Vargas v. 112 Suffolk St. Apt. Corp.
| Decision Date | 28 January 2020 |
| Docket Number | HP 1465/2019 |
| Citation | 66 Misc.3d 1214 (A),120 N.Y.S.3d 724 (Table) |
| Parties | Maria VARGAS, Petitioner, v. 112 SUFFOLK ST. APT. CORP., et al., Respondents. |
| Court | New York Civil Court |
Recitation, as required by CPLR § 2219(a), of the papers considered in the review of this motion.
Envelope and Certified Mail Documents 9, 10, 11
Upon the foregoing cited papers, the Decision and Order on this Motion are as follows:
Maria Vargas, the petitioner in this proceeding ("Petitioner"), commenced this Housing Part proceeding ("HP proceeding") against 112 Suffolk St. Apt. Corp., the respondent in this proceeding ("Respondent"), and the Department of Housing Preservation and Development of the City of New York ("HPD"), seeking an order from the Court pursuant to New York City Civil Court Act § 110 directing Respondent to correct the conditions that led to a vacate order being placed on 112 Suffolk Street, Apt. 5C, New York, New York ("the subject premises"). Respondent interposed an answer ("the Answer"). The Court calendared this matter for trial to March 4, 2020. Petitioner now moves to dismiss the defenses in the Answer and for summary judgment. Respondent cross-moves to hold Petitioner in contempt. The Court consolidates these motions for resolution herein.
The record on this motion practice shows that no party disputes that Petitioner is 75 years old; that Petitioner has resided in the subject premises since 1984; that Petitioner is protected by the Rent Stabilization Law with a two-year lease commencing June 1, 2018 with a monthly rent of $750.98; that Respondent purchased the building in which the subject premises is located ("the Building") in 1986; that the subject premises is one of fifteen apartments in the Building; that there was a fire at the subject premises on July 24, 2019; that HPD placed a partial vacate order1 dated August 20, 2019 on the subject premises ("the Vacate Order"); that the Vacate Order is specific to the subject premises; that the Vacate Order cites fire damage to the ceiling, walls, and floor of the subject premises, a lack of electricity at the subject premises, and broken windows of the subject premises; that HPD ordered Respondent to correct the conditions pursuant to N.Y.C. Admin. Code § 27-2125(a)(2) ; and that Respondent has not, as of the submission of the motion, corrected the conditions.
The First Affirmative Defense of the Answer raises a personal jurisdiction defense. The pleading consists of a bare denial of receipt of service, which is insufficient to warrant a traverse hearing under normal circumstances. Benson Park Assoc. LLC v. Herman , 93 AD3d 609 (1st Dept. 2012), Slimani v. Citibank, N.A. , 47 AD3d 489 (1st Dept. 2008), Omansky v. Gurland , 4 AD3d 104, 108 (1st Dept. 2004). Be that as it may, the record contains the envelope that Petitioner used to mail Respondent the pleadings, and the envelope, sent to Respondent by certified mail, return receipt requested, had been returned to Petitioner marked "RETURN TO SENDER / INSUFFICIENT ADDRESS / UNABLE TO FORWARD".
A tenant commencing an HP proceeding may serve the pleadings as provided in the Housing Maintenance Code ("the Code"). New York City Civil Court Act § 110(m)(1). The Code provides for service by certified mail, return receipt requested. N.Y.C. Admin. Code § 27-2115(j). MDL § 325(1) requires owners of multiple dwellings, like Respondent, to register an address with HPD. Petitioner addressed the envelope to Respondent, care of "Nancy Shuh" at 551 Pacific Street, Brooklyn, New York 11217,2 the very name and address that Respondent previously registered with HPD pursuant to MDL § 325(1). Petitioner's reliance on the address Respondent itself previously registered with HPD was reasonable and Respondent's use of that address on the prior registration estops Respondent from contesting the validity of service made on that address. Compare Toure v. Harrison , 6 AD3d 270, 271 (1st Dept. 2004).
Furthermore, the HPD records, which the Court can take judicial notice of pursuant to MDL § 328(3) and which are part of the record on this motion practice, show that Respondent has not kept its registration current. Respondent cannot fail to comply with the statutory requirement to provide a valid address for notice regarding housing standards and then benefit from that failure when, as a consequence, Respondent does not receive service of a pleading in an HP proceeding. Compare Dep't of Hous. Pres. & Dev. of City of NY v. Barrett , 20 Misc 3d 135(A)(App. Term 1st Dept. 2008), Dep't of Hous. Pres. & Dev. City of NY v. 532-536 W. 143rd St. Realty Corp. , 8 Misc 3d 136(A)(App. Term 1st Dept. 2005), Dep't of Hous. Pres. & Dev. of City of NY v. 373 8th St. Realty , 35 Misc 3d 147(A)(App. Term 2nd Dept. 2012) (). See Also Matter of Mujahid v. N.Y.C. Dep't of Hous. Pres. & Dev. , 2012 NY Slip Op. 30322(U), ¶¶ 15-16 (S. Ct. NY Co.)(an owner cannot meritoriously claim that HPD should have notified her of certain violations when she listed someone else as a managing agent). Petitioner's service of the pleadings by certified mail, return receipt requested at Respondent's most recent although outdated registered address was therefore sufficient and the Court grants Petitioner's motion to dismiss the First Affirmative Defense of the Answer.
