBRC contends that it was improper for plaintiff to raise a new theory of liability in his opposition papers. It also points out that plaintiff did not name Travin as a defendant in this case, that plaintiff submitted evidence in the opposition papers indicating that other corporations, instead of...