The Second Affirmative Defense of the Answer alleges that Respondent did not receive notices of violation. This defense misapprehends the nature of a tenant-initiated HP proceeding as opposed to an HPD-initiated HP proceeding. The Code does require HPD to serve a notice of violation upon an owner, N.Y.C. Admin. Code § 27-2115(b), and a failure to do so can constitute a defense to an HPD-initiated HP proceeding. D'Agostino v. Forty-Three E. Equities Corp. , 12 Misc 3d 486, 489-90 (Civ. Ct. NY Co. 2006), aff'd on other grounds , 16 Misc 3d 59 (App. Term 1st Dept. 2007). However, a tenant "may ... apply to the [H]ousing [P]art for an order" if HPD "fail[s] to issue a notice of violation ...." N.Y.C. Admin. Code § 27-2115(h)(1).3 In a tenant-initiated HP proceeding, then, HPD's putative failure to serve a notice of violation can constitute a basis for a tenant's cause of action, not a defense to the tenant-initiated proceeding, according to which HPD is a respondent as well.
While Respondent claims in the Second Affirmative Defense that the Court lacks subject matter jurisdiction, the Housing Court in fact maintains jurisdiction in an HP proceeding over repairs necessary to have a vacate order rescinded. Rivellini v. Rolf , 43 Misc 3d 1202(A)(Civ. Ct. NY Co. 2014), Various Tenants of 515 E. 12th St. v. 515 E. 12th St., Inc. , 128 Misc 2d 235, 238 (Civ. Ct. NY Co. 1985), citing Matter of Miller v. Notre Dame Hotel , N.Y.L.J., December 17, 1980 at 11:3 (Civ. Ct. NY Co.). Accordingly, the Court grants Petitioner's motion to dismiss the Second Affirmative Defense of the Answer.
The Third, Sixth, and Seventh Affirmative Defenses of the Answer essentially blame Petitioner for causing the fire that precipitated the vacate order. The Fifth Affirmative Defense of the Answer alleges that Respondent cannot repair the subject premises because Petitioner has failed to vacate possession thereof. The Tenth Affirmative Defense of the Answer alleges that Petitioner has denied Respondent access. The few defenses to an order to correct include lack of standing or jurisdiction, completed repairs, that conditions are not code violations, that a notice of violation is facially insufficient, that the respondent is no longer the owner, and economic infeasibility. D'Agostino , supra , 12 Misc 3d at 489-90, Castillo v. Banner Grp. LLC , 63 Misc 3d 1235(A)(Civ. Ct. NY Co. 2019). While the Court may consider Petitioner's role in the fire, an allegation of denial of access, and/or an allegation of a failure to cooperate with correction of conditions upon a potential motion for contempt or civil penalties, Respondent does not state a defense to an order to correct as a matter of law. Accordingly, the Court grants Petitioner's motion to dismiss the Third, Fifth, Sixth, Seventh, and Tenth Affirmative Defenses of the Answer, without prejudice to any defenses Respondent may have to any future motion for civil penalties and/or contempt, without prejudice to any cause of action or motion Respondent may seek to bring against Petitioner on those grounds, and without prejudice to any defense and/or opposition Petitioner may have to such a defense or cause of action.
The Fourth and Ninth Affirmative Defenses of the Answer allege that Petitioner lacks standing. Ordinarily, a lawful occupant of a premises has standing to commence an HP proceeding. N.Y.C. Admin. Code § 27-2115(h)(1). Respondent does not dispute that Petitioner is a rent-stabilized tenant of the subject premises with a lease in effect as of this writing, a status moreover entitling her to lease renewals. N.Y.C. Admin. Code § 26-511(c)(4), 9 N.Y.C.R.R. § 2523.5(a). As a matter of law, the Vacate Order, in and of itself, did not terminate Petitioner's tenancy. Eyedent v. Vickers Management , 150 AD2d 202, 204 (1st Dept. 1989), citing Matter of Department of Bldgs. (Philco Realty Corp.) , 14 NY2d 291, 302 n.2 (1964), Garber v. Egger , 132 N.Y.S.2d 371 (App. Term 1st Dept. 1954).
Respondent argues that the fire destroyed the subject premises such that there is no longer any subject premises for Petitioner to be a tenant of, thus effectively terminating Petitioner's tenancy. Respondent's CEO and the president of a contractor that Respondent...
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